Nio v Ravu [2021] PGNC 435; N9300 (17 November 2021)

N9300

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: 12^th, 17^th November

DAMAGES – breach of contract of employment – assessment of debt and damages following trial on liability – failure by employer to terminate contract of employment in accordance with provisions – claim for debt of K70,337.28 and damages of K64,000.00 – total claim = K134,337.28.

The plaintiff established liability in breach of contract against the defendants, his former employers, due to its failure to terminate his contract of employment in accordance with its provisions. The order on liability stated: “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”. The plaintiff claimed (1) debt of K70,337.28 (comprising (a) unpaid leave entitlements K4,148.46, (b) unpaid airfare entitlements K22,150.80, (c) gratuity K8,100.92, (d) unpaid salary K17,960.92, (e) outstanding transportation allowance K2,768.46, (f) outstanding accommodation allowance K8,970.92 and repatriation costs K6,236.80) and (2) damages of K64,000.00 (calculated by reference to a personal loan of K52,000.00 he had to repay plus interest of K12,000.00, attributable to the breach of contract), a total claim of K134,337.28. The defendants argued that unpaid leave entitlements and unpaid gratuity could be assessed as K5,069.75 and K2,261.54 respectively and that zero should be assessed for all other claims, but because of amounts owed by the plaintiff to the third defendant he should only be paid one fortnight’s salary, in the sum of K2,000.00, as his final award.

Held:

(1) When the Court orders liability in specific terms, any assessment of debt and damages must be made in terms of the order on liability.

(2) The order on liability determined that there would be an assessment only for three categories of debt plus damages, which were assessed as: debt of (a) unpaid leave entitlements K4,148.46 + (b) unpaid airfare entitlements K17,936.40 + (c) gratuity K8,100.92 = K30,185.78 + damages K5,000.00 = total award of debt and damages of K35,185.78.

(3) All other claims of the plaintiff were refused. The defendants’ argument that only K2,000.00 should be awarded was lacking in logic and was refused.

(4) In addition, interest of K3,518.58 was awarded. The total judgment sum was K38,704.36 plus costs in the fixed sum of K3,000.00.

Cases Cited

The following cases are cited in the judgment:

Bruno Denfop v Jant Ltd (2015) N5869
Christopher Kondai v Lon Sike & PIMS (2014) N5721
Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605
Nio v PNG Bible Society Inc (2021) N8793
Timothy Con v Jant Ltd (2014) N5721

Counsel:

A Aigilo, for the Plaintiff
T M Kamuta, for the Defendants

17^th November, 2021

1. CANNINGS J: The plaintiff, Edward Molip Nio, established liability in breach of contract against the defendants, his former employers, due to their failure to terminate his contract of employment in accordance with its provisions.

2. The order on liability stated: “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” (Nio v PNG Bible Society Inc (2021) N8793).

3. The plaintiff claims:

(1) debt of K70,337.28 (comprising (a) unpaid leave entitlements K4,148.46, (b) unpaid airfare entitlements K22,150.80, (c) gratuity K8,100.92, (d) unpaid salary K17,960.92, (e) outstanding transportation allowance K2,768.46, (f) outstanding accommodation allowance K8,970.92 and repatriation costs K6,236,80); and

(2) damages of K64,000.00 (calculated by reference to a personal loan of K52,000.00 he had to repay plus interest of K12,000.00, attributable to the breach of contract),

a total claim of K134,337.28, plus interest and costs.

4. The defendants argue that unpaid leave entitlements and unpaid gratuity could be assessed as K5,069.75 and K2,261.54 respectively and that zero should be assessed for all other claims, but because of amounts owed by the plaintiff to the third defendant, the PNG Bible Society, he should only be paid one fortnight’s salary, in the sum of K2,000.00, as his final award.

1 DEBT CLAIM

5. The first point to make about the debt claim is that the order on liability is very specific. When the Court orders liability in specific terms, any assessment of debt or damages must be made in terms of that order. Here only three categories of debt were covered by the order: unpaid leave entitlements, unpaid airfare entitlements and unpaid gratuity. I assess them as follows:

(a) unpaid leave entitlements, K4,148.46 is awarded, that being the amount claimed by the plaintiff, as it is a moderate sum, calculated in accordance with guidelines of the Internal Revenue Commission;

(b) unpaid airfare entitlements, K17,936.40 is awarded, that being the total cost of return tickets to fly annually from Port Moresby to the plaintiff’s point of hire, Lae, for the plaintiff and his wife and four dependent children, on two occasions for the duration of his period of employment (K1,494.70 x 6 x 2 = K17,936.40);

(c) gratuity, K8,100.92 is awarded, that being the amount claimed by the plaintiff, as it is a moderate sum, calculated in accordance with guidelines of the Internal Revenue Commission.

I refuse other debt claims as they are not included in the order on liability.

Total debt awarded = K30,185.78.

2 DAMAGES CLAIM

6. I award nothing in respect of the personal loan the plaintiff says he was forced to obtain as a result of unlawful termination of his employment, as this was not pleaded in the statement of claim.

7. The plaintiff is entitled to general damages for “stress and anxiety, suffering and hardship caused” as that is what was pleaded, and it has been proven on the balance of probabilities that the plaintiff suffered such injury due to the breach of contract that occurred. I have considered the circumstances in which the plaintiff’s employment was terminated and the relatively short period– less than three years – he was employed, and compared the facts of this case with other cases decided in which the plaintiffs, former employees, were awarded a similar component of general damages: Christopher Kondai v Lon Sike & PIMS (2014) N5721 = K3,000.00; Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605 = K4,000.00; Timothy Con v Jant Ltd (2014) N5721 = K5,000.00, Bruno Denfop v Jant Ltd (2015) N5869 = K8,000.00. I award K5,000.00.

8. All other claims of the plaintiff are refused. The defendants’ argument that only K2,000.00 should be awarded is lacking in logic and is refused.

9. The total amount of debt (K30,185.78) + damages (K5,000.00) = K35,185.78.

3 INTEREST

10. Interest is awarded at the rate of 8 per cent per annum on the total amount of debt and damages under the Judicial Proceedings (Interest on Debts and Damages) Act 2015, calculated in respect of the period from the date of filing the statement of claim (17 August 2020) to the date of this judgment (17 November 2021), a period of 1.25 years, by applying the formula D x I x N = A, where: D is the amount of debt and damages, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest. Thus: K35,185.78 x 0.08 x 1.25 = K3,518.58.

CONCLUSION

11. The plaintiff is awarded a total amount of debt and damages of K35,185.78 plus interest of K3,518.58, being a total judgment sum of K38,704.36. The plaintiff has been represented by the Public Solicitor so it is appropriate to award costs in a fixed and moderate sum: K3,000.00. The interim order of 23 December 2019 authorising the plaintiff to remain in occupation of the third defendant’s institutional flat at Badili will continue to apply until seven days after payment of those amounts in full.

ORDER

(1) The defendants shall pay to the plaintiff a total amount of debt and damages of K35,185.78 plus interest of K3,518.58, being a total judgment sum of K38,704.36, plus costs in the fixed sum of K3,000.00.

(2) The interim order of 23 December 2019 authorising the plaintiff to remain in occupation of the third defendant’s institutional flat at Badili, subsequently affirmed and amended, shall continue until the date seven days after the day of payment of the full amount of the total judgment sum plus costs, when it shall dissolve

(3) Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Kamutas Legal Services: Lawyers for the Defendants