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Kinaram v Vanimo Forest Products Ltd [2011] PGNC 137; N4413 (11 June 2011)

N4413

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1858 OF 2005

BETWEEN:

ANDREW KINARAM

Plaintiff

AND:

VANIMO FOREST PRODUCTS LIMITED

Defendant

Madang: Batari, J
2010: 17 November
2011: 11 June

CIVIL LAW - Employment– Contract of Employment – Termination of contract - Employee laid -off for external causes – Whether unlawful termination – Whether termination contravened s 34 (4) (c) and s.34 (5) of the Employment Act.

CIVIL LAW - Employment Contract – Restraint clauses - Terms of – Whether unreasonable, unconstitutional and unlawful – Damages claims – Heads of – Onus of proof –Whether plaintiff discharged onus to prove claim.

CIVIL LAW - Frauds and Limitation - Whether cause time barred.

FACTS

The Plaintiff was employed on a contract from 1986 to 1997 when his employment was terminated together with others. He was re-employed from 1998 to 2001when his contract was again terminated. He claimed damages consisting of unlawful termination, unpaid Camping allowance and Hardship allowance, Leave airfares, Repatriation costs, CPI adjustments, lost salary and breaches of his Constitutional rights and the Employment Act.

Held

1. The claims are all time barred, having arisen more than 6 years prior to commencement of proceedings contrary to the Frauds and Limitations Act 1988 s16(1), at [14] and [27-28].
   
2. A free exercise of choice by an employee to accept a restraint of trade clause does not amount to a claim of violation of his or her constitutional right or freedom, at [33];
   
3. There is no constitutional right to engage in unauthorized strike action; PEA v. Biyuwo [1998] PNGLR 585. At common law, an employee who elects to take industrial action as in a strike action is deemed to have breached his contract of employment; Springhead Spinning Co. V. Riley [1986] LR 655, at [44];
   
4. An employer can terminate an employee's employment by giving the employee notice or payment in lieu of notice equivalent to the period of notice, at [65-66];
   
5. Action dismissed with costs.
   

Cases Cited:

Papua New Guinea cases

Christopher Appa v Peter Wama [1992] PNGLR 395
KK Kingston Limited v. Wari Moere [2002] PGNC 103; N2235
Kuma & Ors v Peter Yama [1993] PNGLR 38
Malai v. PNG Teachers [1992] PNGLR 568
NBPOL & Ors v. Vitrus Sukuramu [2008] PGSC 28, SC946
Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399
PEA v. Biyuwo [1998] PNGLR 585

Overseas Cases

Simmons v. Hoover Limited [1977] ALL ER 775.
Springhead Spinning Co. V. Riley [1986] LR 655
Steamships Trading Co. Ltd v. Joel [1991] PNGLR 133

Counsel:

W. Akuani, for the Plaintiff

N. Kopunye, for the Defendants

11June, 2011

1. BATARI, J: The plaintiff was a contracted employee with Vanimo Forest Products Limited (VFPL). He brings this action for unlawful termination of employment and loss of entitlements. He further alleges illegality of certain aspects of his contract and damages arising there from.

Background

2. The plaintiff was a surveyor employee with the defendant company from 6th June, 1986. From 15th March, 1990 written terms and conditions of employment of general were issued, binding VFPL employees. In 1997 the company laid off some employees and Kinaram was one of those affected. He was re-employed in 1998 under a duly signed Contract of Employment. In 2001, the company terminated his contract.

3. This action is based on two purported acts of termination. The first cause relates to his lay-off in 1997. He alleges unlawful termination and loss of entitlements. The second part stems from his 1998 contract which VFPL terminated in 2001. He contends that, the termination was in breach of the terms of the contract and contrary to provisions of the Employment Act. He claims further that, the inclusion of restraint clauses in the 1998 contract was unreasonable, illegal and unconstitutional. So, the contract was unenforceable from the beginning.

Plaintiff's Claims.

4. The plaintiff claims his termination in both situations were unlawful because VFPL denied him due notice under the contract and that he was entitled to four (4) weeks notice or pay in lieu of. He claims the payment of two (2) weeks pay in lieu of notice following his 2001 termination contravened s.34 (4) (c) and s.34 (5) of the Employment Act.

