Pim v Mokondo [2022] PGNC 199; N9657 (11 May 2022)

N9657

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 11 OF 2018

JOSEPH PIM
Plaintiff

V

HENRY MOKONDO – CHIEF EXECUTIVE OFFICER – NCD WATER & SEWERAGE LIMITED TRADING AS EDA RANU
First Defendant

NCD WATER & SEWERAGE LIMITED TRADING AS EDA RANU
Second Defendant

Waigani: Narokobi J
2022: 11^th May

HUMAN RIGHTS – Constitution, s 57 (enforcement of guaranteed rights and freedoms)– Whether human rights form implied terms of a contract of employment – s 32, Right to freedom – s 36, Freedom from inhuman treatment- s 46, Freedom of expression – s 47, Freedom of assembly and association – s 48, Freedom of employment – s 51, Right to freedom of information – s 59, Principles of natural justice.

The Plaintiff claims that he was wrongfully terminated for exercising his rights under the Constitution, when he raised questions around the lack of transparency with the finances of a union body all staff of the Defendant contribute to fortnightly. He alleges that his rights to ss 32, 36, 46, 47, 48, 51 and 59 of the Constitution were breached. The Defendant says the Plaintiff’s termination was on disciplinary grounds and they did not breach any of the rights as alleged.

Held:

(1) The only reasonable inference open to conclude from the evidence is that the Plaintiff was terminated because he raised the issue of the lack of transparency of the financial affairs of the union association, Eda Ranu Staff Association, which the Second Defendant fortnightly deducts money to pay to the Association for its upkeep.

(2) Human rights, as conferred by the Constitution, have universal application and can properly be regarded as implied terms of any contract of employment (Simon v Koisen (2018) N7075, adopted).

(3) It is an implied term of a person’s contract of employment with the Second Defendant to observe his right to s 47, of the Constitution “Freedom of Assembly and Association.” The fact that the Plaintiff was terminated for pursuing this right was a clear breach of the Plaintiff’s entitlement to this right.

(4) It would follow that what the Second Defendant did to the Plaintiff was also a breach of his rights under s 32, “Right to Freedom,” and s 46, “Freedom of Expression.” The Plaintiff simply asked for information he was entitled to. He did not defame any person or ask for information that he was not entitled to.

(5) There is no evidence of torture or inhuman treatment, therefore the claim to breach of s 36 of the Constitution is dismissed.

(6) Freedom of employment does not mean, right to employment, but choice of employment. There is no evidence of the Defendants impeding this choice (Karingu, Enforcement of Rights Pursuant Constitution S57 [1988-89] PNGLR 277, followed). The claim for breach of s 48 of the Constitution is for this reason dismissed.

(7) Since the Second Defendant is an entity created under the Companies Act 1997 and no submissions were made that it is a governmental body such that the records it maintains are “official documents,” in the circumstances the claim for right to information under s 51 of the Constitution is not made out.

(8) In the absence of any specific agreements between the Plaintiff and the Second Defendant for the Plaintiff to be accorded a right to be heard under s 59 of the Constitution before his termination, he is not entitled to be heard and the claim is dismissed. (Vagi v National Capital District Commission (2002) N2280, applied).

(9) The Second Defendant is vicariously liable for unlawful termination of the Plaintiff and breach of the Plaintiffs human rights under ss 32, 46 and 47 of the Constitution and the Plaintiff is entitled to damages under s 58(2) of the Constitution, to be assessed for establishing these causes of action against the Defendants.

Cases Cited

Karingu, Enforcement of Rights Pursuant Constitution S57 [1988-89] PNGLR 277
New Britain Oil Palm Ltd v Sukuramu (2008) SC946
Simon v Koisen (2018) N7075
Vagi v National Capital District Commission (2002) N2280

Statutes Cited

Constitution
Companies Act 1997
Employment Act, Chapter 373
Industrial Relations Act, Chapter 174

Counsel

R Obora, for the Plaintiff
R Pinggah, for the Defendants

JUDGMENT

11^th May, 2022

1. NAROKOBI, J: The Plaintiff has filed proceedings alleging breach of his rights and freedoms. He has filed a writ of summons and a statement of claim. The matter is now for me to give my decision.
   
2. In the statement of claim, the Plaintiff’s basic facts pleaded is that he commenced employment with the Second Defendant on 16 October 2008 as a shipping clerk and later promoted to Community Relations Officer when his employment was terminated on 4 November 2016.
   
3. Upon commencement of employment, he joined the Eda Ranu Staff Association (hereafter referred to as ERSA) that was formed in 2005. All employees of Eda Ranu automatically become members of the Association by virtue of their employment.
   
