Pundari v Niolam Security Ltd [2009] PGNC 111; N3738 (22 May 2009)

N3738

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S.NO. 1106 OF 2005

BETWEEN:

MICHAEL PUNDARI
Plaintiff

AND:

NIOLAM SECURITY LIMITED
Defendant

Kokopo: Lenalia; J.
2009: 10th - 13th, 15th & 17th February & 22nd May

LAW OF CONTRACT – Contract of Employment – Master and servant – Written contract of employment – Contract of service – Termination of contract within 2nd term of contract – Termination of contract on grounds of misconduct, unaccounted cash receipts and endangering corporate image.

CONTRACT – Written contract of employment – Construction of documented contract of service– Contract of service –Contractual terms in writing – No evidence be allowed to add, subtract, qualify or vary written contract.

CONTRACT – Construction of – Fair and liberal approach to give effect to the agreement of the parties – Court can allow extrinsic evidence to construe invalidating clauses or terms implied by law or practice.

Cases cited:
Papua New Guinea Cases

Iambaki Okuk and The Independent State of Papua New Guinea [1980] PNGLR 274
Papua New Guinea Air Pilots Association v Director Civil Aviation and the National Airline Commission trading as Air Niuguni [1983] PNGLR 1 Steamships Trading Co. Ltd v Joel and Others [1991] PNGLR 133
Curtain Bros (Qld.) Pty Ltd v The State [1993] PNGLR 285
Bruno Baiwan v University of Papua New Guinea [1995] PNGLR 18
Jimmy Malai v PNG Teachers Association [1991] PNGLR 116
Jimmy Malai v PNG Teachers Association [1992] PNGLR 568
Paddy Fagon v Negiso Distributors Pty Ltd (1999) N1900
Legu Vali v NCDC (2002) N2280
Vitus Sikurumu v New Britain Palm Oil Limited (2007) N3124

Overseas cases

Bank of Australia v. Palmer [1897] UKLawRpAC 44; [1897] AC 540
Bank of New Zealand v Simpson [1900] A.C.182
Reliance Marine Insurance v. Duder [1912] UKLawRpKQB 90; [1913] 1 KB 265

Held:

(1). Where there is a written contract, no extrinsic evidence should be allowed or added to it unless a contract falls under well recognized exceptions in law. No evidence should be allowed to add, subtract, qualify or vary written contract.

(2). In case of summary dismissal, the employee was entitled to one month notice as required by Clause 10 of the Contract of Employment.

(3). Termination of the contract of employment was lawful in terms of Clause 10 because the plaintiff had been found guilty of a serious breach of the terms of his employment.

Counsel

Mr. M. Pundari in person
Mr. A. McDonald, for Defendant

22nd May, 2009

1. LENALIA; J. The plaintiff was employed by the Defendant Company as a General Manager under a Contract of Employment. He was summarily dismissed on 18th July 2005. He filed the Writ of Summons on 28th July that same year claiming damages for wrongful termination and damages associated with what he alleges to be ‘wrongful dismissal’.

Background Facts

2. The plaintiff was employed by the Defendant Company as a General Manager under a Contract of Employment. He commenced his employment on 23rd January 2003 which ran for 2 years and expired on 20th January 2005. The contract was renewed and supposed to run until 20th January 2008. He was summarily dismissed on 18th July 2005. He commenced proceedings by filing the Writ of Summons on 28th July 2005 claiming damages for wrongful termination and damages associated with the wrongful dismissal. The trial of this case ran for 6½ days from 10th to 13th, 15th & 17th February 2009.

Evidence for the plaintiff

3. The evidence called by the plaintiff is that, in 2003, he was called in by the defendant to clean up the mess in the company office created by the former administration. He aimed high and set his task to achieve what he had been engaged to do in the terms of reference on his first term in office. After the completion of his first term in office on 20th January 2005, it was renewed for a further period of three years.

4. He said in his term of employment with the defendant, he had never been charged with any disciplinary offences. He said between June and July 2005 there were allegations made against him in relation to the use of company assets including short falls on the sale of company vehicles and banana boats.

5. He said before selling those assets, Ela Motors was engaged to do some quotes but such were really low. So his administration decided to sell the equipment. After selling those items, he traveled to Lihir to discuss the proceeds of the sale and the defendant administration agreed that a commission of K500.00 be paid to his staff who sold the equipment. He said the agreement extended to the general manager and the operations manager. (See Exhibits ‘1’ ‘2’ ‘3’ & ‘4’).

