Yamiangu v Mobil Oil New Guinea Ltd [2005] PGDC 2; DC104 (18 April 2005)

DC104

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 155 OF 2002

BETWEEN

CASPAR YAMIANGU

Complainant

AND

MOBIL OIL NEW GUINEA LIMITED
Defendant

5, 18 April 2005

REASON FOR DECISION

Complainant appears in person.
No appearance by or on behalf of defendant.

KORONAI, PM: This is an action by the Complainant against the Defendant for alleged wrongful or unlawful termination of his contract of service or employment with the defendant, in which he is seeking the following relief:-

Kina Toea

1. One days wages (17/11/00) 18.96

2. Recreation Leave (not taken) 597.24

3. Payment in lieu of notice 199.08

4. 50% hardship allowance 407.64

5. Airfares 2,321.00

6. SUB TOTAL 3,543.92

7. Less 2% tax 24.45

8. GRAND TOTAL 3,519.47

9. Reinstatement

The Complainant comes from Wusipi Settlement in Vanimo and was formally employed as a Driver/Storeman in the Logistics Department of the Defendant, a fuel Company, at its depot in Vanimo. He was employed from 1st October, 1996 until he was terminated by the Defendant’s Human Resource Manager’s letter of 17th November, 2000, which was served on him on the same date by the Defendant’s Vanimo Depot Manager, over his alleged failure to fulfil his duties due to alcohol intoxication.

After receiving this letter terminating his contract of service with the Defendant, he made a written appeal against it, on the 24th of November, 2002, through the Defendant’s Depot Manager in Vanimo and copies of it were sent to the Defendant’s Field Operations and Human Resource Managers. There were no responses to his letter of appeal and to various correspondences written by the Provincial Labour Officer seeking his reinstatement to his former job with the Defendant, so the Provincial Labour Officer calculated his final entitlements, which he used as basis for his claim against the Defendant. He filed his claim on the 11th day of September, 2002 and on the 20th of March, 2003; he obtained an ex parte order, against the defendant in the sum of K3, 519.47 toea, together with a sum of K100.00, being general costs to cover incidentals, totalling K3, 619.47 toea. This ex parte order was successfully set aside on application by the defendant on the 10th of June 2003, and it paid in the sum of K3,519.47 toea as security deposit, ordered by the Court on 20th March, 2003.

Mr. August, then the presiding Magistrate disqualified himself from further dealing with this matter and adjourned it generally for hearing before another magistrate. It has now come before me for hearing after all their evidences, in forms of affidavits and submissions were filed. The Complainant appeared but there was no appearance for the Defendant on 5th April, 2005, the date set for hearing of this matter. The Court proceeded in the absence of the Defendant and Complainant advised that he had nothing further to add to what he had filed earlier and relied on them so I adjourned the matter to today for a decision.

ISSUE

Whether the Defendant’s act of termination of complainant’s oral contract of service with it, was wrong and therefore unlawful.

THE LAW

Provisions of Employment Act Chapter 373, Laws of Contract and Common Law as adopted apply in respect of this issue.

TERMINATION

Evidence by the parties in form of affidavits filed herein show that the Complainant agreed to provide his services in consideration for the defendant paying him on a fortnightly, i.e.; two weekly basis and that it was an oral contract of service as provided for under Section 16 of the Employment Act (the Act). This agreement will automatically be renewed on the same terms and period under Section 17 of the Act until determined by either of them under Section 17 (a) or (b), 33 (2) or 35 of the Act. It is a master or employer and servant or employee relationship and the master or employer has an unfettered right to hire and fire at will, without giving reasons for doing so and all he’s required by law under Section 34 of the Act was to give the required notice or make payment in lieu thereof. This principle of law was stated in a leading English case of RIDGE v BALDWIN [1963] UKHL 2; [1964] AC 40 and which has been adopted as part of our underlying or common law.

The decision in the above case was followed in IAMBAKEY OKUK AND STATE v GERALD FALLSCHEER [1980] PNGLR 274 and later in JIMMY MALAI v PNG TEACHERS ASSOCIATION [1992] PNGLR 569, where at page 571, the Supreme Court comprising of Justices Woods, Hinchliff and Konilio said:

"Thus, once it is realized that this was a simple employer-employee relationship with no statutory or contractual right, the common law principle of the right to hire and fire applies and the terms and conditions of employment were no better nor more favourable than those set out in the Employment Act Ch. 373".

