Saki v Kangleon [2019] PGNC 152; N7860 (15 May 2019)

N7860

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 428 OF 2018

BETWEEN:
GRACE SAKI
Plaintiff

AND:
CORAZON R. KANGLEON
First Defendant

AND:
ORLANDO AVINANTE
Second Defendant

AND:
KONE DEVELOPMENTS LIMITED trading as
SUPER VALUE SUPERMARKET-2 MILE
Third Defendant

Waigani: Thompson J
2019: 13 & 15 May

CONTRACT OF EMPLOYMENT – Summary Termination – Whether evidence before employer was sufficient, if accepted, to show misconduct.

Counsel:

Mr R Awalua, for the Plaintiff
Mr D Kipa, for the Defendants

15^th May, 2019

1. THOMPSON J: The Plaintiff has issued these proceedings, claiming various types of damages for being unlawfully terminated from her employment.
   

Facts

2. The Plaintiff had been employed in different positions with the Third Defendant (“SVS”) since 15 October 2014. She had been a Cashier Supervisor since May 2017. Her employment agreement was partly oral and partly in writing, by means of written Guidelines and Conditions for Cashiers/Employees and Procedure for Employees, which the Plaintiff signed on 14 October 2014.
   
3. Clause 1 of the Guidelines required the Plaintiff to conduct herself in a respectful manner. Clause 6 provided that if the Plaintiff was caught stealing or performing any dishonest act, no matter how small, she would be immediately terminated without notice.
   
4. This is consistent with Section 36 of the Employment Act, which provides that an employer may summarily terminate an employee without notice, where the employee misconducts herself by an act of omission or commission that is inconsistent with the due and faithful discharge of her duties, or is guilty of a fraud or dishonesty. This provision is not made subject to the terms of any contract between the parties. It applies in addition to any contractual term. (See New Britain Palm Oil Ltd v Vitus Sukuramu (2008) PGSC 29).
   
5. On 12 February 2018 the Plaintiff’s employment was summarily terminated, in reliance on clauses 1 and 6 of the Guidelines. This was on the basis that the Plaintiff had failed in her duty to inform them of a shortfall of K2000 in a cash float, in circumstances they considered to be dishonest, had also been disrespectful when they inquired into the matter, and had broken the trust and confidence which had existed between her and her superiors.
   
6. The Plaintiff responded by saying that she would prove her innocence, and she engaged persons to represent her.
   

Evidence

7. The evidence established that it was the Defendants’ practice that one of its managers, Corazon Kangleon (“CK”), would each morning prepare bags of cash with different denominations, to be used as cash floats. About 19 bags of General Cash and 1 bag of Small Change cash were prepared daily. These bags were then given to the Duty Manager, who would give one General Cash bag to each of the 19 cashiers, and would give the Small Change bag to the Cashier Supervisor. The cashiers would put the General cash in their tills, ready for when the shop opened. The Cashier Supervisor would retain the Small Change Float bag, and if the cashiers ran out of change during the day, they would ask her to give them some. At the end of the Supervisor’s shift, she would tally up the cash in her Small Change bag, and hand it over to the next incoming Supervisor. Although it wasn’t specifically stated by any witness, it seemed that at the end of the day, the Small Change bag would be returned to the Duty Manager and/or the Main Manager.
   
8. The Plaintiff had said that the amount of the Small Change cash float usually varied. However, all the Defendants’ witnesses denied this, and said that the Small Change cash float was always K6,800 on week days, and K8,800 on Sundays.
   
9. The Plaintiff said that there was usually a written note setting out the denominations and total of the notes, attached to the Small Change bag. CK denied this, and said she did not write any such notes. She said she only wrote the cash total on the outside of the bag.
   
10. CK gave evidence that she had worked for SVS for 15 years, that she worked six days a week, and had Sunday off. Accordingly, on Saturdays, she also prepared the cash floats for Sunday, and put them in a locked drawer in the cash room for the next morning. The Duty Manager would collect the key from her in the morning, unlock the drawer and distribute the bags in the usual way.
    