6. The witness was vigorously cross-examined on how and where the unaccounted sums of money went to in Ex ‘2’. In that document, on a memo dated 4th July 2005, the plaintiff wrote to Mr. Tony Kabaru who was then the Group Financial Controller explaining where some of the money went to and what purposes such money was used for.

7. He was asked if he read the terms of the letter to him dated 18th July 2005 and understood its contents because it raised very serious allegations against him. The plaintiff said he read it and understood the nature of the three serious allegations made against him. He was asked about the amount unaccounted for as stated in his memo of explanation to the Financial Controller was not K3, 150.00 but it was more. It was suggested to him by the defence counsel if it was true the actual amount not accounted for was some K8, 000.00. The witness answered in the positive.

8. He was further asked why was it that he did not get a copy of Ela Motor’s quotes to show what the offer was for the sale of the equipment. He answered that it was not necessary as Mr. Kabaru knew about the arrangement.

9. The next witness was Mrs. Leonia Monkim. Her evidence was not of any value to the issues on this trial and was struck out pursuant to O.11 r.22 (4) since the witness said she did not read part of it. That followed an application by the defence counsel and the court ordered Leonia’s evidence to be struck out.

10. The affidavit sworn to by Hon. Albert Boanga was tendered through him. His evidence is basically that in early June 2005, three company officials of the defendant company came to his office and complained about the plaintiffs drunkard behaviour and how he terrorized some members of Kokopo town community. He named those officers as Tom Pono, Luke Monkim and Alois Binore.

11. The next witness, Mrs. Rebecca Kalimet gave evidence about an incident which occurred at Andersons supermarket. About 12:30pm on 10th June 2005, she had a fight with her husband Lali Kalimet near the shop. Lali was a security supervisor for the defendant. After they fought, they drove to the Big Rooster car park where the plaintiff caught up with them and told them not to fight in public. The plaintiff came to see them the next day by which time they had settled. This witness said the plaintiff is a law abiding citizen.

12. In cross-examination this witness was asked if the fight took place inside the shop. She said, it took place outside Anderson’s supermarket. She was asked if the plaintiff ever insulted her in anyway. Rebecca answered in the negative. She was asked if the plaintiff said anything bad about the Sepik people. She said, not to her directly. She was asked what she meant when she said ‘not directly’ to her. The witness said, if the plaintiff said something bad about the Sepik people, he did not say it in her presence.

13. Sheila Debra Pundari was the next witness. She is the daughter of the plaintiff. Her affidavit was tendered through her. In that document (Doc.75) she gave a short account of an incident which occurred on 29th March 2005 when she went with her mother and two of her small sisters to the defendant company office at Takubar. Her mother went into the office to collect a cheque for rental payments for their house at Kenabot.

14. When she and her sisters were waiting, one Mr. Alois Binore came into the company yard and asked her what she had done. When her mother came out from the office, Alois shouted at her and said in Pidgin ‘salim Sheila igo long man nau’ meaning, send Sheila to the man now. She was asked in cross-examination if Mr. Binore was actually charged for insulting her.

15. She said he was arrested and charged. He was dealt with in the District Court and convicted and reprimanded. She was asked what actual words Alois mentioned to her that was insulting in nature. The witness said, he accused her of being pregnant when in fact she was not.

16. The next witness called was Elias Tamti. He was employed by the defendant company as a mechanic at the time the plaintiff was terminated. This witness was rather evasive when he was asked questions in chief. When he was asked to identify his affidavit, he said he did not recognize it even though his signature was on it. (See Doc.68). When he was asked in cross-examination about the amount involved for the sale of a vehicle involving the sum of K4, 500.00, the witness said, he only paid K3, 500 for that used vehicle. He said, he was willing to pay the full amount but he was refunded K1, 000.00 because of the condition of the vehicle.

16. Tony Kabaru also gave evidence. His affidavit (Doc.74) filed on 28th March 2008 was tendered. He is an accountant by profession. At that time he was the Group Financial Controller with Lakaka Ltd. Tony’s evidence is relevant in so far as it relates to the sale of an old fleet of vehicles owned by the defendant company.

