Unreported National Court Decisions
N1110
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 113 OF 1988
FELIX T. RAMRAM
V
NATIONAL BROADCASTING COMMISSION
1ST DEFENDANT
LEO MORGAN
2ND DEFENDANT
COLLEE PURO
3RD DEFENDANT
Lae
Doherty J
16 November 1990
DAMAGES FOR WRONGFUL DISMISSAL - Application of Employment Act 373 to Instrumentalities of the State - Declarations not given without special circumstances - Distress for termination not actionable.
The plaintiff claimed damages amounting to salary and other employment entitlements for eight years following termination of employment with the first defendant. He purported to claim for distress and anxiety in the course of evidence. He also claimed against the second defendant (the Chairman) and the third defendant (an employee) of the first defendant. He sought declarations that he was wrongfully dismissed and entitled to be employed.
Held
(1)      No action lay against the second and third defendants in the absence of evidence that they acted maliciously in having the plaintiff dismissed;
(2)      Declaration of right to be employed will only be made in special circumstances;
(3)      The Employment Act 373 does not apply to the National Broadcasting Commission but its provisions may be a guide in assessing damages;
(4)      There is no automatic right to continuous employment or damages for early termination in Contracts of employment that are not for a fixed term.
Cases Cited
Beck v Atlas Hire (1984) P.N.G.L.R 158.
Nahau Rooney v Forest Industry Council of Papua New Guinea and Aaron Nawason unreported judgment N914.
Taylor v National Union of Seamen 1967 1 W.L.R., 532.
Ibrahim v University of Technology unreported N610.
Hodson v Independent State of Papua New Guinea (1985) P.N.G.L.R 303.
Cox v Phillips Industries 1976 I.C.R. 178.
Counsel
Mark Sevua for the Plaintiff
First, Second and Third Defendants: no appearance
JUDGMENT
DOHERTY J:  The plaintiff sues the three defendants for “wrongfully and in breach in the provisions of the National Broadcasting Commission (National Officers and Employees) Determination” dismissing him and claims damages. The plaintiff was dismissed from his employment with the first defendant on the 1 February 1982. He claims damages in respect of:- Accrued recreational leave for three years, loss of recreational leave for four years, loss of superannuation for four years, loss of salary for a total of eight years, (less amounts earned by the plaintiff), expenses incurred as a result of the dismissal, general damages for mental distress, anxiety and embarrassment and declarations (apparently of his right to be employed).
The defendant is a statutory corporation incorporated under an Act, the Broadcasting Commission Act 149. At the time of the plaintiff’s dismissal the second defendant was Chairman of the National Broadcasting commission and the third defendant was the plaintiff’s immediate supervisor at his place of employment in Vanimo, West Sepik Province.
During interim applications in relation to this matter I enquired as to the basis for the liability of the second and third defendant and was informed that they were being sued in their personal capacity, not because they were servants or agents of the first Defendant, but because they had acted maliciously in the wrongful dismissal of the plaintiff.
I was informed that relevant evidence would be adduced to this effect.
In the documents before me I have been unable to find any personal action on the part of the second defendant towards the plaintiff. There is a letter with a reference to the “Chairman having terminated the plaintiff’s services after taken into account offences committed by him in the past and more recently” (Sic). I find no evidence or suggestion of actions or any form of personal exchange between the second defendant and the plaintiff. From evidence before me he acted solely in a capacity as the Chairman of the first defendant I can find no liability against him personally. Accordingly I dismiss the claim against the second defendant.
The third defendant was the Acting Station Manager at Vanimo and was the person who physically wrote and signed the letter informing the plaintiff of his dismissal. That letter stated that the Chairman had terminated his services and informed the plaintiff of the Chairman’s instruction to him (the third defendant) to bring his dismissal to the plaintiff’s attention. There is no suggestion in the evidence before me that the third defendant acted maliciously in achieving the plaintiff’s dismissal. The only evidence indicates that he was carrying out a direction given to him by the Board through the first defendant. Accordingly I can find no personal liability on the third defendant and dismiss the claim against him.
