Pawa v Halliburton Overseas Ltd [2020] PGNC 88; N8272 (12 March 2020)

N8272

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No.665 of 2016

BETWEEN:
BENNY PAWA
Plaintiff

AND:
HALLIBURTON OVERSEAS LIMITED
Defendant

Waigani:David, J
2020:12 March

CONTRACT OF EMPLOYMENT – claim for damages for unlawful termination of employment agreement - disciplinary procedures in employment agreement – first and final written warning issued for 3 allegations of misconduct – alleged violation of driving policy – unscheduled disciplinary hearings – termination following issue of first and final written warning - verbal notification given on date of disciplinary hearings –unfair process adopted – disciplinary procedures not followed – provision for either party to terminate employment on notice – right to terminate, without notice or compensation for serious misconduct or other circumstances where summary dismissal is justified, of employer reserved - termination unlawful - payment of 4 weeks in lieu of notice –liability established – monies in lieu of notice of 4 weeks having been paid, plaintiff not entitled to additional damages.

Cases cited:
Anio v Baliki (2004) N2719
Curtain Brothers (QLD) Pty Ltd &Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285
EremanRagi&Ors v Joseph Maingu (1994) SC459
LeguVagi v NCDC (2002) N2280
Leo Nuia v The Independent State of Papua New Guinea (2000) N1986
Nazel Wally Zanepa v Ellison Kaivovo, Department of East New Britain & Anor (1999) SC 623
Peter Aigilo v Sir MekereMorauta&Ors (2001) N2103
PNGBC v Jeff Tole (2002) SC694
Porgera Joint Venture, Manager Placer (PNG) Ltd v Robin Kami (2010) SC1060
Robert Kapo v Ayleen Bure (2010) SC1162
Susan Love v Bridgestone Tyres (PNG) Limited, SCA 1 of 2006, Unreported Judgment of the Supreme Court comprising Kirriwom, Davani, and Kariko, JJ dated 3 September 2010

Overseas case cited:
Bank of New Zealand v Simpson [1900] UKLawRpAC 6; (1900) AC 182
Horsfall v Braye [1908] HCA 85; (1908) 7 CLR 629
Addis v Gramophone Co. Ltd (1909) AC 488
Gunton v London Borough of Richmond-upon-Thames [1980] 3 All ER 577
Boyo v London Borough of Lambeth [1995] 1RLR 50AC; (1980) I.C.RC. 755

Counsel:
Levi Tilto ,for the Plaintiff
MekTumul ,for the Defendant

JUDGMENT

12 March 2020
1. DAVID, J: INTRODUCTION; This is a decision on both liability and quantum of damages.The defendant company, Halliburton Overseas Limited (Halliburton) employed the plaintiff, Benny Pawa under a series of similar written employment agreements,the first being that dated 9 July 2003 which commenced on 15 July 2003. The plaintiff’s employment with Halliburton continued when he entered into a further employment agreement on 10 October 2006which commenced on 1 October 2006and continued until (Employment Agreement) his termination. The Employment Agreement provided for termination by either party by giving four weeks’ notice in writing. An additional week of notice would be given by Halliburton if the plaintiff were over the age of forty fiveyears and had more than two years continuous service. The notice requirement however did not affect Halliburton’s right to terminate the employment without notice or compensation in the event of serious misconduct or other circumstances where summary dismissal was justified.Halliburton terminated the plaintiff’s employment on 13 May 2013 for disciplinary reasons following the issuance of a First and Final Written Warning and paid him four weeks’ pay in lieu of notice. The plaintiff claims that his termination was unlawful on the basis that; the four allegations made against him were unfounded; and disciplinary procedures were breached systematically and deliberately that subsequently resulted in unlawful penalties and decisions.

2. On 27 June 2006, the plaintiff commenced these proceedings by writ of summons endorsed with a statement of claim claiming damages for alleged unlawful termination. The plaintiff claims the following relief:

1. General damages in the sum of K2,000,000.00
2. Special damages (back pay) in the sum of K204,163.00
3. Punitive damages in the sum of K2,061,840.00
4. Statutory damages in the sum of K1,000,000.00
5. Costs
6. Interest at 8% pursuant to Judicial Proceedings (Interest on Debts and Damages) Act.
   

3. On 10 August 2016, Halliburton filed its defence denying both liability and quantum of damages.

4. On 22 August 2016, the plaintiff filed his reply joining issue with matters raised in the defendant’s defence.
   

EVIDENCE

5. The plaintiff relies on the following affidavits:
   
   1. Affidavit of Benny Pawa sworn on 27 October 2016 and filed on 2 November 2016 (Exhibit A); and
   2. Supplementary Affidavit of Benny Pawa sworn and filed on 16 February 2017 (Exhibit B).
6. Theseaffidavits were tendered and admitted into evidence without objection. No cross-examination was conducted.
   
7. Halliburton relies on the following affidavits:
   
   1. Affidavit of Jaya Sembiring sworn on 9 May 2017 and filed on 10 May 2017 (Exhibit 1); and
   2. Affidavit of Karen Cummins sworn on 16 May 2017 and filed on 17 May 2017.
      

8. These affidavits were tendered and admitted into evidence following objection by the plaintiff under Order 10 Rule 9A(15)(2) of the National Court Ruleswhich I rejected. No cross-examination was conducted.

SUMMARY OF THE PLAINTIFF’S EVIDENCE

9. The plaintiff is a Papua New Guinea citizen. He was born on 16 September 1977. He graduated with a Bachelor of Engineering in Mechanical Engineering from the PNG University of Technology in 2002. Annexure A to his first affidavit is atrue copy of the certificate issued on 5 April 2002.
10. He commenced employment with Halliburton in July 2003 as a Gauge Technician for the Slickline Division based at Ridge, Kutubu Oil Project in the Southern Highlands Province.Annexure B to his first affidavit is a true copy of the 2003 employment contract.

11. In 2006, he took up Measuring While Drilling (MWD) Technician job with the Sperry Drilling based at Moro, Kutubu Oil Project in the Southern Highlands Province. Annexure C to his first affidavit is a true copy of the 2006 employment contract.

12. The Employee Handbook for PNG (PNG Employee Handbook) and Code of Business Conduct (Code) formed an integral part of the employment contract. Annexures D and E to his first affidavit are true copies of the Employee Handbook and Code respectively.

13. When he joined the MWD division in 2006, he became the “first” permanent based employee for the PNG operations. The PNG MWD Maintenance Division never had its own permanent based employees before as it was supported by temporary on call technicians from New Zealand and Australia.

14. In 2007, he earned a promotion from job title SPO6 to SPO7 (Electrical/Mechanical Technician-LWD/MWD) after successfully passing the required mandatory competency assessments.Annexure F to his first affidavit is a true copy of the letter of acknowledgement of the promotion.

15. In July 2012, the Halliburton management sent him to Kuwait in the Middle East to assist with the MWD operations there due to staff shortfall during the Muslim Ramadan (Holy) month, but his stint there was extended to September 2012 due to a favourable performance review from the Kuwait MWD Division. Annexure G to his first affidavit is a true copy of the work performance review.

16. Prior to his departure to Kuwait, on 17 July 2012, a thief was caught trying to enter his home in Lae and was seriously wounded by members of his family as a result.The offender was taken into custody by the police and released pending completion of investigation. Threats were made against his family by the offender’s family and friends and this resulted in the police warning the offender’s family and relatives in writing not to engage in such conduct or any other criminal acts, but to let the law take its course. Annexure H to his first affidavit is a true copy of the letter from the police.

17. As the most experienced MWD technician, he was due for a promotion to the level of SPO8 as he had performed delegated responsibilities which covered Nuclear Tool (ALD, CTN, ACAL, CNP) and PWD sensors associated with the job title for the preceding 5 years.

18. His dismissal from Halliburton’s employ in 2013 came as a surprise and shock to him despite serving the defendant with undivided loyalty and commitment during the course of his employment. He dismissal was a blemish to his professional career.

19. On 2 February 2013, he and his family were subjected to an unprovoked attack by a group of drunken men while he was on his field break at Kamkumung in Lae. He sustained physical injuries from the attack and the family vehicle sustained costly damage. Annexure I to his first affidavit are true copiesof photos taken of him showing his injuries to his mouth and the damaged vehicle. His former wife who was 9 months pregnant at the time with their third child and their four-year old child were subjected to abuse and threats as well. These men threatened to attack again if the incident were reported to the police.

20. He reported the incident to his supervisor, Mr Jaya Sembiring (Jaya) at Moro on 3 February 2013 and requested a week leave of absence (extension of his field break to 5 weeks) as he wanted to ensure that his family was safe before he returned to work. This was about 2 days before his scheduled return to work. Jaya reluctantly approved his leave of absence (as a week’s advance notice had not been given) after he emailed to him a letter from the Lae police dated 6 February 2013 addressed to ‘The Management, Sperry Drilling Services’ confirming that the plaintiff had laid a complaint about the incident which was registered in Occurrence Book No.77/02 at 3.40 pm.Annexure J to his first affidavit is a true copy of the letter from the police. His week’s salary of K805.48 for his leave of absence was deducted from his salary on 25 March 2013 pay run. Annexure GG to his first affidavit is a copy of the relevant pay slip.