17. He confirmed the plaintiffs evidence that when the vehicles were put through Ela Motors for quote, the quotes were very low. According to this witness the plaintiff suggested he was to sell the vehicles privately and suggested he was going to pay a commission of K500.00 for one item sold.

18. Tony said he recalls approving the use of cash advance from the proceeds of the sales of vehicles in 2004 and early 2005. He was asked in cross-examination if the suggested commission agreement was in writing. The witness said, he could not recall as well as he did not see anything in black and white.

19. He was asked why. He said he did not know. He was asked about certain discrepancies on the audit report which showed a shortage of some K6, 000.00. Tony said it was true there was a short fall but the plaintiff explained that in a letter to the Group Financial Controller.

20. This witness admitted certain discrepancies on the money that was gained from the sale of vehicles. There was K2, 000.00 missing from the amount of K4, 500.00. He was asked why he did not mention the K1, 500.00 for the Wafi Gold Mine and the travel allowances to Lae. The witness said, he should have included such amounts.

21. The witness was further asked about amounts of K3, 000.00, K2, 500.00 and another K2, 500.00 as to whether these amounts were banked or not. The witness said, it was not banked as well as the K500.00 commission was unaccounted for. He was asked if his affidavit gives an impression that an amount of K2, 600.00 was missing somewhere.

22. Tony said yes on the face of it ‘yes’. It appeared clear from the evidence of this witness that much of the transaction in dealing with the proceeds of the sale of assets was not documented. He also admitted that the short fall was K6, 900.00 but he as the financial controller only accepted K3, 000.00.

Defence case

23. The defence evidence came from number of people. Ms. Maureen Turagil is an accountant with Lakaka Group of companies including the defendant company. She gave very short evidence and her affidavit (Doc.79) was tendered through her to court. She said in her affidavit that she does not support the plaintiff or the defendant but she was asked by the plaintiff to calculate what the plaintiff would have properly received.

24. She was asked in chief if she wanted to change anything in her affidavit. She said the only thing she wanted to amend was the figure in paragraph 3 of her affidavit should include NASFUND entitlements. She was asked what she meant and she said, if calculated from the date the plaintiff was terminated, should be K25, 000.00.

25. In cross-examination she was asked how she calculated the figures for the plaintiffs children. The witness said, the calculations were based on the then current Air Niugini airfares charges. He was asked about the calculated estimates for 2006 and 2007. She said, in those years the plaintiff was no longer employed by the defendant and there was no need for any figures for those years.

26. With the consent of both the plaintiff and the defence counsel, Mr. Charles Soroman was recalled this time to confirm evidence about the defendant company Radio Control Room about a message that was put through the company net work supposedly by the plaintiff. Charles’ evidence confirmed that the plaintiff was terminated because he was summarily dismissed for certain allegations made against him by the defendant’s administration. He revealed in cross-examination that, he had known the plaintiff since mid 70s when they were together at the Bomana Police College.

27. Ilai Wawaongo was the next witness. This witness was an Operations Manager in 2004. In December of that year, he was forced by the plaintiff to resign because he was involved in a car accident with a vehicle owned by Lote Investments. Ilai was asked about when the allegations about misappropriation occurred. He said it was in 2004. He was asked why he did not report the misappropriation to the General Manager in time. He said he only reported it after the General Manager spoke to him.

28. Frank Enekive gave short evidence saying he was a security supervisor with the defendant company in 2005. At that time the plaintiff was the general manager. His affidavit was tendered through him. In his affidavit he gives an account of an incident which occurred in early 2005. He saw the plaintiffs vehicle on the car park at Niolam Security compound at Takubar.

29. He said when he was in his house, he heard people shouting and he came out. He said he saw Alois Binore running away from his house and heard the plaintiff shouting at Alois. He said he was unhappy about the plaintiffs behaviour toward Alois.

30. Mr. Robert Asa is a lawyer in the employ of Warner Shand Lawyers in Kokopo, East New Britain. In chief, he denied being served with a sealed copy of Motion for Direction for Hearing. He said, he cannot recall if the plaintiff or anyone for that matter served him with such document. He was cross-examined about his denial of being served with the document and said he was never being served with such Notice of Motion.