4. Members contribute K5 every fortnight to the Association. There has been no report on how the money is spent. Employees have not raised concern as the former president of the Association Mr Kalim Tamari is now the Manager of Business and Administration.
   
5. On 26 October 2016 all the executives of ERSA through its’ secretary, issued a notice of meeting to all financial members of ERSA. The meeting was to be held on 28 October 2016. However, on 27 October 2016 the First Defendants issued a notice to stop the meeting. At the same time a public notice was also issued to cancel the meeting scheduled for 28 October 2016.
   
6. On 27 October 2017, there was a general staff meeting and the Plaintiff asked why the ERSA meeting was cancelled and why there was no financial report of ERSA. The Plaintiff was appointed as the interim President.
   
7. On 4 November 2016, the Plaintiff’s employment was terminated.
   
8. The Plaintiff pleads two causes of action – wrongful termination of employment and breach of human rights. For breach of human rights, he claims the following rights to have been breached:
   
   • Section 32. Right to Freedom.
   • Section 36. Freedom from Inhuman Treatment.
   • Section 46. Freedom of Expression.
   • Section 47. Freedom of Assembly and Association.
     
9. By reasons of these said causes of actions, the Plaintiff claims general damages, special damages, exemplary damages, interests, and costs.
   
10. The Defendants deny the allegations and say that ERSA is a separate entity to it, and it should not be held responsible for any of its dealings. The Defendants further state that the Plaintiff has a history for disciplinary action and that he incited a riot amongst the staff. This was the reason he was terminated.
    
11. There are two issues that I must determine – firstly, whether the Plaintiff was wrongfully terminated and secondly whether his rights were breached.
    
12. I summarise the evidence of the Plaintiffs in the table hereunder.
    

Exhibit No	Deponent	Evidence
P1	Joseph Pim, filed 19 September 2018	He commenced employment with the Second Defendant on 16 October 2008 as a shipping clerk and later promoted to Community Relations Officer when his employment was terminated on 4 November 2016. Upon commencement of employment, he joined the Eda Ranu Staff Association (herafter referred to as ERSA) that was formed in 2005. All employees of Eda Ranu automatically become members of the Association by virtue of their employment. Members contribute K5 every fortnight to the Association. There has been no report on how the money is spent. Employees have not raised concern as the former president of the Association Mr Kalim Tamari is now the Manager of Business and Administration. On 26 October 2016 all the executives of ERSA through is secretary, issued a notice of meeting to all financial members of ERSA. The meeting was to be held on 28 October 2016. However, on 27 October 2016 the First Defendants issued a notice to stop the meeting. At the same time a public notice was also issued to cancel the meeting scheduled for 28 October 2016. On 27 October 2017, there was a general staff meeting and the Plaintiff asked why the ERSA meeting was cancelled and why there was no financial report of ERSA. The Plaintiff was appointed as the interim President. On 4 November 2016, the Plaintiff’s employment was terminated. His appeal was unsuccessful. When ERSA advertised its documents for incorporation, he objected and the Industrial Registrar also requested audited financial accounts from ERSA.
P2	Joseph Pim, filed 2 April 2019	Says much the same information as in his previous affidavit (Exhibit “P1”). He says further that on 24 October 2016 all staff had a sit-in protest regarding their overtime. Mr Tamari and the Human Resource Manager told them that their overtime will be paid in the next payday. It was then that the Plaintiff told Mr Tamari that he should be speaking up for them. Still on 24 October 2016, after the sit-in protest and address by Eda Ranu, the Plaintiff as the interim President of ERSA and other interim executive members of ERSA, through their secretary issued a notice of meeting to all financial members of the Association for 28 October 2016. On 25 October a further notice was received from the outgoing Secretary that the meeting was unauthorised. The events after that are as deposed to in the Plaintiff’s earlier affidavit (Exhibit “P1”). He says that between 24 October 2016 and 28 October 2016 he did not behave in a riotous manner nor misbehave. He says that on 4 November 2016, his employment was terminated for no other reason than for representing the financial members of ERSA and for questioning Mr Tamari for financial reports. He says that his employment was terminated for questioning Mr Tamari and acting in the best interest of ERSA. About two months before the termination, he was appointed the interim President of ERSA. He was not given an opportunity to be heard and his termination was on account of pursing his constitutional rights.
P3	Francis Komborovi filed 2 April 2019.	He has worked with the Second Defendant for more than 12 years, since 1 November 1996, until his retrenchment 21 December 2018. He corroborates the evidence of the Plaintiff regarding his recollection of events, importantly he says that there has been no financial report of ERSA since 2005 despite staff K5.00 fortnightly contributions.
P4	Vaia Paimuru, filed 3 April 2019	He says he is 55 years old, from Gulf Province, and he is a plumber by trade and is married with four children. On 18 December 2018 he was retrenched. He attaches a copy of his payslip showing K5 deduction to ERSA. His version of events of 24 October 2018 and 27 October 2018 is similar to Joseph Pim and Francis Komborovi.