7. He further claims VFPL denied him various entitlements including:-

• Camping allowance and Hardship allowance
• Leave airfares
• Repatriation costs
• CPI adjustments
• Lost salary
  

8. On the validity of his contract, Andrew Kinaram says some clauses contravened the provisions of the Employment Act 1988 as well as the Constitution. He claims certain clauses of the contract were in breach of his rights and freedoms under Constitution sections 46, 47, 48 and 49. The offending clauses, the plaintiff contends, are found in Clause 4 (salary), Clause 10 (leave fare), Clause 21 (confidential information) and Clause 22 (repatriation).

Issues for trial

9. The issues as crystallized from the pleadings and summarised in the Statement of Agreed and Disputed Facts and Issues to be tried are:

1. Whether the plaintiff was unlawfully terminated by the defendant on 13th October, 1997?
   
2. Whether the plaintiff was unlawfully terminated from his employment in 2001 by the defendant.
   
3. Were Clauses 4, 10, 11 and 22 of the plaintiff's contract of employment in breach of sections 11, 40, 47, 48 and 49 of the Employment Act 1978?
   
4. Whether Clause 21 of the plaintiff's employment contract is in breach of s.46 of the National Constitution.
   

Employment Termination of 13th October, 1997

10. On 13th October, 1997 the defendant company laid off some of its employees in a general memorandum dated 6th October, 1997 which reads:

"FROM : Management

DATE : 6th October 1997

SUBJECT : SHUT-DOWN OF LOGGING OPERATION

All supervisors of these above mentioned departments are advised that your employees will be laid off from work on Monday 13th October 1997.

These employees will be paid including long service benefits to these employees who will be laid off from work.

All entitlements will be paid including long service benefits to these employees who will be laid off from work.

During the laid off period, employees are not entitled to any pay.

Thank you for your attention and understanding."

11. The plaintiff says that notice has the effect of a termination notice. He claims the notice effectively terminated his employment without cause and that such manner of termination contravened his terms and conditions of his employment and provisions of the Employment Act.

12. What the plaintiff claims is an attempt to read into the notice of temporary lay-off, a veiled unlawful termination. Such insinuation is unsupported by evidence and stretches the imagination a little too far.

13. The notice speaks for itself. The terms and conditions of employment of the plaintiff and others could not be sustained due to external causes frustrating the general contract of employment. Second, cessation of employment was necessary and temporary. The plaintiff was re-employed less than a year later under a new contract.

14. This claim must however be decided under limitations of actions pursuant to the Frauds and Limitations Act, 1988. Section 16 (1) provides:

"(1) Subject to Sections 17 and 18, an action—

(a) that is founded on simple contract or on tort; or

(b) to enforce a recognisance; or

(c) to enforce an award, where the submission is not by an instrument under seal; or

(d) to recover any sum recoverable by virtue of any enactment, other than

a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued."

15. The alleged breach of Contract of Employment arose in October 1997. The plaintiff commenced these proceedings in 2005. Pursuant to s.16 (1) (a), the six (6) year period within which to commence proceedings founded on a contract lapsed in October of 2003.

16. Irrespective of that apparent anomaly, Mr. Akuani of counsel for the plaintiff resolutely argued that the issue of time limitation was not pleaded in the Defence so; the defendant cannot now raise it.

17. It is true this pivotal issue was not raised at the outset nor was it part of the Defence's case. It is also trite law that a party cannot call evidence or raise in final addresses, matters or issues that are not pleaded or established on the evidence.

18. However, the difference here which also forms the exception to the general Rule of practice is that, the issue of statutory time-limitation raised is jurisdictional. It goes into the validity of the very proceedings brought before the Court and the power of the Court to deal with the case. It is well settled that such issues of competence can be raised and entertained at any stage of the proceedings. In Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v. Chief Collector of Taxes (2007) SC853, the Supreme Court, affirming the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 stated:

"It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court."

19. Where the issue of competence of proceeding is not raised in the trial Court, the Supreme Court in the recent case of Sir Arnold Amet v Peter Charles Yama (2010) SC1064 (Salika DCJ Batari J Davani J) held;

"The issue of competency concerns the validity of the proceedings and can be raised at any stage of the proceedings. The reviewing court should not refuse to consider an issue of competency because it was not raised in the court below."