31. Evidence by Messrs. Lali Kalimet and Alois Binore is relevant to the issue on this trial. In the case of the former, before his affidavit was tendered he was asked in chief if he wanted to change anything on it (see Doc.82). He said, he wanted to amend paragraphs 3 and 4 of his affidavit. The contents of that paragraph were all in abusive and insulting words which did not go into evidence. The witness however admitted that the plaintiff had said the Sepik people were not good.

32. In the case of Alois Binore, his affidavit was tendered though him into evidence. He confirmed on oath that, on various dates in April 2005 the plaintiff insulted him and the Sepik people. He confirmed that the plaintiff threatened to shoot him. The witness said in chief that, he was terminated from his work as the company Shift Supervisor. Every time the plaintiff saw this witness he would ridicule him and would shout abuse at him.

33. Alois said on 16th June 2005, he was served with a notice of termination. (See Ann ‘A’) of his affidavit. In Ann ‘B’ of his affidavit the witness replied to the allegation made against him. In his reply the witness said, the plaintiff had insulted and made discriminatory remarks about Sepik people in the company radio net work. This witness also told of an incident on 18th April 2005 where the plaintiff punched him. He was asked about why Mr. Pundari did that to him. He said, he did not know.

34. In cross-examination, this witness was asked about when the defendant company directors had the meeting and if he lodged his complain with the board as the directors’ meeting was held on 17th June 2005. He was asked if it was true that, he was already terminated by then. If the witness was terminated by the 16th, it was possible to lay a complaint with the directors the next day.

35. The final defence witness in this case was Mr. Luke Monkim. He was the Operations Manager at the time the incidents in this case arose. He was asked about the threats the plaintiff made to his wife. Luke said, the plaintiff asked Mrs. Monkim about the kind of treatment she was giving her husband (this witness) and said if she continued, he (the plaintiff) would hit her.

36. He was asked what was the appearance of the plaintiff like on 4th June 2005. The witness said, his breath had smell of liquor, his eyes were bloodshot, his speech was slurred and the witness concluded that those were symptoms of being fully drunk.

37. He was asked about the radio message he heard on the company radio net work which is the subject of paragraph 4 of his witness affidavit. Luke replied that, that message was what he heard with his ears in the net work operated by the defendant company. He said no body told him. He heard it on the company radio net work by himself.

38. He confirmed after hearing this news, he discussed this with Mr. Kalimet after the same asked if it was true. He said he told Mr. Kalimet what he heard on the company radio net work and he was really upset about it.

39. He was asked about what he deposed to in paragraph 7 of his affidavit and if it was true that Mr. Binore had been actually harassed by the plaintiff. He said it was true and as the Operations Manager, he deployed Alois Binore as ground supervisor at CPL Coconut Product at Ulaweo plantation.

40. He further confirmed in chief that, he received a message from the company directors enquiring about the plaintiffs behaviour to the company staff and the manner in which the plaintiff was treating them. He was further asked what effect the insults had on the Sepik people. Luke replied that, the Sepik people were really frustrated and which could have caused the staff to walk off their duties.

41. The witness was asked if he ever asked Honourable Albert Boanga to be in the meeting with the directors when the allegation made against the plaintiff were discussed. He answered in the negative. He also said, when Mr. Michael Piniel came to Kokopo, he spoke to him about the plaintiffs work behaviour.

42. This witness however admitted that he was in that meeting with the three directors. In that meeting, the witness revealed what information he revealed to the board of directors and those who were present in the meeting.

43. In cross-examination it was put to the witness if it was true that he (plaintiff) saw this witness in his (witness) office to discuss a company vehicle that was driven to Warongoi to deploy the guards. The witness said, he did not recall talking to the plaintiff in the office. It was put to him if the witness’s family was with him in the vehicle. The witness admitted he was with his family. He was asked if it was true that, he (plaintiff) insulted this witness’s wife when this witness was there.

44. Luke said, he was with his family when the plaintiff insulted his wife outside Best Buy supermarket. He was asked if it was true that, the plaintiff had had grudges with Mrs. Kalimet. The witness said, that is what he knew it to be since Mr. Kalimet comes from Sepik.

45. The plaintiff asked the witness about the serious allegations made against him about the radio broadcast in the company net work and if it was true, it would be a case for very serious disciplinary charges. The witness said, on the face of it, it was very serious indeed. He was asked about any copies of the radio message on the allegation made against him.

