Sapu v Bartels [2008] PGDC 89; DC819 (21 March 2008)

DC 819

PAPUA NEW GUINEA
[IN THE FAMILY COURT OF JUSTICE]

DCCi 205 and 206 of 2007

BETWEEN

KEITH SAPU And TOPSON TOPE
Complaints

AND

KEVIN BARTELS
Defendant

Lae: E. MOSOKE

2008: 21 March

Claim for damages and loss of wages. Employment Law-Contract of Employment – No written contract in place to bind parties Power to terminate – common law power to terminate at will whether rules of natural justice applicable on termination.

PNG Cases Cited

PNG Teachers Association –v- The State – Applied
[Unreported NC decision os 13/87]

Malai –v- PNG Teachers Association PNGLR [1991] 116.

Steamships Trading Co. Ltd –v- Joel Others and Amalgamated General Workers Union and Ramon PNGLR [1991] 133.

References

List Legislation in Alphabetical Order

Counsel

For The First Complainant
For The Respondents

01 April 2007

JUDGMENT

Facts:

The complainants Keith Sapu and Topson Tope were employed by the second defendant as guards at Lae for an unspecified period until their termination. There was no written contract of employment for both men. Both guards were terminated simultaneously by the first defendant on the 04 October 2006. Upon termination Kevin Bartels gave no reason for the termination. However he simply said that their services were no longer required.

In the absence of a written contract of employment between the parties, the first defendant satisfied himself that the service of Keith Sapu and Topson Tope were no longer required by the company and terminated them forthwith.

There are no reasons given for their termination. However, one of the reasons could be one of trust and loyalty. If the company continues to employ the pair, should it trust them?

This follows that on the 02 of February 2006, Topson Tope was not at work. But Keith Sapu who came on duty deliberately clocked in the former at 0631 hours and clocked him out at 1800 hours, knowing very well that Topson Tope did not come to work. Then on the 03 of February 2006, Keith Sapu did not come to work but Topson Tope who came on duty gave Keith Sapu a return favour in a similar manner clocking him in and clocking him out even though the latter did not attend work.

This irregularity was eventually brought to the notice of the company management who called in Police for investigation. The complainants say they were cleared of any wrong doing but the defendants think otherwise.

Undoubtedly in the minds of the defendants the clock-in – clock-out incident will not easily be disregarded. The relationship between employer-employee has been strained. The personal integrity and honesty of both men have been put at stake. Their employer cannot trust them anymore and the situation becomes intolerable. What is left is for defendants to give marching orders for their employees to leave.

Both Keith Sapu and Topson Tope relied on their affidavits in support of claims against the defendants. Their main argument is that there was no valid reason given for their termination and such action was deemed unlawful under the circumstances.

The Law

It is necessary to look at the Employment Act to resolve some of the issues arising out of this dispute.

Employment Act s33

Under the Act the law provides for two types of employment contracts:-

1. Under s33 (1) a contract of service is for a specified period or for a specified work shall terminate when the period of time for which the contract was made expires or the work specified in the contract is completed.
   
2. Under s33 (2) – A contract of service is for an unspecified period of time shall be deemed to continue until terminated by either party.
   

For Keith Sapu and Topson Tope, their case falls under the second category of a contract of Service.
The Complainants appealed against their termination to the first defendant but he stood firm on his decision that their termination will stand.

In the circumstances of this case, having particular regard to the nature of employment for Keith Sapu and Topson Tope, their continuity in their job was at the control and direction of their employer and its management.

This follows that in the absence of any statutory or contractual right or condition of employment no breach of contract was involved. The first defendant refused to give reasons for their termination and the pair was not afforded an opportunity to be heard on the decision to terminate their services.

The first defendant sees there is no contract between them and he is not obliged to give reasons for their termination nor allow the complainants to be heard.

Case Law

In PNG Teachers Association –v- The State [unreported NC Los J: OS 13/85]

His honour said and I quote, “The law regarding master and servant is in no doubt. There cannot be a specific performance of a contract of service and the master can terminate his servant at anytime and for any reason or for none. So the question in a master servant relationship does not depend on whether the master has heard his servant in his defence, it depends on whether the facts emerging at the trial prove breach of contract”unquote.

The common law principal that an employer may terminate the services of an employee at will applies in PNG, subject to the requirements of notice or payment in lieu of notice contained in s34 of the Employment Act. There is no written contract of service between Keith Sapu, Topson Tope and Protect Security Ltd, nor is there an agreement in place to bind the parties and terms of their employment.

The issue of “clock-in clock-out” appears relevant and impacted on the decision to terminate the services of Keith Sapu and Topson Tope. The general principal is when an employee’s contract of service is terminated a court cannot reinstate that employee. There are many reasons for this. However the legal reason is that a contract of employment is a matter between the employer and the employee. When one party does not want the contract of service to continue, its got to come to an end anyway. With the foregoing reasons the complainants claim for damages and loss of wages must fail.

Further order that the entire complaint is dismissed and the parties to pay their own costs.

Counsel
First Complainant
Respondents: Name of law firm.