21. He had to relocate his family to Goroka during his leave of absence for their safety. His wife delivered their third child at the Goroka on 26 February 2013 at the Goroka General Hospital.

22. On 12 February 2013, he returned to Moro to complete the remaining three weeks of his work schedule from 12 February to 5 March 2013.Annexure K to his first affidavit are true copies of two boarding passes issued by Air Niugini(PX 103 and PX 606) for his trip from Lae to Moro via Port Moresby on 12 February 2013.

23. On 13 February 2013, his first scheduled day at work, he was down with acute gastroenteritis. He initially notified his supervisor, Jaya about that at the workshop. He then reported to the Operations Manager, Mr Fento Oborn about him being ill who gave approval for him to attend the Oil Search Clinic for medical treatment. Annexure L to his first affidavit is a true copy of the Contractor Treatment Form number 29315 dated 13 February 2013 obtained from Mr Oborn.

24. On 14 February 2013, he re-visited the Oil Search Clinic as his condition had not improved. A medical officer examined him and issued a medical certificate that recommended sick leave from 15 February 2013 to 16 February 2013 inclusive and to return to the Clinic for review on 18 February 2013.Annexure M to his first affidavit is a true copy of the medical certificate.

25. On 15 February 2013, he took his sick leave.

26. It was unsafe for him to resume work as his condition had deteriorated so bedridden, he did not go to work on 16 and 17 February 2013. Mr Joseph Nowi, a co-worker reported to Jaya daily about his situation which was in compliance with safety and health requirements under the Code of Business Conduct. Annexure Nto his first affidavit is a true copy of the Safety, Health and Environment aspect of the Code of Business Conduct.

27. On 17 February 2013, a rather harsh and unprofessional action was taken by Jaya in response to his illness and for being absent from work. Jaya called him by phone and accused him for disappearing from work from 15, 16 and 17 February 2013 despite being fully aware that he was sick. This issue later formed the basis of the first of the three allegations made against him that subsequently resulted in the First and Final Written Warning. He pleaded with Jaya to be considerate and the need forhim, Jaya and the defendant itself to comply with Halliburton’s health and safety policies. He urged Jaya not to put his job at risk as he had complied with the Sick Leave Policy by submitting medical evidence and personally reported his illness and through Mr Joseph Nowi on a daily basis when he was bedridden. Annexure O to his first affidavit is a true copy of the Sick Leave Policy. Jaya insisted that he had had a very disruptive work schedule starting with his leave of absence in Lae from 5 to 12 February 2013 and continued at Moro from 13 to 17 February 2013. Jaya emotionally expressed his disappointment and claimed that his absenteeism and disappearances from work left him with no choice, but to remove him from Moro which he did without complying with standard administrative requirements.

28. On 18 February 2013, despite pleading to remain at work, he was literally forced out of Moro and he relies on the following facts:

1. He informed Jaya of his medical review appointment scheduled that day which he was not at liberty to miss.
2. He informed Jaya that his forced removal without proper medical advice would compromise his safety, health and medical treatment plan.
3. Jaya failed to comply with administrative protocols prior to his removal as he still had two weeks of his work schedule to be completed.
4. He did not give his consent to take sick leave.
5. No Waiver Consent Form was completed by Jaya.
6. His accommodation at Fofari Camp for the remaining two weeks was cancelled.
7. His return home flights scheduled on 5 March 2013 were abruptly brought forward as he was literally forced to catch an early flight out of Moro that morning at 6:00 am.
8. He was never given an option to make changes to his flights and work schedule as they were done by Jaya and Mr. Peter Shingles, Operations Manager without his consent.
9. The controversial sick leave arrangement sanctioned by Jaya and Mr Shingles formed the basis of the second of the three allegations made against him that subsequently resulted in the issuing of the First and Final Written Warning on 22 April 2013.

29. On 2 April 2013, after an extensive six week-break, on his scheduled date to return to work, he missed his flight, PX606 to Moro from Port Moresby on the following basis:

1. He checked in early at the Air Niugini counter at Nadzab Airport, Lae to take his flight PX105 to Port Moresby scheduled to depart at 14:10 pm, but the flight was delayed.
2. His flight was delayed because the inward bound flight, PX104 from Port Moresby to Nadzab Airport, Lae had its schedule disrupted at Port Moresby and arrived at Nadzab Airport 20 minutes late.
3. When PX104 eventually arrived, he got on the return flight, PX105 to Port Moresby which landed in Port Moresby around 15:27 pm, a delay of about 32 minutes from the scheduled arrival time of 14:55 pm.Annexure P to his first affidavit is a true copy of Air Niugini flight travel plan for PX105 on 2 April 2013.
4. He was already at the Port Moresby Jackson’s Airport terminal when flight PX606 he was booked to travel to Moro on departed at 15:31 pm. Annexure Q to his first affidavit is a true copy of Air Niugini flight travel plan for PX606 on 2 April 2013.Annexure R to his first affidavit is a true copy of Air Niugini flight schedules plan for 2 April 2013.
5. Due to flight schedule interruption and based on his past experience, he constantly communicated with Mr Joseph Nowi as the defendant’s representative as he was cautious of the penalties and negative repercussions that could ensue.
6. He took reasonable action in compliance with Company Travel Policy as he was fully aware of the implications of non-compliance. Annexure S to his first affidavit is a true copy of the defendant’s Travel Policy.
7. Mr Joseph Nowi diligently ensured that all company obligations were fully met and ensured that he had a confirmed flight to return to work the next day on 3 April 2013.
8. In compliance with Air Niugini administrative protocol, the ground supervisor he had reported to secured accommodation for him for that night at Gateway Hotel with meals at Air Niugini’s expense upon presentation to him of the boarding pass for PX105. Annexure T to his first affidavit is a true copy of a Tax Invoicefrom Gateway Hotel to Air Niugini dated 2 April 2013 for K428.00 which was settled and showing a nil balance.
9. Despite Air Niugini taking full responsibility for the technical fault that caused flight 105 to arrive late and causing him to miss his flight PX606 to Moro, for reasons only known to Jaya and the defendant, he was controversially blamed for missing the flight.
10. This formed the basis of the third allegation against himthat subsequently resulted in the issuing of the First and Final Written Warning on 22 April 2013 and the imposition of a fine as reimbursement of the cost of the ticket for missing flight PX606.

30. On 22 April 2013, he was literally forced to attend a rather surprise disciplinary hearing which was controversially convened by Jaya and one Ms. Penelope Lukey. As to what transpired are these:

1. He was verbally summoned to an unscheduled disciplinary hearing and penalised with a First and Final Written Warning without being formally notified of the allegations against him in advance.
2. In occurred on his third week of his work schedule on 22 April 2013.
3. It was at the disciplinary hearing when he first learnt about the three allegations and the penalties for them.
4. The three allegations were:
   • (a) Disappearances from work without reporting to supervisor.
   • (b) Failure to provide medical certificate for the sick leave taken in February/March 2013.
   • (c) Missed scheduled flight PX606 to return to Moro on 2 April 2013.
5. He was literally dumbfounded under the circumstances as he had no intention to violate company policies in the respective situations alleged against him by Jaya.
6. When the allegations were read out to him by the Human Resource Officer, Ms. Lukey, he categorically denied all three allegations and he said that he complied with company policies in relation to each allegation.
7. He had to defend the allegations himself verbally as he was deprived the opportunity to submit statements and evidence in response to the allegations despite Jaya and Ms.Lukey being fully aware of his rights under the defendant’s Disciplinary Procedure and these are:
   • (a) To be formally informed in advance of the allegations by a written notice.
   • (b) To be given the opportunity to submit statements and evidence in response to the notice.
   • (c) To be given an opportunity to call witnesses if required.

Annexure U to his first affidavit is a true copy of the Disciplinary Procedure.

8. Jaya and Ms. Lukey disregarded his explanations and proceeded with the following actions:
   • (a) First and Final Written Warning letter valid for one year issued.
   • (b) Cancellation of sick leave entitlements pursuant to Clause 2.2.5 Sick Leave Policy (Employee Handbook).
   • (c) Penalty fine to reimburse ticket cost for missing flight PX606 pursuant to Clause 4.7.1 of the Company Travel Policy (PNG Employee Handbook).

Annexure V to his first affidavit is a true copy of First and Final Written Warning letter dated 23 April 2013.

31. Leaving the formal parts, the letter addressed to the plaintiff was in the following terms:

First & Final Written Warning

Further to the formal meeting held on 22 April 2013 with Penelope Lukey (Human Resources) and myself, I write to confirm the Company’s decision.

