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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
HRA NO 167 OF 2019
VARO VALENTINE KAPIGENO
Plaintiff
V
CENTRAL BANK OF PAPUA NEW GUINEA
First Defendant
LOI BAKANI, GOVERNOR,
CENTRAL BANK OF PAPUA NEW GUINEA
Second Defendant
ELIZABETH GENIA, ASSISTANT GOVERNOR,
CENTRAL BANK OF PAPUA NEW GUINEA
Third Defendant
BRUCE KITCHEN, FACILITIES & PROPERTY MANAGER,
CENTRAL BANK OF PAPUA NEW GUINEA
Fourth Defendant
PATRICK KWIWA, HUMAN RESOURCES MANAGER,
CENTRAL BANK OF PAPUA NEW GUINEA
Fifth Defendant
HITOLO GALAMO, HUMAN RESOURCES OFFICER,
CENTRAL BANK OF PAPUA NEW GUINEA
Sixth Defendant
MAURI SERE, HUMAN RESOURCES OFFICER,
CENTRAL BANK OF PAPUA NEW GUINEA
Seventh Defendant
NAOMI KEDEA, HUMAN RESOURCES CONSULTANT,
CENTRAL BANK OF PAPUA NEW GUINEA
Eighth Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant
Waigani: Cannings J
2019: 1, 23 November,
2020: 9 January
HUMAN RIGHTS – application to contracts of employment – Constitution, Sections 36 (freedom from inhuman treatment); 48 (freedom of employment); 51 (freedom of information); 59 (principles of natural justice).
LAW OF EMPLOYMENT – six-month probation period under written contract of employment – termination of contract – whether contract lawfully terminated.
The plaintiff was employed by a statutory authority as security services manager under a written contract of employment, subject to successful completion of a six-month probation period. At the end of that period, the authority notified the plaintiff that it would not confirm him to a permanent position, and terminated the contract of employment. The plaintiff sued the authority and seven of its officers and the State, claiming damages for breaches of human rights. The plaintiff claimed that his performance was of a high standard and his employment was terminated without good cause, maliciously. He claimed that the termination of his employment was unceremonious and wrongful; that there had been continuous interference by some defendants in the performance of his duties, amounting to an abuse of the contract of employment; that he had been penalised for exposing gross abuse of powers and conflict of interests in the authority; that the manner of his abrupt termination had caused him serious stress and anxiety; and that the malicious conduct of the defendants had restricted his further employment opportunities. The plaintiff claimed that the defendants breached his human rights under the Constitution, Sections 36(freedom from inhuman treatment); 48(freedom of employment); 51 (freedom of information) and 59(principles of natural justice) and were liable in damages. The defendants denied all allegations of malicious conduct and impropriety, and argued that no cause of action for breach of human rights had been established. A trial was conducted on the issue of liability.
Held:
(1) Human rights, as conferred by the Constitution, have universal application in Papua New Guinea and can properly be regarded as implied terms of any contract of employment.
(2) It is not generally the role of the Court in a case of alleged wrongful dismissal of an employee to determine on the merits of the case whether the decision to terminate employment was justified.
(3) The plaintiff failed to prove that the decision to regard his probation as unsuccessful and to not confirm his employment was motivated by malice or personal animosity to him due to the performance of his duties or to his exposure of suspicious or allegedly corrupt activities within the authority.
(4) The plaintiff failed to prove that there had been any breach by the defendants of his human rights, as he was not dealt with inhumanely, was not denied his freedom of choice of employment or his right to freedom of information and was not dealt with procedurally unfairly.
(5) The contract of employment was lawfully terminated in accordance with the term that conferred a wide discretion on the employer, at the end of the period of probation, whether to confirm the plaintiff to the position.
(6) The plaintiff failed to establish a cause of action for breach of human rights and the proceedings were dismissed, subject to an order that the defendants pay the plaintiff his final entitlements, without deduction for or in respect of anything claimed to be owed to it by the plaintiff, within 14 days. The parties were ordered to pay their own costs.
