Nagari v Investment Corporation of Papua New Guinea [1997] PGNC 87; N1607 (28 July 1997)

Unreported National Court Decisions

N1607

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 266 OF 1995
BETWEEN
ANDREW NAGARI - PLAINTIFF
AND
INVESTMENT CORPORATION OF PAPUA NEW GUINEA - DEFENDANT

Waigani

Sawong J
13-14 May 1997
28 July 1997

Counsel

H Nii for the Plaintiff

K Kua for the Defendant

SAWONG J: The Plaintiff was employed by the Defendant as its property manager from 12 April 1991 up until his services were terminated on 23 August 1994. At thaevantod he was earniearning a salary of K22,041.00. He also receivedr benefitsefits wits which he sets out in his statement of .

The Plaintiff claims that he was wrongfully dismissed and he claims:

1.&#16. &##160;; R60; Reinmeninment, together with all entl entitlements backdated to the date of dismissal.

2. ـ U6specifimages

3

30; ـ K29,082.,089.75 9.75 9.75 being unpaid accommodation entitlemenlements.

4. ;&#esp>

Th

The defendant has denied liabiliability anty and hasd has also made a cross claim against the tiff.

Itbeen d betthe ps the plae plaintifintiffRf’s 17;s contract of employment consisted of h of his leis letter of appointment dated 12 April 1994 (Exhibit D1) and the standard “Staff Terms & tions of ServiService” (Exhibit P1 & P2) (The Agreement).

The parties have also agreed that the following issues be resolved. First, whether taintiffff’s dismisas unlawful.

Secondlcondly, if the answer is in the affirmative, is the plaintiff entitled to reinstatement, and back pay, dam unpaid accommodation allowance of K29,089.74, interest andt and costs.

Finally is the defendant entitled to its cross claim.

The evidence for both parties consisted of both oral and documentary evidence. Eachy called one witness eess each. It is not necessary to set out in every detail the evidence.

In summary, the plaintiff says the termination of his ce were unlawful. In his evidence heed that that he b he believed strongly that all officers of the defendant has a personal grudge against him. He said that thosecers fabs fabricated evidence against him which lead to his eventual dismissal.

The essence of his evidence is that the other employees of the defendant who were lower in rank than him had acted together and fabricated evidence of misconduct against him, which resulted eventually in having a committee set up to investigate the allegations against and which resulted in adverse findings being made against. tacks the Committee and itnd its findings against him.

On the other hand, Mr Mokis gave evidence on behalf of the defendant. Mr Mokis was the Chairman of the Committee that conduche investigation relating ting to allegations against the Plaintiff. Mr Mokis claimed there was no collective conspiracy by anyhe defendant’s employees against the Plaintiff, and tand that the employees did not fabricate any of the allegations against hie said that committee gave every opportunity to the Plaintiaintiff to answer the various allegation which he did. None of the as given by thby the Plaintiff were fabricated.

The findings of the committee are set out in Exhibit P3. In it thereadmis made by t by the plaintiff to some of the allegations leveled against him.

I ap>I also had the opportunity of observing wo witnesses when they gave evidence. It was obvious that the Piaintiff was evasive aive and selective in his answers. On somesions he would atte attempt to make out that he had done nothing wrong to have warranted the termination of his service.&#1e wastant to answer ever even simple questions. I consider him to betness ness who was pres prepared to protect and promote his own interest. For instances, he deneing eing interviewed by the committee, and then goes on says, that yes, he had been interv, but the answers in the fohe form of admissions were not his, and that those had been fabricated by committee.

He was never able to support any of his allegations. In the end, I am satisfiat that he was not entirely honest. There are in my view serious lingering parts of his evidence which do not help his evidence nor his credibility as a witness.

On the other handonside evidence given iven by Mr Mokis to be much more credibility. d no reason to beto be sele selective in his evidence and no reason to lie to the Court. I consand accept his versiversion of the evidence as much more credible.

It has been submion behalf of the Plaintiff tiff that his services were wrongfully terminated. As I understand his suion,sion, it is that the power of the defendant to summarily dismiss an officer under clause 41 (1) of the Agreement applies in very limited circumstances.

unsel’s submission is that, it only applies when an o an officer breaks a condition of his contract of employment. It has further submitted tted that such conditions are set out in clause 44 of the Agreement. In the t has been submittemitted the plaintiff was not guilty of breaching any of the conditions set out in clause 44 which wich warranted his dismissal. In otheds itbeen submitteditted that in all the circumstances, tha, that is the circumstances existing prior to his termination, was such the allegations which were levelled against the plaintiff were fabricated and false, and that that he had not breached any of the conditions of his employment. Cuently his subsequent dist dismissal was unlawful.

Mr Kua submits that on the evidence, there was clear evidence as contained the committee’s report, which contained admission by the plaintiff, which breached a number of conditions set out in clause 44 of the Agreement that the termination of his services were lawful.

Clauses 41 and 44 of the Agreement are relevant. These clauses read as follows:

“41. &#1ISMIS/p>

(

(i)&#16) ـ҈ T60; The Core Corporation may summarily dismiss any officer who breaches a condition of his contract ofoymenludinhout limithe generality of the foregoinegoing anyg any officer who steals or misappropriateriates or s or maliciously damages any of the Corporation’s property and any officer who without just cause refuses to obey any reasonable direction of his superiors.

(ii) &#16 addition to (i) above bove the Corporation may dismiss an officer, Class 9 or above, by one (1) month notice in writing and an officer Class 8 or below by two (2) weeks notice in writing provided that the Corporation may elect to pay to an officer, Class 9 or above, one (1) month salary and an officer, Class 8 or below, two(2) weeks salary in lieu of such notice.

