Mainao v Akori [2021] PGSC 46; SC2090 (26 February 2021)

SC2090

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 180 OF 2018

BETWEEN:
HENRY MAINAO, Depot Manager, Puma Energy Goroka Depot
First Appellant

AND:
TIMBOKO PYAPETA, Human Resource Manager, Puma Energy
Second Appellant

AND:
PETER DIEZMANN
General Manager, Puma Energy
Third Appellant

AND:
PUMA ENERGY PNG LIMITED
Fourth Appellant

AND:
MARK AKORI
Respondent

Waigani: Gavara Nanu J, Hartshorn J and Anis J
2021: 25^th & 26^th February

APPEAL – trial court found in favour of respondent and awarded damages for unlawful termination – appellants appealed to Supreme court - first grounds of appeal concern legality of termination of respondent – trial Judges consideration of clauses 15 of the code of conduct and its applicability - clause 15 of the Code of Conduct, whilst it formed part of the respondent’s employment contract, its wording evinces a guide rather than a compulsory regime to be followed - respondent made admissions to serious allegations put to him – fourth appellant should have summarily dismissed respondent from employment by following provisions of the Employment Act – trial judge did not consider provisions of the Employment Act but took into account clauses of the code of conduct – in doing so trial judge fell into error – trial judge’ s decision quashed and respondents claim dismissed

Cases Cited:

Kiso v. Otoa (2013) SC1222
Sogeram Development Corporation Ltd v. Som (2014) N5874

Counsel:

Mr. K. Pato and Mr. P. Kepiniu, for the Appellants
Mr. J. Unua, for the Respondent

26^th February, 2021

1. BY THE COURT: This is a decision on a contested appeal.

Background

2. The respondent’s employment with the fourth appellant was terminated on 10^th November 2015. At that time he was employed as the fourth defendant’s depot manager for Goroka. The respondent claimed that his termination was unlawful and commenced proceedings by writ of summons in the National Court. After the trial, the National Court found in favour of the respondent and awarded him damages. The appellants’ appealed.

3. At the hearing of the appeal, the respondent conceded to certain appeal grounds and this Court heard arguments on the remainder.

Consideration

4. The first grounds of appeal are concerned with the legality of the termination of the respondent’s employment. More particularly, the primary judge’s consideration of the respondent’s pleading in his statement of claim is questioned as is his consideration of clause 15 of the Code of Conduct of the fourth appellant.

5. As to the applicability of clause 15 of the Code of Conduct, whilst it formed part of the respondent’s employment contract, its wording evinces a guide rather than a compulsory regime to be followed. This is reflected in the following statement in clause 15.1.18: “It is not normally unusual to by-pass steps in the disciplinary process.”

6. In this instance, in circumstances where the respondent had made admissions to serious allegations put to him, the fourth appellant was entitled to summarily dismiss the respondent pursuant to the Employment Act and not to have to rely upon clause 15 of the Code of Conduct. To the extent that the primary judge found otherwise, we are of the respectful view that he fell into error.

7. In regard to the pleading of the respondent in his statement of claim, the only pleading that attempts to explain the respondent’s complaint are paragraphs 14, 15 and 16. Paragraph 14 pleads a failure to follow procedures but without specificity. Paragraph 15 pleads a lack of fairness also without specificity and paragraph 16 pleads a lack of warnings. In Kiso v. Otoa (2013) SC1222 at [14], the Court describes correctly in our view, what should occur:

“The court’s function was to adjudicate according to law the merits of the case pleaded by the parties on the evidence which they introduced. It was for Mr Kiso to investigate and then introduce evidence to prove the allegations which he made in his pleading.”

(emphasis added)

8. We also reproduce the following passage from Sogeram Development Corporation Ltd v. Som (2014) N5874 at [13] to [15] with which we concur:

“As to the requirement to plead, counsel for SDC referred to the decision of Davani J. in Jacob Simbuaken v. Neville Egari (2009) N3824 and Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694, a decision of Kandakasi J.

14. In Tole’s case (supra), Kandakasi J stated, “The law on pleadings in our jurisdiction is well settled..... unless there is foundation in the pleadings of a party, no evidence... of matters not pleaded can be allowed.”

15. In Simbuaken’s case (supra), after setting out Order 8 Rule 14, Davani J. stated that the reason that certain matters should be pleaded is to avoid surprises and to ensure that all issues that need to be raised are raised long before the matter progresses to trial. Further, each party must plead all the material facts on which he means to rely at the trial otherwise he is not entitled to give any evidence of them at the trial. I respectfully agree with the above statements.”

9. In this instance, the pleading did not permit the primary judge to make findings concerning for instance, the appeal process under the Code of Conduct and members of an appeal body. To the extent that the primary judge made such findings and on other matters which were not pleaded by the respondent, we are of the respectful view that he fell into error.

10. In regard to the primary judge awarding a payment of damages in lieu of notice and reimbursement of accommodation costs, given that we are satisfied that the fourth appellant was entitled to summarily dismiss the respondent from its employment, any notice or payment in lieu or reimbursement was not required. The primary judge fell into error in awarding such payment.

11. The other grounds of appeal have been conceded by the respondent as referred to. The respondent submits that given his concessions the matter should be remitted back to the National Court for a new trial. As we have determined from a consideration of the pleadings and evidence and in particular the admissions of the respondent that the fourth appellant was entitled to summarily dismiss the respondent from its employment, we are satisfied that no useful purpose would be served and that it would not be in the interests of justice for this matter to be remitted back to the National Court for a new trial. Consequently, the orders made in the National Court should be quashed and the respondents claim dismissed.

Orders

12. It is ordered that:

a) The orders made in the National Court on 8^th October 2018 in proceeding WS 1109 of 2016, Mark Akori v. Henry Mainao and three others, are quashed;

b) The plaintiff/respondent’s claim in WS 1109 of 2016 is dismissed;

c) The respondent shall pay the appellants’ costs of and incidental to this appeal.
__________________________________________________________________
Posman Kua Aisi: Lawyers for the Appellants
Office of the Public Solicitor: Lawyers for the Respondent