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Wijekoon v University of PNG (UPNG) [1989] PGNC 1; N715 (13 February 1989)

Unreported National Court Decisions

N715

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O.S. NO. 242 OF 1988
BETWEEN: DINGERI BANDA WIJEKOON
PLAINTIFF
AND: UNIVERSITY OF PAPUA NEW GUINEA
FIRST RESPONDENT
AND: JOHN LYNCH
SECOND RESPONDENT
AND: TUARONG TIOTI
THIRD DEFENDANT

Waigani

Andrew AJ
10-11 February 1989
13 February 1989

DECISION

ANDREW AJ: The Plaintieks an order byer by way of Notice of Motion for “an order of injunction to restrain the University by its servants or agents from taking possession of the house No. D.38 at Waigani and to continue to provide the utilities such as water, electricity and telephone until the Plaintiff’s employment is terminated validly in accordance with its Rules.”

The Plaintiff previously was granted an interim order on the 16th December 1988 in the above terms. That order was until further order. On the 13th February 1989 that order was extended again until further order but it appears that the matter was also adjourned to the Motions list on the 10th February 1989 where the application was again made and it is now opposed by the 1st Respondent, the University of Papua New Guinea who submit that when the application was first made they were advised that it would be heard at 9.30 a.m. but that when they attended the Court at that time the application had already been determined ex parte and that accordingly the University was not heard.

The applicant was Assistant Bursar at the University. He was charged with misconduct on the 30th September 1988 by the Vice Chancellor. He subsequently replied to these charges and then was advised by the Vice Chancellor on the 11th October 1988 that under S. 8.3.1.2 of the Terms and Conditions of employment of Non-Citizens he had the opportunity to be heard on the proposal to terminate his employment. Following a hearing at the University - which the applicant is disputing as a fair hearing - he appealed to the University Council which unanimously up-held the termination. He also disputes the validity of the hearing.

I am dealing only with the application to restrain the University from ejecting him from the University’s residence which he occupied when he was the Assistant Bursar pending the hearing of his substantive action challenging his dismissal.

It is submitted that the applicant never repudiated the contract of employment and that accordingly he should be entitled to remain in the house. It is also submitted that no rent should be charged.

The facts of this case are not dissimilar to those of Robinson v. National Airlines Commission [1983] P.N.G.L.R. 476. In that case the plaintiff was terminated from his employment as deputy general manager of the dependant company and he instituted proceedings for damages for wrongful dismissal in which proceedings, on notice of motion, he sought orders directing the defendant to refrain from demanding possession of a company supplied car and house and to endure non-termination of electricity etc to the house, and to continue to pay the salary and allowances and to accord privileges to the plaintiff pursuant to the contract of employment.

The applicant is seeking an interlocutory injunction which is prohibitive in nature. It is sought to restrain the defendant from demanding possession of the residence supplied to the plaintiff and to the utilities which go with it. These are matters which go to hardship which could go beyond a question of compensation in damages and the plaintiff must be afforded every reasonable opportunity to bring his action, a fortiari, as a matter which will involve his livelihood and his reputation. In Robinson’s case it was said (at p. 481):

“In the ordinary master and servant case:

“...if the master wrongfully dismisses the servant, either summarily or by giving insufficient notice, the employment is effectively terminated, albeit in breach of contract”. See Vine v. National Dock Labour Board [1956] 3 ALL E.R. 939.

Accordingly, the servant cannot claim specific performance of the contract of employment. Nor can he claim wages as such after the relationship has terminated. He is left to his remedy in damages against his master for breach of the contract to continue the relationship for the contractual period. He gets damages for the time he would have served if he had been given proper notice, less, of course, anything he has, or ought to have earned, in alternative employment: see Hill v. CA Parsons and Company Ltd.

But in the case Lord Denning M.R., at 1350, continued as follows:

“I would emphasize, however, that this is the consequence in the ordinary course of things. The rule is not inflexible. It permits of exceptions. The court can in a proper case grant a declaration that the relationship still subsists and an injunction to stop the master treating it as at an end. That was clearly the view of the Privy Council in the latest case on the subject, Francis v. Municipal Councillors of Kuala Lumpur [1962] 3 ALL E.R. 663, where Lord Morris of Borth-y-Gest said:

‘...when there has been a purported termination of a contract of service a declaration to the effect that the contract of service still subsists will rarely be made.’