46. The witness said, if he had a copy he would produce it. He explained the copies of minor and major occurrences are kept in the central control operation room. The witness was asked if he ever recorded the allegations in the Occurrence Book. It was recorded but somehow it had been misplaced.

47. The witness was asked if he produced a copy of the allegation to the director’s meeting on 18th June 2005. The witness said, though he was in the meeting, he did not produce any evidence of the allegations but said, the company staff in Kokopo was well aware of the allegations and that was why the allegations were investigated.

48. The plaintiff tried to discredit the witness by asking a series of questions as to why, this witness and Mrs. Kalimet’s wives gave evidence on behalf of the plaintiff.

49. The witness said, in case of his wife, he did not know how or why, his wife made a statement for the plaintiffs case, but he knew that both his wife and the wife of Lali made various statements in affidavit form in support of the defendant’s case. The plaintiff asked many more questions and answers were given. I do not consider it necessary to go through all those questions and answers except to say all evidence go against the plaintiff.

Defence submission on evidence

50. After the trial, the court directed the defence counsel and the plaintiff to file written submissions. For the defendant, Mr. MacDonald argues that, the defendant decided to terminate the plaintiff summarily because it decided that he was guilty of ‘serious and willful misconduct’. Counsel submitted that paragraph 5 of the pleadings does not clearly state which term of the contract of employment was breached.

51. He further argues that, what the plaintiff is implying is that in case of a serious misconduct, an employee would be given an opportunity to answer allegations before being found guilty. Counsel submitted that, in the case of the plaintiff, it was a written contract and the terms of such contract contained ‘expressed terms’ which legally bound the parties to the contract.

52. Mr. MacDonald referred to pleadings and the Amended Defence and the reply by the plaintiff which suggests that, it is an implied term of the contract that an employee should be afforded the right of ‘natural justice and fairness’.

53. He referred to the reconciliation statement compiled by Mr. Kabaru and the plaintiffs written explanation dated 4th July 2005 which accounted for a shortfall on the banking for the proceeds of the sale of various assets and the written explanation by the plaintiff which admitted an amount of K3, 150.00 including a further K400.00 was unaccounted for.

54. Counsel submitted that the court should consider the evidence of all the witnesses called on this trial and who testified about unaccounted cash receipts, misconduct, corporate image and the radio broadcast. On the plaintiffs dismissal, counsel submitted that, if the court was to find that, the plaintiffs dismissal was unlawful, then damages should be limited to three months salary and entitlements. Counsel referred to many cases which, the court will refer to some of them a little latter.

Plaintiffs submission in reply

55. In his reply, the plaintiff says that, to understand his claim, it is a matter of interpreting the contract of employment entered into between him and the defendant. He claims he was not given notice nor was he given the opportunity to answer the charges made against him.

56. He argues that, when he made his reply to the Amended Defence, he clearly pointed out to the defence lawyers that, his termination was unjustified because it is an implied term of his contract that he was entitled to be heard prior to being dismissed.

57. He further submitted that, he admits, he pleaded inference because that could be drawn and inferred from the defendant’s own policies relating to disciplinary procedures on which the concept of natural justice and fairness can be inferred. The plaintiff referred to the Standard Operation Procedures which he unsuccessfully tried to introduce into the evidence when in fact he did not plead anything about such document.

58. The court objected to the tender of that document simply because nothing must be allowed to be added to or subtracted from a written agreement in a contract of employment: Curtain Bros (QLD) Pty Ltd v. The State [1993] PNGLR 285.

59. The plaintiff further submitted that, he was on a three year contract of employment. That he was however wrongly terminated on three specific allegations made against him. He submits that those allegations were never formally investigated and he was never allowed to answer to the allegations.

60. He further submits that, under clause 10 of the contract of employment, it does not specifically say, he could be given an opportunity to answer to the allegations before he could be terminated. He admits that what Clause 10 does is it establishes grounds upon which he could be summarily dismissed without notice.

61. He argues on the alternative that, the decision made by the board of the defendant could not be reached without him being given an opportunity to answer to the allegations. He says he relies on the principles of natural justice and fairness and on the defendant’s policy contained in the Standard Operation Procedure.

