Mel v Highlands Regional Secretariat Inc [1995] PGNC 1; N1289 (6 January 1995)

Unreported National Court Decisions

N1289

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 78 OF 1992
MATRUS MEL - Plaintiff
V
HIGHLANDS REGIONAL SECRETARIAT INCORPORATED - Defendant

Mount Hagen

Woods J
11 November 1994
21 November 1994
6 January 1995

CONTRACT - Employment - Employee never having embarked upon work - Termination by employer - Terms not settled - Breach - Measure of damages - probationary period.

Cases Cited:

Naguwean v The State [1992] PNGLR 367

Counsel:

P Kopunye for the Plaintiff

No Appearance for the Defendant

6 January 1995

WOODS J: The Plainti claiming damagdamages for breach of a contract of employment. vidence is that the Plaintlaintiff entered into an agreement called a Contract of Employment with the Highlands Regional Secretariat. There was a documentered ento evidence which is headed on the letterhead of thef the Secretariat and titled Contract of Employment and said to be made onovember 1987 between the Plaintiff and the Secretariat. It stat is an agreement ment ment for 3 years to employ the Plaintiff as the Accountant/Financial Analyst. It provided for a trial period of 3 months during which either party can withdraw on g two weeks notice in writinriting.

The agreement is signed by a Mr N Laina as Chairman of the Secretariat on 17/12 /87 and by laintiff on 1 January 1988.1988.

The Defendant is incorporated under the Associations Incorporation Act. The Associationthe power twer to employ staff. The rules for the Secretariat provide for a seal which is to be affixed to such documents e Secretariat may from time to time determine as instruments which require to be executed wted with the seal.

It is not clear er the seal should have beee been affixed to the Contract of Employment although if the minutes of the meeting of the Secretariat allow the Chairman alone to execute the Contract perhaps that may be sufficient. However thisseems to be a be a bit vague in view of the evidence of some conflict within the Members of the Secretariat over the plaintiff’s employment so it is a pitt the Minutes incorporating the resolution whereby the Secr Secretariat agreed to employ the Plaintiff was not tendered. Howevere has been no objecobjection raised to the validity of this document called the Contract of Employment.

The evidence doeever suggest some confusion over the actual employment of the Plaintiff as I have already aady alluded to. According to the Con he shhe should have commenced his employment on the 1st January 1988. However the evidence sug tsts there was some practiifficulties with his commencement and also there was an apparent difference of opinion with within the Secretariat itself. One e pral problems was thas the entitlement to housing but I dt I do find it rather naive of the Plaintiff to sign an agreement when to central aspect was not in order, this could almost suggest the agreement was still in the the negotiation stage.

There is a letter referring to delay in taking up the appointment.

It is clear that there was a casual attitude to the whole contract and there was confusion over the whole matter.

The Plaintiff himself said he had resigned on the basis of the agreement although I note it was not till 3 months after the contract was signed to commence. But ait was very naive whee when he had not really accepted all the conditions, for example the housing. It appears to be more still negotiations for employmen60; The Plaintiff never started work so did he abrogate thee the contract or did both parties. I am fied that Clause 2 of 2 of ontract must apply, the parties fell out, the Secretariat ciat clearly withdrew from the Agreement.

But how does one assess thages. The Plaintiff states he was ready and willing ting to start the employment but there was no facilities and then now this disagreement. So is it a mattertrictly ctly construing the clause 2 and saying there has been 2 weeks notice and that is the only monies payable.

I have been referred to no authorities or principles on how one must assess damages for complete failure of a Contract of Employment before it even started.

Perhaps where a contract has been terminated before its starts the damages could be the loss to the Plaintiff of the failure of the expectation. But he did not r from his his former employment until well after the contract was supposed to start so he had some foreknowledge of the problems.

It has been submitted the defendant has played fast and lose with the Plaintiff biff but there was clearly some fault with the Plaintiff, he knew there were difficulties both with housing and with the Secretariat before he resigned.

A guide to how to assess damages in such a case can be found in the case Naguwean v The State [1992] PNGLR 367 where damages were considered in a similar situation where a Plaintiff had been offered employment but never commenced. In that case the judge agreed at page 373 that the better course is to look to the period in which The State may be bound and in this case there was also a probationary period and that was us the basis for the damages.

I will assess damage atge at 3 months salary being the probationary period for the contract0; As he n he never commenced the duties there can be no allowance for the other entitlements which relate to the actual performof the work.

There is no salary figure in the Contract but a Public Service level whel which the Plaintiff asserts is K14,250 per year. For 3 months thild be K3,5 K3,562.50. I assess amages at K3,562.,562.50 and I will allow interest on this at 8% from 10 March 1992 being the date of the issue of the writ which assess at K805.80.

I order Judgement for the Plaintiff ,368.30.

Lawyer for for the Plaintiff: Kopunye Lawyers