N10118

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 17 OF 2019

BETWEEN:
MARK PORAWI
First Plaintiff

AND
BUAY KUMAR AGARWAL
First Defendant

AND
SANTOSH SRINIVASAN
Second Defendant

AND
COLORPAK LIMITED
Third Defendant

Lae: Dowa J

2021: 30th November
2023: 14th February

EMPLOYMENT LAW -simple employment contract governed by Employment Act- principles applicable in termination of simple contract of employment-Where the contract of employment is terminated for cause that is the end of that contractual relationship-Plaintiff failed to prove allegations of unlawful termination-proceedings dismissed.

Cases Cited:
Malai-v-PNG Teachers Association [1992] PNGLR 568
Ruhuwamo v PNG Ports Corporation (2019) N8021

Counsel:
K. Kevere, for the Plaintiff
J. Langah, for the Defendants

RULING

14th February, 2023

1.	DOWA J: The Plaintiff seeks damages against the Defendants for unlawful termination of employment.

2.	The parties were asked to settle but failed to settle and have agreed for the court to make a ruling based on evidence they filed in Court.

BACKGROUND FACTS

3.	The Plaintiff was employed by the third Defendant from February 2005 to 07th January 2016.  On 7th January 2016 the Plaintiff was terminated from employment for stealing 34 bales of plastic bags. The Plaintiff alleges the termination was unlawful, and the actions of the Defendants was in violation of his constitutional rights under section 37, 48, 53 and 58 of the Constitution.

4.	The Defendants deny the allegations pleading that the employer has the right to hire and fire an employee at will and deny any breach of the Plaintiff’ Constitutional rights.

ISSUE

5.     The main issue for consideration is whether the Plaintiff’s termination of employment was unlawful.

EVIDENCE

6.     The Plaintiff relies on the following affidavits:

a)	Substantive affidavit of Mark Porawi sworn 30th June, filed 01st July 2021
b)	Supplementary affidavit of Mark Porawi sworn and file 7/9/2021
c)	Affidavit in Reply of Mark Porawi sworn 28th and filed 29th September 2021

7.     The Defendants rely on the Affidavit of Santhos Srinivasan sworn 22nd and filed 23rd September 2021.

PLAINTIFF’S EVIDENCE

8.     This is the summary of the Plaintiff’s evidence. He commenced employment with the defendant company as clerk-accounts payable in February 2005. He was promoted to the position of Human Resource Officer until his termination. On 05th January 2016, the First Defendant alleged that 34 bales of check- out bags went missing from the warehouse. 

9.     It was alleged that the bags were stolen by the employees working at the warehouse. The First Defendant emailed the Plaintiff and other employees to pay for the missing bags. The Plaintiff was included for conspiring with the other employees. The Plaintiff along with the other employees were then asked for a pay deduction of K100 per month and if they refuse, they were to voluntarily resign, or face termination. The Plaintiff refused to allow for the pay deduction. He also refused to resign. As a result, he was terminated from employment. The Plaintiff says his refusal to pay deduction was because he did not work at the warehouse, and secondly there was no evidence that he was involved in the theft of the 34 bales of plastic bags. On termination, the Plaintiff was not paid his final entitlement.

10.	The Plaintiff alleges that the actions of the First and Second Defendants amounted to breach of his Constitutional rights under section 37, (Protection of the Law), section 48 (Freedom of Employment), Section 53 (protection from unjust deprivation of property), section 58 (compensation) and section 59 (principles of natural justice).

DEFENDANTS’ EVIDENCE

11.	The evidence for the Defendants was given by the Second Defendant, Mr. Santhos Srinivasan. Mr. Srinivasan deposes that at the material time he was the general manager for the third Defendant. He confirms the Plaintiff was employed by the Third Defendant as Human Resource Officer.  The Defendant became aware that 34 bales of check-out bags had been stolen and the theft was continuing. The First Defendant requested an explanation from the staff working at the warehouse but there was no response. The First Defendant thereafter requested by email to the Plaintiff that he make all the staff in the warehouse (including the Plaintiff) responsible for the short fall and for those staff including the Plaintiff to repay the total cost of the losses of K4, 306.64 by monthly deductions of K100 from their pay. The Plaintiff mobilized his colleagues not to accept the repayment by deduction. The company management had no alternative but to terminate the (6) six employees including the Plaintiff. Three (3) of the terminated employees later explained to the Defendants that the Plaintiff made it difficult for them to obey the directions of the company. As a result of the apology, three of the terminated employees were re-employed.