LAW

62. The leading case supporting wrongful termination or what has been referred to in some cases as "the fire-at-will principle" is the Supreme Court’s decision in Jimmy Malai v PNG Teachers Association [1992] PNGLR 568. The Supreme Court in that case dismissed an appeal by a sacked employee, Jimmy Malai against the National Court in Jimmy Malai v PNG Teachers Association [1991] PNGLR 116. Mr. Malai’s employer sacked him without giving him a right to be heard.

63. The common law principle of the ‘right to hire and fire’ has been adopted and applied in many cases in this jurisdiction. The employer generally speaking, may in law and can in fact control the manner in which his employee executes the task assigned. The employer has the right to say what shall be done and how it must be done. I raise an hypothetical question here. Does a client have this control over the services of his solicitor, or accountant, or a doctor? The answer is clearly no.

64. In Jimmy Malai’s case, the National Court presided over by Brown, J; traced the development of the principles of natural justice that Mr. Malai, relied on. His Honour referred to the classic dictum of Lord Reid in the famous decision of the House of Lords in Ridge v Baldwin [1963] UKHL 2; [1964] A. C 40. Lord Reid said that, there cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time and for any reason or for non.

65. The common law principle of the ‘right to hire and fire’ has been adopted, stated and applied in many cases since Iambaki Okuk v The Independent State of Papua New Guinea [1980] PNGLR 274, Papua New Guinea Air Pilots Association v Director Civil Aviation and the National Airline Commission trading as Air Niuguni [1983] PNGLR 1, Steamships Trading Co. Ltd v Joel and Others [1991] PNGLR 133, Bruno Baiwan v University of Papua New Guinea [1995] PNGLR 18, Jimmy Malai v PNG Teachers Association [1992] PNGLR 568.

66. The traditional view about the employment relationship is that it is a relationship between an individual employer and an individual employee. The contract of employment is brought about by a private contract negotiated between the two parties. It is therefore implied by operation of the law that an employee will display due competence and care in the discharged of his assigned task or tasks and that he should perform those tasks in good faith. (See ‘Contract of Employment’ 3rd Edition at 135 by Brian Brooks).

67. Some of the more recent cases have followed the common law principles. For instance in Legu Vali v NCDC (2002) N2280 Kandakasi, J said that at common law an employer is entitled to terminate an employee with or without reasons but where termination affects an employee’s reputation, he ought to be given the opportunity to be heard. His Honour said at the 9th last paragraph:

"At common law an employer is entitled to terminate an employee with or without reason ... However, it has been held in cases where the reason for dismissal affects the reputation of the employee concerned, he must be given the opportunity to be heard and defend himself before being terminated. This principle applies in our country in nearly all public sector employment and to the private sector only by virtue of agreement of the parties to a contract of employment. This is the effect of a number of authorities in our country such as the Supreme Court judgment in Jimmy Malai v Papua New Guinea Teachers Association [1992] PNGLR 568."

68. In an earlier case in Paddy Fagon v Negiso Distributors Pty Ltd (1999) N1900, it was a case of an employment contract. Kirriwom J said:

"In a master and servant relationship, the master has the right to hire and fire his servants. The same principle applies in private employment situations such as in this case as opposed to public sector employment or those employments concerned under the registered industrial organisations. Under common law a master does not have to give reasons for his decision to remove a servant and to replace one with another. That is his unfettered discretion and the common law respects. Common law is part of the underlying law in Papua New Guinea which was adopted on Independence and over the years since the Courts in this jurisdiction have adopted and cherished this common law principle."

69. In the instant case, the plaintiff is suing the defendant for wrongful termination. The contract of employment between the plaintiff and the defendant was renewed on 20th January 2005. His contract should run for three years and expire on 20th January 2008. He was terminated on 18th July 2005.

70. Under Clause 10 of his contract, the defendant company could exercise its right to terminate the plaintiff service at any time during the term of his contract in case of summary dismissal. I quote paragraphs 1 & 2 of Clause 10 which provide:

"Should the Company exercise its right to terminate the Employee’s service at any time during his assignment because of poor performance and/or discipline, then it shall provide one (1) months notice or pay in lieu of notice and meet the cost of returning the Employee and personal effects to the employee’s point of hire (Mount Hagen).

For the duration of this contract, if the Employee commits a serious breach of his terms of his employment, or is guilty of serious and willful misconduct, the Company may terminate his employment without notice".

