Yangmari v Bank of South Pacific Ltd [2015] PGDC 23; DC4024 (27 July 2015)

DC4024

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DC 243 of 2015
BETWEEN

BEVERLY YANGMARI
Complainant

AND

THE BANK OF SOUTH PACIFIC LIMITED
Respondent

Lae: J Singomat

2015: 14,21 July
      

CIVIL LAW- Unlawful termination – bank officer, a wife of a prisoner whose bank account was in issue against the wife-consent by the prisoner highly possible-defendant action harsh and oppressive under the circumstances termination action as a penalty been null and void and of no effect-officer be reinstated to her substantive position with full salaries from date of her suspension and termination.

Cases Cited

Barrick (Niugini) Ltd –v- Doiwa [2011]
(See Supreme Court Judgment OS# 131/2008, 2010/2011, (Gavera-Nanu J)

PNGB-v-Tole (2002) SCA # 694 (Amet CJ, Sheehan & Kandakasi JJ)

Counsel

Complainant in Person

W.Henao, for the defendant

27 July 2015

J Singomat: This is a written judgment to which a verbal decision was made on 21 July 2015 in Court.

Facts

Early April 2015 Beverly Yangmari was terminated by the Bank of South Pacific Limited (BSP).

She was terminated for allegedly breaching the Consolidated Industrial Agreement 2007 between BSP and PNG Banks and Financial Workers Union (S.13.3 (3) (c)).

1. Published Decision

27 July 2015. J Singomat. On 21 July 2015 this Court made an oral judgment and indicated for the same to be published in ten (10) days. This then is the decision in writing.

2. Facts

Beverly Yangmari (B.Y) was Senior Bank Officer with the Bank of South Officer with the Bank of South Pacific Limited (BSP) before her termination April 2015 at Lae Branch.

3. Issue

Was the Termination wrongful and in unlawful?

4. The question (here-above) will be answered after some observations in the circumstances which led to the alleged action by the BSP against the officer of the Bank.
   
5. In 2014, Timothy Yangmari (Beverly’s husband) had been remanded at Boram Correctional Services, Wewak for an alleged misappropriation of funds whilst Beverly (complainant) was working in Lae and attached to the BSP Lae Town Branch.
   
6. At the time of his remand, the husband (Timothy Yangmari) had his BSP account number 1000766188 dealt with by another person, he claimed through BSP after been discharged from custody.
   
7. He (Timothy Yangmari) complained to BSP, that his wife (B.Y) had done bank transactions against his account through some written documents.
   
8. Then BSP had interviewed B.Y who verbally and in writing explained that her husband verbally consented for her to change the husband’s phone as registered for sms banking to a replaced phone sim card in order to serve T.Y’s requests.
   
9. After the explanation of her actions to BSP B.Y got terminated early April 2015 from employment with BSP.
   
10. She appealed to BSP Management again stating what she did was proper under the circumstances as a wife to T.Yangmari. And that these was verbal consent for the (complainant’s) account to be dealt with.
    
11. When asked by the court if he consented verbally for B.Y to doing transactions from his bank account, T.Yangmari said “ I am not sure, I may have consented for B.Y to deal with my bank account........” and he further told the court the following ; “that time while I was in remand custody my wife and children at Angoram were in need of finance.......in fact B.Y did source finds from a Bank Loan to assist my other wife to assist the wife with her small business”.
    
12. Following her Termination , B.Y did appeal for re-employment in the appeal letter dated 3 April 2015 to BSP. She raised issues about husband and wife relationships apart from explaining that T.Yangmari, her husband the complainant to BSP did give his consent.
    
13. Here is a Bank officer and a wife (B.Y) whose alleged actions about dealing with his accounts kept by BSP been tempered with by the officer (B.Y). These issues were raised by the complainant to the BSP Management since she was required to explain about her action to change phone number and deal with her husband’s (T.Y) bank account.
    
14. The other issue collateral to the main issue of dealing with account for T.Y is the fact that whether BSP or T.Yangmari suffered consequential damages or loss due to Beverly Yangmari’s actions or in actions?
    
15. The defendant has not shown credible evidence to that facts(above) except to contend that the bank policies and procedures had been breached by the officer (B.Y).
    
16. The officer (B.Y) did approach her supervisor Joseph Keaeke at the time she changed the sms banking phone number to a replacement sim card and he endorsed the change of the phone or replacement sim card. Such evidence had not been rebutted by the defendant.
    
17. Has the BSP charged Joseph Keaeke for violating standing policies of the BSP?
    
18. Did the defendant properly investigate and charge B.Y and then terminate her employment with the BSP?
    
19. To this day the court would answer to both questions (17 & 18) in the negative.
    
20. Was there proper investigations and suspension given to B.Y?
    
21. The answer is No because B.Y had not been given the chance to explain that it involved her and the husband, T.Yangmari.
    
22. It was important for the Human Resources Division with the BSP to conduct proper investigations to ascertain the truth of the complaint by their client T.Yangmari who is also the husband to B.Yangmari.
    
23. The person, Timothy Yangmari also told the court that the BSP had not gone back to find out about his other complaints to do with other bank accounts that had monies transferred from his account since 2014.
    
24. As to the allegation by T.Yangmari on BSP not responding to the complaints about other accounts the BSP had not examined him from the witness box in the court room.
    
25. This case involving B.Y and BSP and the husband T.Y needed special attention by the defendant.
    
26. The lack of proper and careful attention by the BSP amounts to the wrongful decision to terminate the complainant when Dennis Lamus suspended B.Y after she only answered “yes boss I did” after she admitted changing the mobile phone. She had not been given the chance to be heard by Dennis Lamus. Where is natural justice?
    
27. It would have been proper for Dennis Lamus to get B.Y to continue to explain and then a proper investigative reporting by Human Resources Division before deciding to suspend the officer.
    
28. The complaint’s letter of Appeal dated 03 April 2015 has stated reasons that BSP had not properly investigated the T.Y complaint against B.Y.
    
29. Had B.Y been given the chance to further explain of her action to change phone numbers and that the fact that T.Y (BSP customer) was her husband, then the BSP would not have so hurriedly made decision to suspend and eventually to terminate Beverly Yangmari.
    
30. The District Court may make declaratory orders (S.22 District Courts Act).
    

Section 22 General ancillary jurisdiction (quote)

“Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall in proceedings before it-

(a) Grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and
(b) Give the same effect to every ground of defence or counter claim, whether equitable or legal.

As ought to be granted to given in a similar case by the National Court and in as full and ample a manner.

31. In the very circumstances of this case I would find that it is highly possible that Timothy Yangmari did give his verbal consent to his wife Beverly Yangmari to change the sms or mobile banking phone number in order to do transactions from his (T.Y’s) account.
    
32. Now then it is declared that the disciplinary actions of suspensions and eventual termination by the BSP of Berverly Yangmari’s employment with the defendant was manifestly wrong and harsh and oppressive under the circumstances.
    
33. Therefore the termination is declared null and void.
    
34. It is evident from the complainant’s statements from the court records that B.Y had insisted on keeping her job.
    
35. The complainant’s entitlements be paid to her in view of the declarations here -above made.
    
36. Then B.Y shall be reinstated to her substantive position and on the salary she was paid up to time of termination. And, she shall have her salaries paid to her from the date of termination to the next pay day after 21 July 2015.
    
37. Either party to meet own costs as cost is a discretionary matter and due to the nature of case.
    

Orders accordingly.