Nio v Ravu [2021] PGNC 29; N8793 (16 April 2021)

N8793

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 449 OF 2019

EDWARD MOLIP NIO
Plaintiff

V

VERENAGI RAVU, EXECUTIVE SECRETARY,
THE BIBLE SOCIETY OF PAPUA NEW GUINEA
First Defendant

REVEREND ROGER JOSEPH, CHAIRMAN,
THE BIBLE SOCIETY OF PAPUA NEW GUINEA
Second Defendant

THE BIBLE SOCIETY OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2021: 10^th March, 9^th, 16^th April

HUMAN RIGHTS – whether circumstances in which plaintiff’s employment was terminated involved a breach of human rights – Constitution, s 37 (protection of the law); s 41 (proscribed acts).

CONTRACTS – contract of employment – whether termination of employment amounted to a breach of contract – whether proper notice given – whether termination notice given by correct person – whether final entitlements paid in accordance with contract of employment.

The plaintiff had been employed as finance and administration manager of a charitable organisation for two years and nine months of a five-year contract of employment, when he was given a termination notice, signed by the chairman of the organisation, effective immediately. Two reasons were given. First, the terms and conditions of his employment were excessive, and he had proposed them himself and had them agreed to by a person who lacked authority to do so. Secondly, an audit of the organisation’s financial affairs for a substantial part of his tenure revealed “massive fraudulent dealings”, which were being referred to the Fraud Office. He was given one month to vacate the organisation’s property in which he was residing. Five weeks after receiving the termination notice the plaintiff commenced proceedings in the National Court against the organisation and its chairman and its executive secretary, claiming damages for breaches of human rights (under ss 37(1) and 41(1) of the Constitution), for unlawful termination of employment and for breach of contract.

Held:

(1) There was no denial of the full protection of the law and there was no harsh or oppressive treatment of the plaintiff by any of the defendants. All claims of breaches of human rights were refused.

(2) The circumstances in which the contract of employment was terminated amounted to a breach of contract in that there was no 14-day notice period adhered to, and there was a failure to pay leave entitlements, airfares and gratuity.

(3) The plaintiff therefore established a cause of action in breach of contract and the third defendant was liable in debt and damages.

Cases Cited

The following cases are cited in the judgment:

NBPOL v Sukuramu (2008) SC946
Paru v Kotigama (2015) N6089

STATEMENT OF CLAIM

This was a trial on liability to determine the plaintiff’s claim for damages for breach of human rights and breach of contract.

Counsel

A Aigilo, for the Plaintiff

16^th April, 2021

1. CANNINGS J: The plaintiff, Edward Molip Nio, had been employed as finance and administration manager of the Papua New Guinea Bible Society, a charitable organisation, for two years and nine months of a five-year contract of employment, when on 4 November 2019 he was given a termination notice, signed by the chairman of the organisation, Reverend Roger Joseph, effective immediately.

2. Two reasons were given for his termination. First, the terms and conditions of his employment were excessive, and he had proposed them himself and had them agreed to by a person who lacked authority to do so. Secondly, an audit of the organisation’s financial affairs for a substantial part of his tenure revealed “massive fraudulent dealings”, which were being referred to the Fraud Office. He was given one month to vacate the organisation’s property in which he was residing.

3. Five weeks after receiving the termination notice the plaintiff commenced proceedings in the National Court against the organisation and its chairman and its executive secretary, claiming damages for breaches of human rights (under ss 37(1) and 41(1) of the Constitution), for unlawful termination of employment and for breach of contract.

BREACHES OF HUMAN RIGHTS

4. The plaintiff claims that he was denied the full protection of the law and treated harshly and oppressively for the purposes of ss 37(1) and 41(1) of the Constitution as he was terminated on the basis of unsubstantiated allegations of fraud, which he was given no right to respond to, and which has resulted in no actual fraud charges against him.

5. I reject these claims. The plaintiff was not entitled to a right to be heard, and whether the allegations were substantiated or not, and whether or not he has faced criminal charges, his employer had the right to terminate the contract for any reason (NBPOL v Sukuramu (2008) SC946). There was no prescribed termination procedure set out in the contract of employment. Though there is an argument about whether proper notice was given and this may amount to a breach of contract, a plaintiff must prove that he is the victim of some obviously or extremely unlawful or unwarranted action by his employer to establish a breach of human rights (Paru v Kotigama (2015) N6089).

UNLAWFUL TERMINATION

6. The plaintiff claims that he was unlawfully terminated as he was given no opportunity to respond to the allegations of fraud, he was terminated by the chairman, Rev Joseph, when the proper officer of the organisation to sign any notice of termination was the executive secretary, Mr Ravu (the first defendant), and he was not given 14 days’ notice as required by the contract.

7. I have already dealt with the first of those arguments: he did not have to be given a right to respond to the fraud allegations.

8. As to the chairman signing the termination notice, this was not contrary to the contract (which was a summary of terms and conditions in the letter offering him employment, which he counter-signed, on 6 February 2017). In fact, it was a proper notice as it conveyed to the plaintiff that the question of his termination had been addressed by the board and it was being given to him by the head of the organisation.

9. As to the notice requirement, I find that this is a sound argument. Clause 12 of the terms and conditions of employment allows either party to give 14 days’ written notice of intention to terminate to the other party. The chairman’s notice of termination gave no such notice. It amounted to instant termination. The chairman said that the plaintiff and his family could stay in the institutional house provided to the plaintiff for a period of one month. But it said nothing about his salary being extended to that time and nothing about final entitlements. I find that there was a breach of contract due to the failure to give 14 days’ notice of termination, as required.

BREACH OF CONTRACT

10. The plaintiff claims that his contract was breached by the failure to pay him leave entitlements for 2017 and 2018, failure to pay airfare entitlements for 2017 and 2018, failure to pay gratuity on termination and failure to reimburse outstanding accommodation paid at his own expense for the period from February 2017 to March 2018.

11. I see no evidence to support the latter claim. For the others I uphold them in principle, though I note that the gratuity clause in the contract is rather vague and perhaps unenforceable. For present purposes, however, I uphold the claims for unpaid leave entitlements, unpaid airfare entitlements and unpaid gratuity.

CONCLUSION

12. The plaintiff’s human rights claims are rejected. However, he has established a cause of action in breach of contract due to the failure to give 14 days’ notice of termination, as required, and for unpaid leave entitlements, unpaid airfare entitlements and unpaid gratuity. This gives rise to an entitlement to an award of debt and damages so there will need to be a trial on assessment of those sums.

13. I point out that after an original period of cooperation on the part of the defendants, this case has proceeded without them for nine months. The trial on liability was conducted without the benefit of any submissions or evidence from the defendants. It is in their interests that they take the opportunity to participate fully in the next stage of the case.

ORDER

(1) The plaintiff has established a cause of action in breach of contract due to the defendants’ failure to give 14 days’ notice of termination, as required, and for unpaid leave entitlements, unpaid airfare entitlements and unpaid gratuity, and is entitled to debt and damages accordingly.

(2) There will be a separate trial on assessment of those sums in accordance with the directions of the Court.

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Public Solicitor: Lawyer for the Plaintiff