13. The Defendants also filed affidavit materials and I summarise their evidence in the table hereunder.
    

Exhibit No	Deponent	Evidence
D1	Alice Talvat, filed 26 March 2019	She is the Human Resource Manager and has personal knowledge of the Plaintiff’s work performance and disciplinary history. The company’s records provided that on or about 8 August 2012 the Plaintiff was promoted and transferred to the Second Defendant’s Business and Administration Department to perform the role of Community Relations Officer. However, he was later demoted on disciplinary grounds and transferred to the Sewerage Operations Department in and around 13 November 2013, until his termination on 4 November 2016. She is aware of ERSA, and that the Plaintiff is a member of ERSA. ERSA is an industrial organisation and independent body, and is a separate legal entity from the Second Defendant. On 24 October 2016 the Management had a meeting with all the employees of the Second Defendant. The meeting was on teamwork, ethics and restructure. At that meeting the Plaintiff raised the issue of overtime after it had already been addressed. At the meeting the Plaintiff applauded the Minister’s decision to delay the restructure. This was a political decision, and the Plaintiff should not have raised it. The Plaintiff than asked Mr Tamari about ERSA’s financial reports but Dr Maitanaho told him that it was the wrong forum. After that the staff became rowdy. Immediately after the meeting the Plaintiffs and members of ERSA organised through a memo dated 24 October 2016 for the ERSA members to convene a meeting on Friday 28 October 2016 at the Second Defendants Four Mile Depot. Given that the Chief Executive Officer was not consulted, and no approval was obtained by ERSA executives to hold the meeting at the Second Defendant’s property, the Plaintiff and Rosen Matanga, a former employee who supported the Plaintiff were advised via telephone that protocol was not followed and the meeting should be called off. A notice was then circulated by ERSA advising of the cancellation of the meeting. The Plaintiff was then called to see her. She told him that since protocol was not followed there will be no ERSA meeting and that as he was brought up the issue of overtime as it had been dealt with, he may be disciplined. His past record would weight against him. On 4 November 2016 he was terminated for insubordination as he caused staff to behave in a riotous manner and for not following lawful instructions. He had seven days to appeal and on 11 November 2016 he appealed. The Second Defendant management met on 16 November 2016 to consider the appeal but confirmed the initial decision due to the nature of the charge and his past disciplinary record. Since the Plaintiff was terminated for not following lawful instructions the Defendants have not breached the rights referred to by the Plaintiff.
D2	Dr Fifaia Maitainaho, filed 26 March 2019	He is the Chief Operating Officer of the Second Defendant. He says that the Plaintiff raised the issue of overtime on 24 October 2016 when he knew that it was already attended to as indicated in the Circular dated 3 August 2016. At the meeting the Plaintiff applauded the Minister’s decision to delay the restructure. This was a political decision, and the Plaintiff should not have raised it. The Plaintiff than asked Mr Tamari about ERSA’s financial reports but Dr Maitanaho told him that it was the wrong forum. After that the staff became rowdy and ERSA members took over the meeting. With the assistance of the Management team, they took back the meeting and closed it.

14. The Plaintiff submits that he did not act in a riotous manner and there was no argument or fight, nor any damage caused to property, and the actions of the Plaintiff did not constitute the grounds of termination under s 36 of the Employment Act, Chapter 373.
    
15. The Plaintiff then submits that his termination was aimed at circumventing a strike action and or prevent the Plaintiff from raising issues about ERSA funds.
    
16. The Plaintiff says that his termination was an anti-union action contrary to s63(1) of the Industrial Relations Act, Chapter 174.
    
17. Finally, the Plaintiff submits that the actions of the Defendants to terminate the Plaintiff’s employment deprived the Plaintiff of his right to be heard, his right to freedoms of assembly and association guaranteed to him by s 47 of the Constitution and contravened s 63(1) of the Industrial Relations Act and was unlawful.
    
18. The Defendant’s submit that they have not breached any of the Plaintiff’s rights and that his termination was lawful on account of his defiance of lawful instructions. After he was terminated, his appeal was reviewed by the Management and the decision was confirmed.
    
19. After considering the evidence, and the submissions I make the following determination of the facts and the legal consequences of those findings of material facts.
    
