Ulopo v Coffee Industry Corporation [1998] PGNC 124; N1808 (17 December 1998)

Unreported National Court Decisions

N1808

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 808 OF 1997
BETWEEN
BENNY SENA ULOPO
PLAINTIFF
AND
COFFEE INDUSTRY CORPORATION
DEFENDANT

Goroka

Sawong J
4 December 1998
17 December 1998

Counsel

K. Kot, for the Plaintiff

D. Umba, for the Defendant

17 December 1998

SAWONG J: The plaintiff commence proceedings claiming for loss of salary, loss of leave entitlements, loss of accommodation allowance, interest and cost. He claimed these things because he says he was wrongly made redundant.

The facts are not much in dispute - the only dispute is whether as a matter of law his redundancy was wrongful or not.

The undisputed facts are as follows: The plaintiff was first employed on a probationary period for three months by the defendant. After completing his three months probationary period, the defendant by a letter of appointment dated 9 February 1995, appointed him on a permanent basis to the position procurement officer. Then in March 1996, the said position was made redundant, and the plaintiff became redundant. Some four months lapsed, and in July 1996, the defendant placed an advertisement calling for application for the position of procurement officer. That position was soon filled. It is not clear whether the plaintiff applied for that position or not. The plaintiff was not employed under a contract of employment. His terms and conditions of employment was covered by the letter of appointment and the Terms and Conditions of Service.

The plaintiff’s counsel submit that there was no redundancy situation given the circumstances outlined and that the position was made redundant to make the plaintiff redundant. He submits that the fact that the position was advertised and filled after 4 months shows that the decision to make the position redundant was wrongful and without any basis in law.

Counsel for the defendant, in essence, submitted that the redundancy was valid. He further submitted that that was made in accordance with the terms and conditions of employment as applicable to the plaintiff.

In order to resolve this issues, I think that one must go to the terms of his letter of appointment and the Terms and Conditions of Service. The letter of appointment does not contain any provision for redundancy. However the letter of appointment under the heading “OTHER” says “other terms and conditions of employment would be covered under the general terms and conditions of service for CIC”. The said Terms and Conditions of service does not contain any express provision dealing with redundancy situations. The nearest provision that is akin to a redundancy situation is clause 7.2. This reads:

“7.2 Dismissal by Notice

(a) The CIC may dismiss an employee at any time on four weeks notice.

(b) An employee dismissed under this Regulation shall be entitled to:

(i) Pro rata leave pay, and

(ii) Pro rata long service leave pay in accordance with regulation 9.3(b).

(iii) Refund of superannuation contributions in accordance with the policy of the superannuation scheme, and

(iv) The balance of his salary in respect of the unexpired portion of the notice period if any, and

(v) Repatriation in accordance with Regulation 7.4 of the CIC terms and conditions.”

In the present case, I am satisfied on the evidence from the defendant that at relevant and material time the decision was made, a redundancy situation had indeed occurred. Consequently, I am of the view that the plaintiff’s claim on speculation is without basis. It follows that he was properly made redundant. Consequently his claim is dismissed.

Lawyers for the Plaintiff: Kot & Co.

Lawyers for the Defendant: Acanufa & Associates