At this formal meeting you were advised that your performance/conduct has been unsatisfactory, and that immediate improvement is required. In particular we discussed the situation that occurred on 2 April where you failed to board your plane on tie to start your hitch. You were advised that it is the employee’s responsibility to board scheduled flights and failure to catch a flight without a valid reason will result in a written warning.

The issue around your attendance was also discussed in the meeting as we have had several complaints that your whereabouts at work is not known throughout the day. It is unacceptable to disappear from the work site without advising your supervisor of your location as they have a duty of care to you to ensure your safety. Finally we discussed the sick leave you had in February/March 2013 that has not been supported by a medical certificate which was requested by your supervisor. You are required at all times to supply a doctor’s certificate of you are unable to attend work for two or more days.

In the meeting, you were asked if you had anything you wished to say or respond to the situation and you stated that you would not miss a flight again. With regards to sick leave or breaks at work you also advised you would inform your supervisor so he/she is aware if your whereabouts at all times.

This letter confirms a First and Final Written Warning under the Company’s Discipline and Dismissal Standard and a copy will be placed on your file. It will remain valid for twelve months and your performance/conduct during this period will be monitored.

In the event that your performance/conduct fails to improve we would have no alternative but to consider further disciplinary action up to and including dismissal.

If you believe you have been treated unfairly then you have to raise a Grievance under the Company’s Grievance Standard and should do so within 7 working days of receipt of this letter.

Yours sincerely

for Halliburton Overseas Limited

Signed by Jaya Sembiring as Down hole Tool Shop Supervisor

32. On 25 April 2013, in pursuance of the sick leave penalty, two weeks salary of K2,991.78 was deducted from his pay as is shown by annexure GG to his first affidavit.

33. The fine for the cost of the ticket was planned to be deducted in the pay run for 25 May 2013.

34. It was alleged by Halliburton that on 26 April 2013, he violated the driving policy during a surprise disciplinary hearing conducted on 13 May 2013. It was claimed that a Tacholink Driving Report showed a maximum speed data of 50 km/hr which technically constituted a breach of driving policy as the limit set was 40 km/hr. This resulted in his dismissal on 13 May 2013.

35. He disputes the allegation and states as follows:

1. He worked on calibration of a Nuclear Tool, a 6 ¾ inch (diameter tool size) called Azimuthal Lithology Density also known as ALT during the day.
2. The process is tedious as it involves maintenance and service of electronic and mechanical components, digital surface tests of parameters and calibration with biological harmful substance known as radioactive material.
3. When the rest of the MWD crew finished work at 6:00pm, being the most senior and experienced personneland based on his commitment and loyalty to the defendant, he decided to continue work a little late with no intention of claiming overtime. At 6:40 pm, he drove to Fofari Camp mess in time to have dinner.
4. After he had his dinner, at 7:37 pm, he drove back to the workshop at Moro to complete what he was doing, but not for long.
5. On arrival at the workshop, he decided to return the radioactive material to its designated safe and secured storage facility known as Radiation Bunker.
6. Radioactive material is classified as a harmful and dangerous good and under the company policy and the law, mishandling can result in dismissal and even legal action.
7. Once the radioactive material was safely stored away, his job for the day was completed and around 8:06 pm, he drove back to Fofari Camp which is about 3 kms from the Moro workshop.
8. On that trip, between 8:06 pm and 8:14 pm, he did not travel at 50 km/h as he was fully aware that the Tacholink device on the vehicle was in active mode and recorded speed data.
9. That being the case, he had always been cautious, vigilant and careful in his driving as he had proven in his almost 10 years of service in the employ to the defendant with no prior driving violation records.
10. During the trip, the Tacholink alarm on the vehicle did not go off to warn him of exceeding the 40 km/h speed limit.
11. Based on his driving experience,he had quick reflex techniques to respond promptly to the alarm going off which is very loud, high pitched, sharp, irritating and unbearable noise which all drivers including himself always avoided.
12. Nothing was pre-empted.
13. The allegation of driving policy violation was contrary to his conscience and moral principles and therefore it was very disturbing.
14. Three days earlier on 22 April 2013, he had defended himself against three unfounded allegations and got penalised with a Final Written Warning and other penalties.
15. In response to the penalties imposed, on 27 April 2013, he submitted an appeal letter to Jaya under the Grievance Policy which he accepted.

36. On 27 April 2013, he activated Stage 1 of the Grievance Policy when he lodged an appeal against the penalties imposed arising from the disciplinary hearing of 22 April 2013 which Jaya accepted and Jaya verbally assured him that his appeal would be considered. He then did the following:

1. He obtained a Medical Reference letter from Doctor WinisKaraiye of the Oil Search Clinic dated 27 April 2013. Annexure W to his first affidavit is a true copy of the Medical Reference letter.
2. His appeal letter dated 27 April 2013 raised three grounds and these are:
   • (a) Breach of disciplinary procedure in instituting the disciplinary hearing on 22 April 2013.
   • (b) The three allegations were unfounded and based on circumstantial evidence.
   • (c) Consequently, the penalties and written warning issued were unlawful.

Annexure X to his first affidavit is a true copy of the appeal letter.

3. He submitted copies of his documentary evidence and these included; Contractor Treatment Form; Medical Certificate; and Medical Reference letter.
4. He advised that due to time constraints, he would provide Air Niugini flight reports and the tax invoice from Gateway Hotel when he returned to work on his next hitch on 28 May 2018 as he had to gather them from the respective head offices in Port Moresby.
5. He also advised Jaya to contact his co-worker Mr. Joseph Nowi and Ms.Piele Kipiname, Admin Associate to verify facts surrounding the flight disruptions.
6. Jaya accepted the appeal which technically committed the defendant under the Grievance Policy to find time and review the outcome of 22 April 2013 disciplinary hearings which he considered to be very harsh and oppressive. Annexure Y to his first affidavit is a true copy of the Grievance Policy.
   

37. On 27 April 2013, he accepted an offer from Jaya to drive a vehicle namely, Toyota Hilux registration number BCW525 (the Hilux) to Mt. Hagen on 30 April 2003 at the end of its lease agreement with Avis. He accepted cancellation of his flights from Moro to Port Moresby and from Port Moresby to Lae on 30 April 2013 without any form of travelling and hardship allowance for the road trip. He accepted responsibility for the safe delivery of the Hilux on schedule without security escort. Jaya authorised cancellation of his flights on 30 April 3013 and arranged Oil Search security clearance of the Hilux out of Moro.Jaya also arranged his accommodation at Highlander Hotel in Mt. Hagen. Annexure Z to his first affidavit are true copies of email correspondence in connection with the delivery of the Hilux.
38. On 29 April 2013, he consulted Ms Kipiname Piele who was employed by the defendant as Admin Associate to verify certain facts about the charges for hotel accommodation incurred on 2 April 2013 at Gateway Hotel. Upon her enquiry, it was confirmed that Air Niugini met the costs of his stay at the hotel due to the delayed flight from Lae and no booking was made under the name of the defendant. Annexure AA to his first affidavit are true copies of email correspondence between Ms Piele and Gateway Hotel.

39. On 30 April 2013, he drove the Hilux out of Moro at 1:00 pm after going through security clearance. Speeding was never an issue as the Tacholink device mounted on the Hilux to control speed below 40 km/h was removed on 29 April 2019. Jaya advised him to take advantage of the Trans Wonderland Transport Company convoy to Mt. Hagen.

40. On his arrival in Mt. Hagen on 1 May 2013, he checked into Highlander Hotel at the defendant’s cost and delivered the Hilux to an Avis representative. The defendant failed to arrange a flight for him from Mt Hagen to Lae on 2 May 2013 so he took a PMV trip down to Lae at his own expense.

41. On 13 May 2013, he was summoned to a second unscheduled disciplinary hearing via a phone conferencecall and got dismissed from the defendant’s employ with any prior notice of the allegation against him. Events that transpired are these:

1. Mr Glen Kerr who had relieved Jaya surprised him with the unscheduled disciplinary hearing with Human Resource Officer, Ms Penelope Lukey on the second week of his field break.
2. During the phone conference disciplinary hearing, it was alleged that he had breached the driving policy at 50 km/h between 8:06 and 8:14 pm on 26 April 2013 at Moro.
3. The alleged incident occurred four days after the First and Final Written Warning was issued on 22 April 2013.
4. During the drive on the date and time concerned, the Tacholink never gave him any warning.
5. The allegation was based on a computer-generated report recorded by a Tacholink device on a white Toyota Hilux dual cab bearing registration number BDB578.
6. No formal investigation was conducted prior to the disciplinary hearing which would have involved himself as standard administrative requirement for the establishment of facts.
7. He was entitled to a fair hearing, but dismissed with immediate effect without a formal notice or even accorded time to provide a statement in response.
8. He was not provided with the Tacholink report for analytical review and for his defence.
9. Despite his admission to driving, he argued that he did not violate the driving policy as alleged.
10. He warned Mr Kerr and Ms Lukey about his appeal that he had lodged with Jaya on 27 April 2013 which was yet to be formally determined.
11. He pleaded that summary dismissal could not occur without first determining his appeal.
12. The “Summary Dismissal” constituted a breach of the Grievance Policy therefore unlawful.
13. He also pleaded that his rights under Disciplinary Procedure were not accorded contrary to the principles of natural justice, Ethical Standards and Code of Business Conduct.