20. The omission or an oversight in pleading or calling evidence or raising issues of competency of proceeding does not itself, relieve a judge or magistrate for that matter, of the primary role and responsibility to ensure cases coming before the court comply with statutory limitations and the rule of law. The Courts have an inherent jurisdiction to watch over and intervene in their processes and procedures to ensure that they are not abused. The rationale is that, the Court is void of power to adjudicate on a cause of action that is not known in law or is contra to court processes and procedures or is time-barred.

21. In this case, part of the claim is founded on a simple contract of employment allegedly breached by VFPL in October 1997. It is indisputable that, the "unlawful" termination had immediate effect. The plaintiff did not wake up some years later and suddenly found himself without employment. It is not a case of the alleged breach accruing or being known to the plaintiff shortly before he commenced this action. He had all along known about his termination but did not consider it then, unlawful.

22. The other aspect of his "termination" is that he was in effect, temporarily laid-off as opposed to being terminated per se. VFPL re-employed him 4 months later. So, it may be concluded that the plaintiff's claim of unlawful termination is inconsequential and lacking in substance.

23. Even if he was in fact terminated, it is open on the facts to raise the issue of frustration of contract due to shut-down of logging operations. This means that external influences or forces affecting the operations and finances of VFPL frustrated performance of the contract. This issue was not raised. It would have had some bearing in assessing the alleged breach of contract. I am however disposed to decide the claim on the crucial issue of competence of proceeding.

24. In the upshot, the action appears frivolous and vexatious. However, the inescapable conclusion is that the claim is incompetent for being time-barred.

Validity of the 1998 Contract of Employment

25. The issue of legal and constitutional validity of the plaintiff's 1998 contract is also raised outside the statutory time limitations.

26. The contract document referred to as Annexure "D" to Kinaram's Affidavit is undated. However, in paragraph 17 of his Affidavit he asserts that he was re-employed by the defendant under a new Contract of Employment on 20th February 1998. He would have executed that contract on the same date or shortly before commencement of employment. The alleged illegality of the contract would have accrued and known to him at the time of his signing. He does not say otherwise or point to evidence showing the illegality occurred at some later date.

27. Therefore, the last date to commence his proceedings challenging the validity of the contract was 20th February 2004. The plaintiff commenced these proceedings on 29th November 2005. It is well outside the time limit to commence the action. It is statute-barred.

28. For the same reasons for dismissing the 1997 claims, this Court has no jurisdiction to deal with the issue of legal and constitutional validity of the plaintiff's 1998 contract. Those claims are dismissed.

29. Even if the issue of legality of contract remains alive, it is merely arguable and lacking in substance. Kinaram complains that, his contract of employment had clauses which restricted his rights under the Employment Act and breached his freedoms under the Constitution. He complains that the restrictions amount to restraints against his free choice of employment and that they are unreasonable. So, he is entitled to fair compensation.

30. The plaintiff's argument here is tantamount to restraint of trade clauses commonly built into employment contracts for protection of trade, etc. It is trite law that, the Courts will not uphold any restraint of trade clause that is unfair, illegal and unconstitutional or offends against public policy. Clauses of such nature in a contract of employment are prima facie void. The onus is on the employee to show the constraint is unlawful or that the enforcement of it is against the public interest or policy. It is for the employer to show that the restraint is reasonable. And the reasonableness of such a clause is usually determined by reference to time and space of the restraint at the time of the agreement. See, W. A. Flick & Co. Pty. Ltd. v. RW Thompson [1976] PNGLR 112; KK Kingston Limited v Wari Moere (2002) N2235.

31. So, what is the reasonableness or otherwise of the alleged restraints in the circumstances prevailing at the time when the contract was made? A critical aspect of the contract signing is the standing of Kinaram himself. He is a highly educated professional person having graduated from the University of Technology with a degree in surveying. He signed the Contract of Employment in the exercise of a free choice for gainful employment. No doubt, he read the contract prior to signing and was happy to accept the terms and conditions of employment offered. That is verified by his signature. If there was then, anything amiss, unfair or unlawful about the contract, he did not raise it. Nor did the Department of Labour official who witnessed and co-signed the contract on behalf of the State consider the contract or the purported restraint clauses offensive against public policy and unreasonable.

32. The plaintiff allowed the contract to run from 1998 and enjoyed the benefits and privileges there from to 2001 when he was terminated. He continued to be employed under the same terms of the contract until 2004. It was only after he had left employment and possibly on hindsight that he now claims unfairness, illegality and unconstitutionality of the contract.