None of the defendants filed any notice of intention to defend or any defence to the claim by the plaintiff. From the evidence adduced by the plaintiff it would appear that the first defendant considered the plaintiff had ‘committed more than one offence’. There is a reference in correspondence to ‘past and (your recent offences)’ (Sic) and references in the plaintiff’s correspondence with the Public Employees Association to his not coming to work. It would appear that the defendant may have considered he had a right to dismiss the plaintiff.
However he has not filed any defence in this Court nor raised any of these points and I can therefore only act on the information and the evidence before me.
Plaintiff was first employed by the defendant on 22 March 1971 and in the course of his employment was transferred to various parts of the country. In November 1979 he was transferred to Vanimo. He was accompanied by his family. His wife was also employed by the first defendant.
The first defendant is a statutory corporation with its own legislation which includes a power to employ personnel for the carrying out of its statutory duties. This is provided for in S.22 of the Broadcasting Commission Act Chapter 149 permitting the Commission to appoint “such persons” as it thinks fit and necessary for the purposes of the Commission (S.22(1)) and at S.24 providing for temporary employees.
Counsel for the plaintiff has tabled the determination of rates of pay, terms and conditions of employment to national officers and employees of the Commission. The determination is headed ‘Broadcasting Commission Act No. 78 of 1973’ and is stated to be the Determination No. 1 of 1975. This sets out the terms and conditions and the procedures for recruitment and discipline of employees of the National Broadcasting Commission. I note that the Determination is 1975, and therefore, would have been drawn up prior to the passing and the introduction of the Employment Act of 1978 373.
The Employment Act Chapter 373 states that it is an Act binding on the State and on every authority and instrumentality of the State (S.2 Employment Act 373). The first defendant is an authority of the State. The Employment Act goes on to state that it does not apply to the employment of a person ‘under any other law in force the country’ (s 3(1)(b). This provision has been considered in the case Beck v Atlas Hire (1984) P.N.G.L.R. 158 and more recently in the unreported judgement Nahau Rooney v Forest Industry Council of Papua New Guinea and Aaron Nawason unreported judgment N914 where it was stated ‘I am satisfied that the Employment Act does not apply to the plaintiff’s contract as her employment was effected under the Forestry Industry Council Act’.
I find that the plaintiff in this case was employed under the Broadcasting Commission Act Chapter 149 and as such the Employment Act did not apply to him. The provisions, conditions the obligations of the employer and the duties and rights of an employee of a Commission are set out in the Determination. These include, for example, an obligation (para 88) on any officer not to leave his place of employment without express permission except on official business. It would appear from the documents before me that the plaintiff had left his employment location. However, without evidence in defence I cannot make a clear finding on this. It is quite clear that the powers of the Commission include the right to dismiss an officer form his services. This is contained in para 156 of the Determination and in the Act stating that the Board of the National Broadcasting Commission may impose some punishment on the employee or ‘may dismiss the officer from his services of the Commission’. This is also envisaged in para 149, dealing with the length of employment and stating that “except in the event of his discharge on account of unsatisfactory service or misconduct the continuity of service of an officer shall not be deemed to be or have been broken...”. Hence there is provision that an employee, once appointed, is not automatically employed for life.
However, dismissal or termination must be for a reason, i.e. where officers are charged with a criminal offence (para 161) or after dealing with serious offences. I am unable to find in the Determination a clear procedure to carry out the “discharge on account of unsatisfactory service or misconduct” referred to para 149. Paragraph 153 of the Determination states what constitutes offences. These include “para 153 (a)(b)(c)(d)”:
153.    Offences and Punishments
(a)      commits a breach of the provisions of this Determination; or
(b)      except in the course of an official duty, uses or divulges, directly or indirectly, any information concerning the Commission or public business or any matters of which he has official knowledge; or
(c)      wilfully disobeys or disregards a lawful order made or given by any person having authority of make or give it; or
(d)      is negligent or careless in the discharge of his duties.