SUBMISSIONS OF COUNSEL

12.	Mr. Kevere, counsel for the Plaintiff, submits that the Plaintiff was unlawfully terminated because: 1) he was not working in the warehouse where the 34 bales had gone missing and 2) there was no proof of theft by the Plaintiff. The direction for pay deduction and the eventual termination of employment based on the refusal by the Plaintiff is harsh and oppressive. They amount to unlawful termination of employment. The actions of the Defendants also amount to abuse of the Plaintiff’s Constitutional rights.

13.	Mr. Langah, counsel for the Defendant, submits the Plaintiff was terminated for cause, and that is, i) for allegations of theft and ii) for disobedience of lawful orders. He submits that the Defendants, as employer, has a right to hire and fire for any reason or for none, based on the Supreme Court Authority in Malai-v-PNG Teachers Association (1992) PNG LR 568. Mr. Langah submits further that there was no breach of the human or Constitutional rights of the Plaintiff.

CONSIDERATION

  14.	The law on termination of simple employment contract is settled in this jurisdiction.  In Ruhuwamo v PNG Ports Corporation (2019) N8021, Thompson J states the law at paragraphs 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.”

15.	The evidentiary facts show that at the material time, 34 bales of check-out bags went missing in the warehouse. The company management requested the workers at the warehouse including the Plaintiff for an explanation for the missing bales. No explanation was forthcoming. The third Defendant requested the Plaintiff and other workers to agree to a pay deduction at the rate of K 100.00 per month to recover the losses. This would appear to be the punishment without actual proof. However, these decisions are taken in the context of their private master/servant relationship. It is understandable someone must pay for the loss, and it is not unreasonable to pass on the obligation to those who had immediate excess to and custody of the bales.

16.	The Plaintiff and five other employees refused to accept the directions given by the Defendants for the pay deduction. Their decision was a direct defiance of a lawful order from the employer. There is evidence that three of the employees who were terminated along with the Plaintiff blame the Plaintiff for misleading them which resulted in their termination. Whilst the directions given to the Plaintiff appears to be harsh especially that the Plaintiff was employed as Human Resources Officer rather than someone from the warehouse, it was nevertheless a lawful order from his employer. The Plaintiff would have done well to obey than to protest which resulted in the termination of his employment. I find as a fact that the Plaintiff defied lawful orders from his employer.

17.	The Employment Act sets the minimum standards, terms, and conditions of employment. It safeguards against abusive behavior and from forced labour. The Act promotes fair and free employment relationship between employer and employee. This is understandable. An employee should not be forced to serve an ungrateful master under oppressive working conditions against his will. The master, likewise, is under no obligation to keep in continuous employment a defiant and disloyal servant no matter how experienced or qualified or skillful he or she may be. The only obligation they have is keeping their end of the bargain on the terms they have agreed.  Where there is ambiguity or silence or unresolved matter arising out of the relationship, the Employment Act applies, which provides useful guide for resolving the matters in dispute. 

18.	In the present case, the Plaintiff was terminated for cause. He disobeyed lawful directions from his employer. I find nothing illegal or unlawful in the decision made by the Defendants to terminate the Plaintiff.

20.	The allegation of breaches of human rights under the Constitution are misconceived. The Employment Act governs the relationship between the employer and employee. All actions and decisions made are in the context of that relationship. For an employer’s business to flourish and provide for the continuous and prolonged employment of an employee, it would require trust, accountability, loyal service, and unreserved obedience from its employees. Conversely, hardworking employees should be appropriately rewarded. Any questionable conduct is likely to be met with unfavorable response which can only lead to dire consequences and hardship. Such undesirable consequences are not necessarily caused by any infringement of human rights guaranteed under the Constitution. In this case, I find no breach of the Plaintiff ‘s Constitutional rights.

21.	For the forgoing reasons, I am not convinced that the Plaintiff has a probable cause of action for unlawful termination of employment. I am not satisfied that the Plaintiff has discharged the burden of proof. I will therefore dismiss the proceedings with costs to the Defendant.

ORDERS

22.      The Court orders that:

a)	The Plaintiff’s proceeding is dismissed.
b)	The Plaintiff pay the costs of the proceedings to be taxed, if not agreed.
c)	Time be abridged.

Public Solicitor Lawyers:	Lawyers for the Plaintiff
Albright Lawyers:		Lawyers for the Defendant