N9017

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 207 OF 2018

BETWEEN
JIM PALIAU LITAU
Plaintiff

AND:
COCA COLA AMATIL (PNG) LTD
Defendant

Lae: Dowa J
2021:	14th May & 04th June
EMPLOYMENT LAW - Unlawful Termination of Employment- Parties are bound by terms of written contract of employment-Employer had cause to terminate employment - Section 39 of Constitution provides no substantive right enforceable under section57 of the Constitution in an employment dispute - Claim dismissed for lack of proof.

Cases Cited:

Ruhuwamo v PNG Ports Corporation (2019) N8021
Sebastian Tawa v Mainland Holdings Limited (2020) N8727

Counsel:

S. Toggo, for the Plaintiff
N. David, for the Defendant

DECISION

04th June, 2021

1.	DOWA J:  This is a decision on both liability and damages. The Plaintiff claims he was unlawfully terminated by the Defendant and seeks damages for unlawful termination of employment.

	Facts

2.	The Plaintiff is a former employee of the Defendant. He was initially employed as a Dispatch Coordinator in 2013. He was then transferred and was given a new designation as fleet clerk, based at Lae.  On 28th December 2017, the Plaintiff was terminated from his employment by the Defendant.

3.	The reasons cited for the termination was he allowed his family members to ride on the company vehicle in breach of the Defendants motor vehicle policy.

4.	The Plaintiff alleges that the termination was unreasonable and not justifiable in a democratic society having proper regard for human dignity thereby breaching Section 39 of the Constitution.

5.	The Defendant filed a defence justifying the termination on the basis that: The Plaintiff breached the terms of his employment conditions warranting termination, and secondly that section 39 of the Constitution is not applicable as the Plaintiff’s relation with Defendant is governed by the private law on contract of employment.

	Issues

6.	The issues for consideration are:

a.	Whether the termination of employment is unlawful
b.	Whether the Plaintiff is entitled to any damages

	Law

7.	The law on termination of simple employment contract is settled in this jurisdiction.  In Ruhuwamo v PNG Ports Corporation (2019) N8021, Thompson J said this at paragraph 17-19 of her Judgment.
	“Relevant Law
17. 	It is well settled by a long line of case authorities in PNG, that an employer has the right to hire and fire his employees and does not have to give reasons for his decision. If this is done in breach of the terms of a contract, the measure of damages is what the employee would have received for his salary and other entitlements if the contract had been lawfully terminated. (see Jimmy Malai v PNG Teachers Association (1992) PNG LR 568, Paddy Fagon v Negiso Distributors Pty Ltd (1999) N 1900, New Britain Palm Oil Ltd v Vitus Sukuramu (2008) SC 946, and Porgera Joint Venture Manager Placer (PNG) Ltd v Robin Kami (2010) PGSC 11).
18. 	This is consistent with the provisions of the Employment Act. Under S 34, a contract of employment may be terminated at any time, with the length of notice being either as specified in the contract, or dependent on the length of the employment. If an employee has been employed for over five years, the length of notice shall be not less than four weeks. Under S 35, the termination may be by notice, or by payment in lieu of notice.
19. 	Under S 36, the employer may terminate without notice or payment in lieu, if the employee, inter alia, willfully disobeys a lawful and reasonable order or misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties.”
	Evidence

8.	The Plaintiff relies on his own affidavit sworn 11/11/2020 and filed 12 November 2020, which was tendered into evidence without cross-examination.

9.	The Defendant relies on the affidavit of Nicka Pitoi sworn and filed 18/7/2018 which was also tendered into evidence without cross examination.

	Submissions of Counsel

10.	Mr Toggo, counsel for Plaintiff submits the Plaintiff was terminated for no good reasons. He submits that the Plaintiff was given a motor vehicle to be used on a 24-hour basis. That he was not warned that he is not to transport his family members on the company vehicle, that the termination was harsh, oppressive, and contrary to Section 39 of the Constitution.

11.	Ms David, Counsel for the Defendant submits that the termination was justified. That the Plaintiff was not entitled to a Company vehicle as part of his employment re-numeration. It was expressly stated in the letter of employment dated 30th September 2014. The Plaintiff was only entitled to use a motor vehicle as a tool of trade. Ms David submits that under Clause 2 of the Defendant’s Motor Vehicle Policy, only employees of the Defendant are to use the vehicle. Ms David submits that the Plaintiff breached the Motor Vehicle usage Policy by carrying his family members which resulted in his termination. Ms David submits further that the Plaintiff was previously warned on 25th July 2017 and therefore the defendant was justified in terminating the Plaintiff.