33. In my view, there is a strong support for the proposition that, Kinaram acquiesced to the reasonableness and validly of the terms and conditions of his employment contract when he failed to protest the purported unfair clause of the contract at the time it was made or during its currency. Furthermore, a free exercise of choice by an employee to accept a restraint of trade clause in my view does not amount to a claim of violation of his or her constitutional right or freedom. I adopt the remarks of my brother Kandakasi J in KK Kingston Limited v Wari Moere (2002) N2235 in this regard:

"In relation to the constitutional argument, I do not consider that a restraint of trade clause freely agreed to by an employee is a violation of his or her right or freedom of employment under s. 48 of the Constitution. The rational for that is simple. If a prospective employee agrees freely in exchange for certain terms and conditions for employment with his prospective employer, which includes a restraint of trade clause he should be held to his agreement. If he or she wishes not to be so restricted then he or she has the option to reject the offer of employment, which has, such a term. Of course, if such an agreement is secured through, fraud, duress threat or force or such like, that could amount to an illegal and unenforceable contract."

34. In this case and in regard to each claim of illegality and breaches of rights and freedoms, the plaintiff claims the offending clauses are in 4, 10, 16, 21 and 22 of the contract.

Clause 4 – Salary

35. This clause sets the plaintiff's base salary at K500.00 per fortnight plus allowances or commissions at .50toea per night, overnight in the bush. He complains that this is a reduction from his previous salary. The reduction was without good cause and unlawful.
    
36. The plaintiff's contention is without substance. There is nothing in the Employment Act that prohibits the employer from reducing wages of an employee. In the normal course of events, the employer has power to reduce classification and wages of employees for good cause and usually on disciplinary grounds.
    
37. In this case, the situation is different. Kinaram's initial contract was terminated. He was then re-employed under a new contract. The defendant offered him new terms and conditions of employment which he says was less favourable to his previous earnings. In the exercise of his free choice, he accepted the new deal. He is bound by his own decision and has to live with its consequences.
    

Clause 10 – Leave Fares

38. Clause 10 provided that the employee is entitled to one return airfare or boat fare annually from his place of employment to his place of recruitment. Kinaram's contention is that, this clause is in breach of Sections 11(4), 40(1) and 42(1) of the Employment Act. He says further that the clause is unfair and less favourable to him. The company had previously provided travel fares for him and his family so, Clause 10 is in breach of that established practice.
    
39. The argument is reasonable but unsupported by the application of s.11 (4), 40(1) and 42(1) of the Employment Act. Sections 40(1) and 42(1) govern repatriation of the employee on expiry of term (s.40) and repatriation of dependents where the employee becomes entitled to repatriation or dies (s.42).
    
40. These provisions have no relevance to leave fares. Division 3 of Part IV of the Act on Conditions of Employment deals with recreation leave. There is however nothing that imposes payment of leave fare. Section 11(4) on the other hand provides a safe-guard for an employee against conditions of employment that is less favourable to the employment. Reading s.11 (4) together with Part IV on Conditions of Employment, there is no requirement that obliges the employer to pay leave fares for family members of employees.
    
41. The relationship between employer and employee is governed by any contract whether oral or written, explicit or implied, entered into by the parties. In this case, VFPL offered Kinaram terms and conditions of employment which clearly stipulated that, travel fare is payable to him only. He did not rely on fraud, duress threat or force in signing the contract. He accepted Clause 10 in his free exercise of choice and the Department of Labour official endorse the term as reasonable when he did not take issue with that clause. The plaintiff's claim has no merits.
    

Clause 16 – No Political Activity

42. Clause 16 of the Contract prohibits an employee from engaging in any political activity or taking part in any unauthorized strike, action or work stoppage. This Clause also precluded employees from holding office in any incorporated association without prior approval of the company. The plaintiff says these restrictions are in breach of his freedom of expression (s.46), freedom of assembly and association (s.47), freedom of employment (s.48) and his right to privacy (s.49) under the Constitution and the Employment Act.

