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 that relevant period he was earning a salary of K22,041.00. He also received other benefits which he sets out in his statement of claim.

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

1. Reinstatement, together with all entitlements backdated to the date of dismissal.

2. Unspecified damages.

3. K29,089.75 being unpaid accommodation entitlements.

4. Interests.

5. Costs.

The defendant has denied liability and has also made a cross claim against the plaintiff.

It has been agreed between the parties the plaintiff’s contract of employment consisted of his letter of appointment dated 12 April 1994 (Exhibit D1) and the standard “Staff Terms & Conditions of Service” (Exhibit P1 & P2) (The Agreement).

The parties have also agreed that the following issues be resolved. First, whether the plaintiff’s dismissal was unlawful.

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

Finally is the defendant entitled to its cross claim.

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

In summary, the plaintiff says the termination of his service were unlawful. In his evidence he stated that he believed strongly that all officers of the defendant has a personal grudge against him. He said that those officers 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. He attacks the Committee and 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 conducted the investigation relating to allegations against the Plaintiff. Mr Mokis claimed there was no collective conspiracy by any of the defendant’s employees against the Plaintiff, and that the employees did not fabricate any of the allegations against him.. He said that committee gave every opportunity to the Plaintiff to answer the various allegation which he did. None of the answers given by the Plaintiff were fabricated.

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

I also had the opportunity of observing the two witnesses when they gave evidence. It was obvious that the Plaintiff was evasive and selective in his answers. On some occasions he would attempt to make out that he had done nothing wrong to have warranted the termination of his service. He was hesitant to answer even simple questions. I consider him to be a witness who was prepared to protect and promote his own interest. For instances, he denied being interviewed by the committee, and then goes on says, that yes, he had been interviewed, but the answers in the 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 satisfied 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 hand, I consider the evidence given by Mr Mokis to be much more credibility. He had no reason to be selective in his evidence and no reason to lie to the Court. I consider and accept his version of the evidence as much more credible.

It has been submitted on behalf of the Plaintiff that his services were wrongfully terminated. As I understand his submission, 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.

Counsel’s submission is that, it only applies when an officer breaks a condition of his contract of employment. It has been further submitted that such conditions are set out in clause 44 of the Agreement. In the end it has been submitted that the plaintiff was not guilty of breaching any of the conditions set out in clause 44 which warranted his dismissal. In other words it has been submitted that in all the circumstances, that is the circumstances existing prior to his termination, was such that the allegations which were levelled against the plaintiff were fabricated and false, and that he had not breached any of the conditions of his employment. Consequently his subsequent 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. DISMISSALS

(i) The Corporation may summarily dismiss any officer who breaches a condition of his contract of employment including without limiting the generality of the foregoing any officer who steals or misappropriates 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) In addition to (i) above 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) Notwithstanding the provisions 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. DISCIPLINARY OFFENCES

(a) Any Officer who:

(i) Commits a serious breach of a provision of these regulations; or

(ii) Disseminates confidential information concerning Corporation business; or

(iii) Wilfully disobeys or disregards lawful order made or given by a person with authority; or

(iv) Is negligent or careless in carrying out his duties; or

(v) Is inefficient or incompetent; or

(vi) Is during working hours intoxicated with liquor or drugs; or

(vii) Asks for or accepts a fee, reward, gratuity or gift, other than official remuneration for official duties; or

(viii) Is guilty of disgraceful or improper conduct; or

(ix) Is absent without leave; or

(x) Embezzles or misuses Corporation funds, will be dismissed.

(b) Any Officer who:

(i) Commits a minor breach of these regulations; or

(ii) Fails to maintain a satisfactory level of performance in the execution of his duties, may be:

(iii) Demoted to a lower position in the Corporation’s service; or

(iv) Compelled to reimburse the Corporation for any loss or damage suffered by the Corporation; or

(v) Transferred to another locality; or

(vi) Punished by a combination of (1) to (v); or

(vii) Dismissed; or

(viii) Liable to any other disciplinary action as deemed appropriate by the Managing Director or his delegate.”

Clause 41 is set out under the heading “DISMISSALS”. In my judgement, there are two parts to clause 41 (i). It contains two distinct parts 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 discretion of the defendant be summarily dismissed. This is general power in the defendant to dismiss an officer who has breached any of the conditions of his employment contract with the defendant.

The second part of clause 41 (i), gives specific examples of what would constitute a breach of a condition of his employment, warranting a summary dismissal. Generally speaking it sets 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 is not necessary to examine this provision in great detail, because I consider that it is not relevant nor applicable to facts of the present case.

In addition to clause 41 (i) I also consider the provisions of clause 44 of the Agreement to be relevant and applicable in the present case. So far as is relevant, I consider 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 for official duties, or is guilty 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 discretion. Unlike the provisions of clause 41 (i), it is quite clear that any officer who breaches any of the matters set out in clause 44 (a) will be dismissed.

In my judgement, the evidence relating to and leading up the dismissal is quite clear. The evidence is quite clear, 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 was decided to terminate his services. I therefore find that the plaintiff’s dismissal was valid and lawful. I would therefore dismissed this part of his claim. In view of my ruling, the consequential relief that he has claimed are also dismissed.

For the reasons, I have given I dismiss the plaintiff’s claim relating to motor 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 sum of 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 evidence was that, when he was initially employed, he was employed as a clerk class 3. At that point in time he was entitled to receive an accommodation allowance of K150.00 per week. At that point in time he was living at a premises owned by the defendant. He says the value of that house was K150.00 per week. He says that he was subsequently promoted on several occasions and those occasions his housing allowance were also increased. Despite these increases, he says he did not move out from the defendant’s property, but continued to live there and thus he saved the defendant substantial amount in housing allowances. The total of the allowance he says he saved the defendant is the sum of K29, 087.75. He now says that as he has not received his and he has been terminated, this money must be paid to him. The plaintiff gave evidence that because he wanted to buy the property from the defendant, he did not make a claim for an appropriate accommodation or the balance of the allowance in lieu of it. There is no doubt that he 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 provision in the agreement to claim in lieu of an allowance. In the absence of any agreement either direct or by inference, I am not satisfied that the plaintiff is in fact entitled to this claim. I would therefore dismiss this part of the claim.

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