42. Annexure BB to his first affidavit is a true copy of the dismissal letter dated 13 May 2013.

43. Leaving the formal parts, the letter addressed to the plaintiff was in the following terms:

Dismissal

Further to the formal meeting on 13 May 2013 with Penelope Lukey (Human Resources) and myself, I write to confirm the Company’s decision resulting from April’s Tacholink readings, where you have been recorded driving at 50 km/hr on the 26^th April 2013, exceeding the prescribed speed limit by 10 km/hr.

Our investigations have confirmed that your conduct is still unsatisfactory, and you have continued to fail to reach the prescribed standards. A formal written warning was issued in April 2013 and it was noted that should your performance/conduct fail to improve we would have not alternative but to consider further disciplinary action up to and including dismissal. The safety of our employees is of utmost importance to the Company and the importance of adhering to the Company’s safety policies and procedures has been reiterated, in this particular case the Diving Violation Disciplinary Standard (ST-AUST-HAL-HR-6-2).

During the meeting you were questioned as to whether you had approval from any managers to increase your speed limit due to time shortages, but you confirmed that you were not given approval and did not have a valid reason for speeding.

In considering all of the facts available to the Company, the decision has been taken to dismiss you due to your conduct. We note that your response to this decision was remorseful and noted that you did not agree with the decision as you have been an employee with the Company for nearly a decade and believed that you should be given another chance.

Your final day of employment with the Company will be 13 May 2013. You are entitled to 4 weeks’ notice however you will not be required to work your notice period and accordingly the Company will provide pay in lieu of notice. You will also be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including your last day of employment.

You are entitled to appeal this decision if you believe the decision is unfair. To appeal the decision you must write to Melissa Morris ([e-mail]) within 5 working days of receipt of this letter clearly outlining your reasons for the appeal.

Attached for your information is a copy of the minutes of the formal meeting. You may add an addendum to these minutes if you so wish and to do so please send your addendum to the HR Department within 7 working days of receipt of this letter.

Yours sincerely

For Halliburton Overseas Limited

(signed)

Glen Kerr

Downhole Tool Shop Supervisor

Encls.

Copy of the minutes of the formal meeting

44. Annexure CC to his first affidavit is a true copy of the brief minutes of the disciplinary hearing conducted on 13 May 2013.
45. On 14 May 2013, he was informed by Mr Kerr and Ms Lukey of his dismissal. He then asked for evidence used against him including the Tacholink driving report which was provided by Ms. Lukey. AnnexuresDD and EE respectively are true copies of email correspondence regarding his dismissal and the Tacholink driving report. As a qualified Mechanical Engineer and Measuring While Drilling Technician with experience in dealing with electronic memory logging devices that process Real Time Data and Recorded Data in his professional line of work, he disputed the claim by the defendant. He found that the defendant’s analogy of data interpretation of the Tacholink Driving Link profoundly misleading and controversially biased and not based on real facts and evidence. His analysis of the Tacholink Driving Report is found at paragraphs 30 to 35 of his first affidavit.

46. The Tacholinkdevice is also known as Event data Recorder (EDR). The Tacholinksystem is used as a safety warning and management-controlled mechanism to ensure all company employees fully comply with strict driving regulations. The Tacholink device on a vehicle is programmed to warn drivers when 40 km/h speed limit is breached by giving off a very loud, high pitch sound intensity which is unbearable for normal ears to sustain and literally forces all drivers to reduce speed under 40km/h to stop the warning sound. The Safety Officer is responsible for downloading the recorded data from the Tacholink device and uploads all data onto office compute using the Tacholink software. AnnexuresA and B to his supplementary affidavit respectively are true copies of the Tacholink Handbook and Tacholink power point presentation.

47. Halliburton demonstrated “double standard’’ by allowing him to drive the Hilux from Moro to Mt. Hagen without a Tacholink device mounted on 30 April 2013.

48. The allegation of breaching driving policy was made in bad faith and malicious reporting intended to distort the true nature of the report to suit a vindictive and punitive persecution of him. He denied any wrong doing and apparently the parameters on the report contradicted the allegation.

49. On 15 May 2013, he activated Grievances Procedure to appeal against his dismissal. He submitted his appeal letter addressed to Halliburton’s Operations Manager at the Moro Base dated 15 May 2013 for delivery by post.Annexure FF to his first affidavit is a true copy of the appeal letter.

50. On 25 May 2013, Halliburton made a payment in lieu of notice. Halliburton failed to provide a break up to distinguish between his April salary and his final entitlements. His final payments were undercalculated.Annexure GG to his first affidavit is a true copy of a 2013 pay slip showing final pay run and entitlements paid.

51. No formal response was ever received from the defendant in relation to his appeal against dismissal.

DEFENDANT’S EVIDENCE
JAYA SEMBIRING
52. He currently holds the position of Supervisor, Downhole Tool Shop for Sperry in Papua New Guinea with the defendant. He has held that position since 1 December 2011. When he was promoted to that position, he was responsible for the overall management of the Sperry Repair & Maintenance department in Papua New Guinea along with back-to-back Glenn Kerr. Responsibilities of the role included the management of the Sperry Repair & Maintenance Team which the plaintiff was a senior member of.

53. He has worked in Sperry (Drilling/Jakarta, Indonesia) for Halliburton since 2006.

54. He commenced a rotational commuter assignment to Papua New Guinea in November 2008.

55. He has known and worked with the plaintiff in the same department since transferring to Papua New Guinea in November 2008.

56. As supervisor, he has observed the plaintiff’s performance. During the years prior to his termination, the plaintiff’s performance deteriorated. He appeared to lose his interest and focus on the job. He recalled at times the plaintiff disappeared during the day which resulted in the tasks assigned to him not being completed in a timely manner. He further recalled a few instances when the plaintiff was spotted sleeping during the day (in the pulsar bar).

57. He had several discussions with the plaintiff regarding his attendance and performance prior to the disciplinary meeting that was held on 22 April 2013. The plaintiff’s response was usually that he had done a lot and now it was the junior technicians’ turn to learn and contribute.

58. He recalls numerous times when a full job could not be completed by the deadline due to the plaintiff not completing his tasks. This in turn affected the ability of others in the team to complete their tasks. The result was that other team members ended up having to complete the plaintiff’s assigned tasks in order to complete a given job.

59. He recalls that the plaintiff was due to return to work on 5 February 2013. Due to personal circumstances, he was unable to return to site at the beginning of his hitch and he received a text message from the plaintiff on 4 February 2013 requesting a week’s leave. He was able to accommodate his request for a week’s leave of absence. He believes that was taken as a period of leave without pay as he did not have sufficient annual leave accrual to cover the absence.

60. Shortly after the plaintiff returned to work on 12 February 2013, he fell ill. Between 13 and 17 February 2013, he spent time in his room recovering and did not perform his work duties.

61. On 18 February 2013, it became apparent that the plaintiff needed further time to recover from his illness so he was flown home to rest and recuperate. This decision was made in the best interests of the plaintiff.A replacement was flown in to cover his absence to ensure no disruption to operations.

62. Between 18 February 2013 and 3 April 2013 when the plaintiff returned to work, he did not receive any notification or update from the plaintiff regarding his recovery. He even attempted to contact the plaintiff via telephone calls a couple of times, but was unsuccessful in reaching him.

63. On 2 April 2013, the plaintiff was scheduled to return to work, however missed a connecting flight. During this time, he did not receive any notification from the plaintiff or any other employee regarding his delay.

64. The normal communication practice in this type of situation, as with all matters between the employee and the company, is for the employee to contact their supervisor, which for the plaintiff was either Mr. Kerr or himself. All employees are made aware of this requirement and any communication between themselves is not accepted as formal information.

65. He verbally informed the plaintiff on 22 April 2013 that a disciplinary meeting would be held later that day to discuss recent issues with his performance and attendance, more specifically complaints and disappearing during work with no one knowing his whereabouts. He had previously informally counselled the plaintiff on this issue on 2 November 2012 however he had noticed the same thing occurring again in the plaintiff’s previous few hitches.

66. During the disciplinary meeting, they also discussed issues with the plaintiff’s attendance namely, following being sent home on sick leave, he did not contact his supervisor during the period to give an indication of when he would be fit to return to work and did not provide any medical certificate to support the six week’s absence. The missed flight was also discussed.