(iii) thstanding the provisions ions of this Clause the rights of an appointment under Section 59 and 115 of the Public Services Commission (Interim Arrangements) Act shall not be affected unless dismissal has been prompted on lawful grounds.

44. DISCARY NFFENCES

(a

(a) ; Any Officer wpo:

(

(i) ;ټ Commitsmmits a sera serious breach of a provision of these regulations; or

(ii) ټ&#Dissemisseminates ates centiaormatoncerning Corporation business; or

(iii) #160; &#160&#Wilf Wilfully disobeisobeys or disregards lawful order made or given by a pewith rity; or

(

(iv)&#iv) &#16 negl gentarr careless less in carrying out his duties; or

(v) ټ Is inef inefficient or incompetent; or

(vi) &&#160during worg working hing hours intoxicated with liquor or drugs; or

(#160;;&#16ks for or accepts a fee, reward, gratuiratuity or gift, other than official remunremuneratieration for official duties; or

(viii) & Is guilty of disgraisgraceful or improper conduct; or

(ix) Is absent without l ave;p>r

x) &#16bezzles or misuses Corp Corporation funds, will be dismissed.ssed.

(b) & &ـ1600;҈&ـ&#1ny Officer who:

:

(

(i) &#160& Co0; Com;its mits a ts a mina minor breach of these regulations; or

(iii) De to ar position in the Corporation’s service; or

(iv) < Compelled to reimburse thee the Corporatio any or dasuffey the Corporation; or

(v) Tra; Transferneferred tred tred to another locality; or

(vi)҈&&#160ished by a cy a combinombinationation of (1) to (v); or

(vii) Dismissed; o

vii>(&#16) Liable to anyrothecidisnarlinary action as deemed appropriate by the Managing Director or his delegate.”

Clause 41 is set out under the heading &;DISMSR#160; In my judgement, there are two parts to clause 4use 41 (i)1 (i).&#16. Itains two distinct parts arts which may warrant summary dismissal of an officer.

In my view the first part deals with an officer who breaches a condition of his contract of employment.&#Such a person, may, in the the discretion of the defendant be summarily dismissed. This is genpower in the dehe defendant to dismiss an officer who has breached any of the conditions of his employment contract with the defendant.

The second part ouse 41 (i), gives specific examples of what would constituttitute a breach of a condition of his employment, warranting a summary dismissal. Generally speakingets that that any officer “who steals, or misappropriates...etc of the defendants property may be summarily dismissed.”

Clause 41 (ii) provides an additional power to the defendant. In my judgement, it isnece necessary to examine this provision in great detail, because I consider that it is not relevant nor applicable to facts of resent case.

In addition to clause 41 (i) I also consider the provisions of clause 4use 44 of the Agreement to be relevant and applicable in the present case. So far as is relevant, I der clau clause 44 (a) (vii), (viii), are applicable in this case. These provide that “any officer who...accepts a fee, reward, gratuity or gift, other than official remuneration fficial duties, or is guiltyuilty of disgraceful of improper conduct will be dismissed.”

It is in my view plain that if an officer commits a breach of any of the conditions set out in clause 44, the officer will be dismissed. There is no discretion0; U60; Unlike the provisions of clause 41 (i), it is quite clear that any officer who breaches any of the matters set out in cl44 (a) will be dismissed.

In my judgement, the evidence relating to and leading up t up the dismissal is quite clear. Thdence is quite clear, inr, in that the plaintiff was guilty of breaching a number of the terms and conditions of his employment.; These were set out in the finding of the committee, upon which report and findings, it wait was decided to terminate his services. I therefore find that the plaintiff’s dismissal was valid and lawful. I would therefismissed thid this part of his claim. In view of my ruling, theeconsequential relief that he has claimed are also dismissed.

For the reasons, I haven I dismiss the plaintiff’s claim relating to motor otor vehicle allowances, fuel allowance, school fee claim, claims for entertainment allowances, club membership, air fares or removal costs and telephone allowances.

In so far as his claim for unpaid housing allowance is concerned, the following submissions were made. The claim is for the f K29f K29,089.75 being the difference of his housing allowance, which he did not received for the entire period of his employment. The plaintiff’s nce was that, when he was initially employed, he was employmployed as a clerk class 3. At that pointime he was enas entitled toive an accommodation allowance of K150.00 per week. At that point in he was lias livi living at a premises owned by the defenda160; He says the value of that house was K150.00 per week.&eek. He shat he was subsequentluently promoted on several occasions hose occasions his housing sing allowance were also increased. Despiese increases, he saye says he did not move out from the dent’s property, but cout continued to live there and thus he saved the defendant substantial amount in housing allowances. totalhe allowance he s he s he says he saved the defendant is the sum of K29, 087.75. He now says th he has not not received hd he has been terminated, this money must be paid to him. The plaintave evidencedencedence that because he wanted to buy the pry from the defendant, he did not make a claim for an appropppropriate accommodation or the balance of the allowance in lieu of it.&#1here is no doubt that he mahe may have expressed an interest in purchasing the property, but there is no evidence that the defendant agreed to sell the house to him.

Further, I find that the plaintiff’s employment condition was covered in the agreement. There was no provisi the athe agreement to claim in lieu of an allowance. In the ab of any agreementement either direct or by inference, I am not satisfied that the plaintiff is in fact entitled to this claim. ld therefore dismiss tart tart of the claim.

So far as the defendant’s cr;s cross claim is concerned, I find that there is insufficient evidence th would have rented out the property to some other person haon had the plaintiff moved out in time and would have received K150.00 per week. Consequently, the cclaim iaim is also dismissed.

In the circumstances, each party is to bear its own costs.

Lawyers for the Plaintiff: Latu

Lawyers for the Defendant: Fiocco Posman & Kua