11. CK gave evidence that on the afternoon of Saturday 6 January 2018, she prepared all the General Cash Float bags, and 1 small Change Cash Float bag, for Sunday. She said that in the Small Change bag, she put K8,800 cash comprised of K1000 in K50 notes, K3000 in K20 notes, K2000 in K10 notes, K2000 in K5 notes, and K800 in K2 notes. She did this in the presence of Mea Morea (“MM”), a Grocery Clerk Assistant who double-checked by counting the notes, and who agreed with the total. CK then put the K8, 800 in a bag, and wrote the total amount on the outside of the bag, before locking it in the drawer. MM confirmed this in her evidence, and confirmed that double-checking the cash counting with CK was part of her job duty, which she always did. CK went on to say that when she finished work, she left, and did not return until Monday morning.
    
12. Yayang Hadibrata (“YH”) gave evidence that she was the Corporate Services Manager, and that on Sunday 7 January 2018 she was the Duty Manager, together with Elmer Furaque (“EF”). She had collected the key from CK, and at about 7.15 am she unlocked the drawer in the cash room, and they brought out all the cash bags. They distributed the 19 General Float bags to the cashiers. As the Plaintiff was not yet at work, YH put the Small Change bag in a locked drawer. She said that K8800 was written on the bag.
    
13. When the Plaintiff arrived, YH gave her the key, and the Plaintiff then unlocked the drawer and took the Small Change bag. YH said that the Plaintiff did not subsequently tell her anything about the amount of cash in the bag. YH said that on Sunday it was normal procedure for the Small Change Float to be K8,800 and that all Cashier Supervisors including the Plaintiff, knew that.
    
14. The Plaintiff’s evidence was different. The Plaintiff said in her affidavit that YH gave her the Small Change bag. The Plaintiff said that the total amount was written on the outside of the bag, but it was K6800. She said that it was the usual practice for the Duty Manager to attach a break-up note to the bag, but there was no note, and so the Plaintiff counted the money and found K6800. She said in her affidavit that there were only K2000 worth of K20 notes, and only K1000 worth of K10 notes. She said “I counted the money”, and “I proceeded to do the break up”, and did not refer to any other person. The Plaintiff said that she then gave K300 each to 8 cashiers, and retained the balance in her bag for the cash float. She gave no reason for giving out that cash shortly after the General Cash had been given out, and before any Small Change was required.
    
15. In cross-examination in her oral evidence, the Plaintiff said that after receiving the bag from YH, she counted the money in the presence of 2 cashiers, who she named, and who she said confirmed that the amount was K6800. When asked why this was not stated in her earlier affidavit or in her earlier oral evidence, the Plaintiff said that she did not put it in because she had asked those persons to give her statements, but they had declined.
    
16. This was obviously crucial evidence. If the Plaintiff had been able to establish that immediately after receiving the bag from YH before the shop opened, that she and 2 other employees had counted the contents and found it only to be K6800, this would have provided strong evidence that either the bag had never contained K8800 or that K2000 had been stolen by someone before the Plaintiff received the bag. In view of the importance of this in establishing her innocence, it would be reasonable to expect that the Plaintiff would have said this in her affidavit, and also in her evidence in chief. It would also be reasonable to expect the Plaintiff to have subpoenaed those 2 persons to give evidence. However, she did not. Her evidence on this point was therefore open to be interpreted as a recent invention.
    
17. The Plaintiff said in her affidavit that at the end of her shift, she handed the Small Change Float bag to Doreen Wanuk (“DW”), the incoming Cashier Supervisor. The Plaintiff said that DW confirmed the amount as K6800, and that the Plaintiff then left.
    