67. During the meeting, the plaintiff promised that he would not let him down again and would perform going forward.

68. Following the meeting, the plaintiff was given a First and Final Written warning.

69. The plaintiff was not required to reimburse the company for the missed flight. This was not communicated to him, there is no reference to this ‘penalty’ in the warning letter and neither were any deduction made from his salary.

70. Following this disciplinary meeting, he can confirm that he did not receive any written appeal or grievance from the plaintiff regarding the warning he received.

71. In the past, Halliburton rented vehicles from Avis in Mt. Hagen. These vehicles sometimes needed to be returned to Avis in Mt. Hagen for a replacement vehicle or a registration update. When a vehicle was required to be returned, this would be discussed during the morning staff meeting and an offer given to employees for a volunteer to drive the vehicle to Mt. Hagen as an alternative to their flight home at the end of their work hitches.

72. He recalls that the plaintiff volunteered to return a rental vehicle to Mt. Hagen on 1 May 2016. Transportation was provided to the plaintiff to return home (albeit by vehicle rather than flight) at no cost to him. The plaintiff freely offered to do this.
73. The Tacholink was removed from the hire car prior to the vehicle leaving Moro as the hire vehicle was to be returned to Avis.It is standard practice to remove all of defendant’s equipment from a hire vehicle prior to the vehicle being returned to the hire company. It was still a requirement and expectation that the plaintiff obey the road rules (including speed limits) while driving the vehicle.

74. Arrangements were made for the plaintiff to proceed to Lae from Mt. Hagen by vehicle with the TWL convoy at the plaintiff’s request. The plaintiff requested this as as the truck was driven by his uncle and he had put some junk metal on that truck. He said that he wanted to make sure the pipe arrived in in Lae as he wanted to use it for his house post. The plaintiff said the first shipment he sent was lost and the driver of that vehicle said he was not responsible for the safe delivery of it.

75. So the arrangement was made based on the plaintiff’s request for his own benefit. The national practice was to give priority to the employees who reside in Mt. Hagen, Goroka or nearby to return the vehicles back if required and if it were someone from another location, the accommodation and flight would be arranged by the company.

76. He was not involved in the disciplinary meeting that led to the plaintiff’s termination as he was on his field break.

77. Following the plaintiff’s termination, he received an email from him notifying him of his termination and his intention to appeal. However, he never received an appeal from him.

KAREN CUMMINS
78. She is the Human Resources Business Partner Manager in the employ of Halliburton Australasia.

79. In her affidavit, she responded to the plaintiff’s first affidavit.
80. As to paragraph 3(4), there were several other permanent based employees working in the Sperry Maintenance department prior to the plaintiff being transferred into that department.

81. As to paragraph 3(11), the plaintiff was sent to Kuwait with another Papua New Guinea national employee namely, Malcolm Mullens as that location was short staffed during Ramadan.

82. As to paragraph 3(15), no promotion was in the system for the plaintiff. This was his opinion.

83. As to paragraphs 6 to 10, the plaintiff was paid his base salary field bonus for 13 and 14 February 2013. This was initially processed as sick leave between 15 and 28 February then 1 to 5 March were (paid) days off. 6 to 31 March were unpaid leave days.When Halliburton received a medical statement from the Moro Clinic Doctor, the 26 days of unpaid leave was adjusted to 6 days sick leave and 20 days of paid Days Off. The payment of this was made to the plaintiff in his final pay. The plaintiff had 20 days sick leave accrued and all 20 days were utilised during this period.

84. As to paragraph 12(11), he was not required to reimburse the defendant for the missed flight. There is no reference to this “penalty” in the warning letter nor were any deduction made from his salary.

85. As to paragraph 14, there was no agreement to deduct the cost of the missed flight and no deduction was made. The salary deduction on the plaintiff’s pay slip was due to the unpaid leave of absence taken in March. This was rectified in his final pay.

86. As to paragraph 16, according to company policy, the right to appeal a disciplinary decision only applies when the disciplinary action results in the termination of the employee’s employment. The plaintiff did not have the right to appeal his written warning.

87. As to paragraph 17, Human Resources has never received the appeal from the plaintiff regarding the written warning either by email, post or hand delivery. Standard practice when such documents are given to any supervisor or manager is for the document to be forwarded to Human Resources. No such document was given to Human Resources, either by the plaintiff or by the PNG management.

88. As to paragraph 21, she believes that the plaintiff was accorded procedural fairness in the disciplinary process. The plaintiff was given an opportunity during the meeting to respond to the allegation of breaching driving policy and the meeting minutes show that at no time during the meeting did the plaintiff request a copy of the Tacholink, mention his appeal of his written warning or request more time to respond to the allegation. Annexure A to her affidavit is a true copy of the minutes of the disciplinary meeting of 13 May 2013. The plaintiff was provided a final written notice of his dismissal and received four weeks’ pay in lieu of notice of termination of employment along with payout of any unused annual leave as per his employment contract.

89. As to paragraph 23, Human Resources has never received an appeal from the plaintiff either by email, post or hand delivery.

90. As to paragraph 32, Halliburton made the decisions regarding the plaintiff’s conduct and employment based on the Tacholink report and evidence available at the time the formal meetings were held. The process adopted and the final decisions made were considered to be fair and reasonable.

91. As to paragraph 37, the timing of the two disciplinary meetings were driven by events that occurred. The Tacholink report for April 2013 was received in May 2013 hence the disciplinary meeting was held separately in May 2013.
92. As to paragraphs 38 and 39, no appeal was received.

93. As to paragraph 41, attendance issues were not only limited to the period of sick leave.

94. She reviewed the plaintiff’s final pay and confirms that he was paid all his entitlements.Annexure B to his first affidavit is a true copy of the plaintiff’s payout summary.

95. She confirms that:

1. Payment of 14 days sick leave was processed in March. This left the plaintiff with 6 days sick leave accrued.
2. A correction of unpaid leave (6-31 March) was processed in the May pay and 6 days sick leave and 20 days off was paid to the plaintiff in May pay. This exhausted his accrued sick leave entitlement.
3. Accrued annual and long service leave was paid out in the May pay.
4. 4 weeks’ pay in lieu of notice was paid out in the May pay.
5. The plaintiff’s base salary for 1 to 13 May was paid in the May pay.
6. 27 days field bonus was paid in the May pay.
   

96. Halliburton’s records confirm that the plaintiff has been paid all his entitlements and he is not owed any further monies.
AGREED FACTS

97. The following facts are not disputed:
    
    1. The plaintiff is a Papua New Guinea citizen who graduated with a Bachelor of Engineering in Mechanical Engineering from PNG University of Technology on 5 April 2002.
    2. The plaintiff was employed byHalliburton from 2003 to 2013 under the Employment Agreement.
    3. The plaintiff was employed as a Measuring While Drilling (MWD) Technician.
    4. Halliburton is a subsidiary of Halliburton, a global leading multinational corporation which presently employs over 50,000 people in 70 countries.
    5. Halliburton was duly incorporated under the Companies Act 1997 on 19 November 1981.
    6. The plaintiff was dismissed from Halliburton’s employ on 13 May 2013.
    7. Prior to the plaintiff’s dismissal, on 23 April 2013, he was issued with a First and Final Written Warning.

DISPUTED FACTS
98. The following facts are disputed:

1. On 22 April 2013 the plaintiff was verbally summoned by his supervisor, Mr. Jaya Sembiring to a disciplinary hearing with Human Resource Officer, Ms PenelopeLukey.
2. The disciplinary hearing was convened on the basis of three allegations of misconduct by the plaintiff and these are:
   • (a) First, the plaintiff missed or disappeared from work on several occasions without reporting to the supervisor.
   • (b) Second, the plaintiff failed to provide a medical certificate to his supervisor for sick leave he took in February/March 2013.
   • (c) Third, the plaintiff failed to board a scheduled flight, PX 606 to Moro on 2 April 2013.
3. Based on thethree allegations, the plaintiff was penalised for non-compliance with company policies.
4. On 13 May 2013,the plaintiff was dismissed from his employment based on an allegation that he violated the “Company Driving Policy” on 26 April 2013 by driving at a speed of 50km/hwhich was 10km/h above the recommended limit of 40km/h.
5. Based on the Company Disciplinary Standards and on the basis of the three allegations of misconduct, the following disciplinary actions were taken against the plaintiff:
   • (a) First and Final Written Warning Notice issued.
   • (b) His sick leave entitlements were disregarded.
   • (c) A fine was imposed to reimburse ticket costs for missing flight.
6. On the basis of the Final Written Warning and the fourth allegation against the plaintiff for violating company driving policy for driving a vehicle (BDB578) at a speed of 50 km/h which was 10 km/h above recommended speed of 40 km/h limit, on 13 May 2013 following a disciplinary hearing, the plaintiff was dismissed effective immediately under the Company Summary Dismissal Procedure.
7. The plaintiff was given opportunities to participate in two separate disciplinary hearings on 22 April 2013 and 13 May 2013 respectively.
8. Halliburton did not accord the plaintiff an opportunity to be heard in accordance with Disciplinary Hearing Proceedings and therefore breached disciplinary procedures particulars of which are:
   • (a) The plaintiff was not served with formal notices of the allegations prior to each of the disciplinary hearings.
   • (b) The plaintiff was not given an opportunity to give his statements or evidence for consideration prior to each of the disciplinary hearings and charges.
   • (c) The plaintiff’s immediate supervisor who endorsed the disciplinary actions sat in two separate disciplinary hearings when he should not have due to a conflict of interest.
9. The plaintiff submitted Grievances Appeals against the decisions on the allegations and penalties imposed including dismissal from his employment.
10. Halliburton paid the plaintiff’s final entitlements in May 2013 despite outstanding issues about his unpaid sick leave entitlements; and fine to reimburse ticket costs.

