Plamb v Kia [2023] PGNC 438; N10583 (24 November 2023)

N10583

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 111 OF 2021

BETWEEN:
PETER PLAMB
Plaintiff

V

CAIUS KIA, in his capacity as former PNG Ports Corporation Manager of Kimbe Port
First Defendant

AND
MELIE SIWA in her capacity as PNG Ports Corporation Ltd Kimber Branch Manager’s Personal Secretary
Second Defendant

AND
PNG PORTS CORPORATION LIMITED
Third Defendant

Kimbe: Anis J
2023: 21^st & 24^th November

HUMAN RIGHTS – Trial on liability and quantum – claim for violation of human rights of the plaintiff as a former employee of the third defendant – claim premised on alleged breach of freedom of employment - s.48 of the Constitution – alleged right to be heard not given – claim of forced retrenchment and inhuman treatment – whether claims sufficiently pleaded - consideration - ruling

Cases Cited:

Motor Vehicles Insurance (PNG) Trust v Pupune [1993] PNGLR 370
Kerry Lerro v Philip Stagg & ors. (2006) N3050
Nae Ltd v Curtain Bross Ltd (2015) SC1620
PNG International Hotels Ltd v Registrar of Titles (2012) N4618
Kapigeno v. Central Bank of Papua New Guinea and Ors (2020) N8167
Premdas v. The State [1979] PNGLR 329

Counsel:

A Guarim, for the Plaintiff
H T Viyogo with counsel assisting G Roberts, for the Defendants

JUDGMENT

24^th November 2023

1. ANIS J: This matter was trialed on 21 November 2023 on both liability and quantum. I reserved my ruling thereafter to a date to be advised.

2. This is my ruling.

BACKGROUND

3. The plaintiff is a former employee of the third defendant. He was employed as Service and Delivery Clerk at the material time when he ceased employment. The plaintiff’s grievance is this. He claims that he was forced into retrenchment by his employer the third defendant on 18 April 2017. He also claims that he was forced to sign the papers including a deed of release, to accept the final entitlements which he claims were insufficient given the 27 years of service that he had served with the third defendant.

4. It is quite difficult to follow the series of claims made by the plaintiff. However, I note that under the primary document, which is the Human Rights Enforcement Application Form (Form 124 filed under Order 7(1)(c) of the Human Rights Rules) filed 1 December 2021, the plaintiff seeks breach of s.48 of the Constitution as his primary action for alleged human right violation. Section 48 reads:

48. FREEDOM OF EMPLOYMENT.

(1) Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.

(2) Subsection (1) does not prohibit reasonable action or provision for the encouragement of persons to join industrial organizations or for requiring membership of an industrial organization for any purpose.

5. The claim for breach of freedom of employment is pleaded at para 9 in the statement of claim filed 17 February 2022 (SoC). The plaintiff also made submissions on that at the hearing with supportive evidence.

6. Premised on this primary claim, and together with other supportive claims which he also made, he seeks the following relief in the SoC:

(a) General Damages.

(b) Past and Future Economic Loss.

(c) Special Damages.

(d) Interest at 8% per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act.

(e) Costs.

(f) Any other Orders the Court deems fit.

ISSUES

7. As the primary issue, I will consider whether the defendants have violated the plaintiff’s right(s) under s.48 of the Constitution. Subject to my finding(s), I will proceed to address the various relief and quantum.

EVIDENCE

8. Both parties have, by consent, tendered their evidence without the benefit of cross-examination. The plaintiff and the defendants tendered a total of 2 affidavits each. The affidavits tendered were given exhibit numbers which I will refer to where required in my decision.

CONSIDERATION

9. Was the plaintiff’s right under s.48 of the Constitution violated when he was retrenched?

10. I turn my attention to the pleadings and evidence in general. The plaintiff says he lodged an appeal in a letter on 16 May 2017 to the defendants. He says he was not given a fair hearing but instead the defendants proceeded to retrench him. He also gives evidence to say that he was forced to accept his final entitlement benefits. He further gives evidence to say that he was forced to sign the Deed of Release dated 17 August 2017 (the Deed) that was presented to him by the defendants, that is, before they could pay him is final entitlements. The Deed is marked as Annexure A to Exhibit D1 (Affidavit of Rex Kini filed 6 December 2022).

11. My observations are as follows. First, I note that the plaintiff appears to also make other claims of breaches of his rights under the Constitution such as breach of s.59, Principles of Natural Justice, and s. 36, Freedom from Inhuman Treatment. I note that these, together with other claims that have been made, have not been properly pleaded. As such, I have decided to discard them as claims that are properly before this Court for consideration. See cases: Motor Vehicles Insurance (PNG) Trust v Pupune [1993] PNGLR 370, Kerry Lerro v Philip Stagg & Ors (2006) N3050, Nae Ltd v Curtain Bross Ltd (2015) SC1620 and PNG International Hotels Ltd v Registrar of Titles (2012) N4618.

12. I will say the same in regard to the plaintiff’s claim where he challenges the Deed and his final entitlements. These claims may be appropriately commenced under a different mode of proceeding. They are not human right breaches that may be sought under s.48 as has been done by the plaintiff herein. They also appear to imply possible separate causes of actions that the plaintiff may pursue. For example, the plaintiff may sue for breach of contract of employment or for unlawful termination by filing a writ of summons and statement of claim.

13. Coming back to the central question, I make the following observations. First, I refer to the beginning of s.48 where it reads in part, Every person has the right to freedom of choice of employment in any calling for which he has the qualifications . (Underlining mine). The key phrase there for this purpose is “right to freedom of choice of employment.” When I look at the pleadings, with respect, I cannot find a pleading therein that alleges or accuses the defendants or the third defendant to have acted in a manner that had prevented the plaintiff from exercising his right to freedom of choice of employment. The same can be said in regard to the plaintiff’s evidence. None of what is stated under exhibits P1 and P2 or in all of his evidence, proves a fact or facts that the defendants had denied him his right(s) under s.48 of the Constitution at the material time of his retrenchment. The plaintiff, as evidence of the parties have shown, was always at liberty to choose an employment of his choice provided he had the necessary qualifications.

14. However, even if the plaintiff or any person for that matter may qualify for an employment post that they may apply for, s.48 of the Constitution does not confer upon them guaranteed rights to be employed. See cases: Kapigeno v. Central Bank of Papua New Guinea and Ors (2020) N8167 and Premdas v. The State [1979] PNGLR 329.

SUMMARY

15. In summary, this claim is therefore without merit, is baseless and thus shall fail.

COST

16. An award of cost herein is discretionary. I will order cost to follow the event on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

17. I make the following orders:

1. The proceeding is dismissed in its entirety.
   
2. The plaintiff shall pay the defendants’ costs of the proceeding on a party/party basis to be taxed if not agreed.
   
3. Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.
   

The Court orders accordingly

________________________________________________________________
Kumbari & Associate: Lawyers for the Plaintiff
PNG Ports Corporation Legal Services: Lawyers for the Defendants