Cases cited
The following cases are cited in the judgment:
Apolonia Steven v Ram KC (2016) N6577
Ayleen Bure v Robert Kapo (2005) N2902
Baisom Konori v Jant Ltd (2015) N5868
Bal Bar and Stettin Bay Lumber Company Limited v Maima Kora (2008) N3290
Bernbert Toa v Ly Cuong-Long (2008) N3471
Jimmy Malai v PNG Teachers Association [1992] PNGLR 568
Joe Kala v New Britain Palm Oil Limited (2007) N3125
Margaret Singadan v Bruce S Telfer (2018) N7072
Paru v Kotigama & Bmobile-Vodafone (2015) N6089
Podas v Divine Word University (2011) N4395
Vere Kilao v Bernard Tiau (2007) N5000
Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124
TRIAL
This was a wrongful dismissal action in which the plaintiff claimed damages for breach of human rights.
Counsel
V V Kapigeno, the Plaintiff, in person
I Guba & W Mai, for the First to Eighth Defendants
J Nickson, for the Ninth Defendant
9th January, 2020
1. CANNINGS J: This is a trial of a wrongful dismissal action in which the plaintiff, Kapi Valentine Kapigeno, claims damages for breach of human rights against his former employer, the Bank of Papua New Guinea (the Central Bank, the first defendant), the Governor of the Bank (the second defendant) and various other officers (the third to eighth defendants) and the State (ninth defendant).
2. The plaintiff was employed by the Bank as security services manager on 16 July 2018, under a written contract of employment, subject to successful completion of a six-month probation period. At the end of that period, the Governor, in a letter dated 25 January 2019, notified the plaintiff that the Bank would not confirm him to a permanent position as his working and management style was not in conformity with the Bank’s values and mission statement, and terminated the contract of employment.
3. The plaintiff claims that his performance was of a high standard and his employment was terminated without good cause, maliciously, due to (a) his investigation and exposure of suspicious and corrupt or incompetent breakdowns in internal security protocols and external security contract arrangements and (b) other measures he had introduced in his time in the job, which posed a threat to other personnel.
4. He claims that:
5. The plaintiff argues that the defendants therefore breached his human rights under the Constitution, Sections 36(freedom from inhuman treatment), 48(freedom of employment), 51 (freedom of information) and 59(principles of natural justice). He seeks general damages for breaches of human rights plus K12.8 million damages for unpaid contractual entitlements for the balance of his productive working life plus medical costs of K35,000.00 for himself and K150,000.00 in respect of his mother’s medical treatment. This was a trial on the issue of liability only.
6. The defendants deny all allegations of malicious conduct and impropriety, and argue that no cause of action for breach of human rights has been established. They agree that the plaintiff has not been paid his final entitlements; that is because he has refused to return a mobile phone and a camera, the property of the Bank, that are still in his possession.
ISSUES
7. The central issue is whether the plaintiff has proven that the defendants breached his human rights. In the statement of claim that the Court directed him to file, the plaintiff pleaded breach of four distinct rights.He did not pleadbreach of contract as a cause of action. Each of the alleged human rights breaches will be addressed in turn and the resolution of those issues will determine whether the plaintiff is entitled to damages. Then the question of unpaid entitlements will be addressed, followed by the question of what orders should be made. Thus the issues are:
OBSERVATIONS
8. Before addressing the issues, I make two observations. First, as I have said in previous cases in response to the suggestionthat human rights have no relevance in cases in which a person is suing their former employer after their employment is terminated, and that plaintiffs are restricted to arguing their case of wrongful dismissal along conventional breach of contract lines: Human rights, as conferred by the Constitution, have universal application in Papua New Guinea and can properly be regarded as implied terms of any contract of employment (Paru v Kotigama & Bmobile-Vodafone (2015) N6089). The plaintiff is quite within his rights in arguing his case as a breach of human rights.