Further, in an unreported National Court Judgement in PADDY FAGON v NEGISO DISTRIBUTORS LTD N1900, Justice Kirriwom, at page 3 said:

"In a master and servant relationship, the master has the right to hire and fire his servants... under common law a master does not have to give reasons for his decision to remove a servant and to replace one with another. That is his unfettered discretion and the common law respects".

The defendant submitted that the common law disallows a master from giving notice or payment in lieu thereof, where the employee is summarily dismissed, citing as authority for this proportion, an English case of CALLO v BROUNCKER [1831] 4 CEP 518. I think that the decision in the above case would only apply if the defendant, being the employer has complied with the requirements of Section 15 (i) of the Act, by reducing to writing, a record of the terms and conditions of the complainant’s oral contract of service, by including in it, its policy of termination without notice after the complainant has been forewarned of his performance related problems and does not improve on these problems. I think this should also include grounds for summary dismissals under Section 36 of the Act and no record of this has been shown or provided to this Court, I accept the complainant’s version of the terms as provided for under Section 34 and 36 of this Act and that appropriate notice should’ve been given or payment made in lieu thereof is available as damages to the complaint.

REINSTATEMENT

The complainant may also be claiming the relief of reinstatement as is obvious from the various correspondences on his behalf, by the Provincial Labour Officer. I do not think that he would succeed for I do not consider that Courts should compel either a master or a servant or an employer or an employee, as in this case, into continuing a personal relationship that has become noxious to either one of them. This view is supported by the case of CHRISTOPHER APPA v PETER WAMA, SECRETARY, DEPARTMENT OF WESTERN HIGHLANDS AND STATE [1992] PNGLR 395. This case involves a review by the National Court of a decision by the first respondent, a departmental head, in dismissing the applicant from the Public Service. The applicant also applied for reinstatement to the Public Service and damages for wrongful dismissal. Here the applicant was originally charged in relation to the standard of performance of his work as the officer in charge of the Pathology Section but when he was terminated it was made by reference to some criminal conviction. His honour Mr. Justice Woods, at page 397 said:

"Having found that the procedure to terminate was irregular and, therefore wrongful, what is the role of this Court? It is quite clear on the established principles of judicial review as set out by Kapi DCJ in KEKEDO v BURNS PHILP [1988-89] PNGLR 122 that the decision making authority here, namely, the departmental head, has committed an error of law in the manner in which he terminated the applicant and has committed a breach of natural justice. However, what relief can I give? The applicant is seeking reinstatement. However, the law is quite clear that the Court will not compel either a master or a servant to continue a personal relationship which has become noxious to either one of them, and the remedy for an employee who has been wrongful terminated is damages for wrongful dismissal". And which is payment in lieu of notice under Section 34 of the Act.

REFUND OF SECURITY DEPOSIT

The defendant has an application on foot, seeking the reimbursement of K3, 519.47 toea, being security deposit, it paid into Court, on 20th March, 2003. Based on the above reasoning I think that its application should be granted.

CONCLUSION

It follows from the above reasoning that the termination of the complainant’s oral contract of service was not wrongful or unlawful and that he could not be reinstated to his former job with the defendant. The only remedy available to him is damages in the sum equivalent to payment in lieu of notice which was assessed at K199.08 toea by the Provincial Labour Officer. Security deposit of K3, 519.47 toea should be repaid to the defendant and in the circumstances I think parties should bear their own costs associated with the hearings of this case to today.

Before making formal orders I wish to advise Labour Officers that in future they should follow the law, as decided by the Courts, in respect of these type of claims so that they do not mislead those seeking their help into expecting huge payouts and avoid unnecessary litigations, such as in this case.

FORMAL ORDERS

So the Formal Orders of this Court are:-

1. Complaint No. DC: 155 of 2002 is dismissed; and

2. Defendant shall pay to the Complainant a sum of K199.08 toea, being payment in lieu of notice; and
   
3. Security deposit of K3, 519.47 toea shall, forthwith, be repaid to the Defendant; and
   

4. Parties are to bear their own costs; and

5. Parties have 30 days from 19/04/05, in which to appeal against this decision to the National Court of Justice, if they’re aggrieved by it.
   

Complainant: In Person
Defendant: Blake Dawson Waldron