He added that in ‘special circumstances’ it may be made. Let me give an example taken from the decided cases. Suppose that a senior servant had a service agreement with a company under which he is employed for five years certain - and, in return so long as he is in the service, he is entitled to a fee house and coal - and at the end a pension from a pension fund to which he and his employers have contributed. Now, suppose that, when there is only six months to go, the company, without any justification or excuse, gives him notice to terminate his service at the end of three months. I think it is plain that the court would grant an injunction restraining the company from treating the notice as terminating his service. If the company did not want him to come to work, the court would not order the company to give him work. But, so long as he was ready and willing to serve the company, whenever they required his services, the court would order the company, whenever they required his services, the court would order the company to do their part of the agreement, that is, allow him his free house and coal, and enable him to qualify for the pension fund.

It may be said that, by granting an injunction in such a case, the court is indirectly enforcing a contract for personal services. So be it. Lord St Leonards L.C. did something like in Lumley v. Wagner [1843-60] All E.R. Rep. 368.

Further authority for the proposition that the courts may in exceptional cases specifically enforce a contract for personal services or involving the continuous performances of services may be seen in C.H. Giles and Company Ltd v. Morris [1972] 1 All E.R. 960; Thomas Marshall (Exports) Ltd v. Guinle [1978] 3 All E.R. 193 and Gunton v. Richmond-upon-Thames London Borough Council [1980] 3 All E.R. 577.

But that principle, particularly as set out in Hill v. C.A. Parsons and Company Ltd is clearly distinguishable from the present case because there the injunction is granted at the behest of the employee against the employer to restrain a threatened wrongful dismissal. Here, the plaintiff is not challenging the repudiation of the contract. His action is for damages for wrongful dismissal.

What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success and that he has property or other interests which might be jeopardized if no interlocutory relief were granted. Then it becomes a matter of seeing if, in all the circumstances of the case, the court should nonetheless exercise its discretion by declining to issue an interlocutory injunction. The plaintiff must show that he has a legal or equitable right of title or interest which might be jeopardized if the injunctive relief was not granted.”

It is true that the Plaintiff does not yet appear to be suing for the damages for wrongful dismissal. He appears to be challenging the repudiation of the contract and to be attempting to persuade the employer to change his mind and appears not to have made his election to accept the repudiation and to treat the contract as at end (which he would do by a writ for damages for wrongful dismissal).

But he faces the same difficulties as in Robinson’s case and is asking in effect for an order that he be allowed to remain on the defendant’s premises to assist him in bringing his case against the defendant. It is also true as in Robinson’s case that he is in a difficult position in that he is a foreigner who is restricted in his choice of employment and would not presumably obtain other employment pending the determination of his action.

I have considered the material before me as to whether the plaintiff has a serious case which has a real possibility of ultimate success. I do not believe he does. He was properly charged and given every opportunity to explain, which he did at great length.

HIs appeal was determined by the University Council and again he was given an opportunity to be heard and I see nor error of procedure. I do not wish to pre-judge his case and it may be that further material will be available but here the question is really whether his case is so strong that prohibitive injunctive relief should be granted which is only done in exceptional cases. He has really exhausted the procedures of appeal within the University system and his true remedy would appear to be an action for damages for wrongful dismissal. I do not believe that the University should be forced to accommodate him ad Nauseam pending this action. If he is forced to leave the country for economic reasons he is not prevented in coming back to argue his case for he may be doing little to mitigate any damages by remaining here whilst unemployed. The plaintiff must be afforded every reasonable opportunity to bring his action and in the circumstances where his livelihood and his reputation are at stake I propose to have the matter set down in the next civil call over list so that the case may be given a hearing date but I do not find as a matter of law or on consideration of the facts that the defendant should be made to provide accommodation.

Consequently I dismiss the application and I make no further order to extend the injunctive relief previously obtained.

I make no order as to costs.

Lawyer for the Plaintiff: Kei Vuatha Kapa & Associates

Lawyer for the 1st Defendant: Ms. Palao