9. Secondly, it is not generally the role of the Court in a case of alleged wrongful dismissal of an employee to determine on the merits of the case whether the decision to terminate employment was justified. Whether the cause of action is breach of contract or breach of human rights, the principal task of the court is to assess the plaintiff’s claim against the elements of the causes of action pleaded. The Court does not sit as an industrial or appellate tribunal. Its proceedings are not directed at the question of whether the plaintiff’s performance warranted his being sacked. The Court’s role, just like in judicial review of anadministrative decision, is to determine the legality of the termination of employment, not its merits.
10. The plaintiff argues that his termination was without good cause and left him deeply traumatised as he did not commit any criminal offence and was only doing his job as a security manager. The defendants terminated his employment unceremoniously, suspiciously and maliciously. They took steps to ensure that he would not get similar employment again. He has given evidence that he obtained employment with Tropicair Ltd several months after his termination from the Bank, but that he was terminated from that company after a short period because of information given by the Bank to Tropicair about his employment with the Bank.
11. He claims that the defendants have submitted him to mental torture and treated him inhumanely and removed his dignity, so much so that his rights under s 36 of the Constitutionhave been breached.
12. As I pointed out in Bernbert Toa v Ly Cuong-Long (2008) N3471, s 36(1) is one of the most important human rights provisions in the Constitution. It states:
No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.
13. Section 36(1) of the Constitution confers on all persons the right not to be submitted to:
14. For a person’s conduct to amount to torture or otherwise inhuman treatment of another under s 36(1), it must be conduct that is committed without the consent of the recipient and done with the intent and effect of treating the recipient as less than human (Baisom Konori v Jant Ltd (2015) N5868). Section 36 is a provision most often invoked where people have been detained in custody in conditions that can be described as inhuman (eg Re Conditions of Detention at Beon Correctional Institution (2006) N2969). 15. I am not aware of any case in which s 36(1) has been enforced in an employment context.
16. As I said in Apolonia Steven v Ram KC (2016) N6577 if an employer was running a sweatshop-style factory and employees were underpaid and treated poorly, Section 36(1) could appropriately be relied on to make orders to enforce the rights of the workers. But the present case is far removed from that scenario. There is no reasonable argument to say that the plaintiff was tortured or treated inhumanely by any of the defendants.
17. As for the plaintiff’s submissions that his employment was terminated unceremoniously and maliciously, I am not satisfied that that was in fact the case. It is inevitably and invariably a tense and difficult set of circumstances that exists when a person of the plaintiff’s standing in an organisation is sacked. These situations can be very stressful for everyone involved. Here, having considered the evidence from both sides, I have formed the view that the defendants dealt with the situation reasonably well. I am not persuaded by the evidence that the defendants improperly shared information with the plaintiff’s subsequent employer. No breach of human rights under s 36(1) of the Constitution has been proven.
18. The plaintiff argues that when the defendants maliciously broadcast the termination of his employment to external parties they ruined his employment opportunities in the security industry and interfered with his right to choice of employment under s 48(1) of the Constitution.
19. Section 48 states:
(1) Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.
(2) Subsection (1) does not prohibit reasonable action or provision for the encouragement of persons to join industrial organizations or for requiring membership of an industrial organization for any purpose.
20. I reject the argument that the defendants maliciously told others about the circumstances of the termination of the plaintiff’s employment. In any event, s 48 confers a right to freedom of choice of employment and to protection against imposition of unlawful qualifications on employment. It does not confer a right to employment (Premdas v The State [1979] PNGLR 329, Application by Karingu [1988-89] PNGLR 276, National Executive Council and Luke Lucas v Public Employees [1993] PNGLR 264, Allan Pinggah v Margaret Elias (2007) SC888).
21. The defendants did not interfere with the right of the plaintiff to his choice of employment in any calling for which he is qualified. No breach of human rights under s 48(1) of the Constitution has been proven.