LEGAL ISSUES
99. The parties have agreed that the legal issues for determination are:

1. Whether the plaintiff was unlawfully dismissed from his employment?
2. If so, whether the plaintiff is entitled to damages?

DISMISSAL FROM EMPLOYMENT
Plaintiff’s submissions
100. Mr Tilto for the plaintiff contends that his evidence demonstrates that he was unlawfully dismissed from his employment by the defendant. Halliburton’s witnesses have made grand statements in their evidence, but they are not supported by any documentary evidence.

101. It was argued that this is quite unusual for a multi-million kinainternational corporation like Halliburton. No copies of all the disciplinary proceedings, file records, memoranda or records of the plaintiff’s alleged misconduct, work performances, work appraisals, records of admonishment, show cause letters, counselling, other standard work-related issues such as work ethics, discipline, etc were produced as evidence by either of the two defence witnesses. This suggestedthat no such records existed at all so the plaintiff must be accorded the benefit of doubt.

102. It was submitted that Jaya’s affidavit is self-serving as no records or documents have been produced to support his allegations.

103. It was contended that Ms. Cummins’ affidavitcontains a number of hearsay statements that cannot be accepted by the Court, for example, paragraphs 7, 8 and 12. The most serious allegation contained in her affidavit that goes to the extreme of committing perjury is at paragraph 12 of her affidavit. The plaintiff was never physically present at the last disciplinary hearing that culminated in his dismissal and Annexure”A” to her affidavit is manufactured, fabricated and a falsified document purporting to show that the plaintiff was present at the disciplinary hearing. This no doubt raises serious questions of veracity and credibility and therefore her affidavit must not be accepted as evidence at all.

104. Halliburton has very extensive company policies on grievances and disciplinary procedures yet none of these were complied with by the company and the plaintiff referred to Clauses 2.14 and 2.14.1 of the Employee Handbook which address matters on disciplinary procedure and gross & serious misconduct respectively.

105. It was submitted that Jaya, being the plaintiff’s immediate Supervisor, for reasons only known to himself, did not produce any documentary evidence to support any of his allegations against the plaintiff at all. Contrary to what Jaya says, it can be seen from the plaintiff’s evidence that he had been systematically harassed and intimidated by Jaya using his position as the immediate supervisor.

106. It was submitted that based on these glaring facts and that the defendant failed to comply with the disciplinary process under the Employment Agreement in both disciplinary proceedings, the plaintiff was unlawfully dismissed from his employment with Halliburton.

Defendant’s submissions
107. Mr Tumul for Halliburton argued that the plaintiff was accorded procedural fairness in the disciplinary process. He was informed of the process at the beginning of the meeting by Ms. Lukey and was advised that he could have a support person to attend. If he had taken up this option, the meeting would have been postponed until such time the support person could also attend. The plaintiff was given an opportunity during the meeting to respond to the allegation and the meeting minutes show that at no time during the meeting did the plaintiff request a copy of the Tacholink, mention his appeal of the written warning, or request more time to respond to the allegations.

108. It was argued that the plaintiff was given an opportunity to respond to the misconduct allegation and to provide reasons why Halliburton should question the facts resulting from the Tacholink readings, but nothing in his response suggests that the defendant’s findings were misplaced.

109. It was submitted that following the disciplinary meeting, consideration was given to the plaintiff’s responses and given that the plaintiff was already on afinal written warning, the decision to dismiss was made.

110. The plaintiff was provided written notice of the dismissal and received four week’s pay in lieu of notice of termination of employment along with payout of unused annual leave, as per his employment contract.

111. There was a valid reason for the plaintiff’s dismissal and he was notified of this reason prior to his dismissal. He violated the company’s safety procedures, the Driving Violation Disciplinary Standard,which is considered a serious misconduct.
112. Human Resources has never received an appeal from the plaintiff, either by email, post or hand delivery.

113. Halliburton made the decisions regarding the plaintiff’s conduct and employment based on the facts (Tacholink report) and evidence available at the time the formal meetings were held. The process conducted and the final decisions made were considered to be fair and reasonable.

Reasons for decision
114. As I have mentioned at the outset, Halliburton employed the plaintiff under a series of written employment agreements, the first being that dated 9 July 2003 which commenced on 15 July 2003: annexure B to Exhibit A. His employment with the defendant continued when he entered into a further employment agreement with Halliburton dated 10 October 2006 which commenced on 1 October 2006 (Employment Agreement) and continued until his termination: annexure C to Exhibit A. The Employment Agreement consists of the letter from Halliburton to the plaintiff dated 10 October 2006 and accompanying documents and resource materials namely, PNG Employee Handbook (annexure D, Exhibit A), Code of Business Conduct Summary, Health, Safety and Environment Corporate Policy, Electronic Mail Corporate Policy, and PNG Healthcare Brochure.

115. It is settled law that generally, where parties have reduced their agreement into writing, the document should be allowed to speak for itself. No extrinsic evidence can be allowed to add to, subtract from or contradict the language of the written document: Curtain Brothers (QLD) Pty Ltd &Kinhill Kramer Pty Ltd v The Independent State of Papua New Guinea [1993] PNGLR 285, Anio v Baliki (2004) N2719. An exception to the general rule however is that any ambiguity in a written document or record may be resolved with the aid of extrinsic evidence, i.e., it is always available, not to contradict or vary the contract, but to apply it to facts, which the parties had in their minds and were negotiating about: Bank of New Zealand v Simpson [1900] UKLawRpAC 6; (1900) AC 182; Horsfall v Braye [1908] HCA 85; (1908) 7 CLR 629. Usually, the plain, ordinary or natural meaning of a word used by the parties to express a term will prevail unless the context warrants otherwise.

116. The clause on termination of employment found at page 4 of the Employment Agreement states:

Either party may terminate this Employment Agreement by giving four weeks’ notice in writing. The period of notice given by the Company will increase by one week if you are over 45 years of age and havemore than two years continuous service. However, the Company reserves the right to terminate your employment without notice or compensation in the event of serious misconduct or other circumstances where summary dismissal is justified.

117. Part of the clause on work schedule found at page 2 of the Employment Agreement states:

If you are unable to return to work on schedule for any reason you must notify your supervisor as soon as possible. We will not pay you for days on which you fail to report to work unless you provide an acceptable explanation and have made every reasonable effort to contact your supervisor about the delay.

118. Clause 4.6 of the PNG Employee Handbook states:

Leaving Employment

Under the Employment Agreement conditions, both the company and the employee have the right to terminate the employment relationship.

119. Clause 4.6.1 of the PNG Employee Handbook states:

Notice Period

Should you choose to resign or the organisation terminates your Employment Agreement, the notice period to be given by either party is stated in your Employment Agreement. The Company reserves the right to pay out your notice period as Payment in Lieu of Notice.

120. Clause 2.14 of the PNG Employee Handbook states:

Disciplinary Procedure

In cases of ongoing poor performance; misconduct or serious misconduct, disciplinary action or dismissal may be necessary; your manager and HR representative will apply a fair process.

In such cases, it is up to local managers to establish the facts, review and determine whether disciplinary action is required. This can then result in action up to and including dismissal.

121. Clause 2.14.1 of the PNG Employee Handbook states:

Gross & Serious Misconduct

Gross Misconduct is behaviour in the workplace that is so serious it may result in dismissal and Serious Misconduct is wilful and deliberate behaviour in the workplace against the company’s standards and employment agreement that will result in immediate dismissal.

