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 Plaintiff is claiming damages for breach of a contract of employment. The evidence is that the Plaintiff entered into an agreement called a Contract of Employment with the Highlands Regional Secretariat. There was a document tendered into evidence which is headed on the letterhead of the Secretariat and titled Contract of Employment and said to be made on 18 November 1987 between the Plaintiff and the Secretariat. It states it is an agreement 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 giving two weeks notice in writing.

The agreement is signed by a Mr N Laina as Chairman of the Secretariat on 17/12 /87 and by the Plaintiff on 1 January 1988.

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

It is not clear whether the seal should have 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 this all seems to 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 pity that the Minutes incorporating the resolution whereby the Secretariat agreed to employ the Plaintiff was not tendered. However there has been no objection raised to the validity of this document called the Contract of Employment.

The evidence does however suggest some confusion over the actual employment of the Plaintiff as I have already alluded to. According to the Contract he should have commenced his employment on the 1st January 1988. However the evidence suggests there was some practical difficulties with his commencement and also there was an apparent difference of opinion within the Secretariat itself. One of the practical problems was the entitlement to housing but I do find it rather naive of the Plaintiff to sign an agreement when to him a central aspect was not in order, this could almost suggest the agreement was still in 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 again it was very naive when he had not really accepted all the conditions, for example the housing. It appears to be more still negotiations for employment. The Plaintiff never started work so did he abrogate the contract or did both parties. I am satisfied that Clause 2 of the Contract must apply, the parties fell out, the Secretariat clearly withdrew from the Agreement.

But how does one assess the damages. The Plaintiff states he was ready and willing to start the employment but there was no facilities and then now this disagreement. So is it a matter of strictly 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 resign from his former employment until well after the contract was supposed to start so he had some foreknowledge of the problems.

It has been submitted that the defendant has played fast and lose with the Plaintiff 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 used as the basis for the damages.

I will assess damage at 3 months salary being the probationary period for the contract. As he never commenced the duties there can be no allowance for the other entitlements which relate to the actual performance of the work.

There is no salary figure in the Contract but a Public Service level which the Plaintiff asserts is K14,250 per year. For 3 months this would be K3,562.50. I assess the damages at K3,562.50 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 at K4,368.30.

Lawyer for the Plaintiff: Kopunye Lawyers