71. The third paragraph sets down fifteen elaborate circumstances under which the plaintiff could be summarily dismissed. On 18th July 2005, the Managing Director of LAKAKA Group of companies conveyed the decision of the Board of Directors of Niolam Security Limited and informed him of his dismissal. In that letter, Mr. Michael Peniel gave three grounds for instant termination including, unaccounted cash receipts, misconduct and corporate image.

72. There was evidence on this trial that, the company fixed assets valuing K32, 900 were sold through private sale. Out of that amount, a total of K6, 900.00 were not accounted for. Part of that amount was admitted to being unaccounted for by the plaintiff in his evidence. There was evidence by other witnesses about the plaintiff being seen in drunken condition in the company vehicle a number of times. First in the company vehicle parked outside Best Buy and on a second occasion when the plaintiff and his wife went to the company premises at Takubar.

73. On the corporate image, what the plaintiff did to his own staff was by harassing Mr. Binore and the insults he broadcasted through the company radio net work was offensive and insulting to Sepik people.

74. The forgoing circumstances were what the defendant’s board considered to be serious and in my view were sufficient grounds warranting summary dismissal. The plaintiff has sued his employer, claiming he was dismissed without good cause and contrary to the principles of natural justice. This issue can be resolved by referring to the relevant provisions of the contract which I have already referred to.

75. The law on the right to hire and fire was critically discussed and analyzed recently by Cannings; J in Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124 that, the common law rule that an employer can hire and fire at will, with or without good reasons and without giving a right to be heard is no longer appropriate to the circumstances of Papua New Guinea. His Honour further said "to maintain such rule would be adverse to the development of the underlying law as a coherent system in a manner appropriate to the circumstances of Papua New Guinea".

76. The court in the above case formulated a new rule of law which is not law now because the appellants appealed in that case, New Britain Oil Palm Ltd & 3 Others v Vitus Sukuramu (30 October, 2008) SC946 and overturned that decision but the National Court in the above case said the implied terms of a contract of employment should include the principles of natural justice and the constitutional rights of the protection law.

77. On its decision, the Supreme Court quashed the decision and said at paragraph 35:

"The company was not exercising any quasi-judicial discretion or applying disciplinary procedures laid down by legislation. We are not aware of any authority for the proposition that an employer in an ordinary employer/employee relationship must state the reasons for termination. If the circumstances exist for summary termination, while it may not be a desirable course, as the law stands, an employer is not obliged to give any reasons."

78. In the course of the trial in the present case, the plaintiff tried to introduce into his evidence the company’s standard operation procedure manual to support his argument that inferences could be drawn from the defendant’s own policies relating to discipline setting out the procedures upon which natural justice and fairness could be inferred.

79. The court objected to the tender of that document because it was pleaded in the pleadings: Motor Vehicles Insurance (PNG) Trust v James Pupune [1993] PNGLR 370. Pleadings play an important role in the civil process because it gives the other party the opportunity to call necessary evidence if he decides so and define the issues expected on trial.

80. In the circumstances of the case before me, I find that, the plaintiff was terminated for good reasons and therefore he is not entitled to anything. I am of the view that the defendant had no obligation to give reasons to terminate the plaintiff since he was a private person employed by a private company as compared to nearly all public sector employment and to the private sector only by virtue of agreement of the parties to a contract of employment: Legu Vali v NCDC (2002) N2280.

81. The contract of employment entered into between the plaintiff and the defendant in the instant case was a private contract between them. This court will not add or subtract anything from the elaborate terms of the contract. If there were reasons to dismiss the plaintiff from his employment, it’s because he had breached certain fundamental conditions of his contract of employment.

82. It was the intention of the parties in Clause 10 that the employee should be summarily terminated and nothing must be added or subtracted from their elaborate intentions: Curtain Bros (QLD) Pty Ltd v. The State [1993] PNGLR 285. (See also Bank of Australia v Palmer [1897] UKLawRpAC 44; [1897] AC 540; Reliance Marine Insurance v. Duder [1912] UKLawRpKQB 90; [1913] 1 KB 265

83. Coming to the above conclusion, the only entitlement which the defendant will pay is one month notice as required by paragraph 1 of Clause 10 of the Employment Contract and the plaintiffs repatriation expenses. I dismiss this claim with costs to the defendant.

_______________________________________________

Michael Pundari: Plaintiff in Person
Posman Kua Aisi Lawyers: Lawyer for the Defendant