The Determination says if an officer is guilty of an offence in such a situation the Chairman may call upon the officer to give an explanation. This is not a mandatory obligation on the Chairman, he has a discretion to call upon the officer or not. Paragraph 155 deals with serious offences and the powers of the Commission in relation to the finding of a serious offence. These include recommending to the Board that the officer be dismissed from the service (para 155(d).
Para 155 lays down a procedure that is to be followed where an officer, other than a Divisional Head, has committed an offence specified in clause 153 quoted above. From the evidence before me I find that the plaintiff was not a Divisional Head and therefore para 155 applies to his situation. In such a situation he may be charged with the offence and if it is serious he may be suspended. Once a charge is laid he is to be given a copy of the charge and must be told to reply in writing stating his explanation or he is deemed to have admitted the truth of the charge. He is entitled to give any explanation he wishes and if he does not make a reply within seven days after receipt of the charge, he may then be deemed to have admitted the truth of it. The Chairman, after following this procedure and considering reports, if any, relating to the offence and the charge, may then, if he considers the charge has been sustained, recommend certain action against the officer which includes the recommendation for dismissal referred to above.
On the evidence before me there is no indication either from the letters received by the plaintiff from the first defendant or any other facts that any charge was laid against him prior to the writing of the letter informing him of his dismissal on the 12 February 1982, nor apparently, was he allowed seven days in which to give an explanation.
I note that the letter of 12 February 1982 informs the plaintiff that the Chairman has terminated his services with the Commission. However, the determination appears to vest power of dismissal in the Board and not in the Chairman. As I have said above I have no evidence to prove that the Chairman (the second defendant) acted otherwise than in his capacity as a Chairman nor that he acted improperly.
From the facts before me it would appear that the first defendant is in breach of the provisions of para 155 of the determination and accordingly that the first defendant was in breach of contract with the plaintiff.
In considering that he was in breach of contract I am not prepared to go as far as giving a declaration that the dismissal was unlawful. From the facts before me it would appear that the plaintiff had acted in such a way as to give rise to some complaints about his standard of work.
A declaration is the finding of a right which can be claimed instead of or additional to any other form of consequential relief. In the case of Francis -v- the Kuala Lumpur Councillors 1962 I(W.L.R.)1411 it was held that declarations that a Contract of service still subsists will rarely be made consequential on the general principle of law that a court is reluctant to grant specific performance in a contract of service. A court may give a declaration in special circumstances that a dismissal was wrongful or a declaration concerning a plaintiff’s right to be eligible to stand for an office which he previously held but is usually reluctant to make a declaration concerning the validity or otherwise of his dismissal from the employment of a body. (see also Taylor -v- National Union of Seamen 1967 1 W.L.R., 532; Ibrahim v University of Technology unreported N610.
I refuse a declaration on the facts before me as I do not consider this is a case where a declaration is proper relief nor that the defendant should be obliged to re-instate the Plaintiff and as there are no special circumstances.
The plaintiff also claims damages. In the Statement of Claim which forms part of Writ he claims damages for wrongful dismissal. I find that the first defendant may well have some grounds for dismissing or taking action against the plaintiff but they are in breach of the contractual terms and as such I find that the dismissal was wrongful. I do not find that the dismissal was unlawful, the concept of an unlawful dismissal is a common law concept and I do not consider that it applies to this contract.
In assessing damages for wrongful dismissal it is important, as was stated in the Law of Employment by Macken McCarry and Sappoden to bear in mind that there are three different actions that may be available to an employee upon a dismissal. These include action for damages for wrongful dismissal, an action upon a quantum meruit for work actually performed that has not been paid and an action for wages, due under the contract. There appears to be no claim for quantum meruit or wages due and all the facts before me indicate that the plaintiff was paid for the work that he had actually performed.