22. The plaintiff argues that during the period of his employment with the Bank he submitted a firearms audit report to Assistant Governor Genia (the third defendant) who did not consider it seriously but asked him to redirect it to the Facilities and Properties Manager, Mr Kitchen (the fourth defendant). This was a perverse course of action to take as according to the report, Mr Kitchen was to some extent implicated in negligent maintenance of the Bank’s security asset registry, especially regarding missing firearms. The plaintiff claims that he was an internal whistle-blower but for his efforts in lifting the standard of security, procurement protocols and preservation of security assets, he was victimised and submitted to a flawed performance management reviewand told that he was not protected by the Bank’s Whistle-Blower Protection Policy.
23. The plaintiff argues that he should have been protected at all times by the right of reasonable access to official documents under s 51(1) of the Constitution; but instead his rights under that provision were breached.
24. Section 51(1) states:
(1) Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society in respect of—
(a) matters relating to national security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization); or
(b) records of meetings and decisions of the National Executive Council and of such executive bodies and elected governmental authorities as are prescribed by Organic Law or Act of the Parliament; or
(c) trade secrets, and privileged or confidential commercial or financial information obtained from a person or body; or
(d) parliamentary papers the subject of parliamentary privilege; or
(e) reports, official registers and memoranda prepared by governmental authorities or authorities established by government, prior to completion; or
(f) papers relating to lawful official activities for investigation and prosecution of crime; or
(g) the prevention, investigation and prosecution of crime; or
(h) the maintenance of personal privacy and security of the person; or
(i) matters contained in or related to reports prepared by, on behalf of or for the use of a governmental authority responsible for the regulation or supervision of financial institutions; or
(j) geological or geophysical information and data concerning wells and ore bodies.
(2) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the right guaranteed by this section.
(3) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.
(4) This section does not authorize—
(a) withholding information or limiting the availability of records to the public except in accordance with its provisions; or
(b) withholding information from the Parliament.
25. I reject the argument that the plaintiff was victimised for the alleged negligence and improprieties of others in the Bank. It appears from the evidence that the plaintiff did indeed have a management style that was more abrupt and straightforward than many officers in the Bank, at all levels of the organisation hierarchy, were used to. Some took exception to the way he was treating other officers and employees. Clearly the plaintiff was treading on toes. There was push-back against the reforms that he was trying to forge ahead with.
26. I must say, that from my review of the considerable body of evidence presented by both sides, the plaintiff appears to have been quite professional in his approach to performance of his duties. However, the reaction to his approach and style and his attempted reforms was not generally favourable; and that is a matter falling entirely within the discretion of the employer.
27. I am not persuaded that the plaintiff was victimised or that his right to freedom of information was breached. No breach of human rights under s 51(1) of the Constitution has been proven.
28. The plaintiff argues that he was treated unfairly and not given a proper hearing prior to the termination of his employment. This came about, he submitted, because of his firearms investigation report, which implicated Mr Kitchen, who then took charge of the performance management review which was biased and flawed. The plaintiff argues that he was denied natural justice under Section 59 (principles of natural justice) of the Constitution, which states:
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
29. The plaintiff’s arguments might have had more chance of success if my decisions in Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124 and Joe Kala v New Britain Palm Oil Limited (2007) N3125, in which I formulated a new rule of law, appropriate to the circumstances of the country, under the Underlying Law Act 2000, were still part of the law of Papua New Guinea. In those cases I ruled that the ‘fire at will’ principle of the common law that allows employers to terminate a contract of employment for any reason without giving a right to be heard and without providing reasons was no longer appropriate to the circumstances of Papua New Guinea. I ruled that the implied terms of a contract of employment include the principles of natural justice and the constitutional right of protection against harsh or oppressive or other proscribed acts. That meant an employee had a right to be heard before termination of employment. I applied that rule in several cases that subsequently came before me (eg Vere Kilao v Bernard Tiau (2007) N5000, Bal Bar and Stettin Bay Lumber Company Limited v Maima Kora (2008) N3290, Bernbert Toa v Ly Cuong-Long (2008) N3471).
