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Simon v Koisen [2018] PGNC 6; N7075 (31 January 2018)

N7075

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 56 OF 2015

BETWEEN
DAVID SIMON
Applicant

AND
MICHAEL KOISEN, CHIEF EXECUTIVE OFFICER,
TEACHERS SAVINGS AND LOANS SOCIETY
First Respondent

AND
TEACHERS SAVINGS AND LOANS SOCIETY
Second Respondent

Waigani: Cannings J
2015: 18^th December
2016: 23 February
2018: 31 January

PRACTICE AND PROCEDURE – whether it is an abuse of process to make an application for enforcement of human rights in an employment context – whether termination of employment can amount to a breach of human rights.

HUMAN RIGHTS – Constitution, Section 41 (proscribed acts) – whether an employer’s act of terminating an employee’s employment was in the circumstances harsh or oppressive or otherwise not reasonably justifiable.

The applicant was employed by the respondents for four years and was given two weeks’ notice of transfer from a provincial location, where he had been based for two years, to head office. He resisted the transfer on hardship grounds and sought an explanation. The respondents failed to give him an explanation and charged him with disciplinary offences including insubordination and wilful disobedience of management’s orders and found him guilty and terminated his employment. The applicant filed an application for enforcement of human rights, arguing that his human rights had been breached in several respects in particular his right under Section 41 of the Constitution not to be treated harshly, oppressively or otherwise in a manner not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, and seeking compensation. The respondents argued that the application should be summarily dismissed as an abuse of process as the applicant should have used conventional means of seeking redress by filing a writ of summons rather than making a human rights application. The respondents denied all allegations of human rights breaches, arguing that the applicant had been dismissed for cause and paid his lawful entitlements.

Held:

(1) Human rights, as conferred by the Constitution, have universal application and can properly be regarded as implied terms of any contract of employment.

(2) The characterisation of the case as an unlawful termination matter did not mean that an application for enforcement of human rights was an improper mode of commencement of proceedings. There was no abuse of process. The preliminary argument of the respondents was dismissed.

(3) The applicant adduced credible evidence. The respondents failed to provide evidence to counter the applicant’s claim that he was given short and unreasonable notice to transfer, without any reasons being given, and that he was charged with disciplinary offences and then, when found guilty and had his employment terminated, was the victim of personal abuse.

(4) The actions of the respondents were harsh, oppressive and not reasonably justifiable and therefore unlawful, amounting to a breach of the applicant’s human rights under Section 41 of the Constitution.

(5) The applicant established a cause of action for breach of human rights and was entitled to damages.

(6) The applicant was awarded reasonable damages in the sum of K1,000.00 and exemplary damages of K1,000.00, being a total award of damages of K2,000.00.

Cases cited:

The following cases are cited in the judgment:

Apolonia Steven v Ram KC (2016) N6577
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
Paru v Kotigama & Bmobile-Vodafone (2015) N6089
Petrus and Gawi v Telikom PNG Ltd (2008) N3373

APPLICATION

This was an application for enforcement of human rights.

Counsel:

D Simon, the Applicant, in Person
F Lalo, for the Respondents

31^st January, 2018

1. CANNINGS J: David Simon, the applicant, is applying for enforcement of his human rights under Section 57(1) of the Constitution, which he claims were breached by the respondents, his former employer, the Teachers Savings and Loan Society (TSLS), and its Chief Executive Officer, Michael Koisen.
   
2. Mr Simon was employed by TSLS from 17 November 2003 to 19 May 2008. He was a member services clerk, first in Port Moresby and later, from 3 April 2006, in Wewak. He was at the time married with three children. On 10 March 2008 he received a fax from Mr Koisen to say that he was being recalled to head office and that he had to start work there on 24 March 2008.
   
3. Mr Simon resisted the transfer on hardship grounds and sought an explanation. The respondents failed to give him an explanation and charged him with disciplinary offences including insubordination and wilful disobedience of management’s orders and on 19 May 2008 found him guilty and terminated his employment.
   
4. On 15 April 2015 Mr Simon filed an application for enforcement of human rights, arguing that his human rights had been breached in several respects in particular his right under Section 41 of the Constitution not to be treated harshly, oppressively or otherwise in a manner not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. He seeks compensation.
   
5. The respondents argue that the application should be summarily dismissed as an abuse of process as the applicant should have used conventional means of seeking redress by filing a writ of summons rather than making a civil claim for unlawful termination dressed up as a human rights application. The respondents deny all allegations of human rights breaches, arguing that Mr Simon was lawfully dismissed for cause and paid his lawful entitlements.
   