It is a general rule that an employee wrongfully dismissed can recover damages for pecuniary loss resulting from wrongful termination to the equivalent of appropriate notice. In the usual case damages will be equivalent to wages for the period of proper notice. Rarely can an employee claim for other damages. It is only in a fixed term contract that is not subject to determination by notice will damages be awarded for the equivalent of the salary over the entire period of contract if the dismissal was in breach of the contract for (example in the case of Nahau Rooney v Forestry Industries Council and Aaron Nawason (Supra)).
The contract before me is not subject to a time period. It could be called an ‘open ended contract’. The defendant has claimed the equivalent of eight years’ wages plus eight years entitlements to leave fares and similar benefits. I am unable to find from the evidence or from submission how he has assessed an automatic right to such a long period of notice. Employment with an employer, including a statutory organization, is not a meal ticket for life. There are no facts or law in this case which show that an employee wrongfully dismissed can claim more than the appropriate notice.
There is no provision in the contract for dismissal on notice. It would appear, as Counsel for the Plaintiff submits, that this is a contract similar to Public Service Conditions but an employee of the Public Service is employed at the pleasure of the government. If this is merely the adoption of Public Service terms by the National Broadcasting Commission then it is an example of adopting the terms of a contract that are inappropriate in the situation.
There is no law or evidence before me to show what would be appropriate notice.
The Employment Act 373 is an example and guideline as to notice on dismissal. It provides for notice of four weeks or payment of four weeks salary in lieu thereof if an employee has been employed for five years or more (S.34(4)). It would appear this is what Parliament considers an appropriate and proper notice to an employee whose services are to be brought to an end. I do not see any reason why an employee of the National Broadcasting Commission should consider that he is entitled to eight years notice or payment in lieu thereof when the ordinary employee in the street is entitled to only four weeks.
With a statutory guide of four weeks’ notice and a claim for eight years I consider the total period of employment prior to termination is a relevant factor when assessing damages. The plaintiff was employed for about eleven years. I assess the equivalent to three months wages of the rate payable to the plaintiff at the time of his dismissal to be reasonable given his period of employment. I accept the special damages arising from the dismissal and I award these in the sums of K200, K50 and K13.90. I allow recreation leave accrued. I do not allow it to September 1982 but to June 1982 being three months approximately after dismissal and I assess this to be six weeks employment at K136.78 per fortnight. I allow leave fares pro-rata which I assess at K250.
I do not allow any further general damages for distress anxiety or embarrassment raised by the Plaintiff in para 25 of his affidavit. This was not claimed in the statement of claim and there was no application during interim motion hearings to amend the pleadings to include it as a head of damage.
I do not consider that the matter has been sufficiently and fully argued before me to enable me to develop the underlying law and recognize distress as a claimable head of damages. Counsel has referred me to Hodson v Independent State of Papua New Guinea [1985] P.N.G.L.R. 303 were an amount was awarded for distress to an employee. It was stated by the Supreme Court on the hearing of the appeal of the decision “damages were awarded but the matter was not argued at all before the National Court” [The Independent State of Papua New Guinea -v- Hodson 1987 P.N.G.L.R. 241 at 248]. As here it was not pleaded and again, without full argument, I cannot determine whether it is a separate head of damage or one which arises out of the breach. However I would observe that the precedent referred to in argument Cox -v- Phillips Industries 1976 I.C.R. 178 related to breach of a term promising an employee a position of greater responsibility - as was the situation in Hodson v Independent State of Papua New Guinea. The case before me is of dismissal - the plaintiff was not obliged to remain in employment in a more lowly position. I also have reservations that a claim for damages for distress and anxiety would be sustainable in a situation where the employee’s behaviour was not unblemished.
I allow costs of the plaintiff against the first Defendant. Since there was no appearance by the second and third defendants I made no order of costs for them.
Lawyers for the Plaintiff: Mark Sevua