	Reasons for Decision

12.	The Plaintiff’s contract of employment with the defendant is in writing. The evidence shows the Plaintiff was initially employed by the Defendant as a loading and dispatch coordinator in July 2013. The terms of his employment contract were in writing in a letter dated 10 July 2013, which the Plaintiff signed on 11 July 2013. The contract document contains four (4) pages and sets out default terms and conditions.  He was then given a new designation as Fleet Clerk by the defendant in letter dated 30/09/2014.

13.	The contract contains a termination clause at page 3, which reads as follows:

“Cross Misconduct

The company reserves the right to instant dismissal for gross misconduct and mayterminate a Contract of Service without notice or payment instead of notice,

a)	Where the employee:-

(i)	willfully disobeys a lawful and reasonable order; or/misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties; or
(ii)	is guilty of a fraud or dishonesty; or
(iii)	is habitually neglectful of his duties; or
(iv)	is imprisoned for a period exceeding seven days; or
(v)	in continually absent from his employment without leave or reasonable excuse; or
(vi)	is convicted of an offence or contravention of the employment Act or any other law relating to employment.

b)	On any other ground on which the company would be entitled to terminate the contract without notice at common law.”

14.	This clause is identical to section 36 (1) of the Employment Act which provide certain grounds for summary dismissal. Section 36(1) reads and I quote:
              
     “GROUNDS FOR TERMINATION OF CONTRACT.
(1) 	An employer may terminate a contract of service without 		notice or payment instead of notice–
	(a) 	where the employee–
		(i) 	wilfully disobeys a lawful and reasonable 				order; or
		(ii) 	misconducts himself by an act of omission or 		commission that is inconsistent with the due 				and faithful discharge of his duties; or
		(iii) 	is guilty of a fraud or dishonesty; or
		(iv) 	is habitually neglectful of his duties; or
		(v) 	is imprisoned for a period exceeding seven 				days; or
		(vi) 	is continually absent from his employment 				without leave or reasonable excuse; or
(vii) 	is convicted of an offence or contravention of this Act or any other law relating to employment; or
(b) 	on any other ground on which he would be entitled to terminate the contract without notice at common law.:”
15.	The evidence shows that by its letter dated 30th September 2014, the Defendant made it plain to the plaintiff that he was not entitled to a motor vehicle as part of his employment re-numeration. However, as part of his employment, the Plaintiff could use a motor vehicle which was subject to a Company Policy called Tool and Trade Vehicle Policy. Under the policy, the Plaintiff and other employees of the defendants who use the Defendants motor vehicles as tools of trade were not allowed to transport people other than the Defendants employees and persons approved by the Defendant. A breach of the policy would result in termination.

16.	In the present case, the evidence shows the Plaintiff failed to comply with the Tool of Trade policy on 25th July 2017. He was warned that if he repeated, he would be terminated. The evidence shows, the Plaintiff again failed to comply with the Motor Vehicle use policy on 27th December 2017, which resulted in his termination.

17.	In my view, the Defendant had a reason to terminate the Plaintiff in accordance with the terms and conditions of his employment. There is no evidence which suggests that the defendant breached the terms of the contract of employment. 

18.	The Plaintiff seeks to mount a claim alleging breach of Section 39 of the Constitution on the basis that the decision made by the Defendant was harsh and oppressive and is not reasonably justifiable in a democratic society of Papua New Guinea. As I said in a similar case in Sebastian Tawa v Mainland Holdings Limited (2020) N8727, Section 39 of the Constitution does not create a primary right enforceable under section 57 of the Constitution. The Defendant’s decision relates to the Plaintiff’s employment which is his primary right and the Court has dealt with the issues raised in these proceedings. For these reasons I decline to consider the claim under section 39 of the Constitution and refuse same.

19.	I am not satisfied on the balance of probabilities that the Plaintiff’s termination was unlawful. For these reasons, I will dismiss the Plaintiff’s proceedings.

Costs

20.	Cost is a matter of discretion. The Defendant has successfully defended the claim. It is entitled to cost.

	Orders

1.	The Plaintiff’s proceeding is dismissed.
2.	The Plaintiff shall pay the defendants cost of the proceedings to be taxed, if not agreed.
3.	Time be abridged.

Daniels & Associate Lawyers:	Lawyer for the Plaintiff
David & David Lawyers:		Lawyers for the Defendant