Examples of Gross Misconduct and Serious Misconduct include:

• Failure to comply with the Company’s Code of Business Conduct
• Gross negligence or misconduct in the performance of duties
• Physical assault of any person at any time whilst on company premises and/or in the course of the employee’s employment.
• Wilful disregard of Health & Safety requirements as displayed in an employee’s workplace or as would be reasonable having regard to the circumstances of the workplace.
• Failure to adhere to the Company’s Substance Abuse Policy which includes being in an unfit state to carry out assigned duties due to intoxication caused by alcohol, drugs or solvent abuse; and also includes being in possession of, under the influence of, or distributing illegal substances whilst on Company premises, Company business or acting on behalf of the Company.
• Fraud, theft, misappropriation of, or wilful damage to, property:
  • - belonging to the Company or in the Company’s possession;
  • - belonging to other employees, clients or persons performing services for the Company;
  • - use of Company business or on Company premises.
• Any criminal activity
• Excessive Speeding & Dangerous Driving as well as other forms of driving infringements.
• Failure to comply with Company Policies
• Abandonment of Employment
• Breach of confidence
• Failure to observe the Company’s Rules to include, but not limited to:
  • - Health, Safety & the Environment;
  • - Absence or Time-keeping;
  • - Use of Computer Systems;
  • - Disclosure of a personal interest conflicting with any Company transaction in which the employee is engaged;
  • - Disclosure of information which may prevent the Employee from carrying out a work related task e.g. loss of driving license or not holding a current driving license;
  • - Smoking in non-designated smoking areas;
  • - Sleeping during working hours.
• Any conduct detrimental to the interest of the Company, its relations with the public, its customers and suppliers, damaging to its public image or offensive to other employees in the company.

The Procedure

Managers will be required to get statements from both parties if 2 parties are involved in a dispute.

After review, if the Manager decides disciplinary action is necessary, HR will then be notified. All evidence and statements gathered will be forwarded to HR so a disciplinary hearing, a meeting whereby both management and the employee have the opportunity to discuss the incident and clarify anything further, can be set up. A letter will then be set to the employee inviting them to the disciplinary hearing.

Verbal Warning

If only a verbal warning is required, the employee’s local manager will undergo the process of informing the employee without involving HR but all documentation gathered will be recorded by management.

Recording of Counselling

If a record of counselling is required, the employee’s managers undergo the process of recording the incident and forward a copy to HR for the employee’s file.

Formal Warning

A formal letter will be issued to the employee by the PSL manager inviting them to a disciplinary hearing which is then forwarded onto HR. HR will be involved in the disciplinary hearings from this point forward.

Dismissal

Once the facts of the employee’s case have been reviewed and it has been decided that the behaviour of the employee was serious misconduct, the employee may be dismissed with immediate effect. A formal letter will be issued to the employee explaining the reasons for dismissal and include any further information that may be of relevance to the incident.

Appeals

If an employee is the subject of formal disciplinary action which results in the termination of their employment and they consider the decision to be unfair, then they can appeal against the decision.

The Company will attempt to ensure that the appeal is heard by the next level of management or a manager of the same band or above than the person who took the decision.

In cases of Summary Dismissal (where the employee is terminated with no notice) the Company is not required to keep the employee in employment to hear the appeal.

For further details of Halliburton’s Dismissal & Disciplinary standard, consult your local Human Resources representative.

122. It is settled law in this jurisdiction that if an employee is not terminated in accordance with the agreement of the parties, that amounts to an unlawful termination: Leo Nuia v The Independent State of Papua New Guinea (2000) N1986, Peter Aigilo v Sir MekereMorauta&Ors (2001) N2103 andLeguVagi v NCDC (2002) N2280.

123. Did Halliburton terminate the employment of the plaintiff in accordance with the agreement of the parties? For the purpose of answering that question, I make the following findings of fact based on all the evidence before me and with regards to the disputed facts. I am satisfied that following facts have been proven on the balance of probabilities:

1. On 22 April 2013 the plaintiff was verbally summoned by his supervisor, Jaya to a disciplinary hearing with Human Resource Officer, Ms PenelopeLukey.
2. The disciplinary hearing was convened on the basis of three allegations of misconduct by the plaintiff and these are:
   • (a) First, the plaintiff missed or disappeared from work on several occasions without reporting to the supervisor.
   • (b) Second, the plaintiff failed to provide a medical certificate to his supervisor for sick leave he took in February/March 2013.
   • (c) Third, the plaintiff failed to board a scheduled flight, PX 606 to Moro on 2 April 2013.
3. Based on the three allegations, the plaintiff was penalised for non-compliance with company policies by issuing a First & Final Written Warning letter under the company’s Discipline and Dismissal Standard which was to remain valid for a period of twelve months.
4. By the First & Final Written Warning letter, the plaintiff was put on notice that his performance/conduct during the period of twelve months would be monitored and that if his performance/conduct failed to improve, Haliburton would have no alternative, but to consider further disciplinary action up to and including dismissal.
5. On the basis of the Final Written Warning letter and the fourth allegation against the plaintiff for violating company’s driving policy (Driving Violation Disciplinary Standard)for driving a vehicle (BDB578) on 26 April 2013 at a speed of 50 km/h which was 10 km/h above recommended speed of 40 km/h limit, on 13 May 2013 following a disciplinary hearing, the plaintiff was dismissed effective immediately.
6. The plaintiff was given an opportunity to participate during the two separate disciplinary hearings on 22 April 2013 and 13 May 2013 respectively which were convened without prior advance notice, but a fair process was not applied.
7. Halliburton actually did not accord the plaintiff an opportunity to be heard in accordance with Disciplinary Hearing Proceedings and therefore breached disciplinary procedures particularly:
   • (a) The plaintiff was not served with formal notices of the allegations prior to each of the disciplinary hearings.
   • (b) The plaintiff was not given an opportunity to give his statements or evidence for consideration prior to each of the disciplinary hearings and charges.

124. There are no records before the Court as to the statements or evidence used to establish facts substantiating the allegations. Details were lacking.

125. As to the first disciplinary hearing on 22 April 2013, if Jaya instigated the disciplinary action involving the three allegations which the plaintiff’s evidence suggests he was, he should not have participated for conflict of interest and in applying the principle of fairness. As to the disciplinary hearing on 13 May 2013, his immediate supervisor, Mr Kerr who was Jaya’s back-to-back participated in the hearing. Like Jaya, he should not have participated for conflict of interest and in applying the principle of fairness as it seems that he was the one who instigated the disciplinary action for alleged violation of driving policy as Jaya was on his field break. The Disciplinary Procedure requires that a manager and Human Resources representative who are in attendance apply a fair process. The mere fact of Jaya’s participation tainted the decision. In addition, it seems that the disciplinary hearing may have been contrary to the Disciplinary Procedure as a manager was required to attend and not a supervisor with a Human Resources representative, but this issue was not specifically raised by the plaintiff so I cannot take it any further than that.

126. As to whether the plaintiff submitted Grievances Appeals against the decisions on the allegations and penalties imposed including dismissal from his employment, there appears to be no provision under the Disciplinary Procedure for appeals against disciplinary decisions other than dismissal.However, by the First & Final Written Warning letter, Halliburton advised the plaintiff that if he believed that he had been treated unfairly, he could raise a Grievance under the Company’s Grievance Standard within 7 working days of receipt of the letter. The plaintiff’s evidence is that he did by his letter of 27 April 2013 (annexure X to Exhibit A). The Grievance was raised under Clause 2.12 (Grievance Procedure) especially Clause 2.12.1 (Complaints and Grievances) which permits an employee to raise a grievance if one feels that a decision relating to work or work environment is unfair, discriminatory or unjust. Grievance is a concern or complaint related to work or the work environment from an employee. To my mind, the plaintiff had a reasonable explanation in relation to the three allegations. As to the missing flight, there is clear evidence that Air Niugini caused the plaintiff to miss his connecting flight to Moro, PX 606 from Port Moresby, by the late arrival of flight PX104 from Port Moresby by 20 minutes which then returned to Port Moresby as flight PX105 late and arriving at about 15:27 pm. He was on flight PX105 and Air Niugini management took full responsibility for missing his flight to Moro which departed around 15:31 pm by accommodating the plaintiff at Gateway Hotel on 2 April 2013 at their expense. The plaintiff’s missing the Moro flight was not intentional; he had a valid reason for failing to catch the flight and therefore there was no breach of Halliburton’s Travel Policy.

127. Halliburton’s evidence is that the Grievance or letter of complaint in relation to the decision of 22 April 2013 was not received. The plaintiff’s evidence is that he personally gave the letter to Jaya on 27 April 2013. I am persuaded by the plaintiff’s evidence and find that a Grievance letter was personally received by Jaya on 27 April 2013. That Grievance was never resolved or determined up to the plaintiff’s dismissal.

128. As to the appeal against dismissal, again it is Halliburton’s evidence that the appeal was never received. The plaintiff’s evidence is that on 15 May 2013 he submitted his appeal letter addressed to Halliburton’s Operations Manager at the Moro Base dated 15 May 2013 (annexure FF, Exhibit A) for delivery by post. By the dismissal letter (annexure BB, Exhibit A), the plaintiff was informed that if he believed that the decision to terminate his employment was unfair, he could write to one Mellisa Morris([e-mail]) within 5 working days of receipt of the letter clearly setting out his reasons for appealing. The purported appeal letter was addressed to the Operations Manager and not Mellisa Morris. It is not clear from the evidence as to what position Mellisa Morris held with Halliburton at the time. No proof of postage either by registered mail or otherwise was produced in evidence. Onus of proof is on one who alleges and that has not been discharged by the plaintiff. I find that the purported appeal letter was never received by Halliburtoneither by email, post or hand delivery hence it was not determined.