20. The ordinary definition of riotous by Dictionary.com is that it is an adjective that means “marked by or involving public disorder,” for example a "a riotous crowd." It could also mean an event “characterized by wild and uncontrolled behaviour,” for example a “riotous party.” In the Papua New Guinea context, we are accustomed to the “Police Riot Squad.” If I were to give the benefit of the doubt to the Defendants, the evidence of Alice Talvat and Dr Fifaia Maitainaho does not describe a scene at the meeting of 24 October 2016 of the staff of the Second Defendants such as is understood by the term “riotous.” The evidence of the Plaintiff as corroborated by Francis Komborovi and Vaia Paimuru confirms this.
    
21. The only reasonable inference open to me is that the Plaintiff was terminated because he raised the issue of the lack of transparency of the financial affairs of ERSA. Membership fees of ERSA are deducted by the Second Defendant every fortnight, and it is supposed to be reemitted to ERSA. It was therefore well within the rights of the Plaintiff to raise the issue at the general meeting of the employees of the Second Defendants. The management of the Defendants should have done in response to the Plaintiff was to explain what happened to the K5 they deduct every fortnight. If that venue was not the right venue to raise that issue, then all it simply needed to do was to say so. By taking the heavy-handed decision to terminate the Plaintiff without notice would cause a reasonable person to draw the conclusion that the only reasonable inference was that the Second Defendant was less than transparent about the moneys it is supposed to deduct every fortnight and remit to ERSA, a separate organisation. While the Defendants says that ERSA is a separate organisation it did not treat it as such.
    
22. In Simon v Koisen (2018) N7075 the Court held that Human rights, as conferred by the Constitution, have universal application and can properly be regarded as implied terms of any contract of employment. In this particular case, ERSA was an officially established union organisation sanctioned by the Second Defendant. It was therefore an implied term of a person’s contract of employment with the Second Defendant to observe s 47, of the Constitution “Freedom of Assembly and Association.” The fact that the Plaintiff was terminated for pursuing this right under the auspices of ERSA was a clear breach of the Plaintiff’s entitlement to this right.
    
23. It would follow from this that what the Second Defendant did to the Plaintiff was also a breach of his rights under s 32, “Right to Freedom,” and s 46, “Freedom of Expression.” What the Plaintiff did was simply ask for information he was entitled to. He did not defame any person or ask for information that he was not entitled to.
    
24. I am however not satisfied on the balance of probability that the Defendants breached his rights under s 36 of the Constitution. There is no evidence of torture or inhuman treatment.
    
25. The facts of this case do not suggest that this was an act that restricted the Plaintiff’s freedom of employment under s 48 of the Constitution, and I accordingly dismiss this claim. Freedom of employment does not mean, right to employment, but choice of employment. (Karingu, Enforcement of Rights Pursuant Constitution S57 [1988-89] PNGLR 277).
    
26. The Second Defendant is an entity created under the Companies Act 1997. I have not received any submission that it is a governmental body such that the records it maintains are “official documents.” In the circumstances, I also dismiss the claim for right to information under s 51 of the Constitution.
    
27. As to breach of s 59 of the Constitution, I am persuaded by the National Court decision in Vagi v National Capital District Commission (2002) N2280. There the court held:
    

“At common law an employer is entitled to terminate an employee with or without reason: see Steamships Trading Co. Ltd v. Joel & Ors [1991] PNGLR 133 at 141. However, it has been held in cases were the reason for dismissal affects the reputation of the employee concerned, he must be given the opportunity to be heard and defend himself before being terminated. This principle applies in our country in nearly all public sector employment and to the private sector only by virtue of agreement of the parties to a contract of employment. This is the effect of a number of authorities in our country such as the Supreme Court judgement in Jimmy Malai v. Papua New Guinea Teachers Association [1992] PNGLR 568.”

28. The National Court’s attempt to develop an underlying law to the right to s59 of the Constitution was overruled in New Britain Oil Palm Ltd v Sukuramu (2008) SC946 on that basis that it was not pleaded in the statement of claim.
    
29. In the absence of any specific agreements, I do not see the Plaintiff being entitled to be accorded rights under s 59 of the Constitution, to be heard before his termination and I accordingly dismiss this claim too.
    
30. The final result is that the Second Defendant throughs servants and or agents has breached the rights of the Plaintiffs under ss 32, 46 and 47 of the Constitution.
    
31. As these rights form part of the implied terms of employment between the Plaintiff and the Second Defendant, it follows that his termination was unlawful.
    
32. I therefore find the Second Defendants vicariously liable for unlawful termination of the Plaintiff and breach of the Plaintiffs human rights under ss 32, 46 and 47 of the Constitution and he is entitled to damages under s 58(2) of the Constitution, to be assessed for establishing these causes of action against the Defendants.
    

Raymond Obora Lawyers: Lawyers for the Plaintiff
In house Counsels: Lawyer for the Defendants