18. DW, who had been employed by SVS for about 12 years, denied this. She said that when she got the bag, she counted the contents, and was surprised to find it was only K6800, because she knew the Sunday float was always K8800. She did not confirm the amount with the Plaintiff. She twice asked the Plaintiff how much the Plaintiff had received in the morning, and why the float was only K6800, but the Plaintiff did not answer, and walked away. DW did not report this to the Duty Manager.
    
19. Jennifer Gabriel (“JG”) also gave evidence. She was a Floor Cashier Supervisor who was also on duty on 7 January 2018. She noticed the Plaintiff giving cash from the Small Change Float to the cashiers, shortly after the shop had opened. This made her suspicious, as the Supervisor is only meant to give change to the cashiers when requested as needed by the cashiers during the day.
    
20. After finishing her shift on Sunday afternoon, the Plaintiff left, and returned at 6 pm to do a stock take, where she remained until 6 am. She then went home, and did not return to work until Tuesday 9 January 2019.
    
21. When CK came to work on Monday 8 January, she counted the Small Change Float bag cash, and found that it was only K6800. She then commenced making enquiries. On Tuesday 9 January, when the Plaintiff came to work, CK questioned her about the shortfall. CK said that the Plaintiff told her that there were no K50 notes and only K1000s worth of K10 notes in the bag. When CK told her that this was not correct and that MM had witnessed CK putting K1000s worth of K50 notes and K2000s worth of K10 notes in the bag, CK said that the Plaintiff became aggressive and left. The Plaintiff denied this.
    
22. CK said that she made further enquiries, and on 12 January 2018 interviewed the Plaintiff again, in the presence of Orlando Avinante (“OA”). CK said that the Plaintiff changed her story, and said that there were in fact K50 notes, which she had counted. When CK asked her why she had lied earlier, CK says that the Plaintiff answered that she had not been in her right mind.
    
23. The Plaintiff said that DW was asked to do a statement, which she did, and which said that there was K6800 in the bag, but that CK had rejected this and told her to do another statement. The Plaintiff further said that she told CK that CK must have misplaced the monies as she had done in a previous matter when she had wrongly accused JG of stealing, when the monies were just misplaced. Both CK and JG denied the Plaintiff’s evidence, and said none of this had happened.
    
24. Nanu Gapi (“NG”), the Assistant Manager for Administration and Finance, gave evidence, and said that after negotiations with the Plaintiff, she agreed to repay the K2000 by fortnightly deductions, but then refused to sign the deduction authority.
    
25. OA, the Store Manager, gave evidence, essentially confirming CKs evidence, and saying that after negotiations with the Plaintiff had failed, he gave the Plaintiff the choice of resigning or being terminated, she chose termination, and so she was given the termination letter dated 12 February 2019. He said that after subsequently receiving correspondence from the Plaintiff’s representatives, he instructed the Defendant’s lawyers to offer a fortnight’s salary in lieu of notice to the Plaintiff, but she refused the offer.
    

Law

26. The law on unlawful termination is well settled. An employee who is unlawfully terminated, will receive as damages the amount which she would have been entitled to receive if she had been lawfully terminated. (See Pama Anio v Aho Baliki (2004) N2719, The Central Bank of PNG v Gabriel Tugiau (2009) SC 1013 and William Maninga v Ramu Sugar Ltd (2010) N4118). In order to receive damages, any actual loss and damage must be clearly pleaded with particularity, and then established by proper evidence at the hearing. If there is no proper foundation in the pleadings or no proper evidence to support the pleadings, no damages can be awarded. (See PNGBC v Jeff Tole (2002) SC 694 and Central Bank of PNG v Gabriel Tugiau (supra).
    
27. The Plaintiff has not been charged with a criminal offence, and the role of this Court is not to determine the Plaintiff’s guilt or innocence. It is not even to determine whether or not the Plaintiff stole K2000 from the cash float. The Court’s role is only to determine whether or not the Defendants breached the terms of employment and wrongfully terminated the Plaintiff without notice or payment in lieu of notice.
    