6. There are four issues:
   
   1. Should the proceedings be summarily dismissed?
      
   2. Has the applicant proven the factual allegations?
      
   3. Has the applicant established a cause of action for breach of human rights?
      
   4. What orders should be made?
      
1. SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED?
   
7. No. The proceedings are not an abuse of process. An abuse of process occurs when a party uses a wrong court process or acts improperly by trying to use court proceedings for an improper purpose. Here the plaintiff is an individual citizen with a genuine grievance who has filled out and filed in the National Court a form, and thereby commenced a human rights enforcement application. He filled out the correct form under Rule 7(1)(c) and Form 124 of the Human Rights Rules (Order 23 of the National Court Rules). He has done exactly as people in his position are encouraged to do by the making of the Human Rights Rules by the Judges in 2010.
   
8. I reject the submission of Ms Lalo, for the respondents, that the law as to termination of employment is governed only by private law and that the applicant was obliged to invoke conventional means of seeking redress by filing a writ of summons and that the respondents are being treated unfairly or that they have been denied the opportunity to file a defence. The respondents’ position is clear. They have had a full opportunity to be heard. They have not been dealt with unfairly.
   
9. Human rights as conferred and defined by the Constitution have universal application. They cannot be said to have no operation in any situation (Petrus and Gawi v Telikom (2006) N3373). The characterisation of the applicant’s case as an unlawful termination action does not mean that an application for enforcement of human rights is an improper mode of commencement of proceedings (Paru v Kotigama & Bmobile-Vodafone (2015) N6089, Apolonia Steven v Ram KC (2016) N6577). The respondents’ preliminary argument is dismissed.
   
2. HAS THE APPLICANT PROVEN THE FACTUAL ALLEGATIONS?
   
10. One affidavit of Mr Simon has been admitted into evidence, together with three affidavits for the respondents.
    

Mr Simon’s evidence

11. Mr Simon’s version of events is this:
    
    • He was transferred to Wewak in 2006. He went willingly, with his wife and three children, as his wife is from East Sepik Province, so when he went to work in the Wewak branch his wife and the children could live in the village and the children could go to school in the village. He paid his own expenses to transfer himself and his family to Wewak.
      
    • He worked diligently to build up TSLS’s membership base in the East Sepik and as a result of his efforts plans were put in place to open a new TSLS branch in Wewak, scheduled to open in April 2008. The position of branch manager was advertised and he applied for the position in January 2008.
      
    • On 10 March 2008 he received the fax from Mr Koisen to say that he was being recalled to head office and he had to report for duty there on 24 March 2008. No explanation was given and no financial assistance was offered to him to transfer himself and his family back to Port Moresby.
      
    • Mr Simon wrote back immediately to Mr Koisen asking him to reconsider his decision but received no reply from him. Instead he received a “final warning” from the Administration Manager that if he failed to return to Port Moresby he would face disciplinary charges.
      
    • When Mr Simon on 18 March 2008 requested TSLS to assist him with travel costs and accommodation in Port Moresby he was suspended and charged with “wilful disobedience and disregard of lawful instructions and given seven days to respond”.
      
    • Mr Simon responded to the charges but not successfully because on 1 April 2008 Mr Koisen sent a fax saying the charges were sustained and if he didn’t report to Mr Koisen’s office at 10.00 am on 15 April 2008 he would be summarily terminated. Mr Koisen told him that airline tickets for him and his family had been organised and he was to call in to the Air Niugini office in Wewak to collect the tickets.
      
    • Mr Simon was stressed by what was happening and on 8 April 2008 obtained a medical certificate from Dr Manwau of Wewak Medical Clinic that he was suffering hypertension, anxiety and depression and unfit for work until 22 April 2008.
      
    • Mr Simon did not travel to Port Moresby.
      
    • On 18 April 2008 Mr Simon was served by fax with a memo from Mr Koisen containing two fresh disciplinary charges of disgraceful and improper conduct and committing a serious breach of the Society’s terms and conditions of employment, and suspending his pay. Before laying the charges, Mr Koisen stated:
      

I have received reports that you are attempting to influence executive management decisions in particular your transfer to head office, Port Moresby, by lobbying for support from members. It has been reported that you held meetings with these members outside the Society’s Wewak branch office in an attempt to display your disagreement and disappointment with a lawful direction from myself.

I have also received reports that you attempted to underhandedly obtain information relating to my whereabouts and my personal financial accounts with the Society.

I find your actions to be deceitful, unfaithful and disgraceful, and an arrogant display of rebelliousness, blatant disobedience, insubordination and disrespect for lawful authority.

Undesirable character traits in the extreme.