30. However, on 30 October 2008 in New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC946 the Supreme Court upheld an appeal by the employer against that new rule. My decision in the National Court was overturned. The Supreme Court ruled that the National Court had in the circumstances of that case no power to develop the underlying law as the Supreme Court had already declared the underlying law – reaffirming the fire-at-will principle – in Jimmy Malai v PNG Teachers Association [1992] PNGLR 568.
31. As my decision was overruled, the underlying law has, as I explained in Podas v Divine Word University (2011) N4395, reverted to the common law position: the fire-at-will principle has been reinstated. An employer can hire and fire at will, with or without good reasons and without giving a right to be heard. These are the general principles, which can be displaced by the terms of a contract of employment (eg Ayleen Bure v Robert Kapo (2005) N2902). Put simply an employee has no right to be heard before being sacked unless his or her contract of employment says so.
32. In the present case nothing in the plaintiff’s contract gave him a right to be heard or a right to be dealt with fairly or a right to an unbiassed performance management review. So even if the plaintiff could prove that he was not given a right to be heard or that Mr Kitchen’s performance management review was biased, it is inconsequential. The plaintiff argues that the reasons given for his termination were without substance. That his performance was exemplary. That he was victimised for exposing negligence and corruption. That is also inconsequential. He was able to be sacked for good reasons or bad reasons or no reasons. That is the law, as declared by the Supreme Court, that I am obliged to apply.
33. I find that the plaintiff’s contract of employment was lawfully terminated in accordance with the term that conferred a wide discretion on the employer, at the end of the period of probation, whether to confirm the plaintiff to the position of security services manager. No breach of human rights under s 59 of the Constitution has been proven.
5 IS THE PLAINTIFF ENTITLED TO DAMAGES?
34. No. The plaintiff has no entitlement to damages as he has not established any cause of action.
35. I find insufficient evidence to support the defendants’ claim that the plaintiff has a phone and camera in his possession that are the property of the Bank and that these items are of high quality and worth in the order of K9,000.00. I accept the plaintiff’s evidence that he does not have these items. There is no good reason for the Bank to withhold his final entitlements. He must be paid.
7 WHAT ORDERS SHOULD THE COURT MAKE?
36. The plaintiff has failed to prove his case and the proceedings will be dismissed. As to costs, I take the same approach I have taken in a number of cases in which employees have taken their former employers to court for wrongful dismissal, and lost (eg Apolonia Steven v Ram KC (2016) N6577, Margaret Singadan v Bruce S Telfer (2018) N7072). If I applied the rule of thumb as to costs I would order the plaintiff to pay the defendants’ costs. However when making any order for costs the court must exercise its discretion according to the circumstances of the case and in the interests of justice. The plaintiff is an individual citizen who has taken on the Bank of Papua New Guinea, and lost. He has faced difficulty finding fresh employment. He is an intelligent and articulate person. He has raised some valid issues. He should not be subject an order to pay the defendants’ costs. That would be harsh and oppressive. The Court must strive to make access to justice easy and affordable and to keep its doors open to those persons who have genuine grievances and do not act for any improper motive. I will order the parties to bear their own costs.
ORDER
(1) The proceedings are, subject to this order, dismissed.
(2) The first defendant shall within 14 days after the date of this order, pay the plaintiff the final entitlements due to him upon termination of employment on 28 January 2019, without deduction of any amount in respect of equipment such as mobile phones or cameras allegedly the property of the first defendant in the possession of the plaintiff and without deduction of any other amount other than tax.
(3) The parties shall bear their own costs of the entire proceedings.
(4) The proceedings are thereby determined and the file is closed.
Judgment accordingly.
_____________________________________________________________
Allens Lawyers: Lawyers for the First to Eight Defendants
Solicitor-General: Lawyer for the Ninth Defendant
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