129. The evidence before the Court demonstrates that Halliburton paid the plaintiff 4 weeks’ pay in lieu of notice and other entitlements in May 2013 (annexure GG, Exhibit A and annexure B, Exhibit 2). The plaintiff does not deny receiving the payment.

130. From all the evidence before me and my observations above, I conclude that Halliburton failed to comply with the disciplinary process in disciplinary proceedings taken against the plaintiff on 22 April 2013 and 13 May 2013 respectively under the Employment Agreement. The decision taken on 22 April 2013 to issue the First and Final Written Warning letter was tainted and the upshot of that is that while the failure to comply with company policies and excessive speeding and other forms of driving infringements are considered as gross misconduct and serious misconduct and could warrant summary dismissal, the decision to dismiss the plaintiff on 13 May 2013 was triggered by the First and Final Written Warning letter. The dismissal of the plaintiff from his employment with Halliburton was therefore unlawful.

DAMAGES
131. What are the plaintiff’s damages?

Plaintiff’s submissions
132. Mr. Tilto for the plaintiff contended that the damages claimed were as pleaded in the statement of claim namely, a total of K5,266,003.00 comprising; general damages of K3 million; special damages of K204,163.00 and K2,061,840.00 for loss of salary and entitlements fora period of 30 years.

133. He urged the Court to make an award which was fair and just in the circumstances of the present case and referred to a number of local and overseas cases by way of comparison of quantum of damages awarded in those cases.

Defendant’s submissions
134. Mr Tumul for the defendant contends that the measure of damages is usually the period of notice unless the contract otherwise provides.

135. He submitted that in the present case, the termination clause in the Employment Agreement clearly provides that where termination of the contract was on grounds other than serious misconduct or other circumstance where summary dismissal was justified, the plaintiff was entitled to be paid for the notice period of four weeks. It is argued that since the plaintiff was paid out all his entitlements, including the four weeks’ pay in lieu of notice, Halliburton did not owe him any further monies.

Reasons for decision
136. The general principles of law as to the appropriate measure of damages for wrongful dismissal are now well settled in our jurisdiction; EremanRagi&Ors v Joseph Maingu (1994) SC459, Nazel Wally Zanepa v Ellison Kaivovo, Department of East New Britain & Anor (1999) SC 623, PNGBC v Jeff Tole (2002) SC694, Porgera Joint Venture, Manager Placer (PNG) Ltd v Robin Kami (2010) SC1060, Susan Love v Bridgestone Tyres (PNG) Limited, SCA 1 of 2006, Unreported Judgment of the Supreme Court comprising Kirriwom, Davani, and Kariko, JJ dated 3 September 2010, and Robert Kapo v Ayleen Bure (2010) SC1162.

137. Where there is a contract of employment allowing for either party to terminate such contract upon giving notice in accordance with the period of notice agreed to, the measure of damages an employee is entitled to receive would be based on the salary and other entitlements he or she would have received had the contract been lawfully terminated. Damages would therefore be equivalent for the period of appropriate notice only: Porgera Joint Venture, Manager Placer (PNG) Ltd v Robin Kami (2010) SC1060, Susan Love v Bridgestone Tyres (PNG) Limited, SCA 1 of 2006, Unreported Judgment of the Supreme Court comprising Kirriwom, Davani, and Kariko, JJ dated 3 September 2010, Robert Kapo v Ayleen Bure (2010) SC1162.

138. These principles were further clarified by the Supreme Court in Porgera Joint Venture v. Robin Kami (2010) SC 1060. The brief facts in that case were that PorgeraJoint Venture employed the respondent under a written contract of employment for a fixed term. The contract allowed for early termination by either party without reason, upon four weeks’ notice or by PorgeraJoint Venture without notice upon payment of money in lieu of notice. PorgeraJoint Venture terminated the contract for disciplinary reasons and paid the respondent money in lieu of notice. The National Court found that the termination was unlawful and awarded damages for the balance of the contract period. PorgeraJoint Venture appealed the decision of the National Court. The Supreme Court by a 2-1 majority upheld the appeal. After discussing some English authorities including Gunton v London Borough of Richmond-upon-Thames [1980] 3 All ER 577 and Boyo v London Borough of Lambeth [1995] 1RLR 50AC; (1980) I.C.RC. 755and the common law principles on damages for want of notice and want of disciplinary procedures in a private employment contract, His Honour, Injia, CJ observed:

“24. I consider that the common law principles on compensation for want of notice and want of disciplinary procedures in a private employment contract developed in Gunton, Janciuk, Boyo, Focsa set out above are persuasive, appropriate and applicable to the circumstances of this country and apply them to the case at hand. Much of the principles set out above relating to measure of damages for want of notice are already part of the common law as adopted and applied in this jurisdiction in many cases including the cases cited by counsel before us. The principles on compensation for want of compliance with disciplinary procedures in a private employment contract is new and requires further development and refining in subsequent cases with assistance of counsel.

25. I consider that in a private employment situation where an employee is employed under a written contract of employment for a fixed term and which contains a termination clause for termination with or without notice by either party, with or without reason, the measure of damages which the employee is entitled to receive is based on the salary and other entitlements that the employee would have received if the contract had been lawfully terminated. In a case where it is an express or implied term of the contract that termination of the employment contract for cause would be effected upon compliance with disciplinary procedures, the measure of damages is assessed on a reasonable period within which the disciplinary proceedings would be commenced and concluded. The likely outcome of the disciplinary proceeding is immaterial or is an irrelevant consideration.

26. Let me expound on the principle that I have just enunciated. In a case where the employer in the exercise of its right to terminate the contract chooses to terminate for cause, and there is a disciplinary procedure that the parties have adopted in the Contract, the employer is under an obligation to follow the disciplinary process agreed to under the contract. If the employer is found to have not followed the proper procedure the termination is wrongful and the employee is entitled to damages. But damages will not be for the balance of the contract unless the parties agree to such a term under the contract. Instead, damages is for the reasonable period during which proper disciplinary process would have been initiated and concluded in accordance with any time lines prescribed for various steps in the disciplinary procedure to be concluded. For a start, it would very much depend on the steps in the procedures set out in the disciplinary process and the time limit, if any, prescribed for various procedural steps where there are no time limits prescribed, it would come down to assessing what would be as reasonable time frame to cover the main steps in the process – formulating and presenting complaint, opportunity to reply and a decision made and communicated to the employee and any provisions for appeal or review from that decision by a higher management body or person. It is not a matter for the Court to analyze and speculate on the employee’s chances of success if the process was completed.”

139. I adopt and apply these principles.
140. Clause 4.6 of the PNG Employee Handbook gives both the plaintiff and Halliburton the right to terminate the Employment Agreement.

141. Clause 4.6.1 of the PNG Employee Handbook gives Halliburton the right to terminate the Employment Agreement by giving appropriate notice and it reserves the right to pay out the plaintiff’s notice period as payment in lieu of notice.

142. According to the clause on termination of employment found at page 4 of the Employment Agreement, the notice period is four weeks. If the plaintiff is over 45 years of age and hasmore than two years continuous service, the notice period is five weeks. The plaintiff was born on 16 September 1977so at the time of his termination, he was aged about 36 years. The notice period of 4 weeks applied to him.

143. Halliburton paid the plaintiff 4 weeks’ pay in lieu of notice and other entitlements in May 2013 (annexure GG, Exhibit A and annexure B, Exhibit 2). As I have alluded to earlier, the plaintiff does not deny receiving the payment. I am satisfied that the plaintiff was paid out all his entitlements under the Employment Agreement and he is not owed any further moneys under the Employment Agreement.

144. Punitive or exemplary damages are not recoverable in actions for breach of contract: Addis v Gramophone Co. Ltd (1909) AC 488.I award nothing.

145. As to whether he is entitled to claim damages under other heads of damages outside the Employment Agreement such as for alleged breach of constitutional rights and statutory laws, etc, I think he cannot. The plaintiff’s employment with Halliburton was under the Employment Agreement. The relationship between him and Halliburton was governed by the Employment Agreement. The procedure for termination and what the plaintiff’s entitlements following termination are expressly stated in the Employment Agreement. Damages assessed ought to be confined to the dictates of the Employment Agreement. To my mind, there is no justification for the claim for damages outside the Employment Agreement. I award nothing for the claim under the head of claim, statutory damages.

ORDER
146. The Court orders that:

1. Judgment on liability is entered in favour of the plaintiff for unlawful termination of the Employment Agreement.
2. The claim for damages has not been substantiated therefore no award is made.
3. Each party shall bear their own costs of the proceedings.

Judgment and orders accordingly
________________________________________________________________
Kari Bune : Lawyers for the Plaintiff
Allens : Lawyers for the Defendant