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Marcus v Motor Vehicles Insurance (PNG) Trust [1994] PGNC 18; N1351 (4 November 1994)

Unreported National Court Decisions

N1351

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 55 OF 1993
REGINO ALMOJERA - PLAINTIFF
V
PATRICIA COROTAN - 1ST DEFENDANT
ANDREW KORAROME - 2ND DEFENDANT
NATIONAL COMP. TECHNICAL & VOCATIONAL TRAINING COLLEGE - 3RD DEFENDANT

Mount Hagen

Woods J
4 October 1994
4 November 1994

Counsel

DL O’Connor for the Plaintiff

D Umba for the Defendants

4 November 1994

WOODS J: The Plaintiff is claiming damages for wrongful termination from a contract of employment. The history of this is that on 8th April 1992 the Plaintiff entered into an Employment Contract with the 3rd Defendant whereby the Plaintiff would be employed as a lecturer of Mechanical Engineering for a period of three years at an annual salary of K10,000 together with other benefits. The Plaintiff agreed that when he commenced the employment he was advised by the 1st Defendant who was a part owner of the business that the business was only a new business and needed time to build up a cash flow so they could only pay him at a reduced wage at the start but that later the difference would be made up when the business developed a better cash flow. The Plaintiff said that despite numerous requests this increase to the contracted amount never happened. On 22 June 1993 the Plaintiff was served with a notice of termination.

The Plaintiff claims that during the period of his employment he was not paid the wages referred to in the Employment Contract and there was never any attempt to make up the shortfall. He also claims the termination was unlawful and he is claiming for the amount due under the balance of the Contract.

The first and second Defendants are the owners of the business referred to as the third defendant which appears to be a registered business name. The first defendant states that whereas there was the contract of the 8th April entered into and authenticated by the Philippine Embassy there was another agreement referred as a Memorandum of Understanding entered into which abrogated the first agreement. This Memorandum of Understanding is dated the 30th June 1992 and it reduced the salary to K200 per fortnight and made the employee liable for all airfares on the termination of the employment and declared the contract of 8 April null and void.

The Plaintiff denies all knowledge of the Memorandum of Understanding and denies it is his signature on the document. Unfortunately it is very difficult to read the signature on the Memorandum as there is no original tendered in evidence only a photocopy where the signature is indistinct. Whilst an original was sought in the court the Defendants say they did not have one which is surprising, instead they say the original is with the Plaintiff which he denies.

However there are other reasons to doubt the validity and effectiveness of this Memorandum. The Contract of 8 April is a full contract with all appropriate conditions for an employment and it is properly attested and authenticated before the Pilippine Embassy and states in its certification page that this is the sole valid contract between them and any other Agreement or understanding aside from this Contract shall be considered null and void. Also Article 3.1 complies with Section 15 of the Employment of Non-Citizens Act Chapter 374.

“Repatriation

15(2) Where for any reason the employment of a non-citizen is terminated the employer is liable for the expences of repatriation of the non-citizen to the place of employment.”

The Court is being asked to find that the contract of 8 April 1992 was only done in that form as a pretence to satisfy all legal requirements within PNG for the employment of the Plaintiff as a non-citizen, this was alluded to in the evidence of the 1st Defendant when she said: “we had to do a contract like that for K10,000 as the Plaintiff could not enter the country on a local salary so we had an agreement to abide with the minimum amount of K10,000”.

The memorandum of 30 June cannot be given any weight because it contravenes S 15 of the Employment of Non-Citizen Act, it is denied by the Plaintiff, and also it was very casually witnessed as compared with the special authentication and certification of the Contract of 8 April by the Philippine Embassy and the Registrar-General Office. I am satisfied that the Memorandum of 30 June can have no status and validity in PNG and cannot be given any recognition by the court.

Therefore for the purpose of any claim under any Contract this court can only look at the Employment Contract of 8th April 1992.

Termination of the Contract is covered in Article 4:

“Neither party may unilaterally cancel this Contract except for legal, just and valid cause or causes.

4.1 ...termination by employer for misconduct etc...

4.2 ...termination by employee...

on other grounds...(but must still be just and valid)”

It would appear that the employer has terminated under Article 4.1. However the law provides that notice should be given and there must be evidence to support the reasons. No evidence has been presented to the Court only vague allegations, there is no history of complaints, no corroboration of complaint, no attendance book no evidence of any undesirable and dangerous acts.

I find that no legal, just or valid cause has been shown to enable the Defendants to unilaterally cancel the Contract. I find that the defendant is liable for the difference between the salary actually paid and the sum agreed to under the contract up till the time the plaintiff was forced to leave the employ of the defendants. As to the balance of the term of the contract the plaintiff is bound to mitigate his loss. No evidence has been led to fully show the availability of other work for which the plaintiff is qualified and the salaries being offered. I will estimate that the plaintiff should have been able to fully mitigate his loss by 4 months after the wrongful termination. So I will allow a further amount of damages equivalent to 4 months pay after the termination. Under the Employment of Non-Citizens Act the Defendants were liable for the expenses of repatriation however no figure has been presented to inform the court of the cost of repatriation to the Philippines.

I order Judgement for the Plaintiff against the Defendants in the sum of K10,103.00.

Lawyer for the Plaintiff: DL O’Connor

Lawyer for the Defendants : DA Umba