43. I find the plaintiff's claim wishy-washy and speculative. First, Kinaram has not provided evidence to show that the enjoyment of his constitutional freedoms has been breached or about to be breached by the defendant. Second, the constitutional guarantees he relies on are not absolute. They are qualified rights. This is clear from the terms of each provisions that the right is qualified to the "extent that the exercise of that right is regulated or restricted by a law". Section 48 (Freedom of employment) is also clear from the terms of the provision that this right is qualified to the "extent that that freedom is regulated or restricted voluntarily". The question then arises whether the contract of employment in this case falls within this qualification.

44. Clause 16 imposed conditional restrictions on the freedom of choices by the employee. It did not take away from the employee, the freedom to make choices. The restrictions appear reasonable to guard against activities that may interfere with or are detrimental to company operations and trading. It is also a safeguard against activities that may breach laws of this country and thereby implicate the company. The requirement for prior approval is consistent with legislative restrictions on these constitutional rights and reinforces the maxim that there is no constitutional right to engage in unauthorized strike action; PEA v. Biyuwo [1998] PNGLR 585. At common law, an employee who elects to take industrial action as in a strike action is deemed to have breached his contract of employment; Springhead Spinning Co. V. Riley [1986] LR 655, Simmons v. Hoover Limited [1977] ALL ER 775.

45. The plaintiff's contention fails for those reasons.

Clause 21, - Confidential Information

46. This clause forbids the employee from divulging the employer's confidential information concerning financial and operational matters, internal and external associates of the company. The plaintiff contends this clause is in breach of his freedom of expression under s.46 of the Constitution.

47. The argument is preposterous and indefensible. Clause 21 is a standard clause based on public interest policy against free divulgence in trade secrets and privileged information. Kinaram has to show why he needed to have access to trade secrets and privileged information of VFPL; whether the restraint prevented his employment or whether it restricted or inhibited performance of his contract; why it was necessary for him to disclose the company's trade secrets and privileged information.

48. Besides, the Constitution does not permit disclosure of privileged information and trade secrets if the disclosure will likely breach or compromise the security of the company or the state for that matter.

49. In the end result, Kinaram has not shown by evidence, the restraint clause is prima facie void. This argument is dismissed.

Clause 22. Repatriation

50. Clause 22 states that, at termination of employment, the company will repatriate the employee to his place of recruitment. The plaintiff claims this clause contravenes s.40 (1) of the Employment Act. Hence, the defendant is liable to him in damages in denying him and his defendants the right to be repatriated back to his home Province following his termination.

51. Sections 40, 41 and 42 of the Employment Act cover repatriation of the employee and dependants of the employee. An employer is obliged to repatriate an employee to his place of recruitment and not his place of origin. This is clear from the following phrase in s. 40 (1), "the employer shall pay the expenses of repatriating the employee to the place from which he was brought." Sections 42 and 42A similarly applies in relation to dependants with the reference of repatriation to the place from which they were brought.

52. Clause 22 merely repeats the legal obligation of the employer and it was accepted by Kinaram in signing the contract that, his place of recruitment was Vanimo. Too, there is no evidence that supports the plaintiff's contentions. This claim is dismissed.

Camping Allowance

53. In this claim, the plaintiff alleges that the defendant failed to pay him camping allowance of K9.00 per night from 1999 – 2004. The amount of K9.00 was taken from his previous employment. He was paid a lesser amount under the new contract of employment.

54. It is clear that the reduced amount was agreed to by Kiraram when he signed the 1998 contract. That was a new and separate contract of employment after his termination in 1997. The terms and conditions of his previous employment with VFPL lapsed with the termination of the contract. He freely accepted a reduced camping allowance which was paid to him up to the time of termination in 2001. The reduced amount was paid to him after he chose to remain with the company up to 2004. He did not then complain. This claim is without supporting evidence and has no legal basis. It is dismissed.

CPI Adjustments

55. The plaintiff claims unpaid CPI adjustments or increments for the period 1998 to 2004.

56. The CPI (short for Consumer Price Index) is published by the National Statistician appointed under the Statical Services Act 1988 to assist in measure of inflation. It is an official record (index) of the prices of goods and services. Although it is not an employment entitlement, the CPI provides the indicator for determination of what should be paid as wages determined by the Minimum Wages Board established under the Industrial Relations Act.

57. So, adjustment of employee wages is subject to the advice of the Minimum Wages Board to employers in the country to adjust wages etc. of their employees. If the Minimum Wages Board fails to determine the CPI and give the necessary advice, it follows that, the employer is not obliged to pay the CPI because it is not an employment entitlement and the failure is not the fault of the employer.