28. The test is whether or not there was evidence before the Defendants which, if accepted, would constitute a breach by the Plaintiff of the terms of her employment, ie; which would show that the Plaintiff had been caught stealing or performing any dishonest act, no matter how small (see Tau Gulu v PNG Defence Force Savings and Loans Society Ltd (1995) N1399, and Joseph Charlie v Dr Thomas Webster (2008) N3408).
    
29. The Defendants had before them evidence showing that K8800 cash was put in the Small Change bag by CK, in accordance with the standard practice for Sunday, and as witnessed by MM, that K8800 was written on the bag, that the bag remained in a locked drawer in the cash room until the next morning when it was taken by YH and EF and subsequently received by the Plaintiff, that the Plaintiff gave some cash from this bag to the cashiers when they had not requested it and it was not needed, that when the Plaintiff handed over the bag to DW, it only had K6800 in it, and the Plaintiff did not answer DWs questions about the cash amount. The Defendants further had evidence that in response to their enquiries, the Plaintiff initially gave one explanation for why she counted the notes and how many notes she found when she counted them, but later gave a quite different explanation, and that the Plaintiff made statements about the earlier conduct of CK and JG which they said were not true. Further, during the trial, the Plaintiff gave very different evidence of what had happened after she received the cash bags, which she said could have been corroborated by two people, but which was not corroborated at all.
    
30. In relation to that last matter, the Defendants are entitled to rely on grounds for termination which were not specifically relied on at the time of termination, and which may not have existed at the time of termination (see Wilson Thompson v Bernard Kipit & NCDC (2004) N2686 and Pama Anio v Aho Baliki (2004) N2719). This is because an employer is not obliged to give any reasons for termination (see New Britain Palm Oil Ltd v Vitus Sukuramu supra), although of course it is good practice to do so.
    

Liability

31. If accepted, the evidence before the Defendants was sufficient to show that the Plaintiff had performed dishonest acts by, if not actually stealing, failing to account for monies which had been in her custody, and by giving contradictory and untruthful evidence of the circumstances surrounding the monies, and had thereby misconducted herself in a way that was inconsistent with the due and faithful discharge of her duties. It was reasonable for the Defendants to accept the evidence of their other staff, in preference to the evidence of the Plaintiff. The Plaintiff has therefore failed to establish that the Defendants were in breach of the conditions of employment or of the Employment Act.
    

Damages

32. It follows that the Plaintiff is therefore not entitled to be awarded any damages.
    
33. However, even if the Plaintiff had been entitled to claim damages, she had not pleaded those claims with sufficient particularity, and had not called evidence in support of those claims, which were for economic loss, recreation leave, long service leave, repatriation costs, Nasfunds contributions and so on, and even an ex gratia payment. There was no pleading or evidence of any such contractual or statutory entitlements.
    
34. Under Section 40 of the Employment Act, in the absence of any contractual entitlement, repatriation costs are only payable where the employer has brought the employee to the place of employment, which was not the case here. In relation to general damages, the Plaintiff did not produce any medical evidence establishing any damage, so there could be no basis for assessing such damages (see Central Bank of PNG v Gabriel Tugiau supra). No evidence was produced in support of any of the claims, and no damages could have been assessed.
    

Conclusion

35. The Defendants were entitled to summarily terminate the Plaintiff, without notice or payment in lieu. The Plaintiff has not established any breach of either the terms and conditions of her employment or any breach of the Employment Act, by the Defendants. In relation to costs, it appears that the Plaintiff has little or no financial capacity to pay costs.
    
36. I therefore make the following orders:
    
    1. The Plaintiff’s claims against the First, Second and Third Defendants are dismissed.
       
    2. Each party is to pay its own costs.

___________________________________________
Ame Lawyers: Lawyers for the Plaintiff
Twivey Lawyers: Lawyers for the Defendants