58. The plaintiff's claim of unpaid CPI adjustments is based on suppositions that CPI adjustments are approved and payable as a matter of course. There is no evidentiary support for that proposition. The plaintiff has also not shown the legal basis supporting his contention. He is merely alleging against the defendant that it failed to pay the CPI adjustments, assuming that the Minimum Wages Board had determined the appropriate rates of pay.

59. On the other hand, there is evidence that the defendant did make adjustments (increases) to the plaintiff's wages to accommodate CPI adjustments. This evidence contained in the affidavit and oral testimony of Bonney Leki for the defendant is not seriously contested on its reliability. The evidence strongly refutes the plaintiff's claims. The plaintiff has the onus to prove this claim on the balance of probability. On the strength of the evidence of Bonney Leki, I am not satisfied the plaintiff has proven his case on the requisite standard.

60. Furthermore, the claim for 1998 CPI Adjustments is time-barred. Part of claim for the period ending 29/11/09 is also time-barred. In the upshot, this claim is dismissed.

Whether the Plaintiff was unlawfully terminated from employment in 2001

61. The Plaintiff's 1998 contract of employment was terminated by way of undated Notice of Termination. The termination was to take immediate effect possibly upon due service. Kinaram claims the termination is unlawful because the defendant did not give him sufficient notice of termination and that he was entitled to 4 weeks notice of termination or payment in lieu of notice.

62. The termination clause in the contract of employment (Clause 3) which the plaintiff signed states that the employer reserves the right to terminate the employee's services by giving the required wages in lieu of notice. In the extreme case of serious misconduct or criminal breach, the employee is dealt with by instant dismissal with no payment of wages in lieu of notice.

63. The plaintiff was terminated due to poor log market situation affecting the company cash flow. In that regard, the contract of employment was frustrated by external influences affecting the defendant's performance of the contract. The termination notice advised;

"In addition to the normal entitlement, you will receive two weeks pay in lieu of notice"

64. It is also noted that, s. 34(4) of the Employment Act on which the plaintiff relies provides:

(4) Where there is no provision in a contract of service for notice of Intention to terminate, the length of the notice shall be not less than—

(a) one day's notice if the employee has been employed for less than four weeks; or

(b) one week's notice if the employee has been employed for not less than four weeks and for less than one year; or

(c) two weeks' notice if the employee has been employed for not less than one year and for less than five years; or

(d) four weeks' notice if the employee has been employed for five years or more.

65. Section 34 (3)(a) provides that, the length of notice of intention required to terminate a contract of service shall be as specified in the contract. In this case, the length of notice was not specified. So, the length of notice shall not be less than two weeks notice if the employee has been employed for not less than a year and for less than five years under s 34 (4)(c).

66. It is settled law that an employer can terminate an employee's employment by giving the employee notice or payment in lieu of notice equivalent to the period of notice: Steamships trading Co. Ltd v. Joel [1991] PNGLR 133., Christopher Appa v Peter Wama [1992] PNGLR 395; Kuma & Ors v Peter Yama [1993] PNGLR 38., NBPOL & Ors v. Vitrus Sukuramu SCA No.11 of 2007 [2008] PGSC 28, SC946..

67. In Malai v. PNG Teachers Association the Court in reviewing sections 34 (2) (3) and (4) held that the legislative intent in these provisions are clearly that, an employer can terminate an employee by giving the employee two weeks notice where the employee has been employed for a period of more than 2 years but less than 5 years.

68. In this case, the plaintiff commenced his contract in 1998. He was terminated in 2001. That is a period of more than 2 years and less than 5 years. He was entitled only to two weeks notice or payment in lieu of notice. In cross-examination the plaintiff acknowledged having been paid K2,105.61. This amount was paid to the plaintiff in lieu of notice. So the plaintiff was terminated and paid the amount he was entitled to in lieu of notice. There is nothing unlawfully about his termination. Nor was that payment and the amount in dispute.

69. In the end result, the plaintiff has not proven his case of unlawful termination on the requisite standard. The case is dismissed in its entirety. The defendant has the costs to be taxed if not agreed.
________________________________________

William Akuani Lawyers: Lawyer for the Plaintiff

Stevens Lawyers: Lawyer for the Defendant