• On 23 April 2008 Mr Simon responded to the latest charges. It was to no avail. On 23 May 2008 Mr Simon received notice of his termination in a detailed letter from Mr Koisen, sustaining the second set of disciplinary charges, and stating amongst other things:
  

Executive management has the prerogative to make such decisions involving the organisation. Hence your blatant refusal to relocate to head office borders on insubordination and is indicative of your wilful disregard for lawful authority. Your countless memorandums are nothing but unjustified comments, requests and claims from a very desperate, rebellious, disobedient, unfaithful, disgraceful, disrespectful and demanding officer.

• Mr Koisen offered no thanks to Mr Simon for his service to his employer nor did he wish him all the best in his future endeavours or anything of the like. Mr Koisen simply concluded:
  

Your employment with Teachers Savings & Loan Society Ltd is terminated effective immediately and your final entitlements will be calculated and paid to you in due course.

The respondents’ evidence

12. The respondents did not contest Mr Simon’s version of events.
    

Findings of fact

13. I therefore find that the version of events outlined by Mr Simon occurred as alleged.
    

3 HAS THE APPLICANT ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?

14. When the applicant filled out the Human Rights Enforcement Application form he ticked the following boxes, which indicated the human rights he alleged had been breached:
    
    • right to freedom (s 32);
    • right to life (s 35);
    • freedom from inhuman treatment (s 36);
    • protection of the law (s 37);
    • proscribed acts (s 41);
    • liberty of the person (s 42);
    • freedom from arbitrary search and entry (s 44);
    • freedom of conscience, thought and religion (s 45);
    • freedom of expression (s 46);
    • freedom of assembly and association (s 47);
    • freedom of employment (s 48);
    • right to freedom of information (s 51);
    • right to freedom of movement (s 52);
    • equality of citizens (s 55).
      
15. At the trial Mr Simon focussed on the alleged breach of Section 41 of the Constitution, protection from proscribed acts, including harsh or oppressive acts. Section 41 states:
    

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

16. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:
    
    • harsh; or
    • oppressive; or
    • not warranted by the requirements of the particular circumstances; or
    • disproportionate to the requirements of the particular circumstances; or
    • not warranted by the requirements of the particular case; or
    • disproportionate to the requirements of the particular case; or
    • otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
      
17. Under Section 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by Section 41(1) is on the party alleging it.
    
18. The respondents have not mounted any serious defence to the allegation that they acted harshly, oppressively or otherwise unjustifiably and therefore unlawfully, being content to rest on their view that Mr Simon has a hopeless case and that he is abusing the processes of the Court. In fact their view of Mr Simon appears to have changed little from 2008 when Mr Koisen, in his termination letter, labelled him amongst other things as “disgraceful, disrespectful and demanding”.
    
19. Therein lies the problem. The respondents have never taken Mr Simon and his concerns for the welfare of his family and his desire for an explanation as to why he was being recalled at short notice and his pleas for reconsideration of what for him and his family was a harsh decision, seriously. The respondents have been content to rest on their legal right to hire and fire and transfer at will. And of course, it was within their contractual rights to do all that, provided that in doing so they did not act harshly or oppressively or in any other manner proscribed by Section 41(1) of the Constitution.
    
20. I have considered this case carefully from both angles. Mr Koisen was clearly irritated by Mr Simon’s conduct and his apparent insubordination and his prolonged resistance and his procrastination. And it is easy to understand why he felt that way. However, there is more than one way to deal with an obstinate and difficult employee who is resisting a transfer. Such as giving him a reason for the transfer, being frank, negotiating a position, giving him extra time to transfer – especially to a man who had a wife and school-aged children to care for.
    
21. Mr Koisen did not follow such a path. Instead he refused to give any reasons for the transfer, disregarded the employee’s request for reconsideration, charged him with a disciplinary offence, suspended him, found him guilty, charged him again, and in laying the charge labelled his actions as, amongst other unfavourable epithets, “deceitful, unfaithful and disgraceful”, withheld his pay and proceeded to find him guilty of the second charges. And then, the final blow, in the letter of termination, condemning him – without a word of thanks or best wishes for the future – as “a very desperate, rebellious, disobedient, unfaithful, disgraceful, disrespectful and demanding officer”.
    
22. Having considered this unfortunate saga from both angles, and such other angles as are available to the mind of a reasonable person, I have come to the conclusion that the actions of the respondents were harsh, oppressive and not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, and therefore unlawful, amounting to a breach of the applicant’s human rights under Section 41 of the Constitution.
    
23. On two separate occasions Mr Koisen resorted to personal abuse of Mr Simon. That was unbecoming of a senior manager in Mr Koisen’s position. There are many people who would say Mr Simon deserved to be sacked. But even if he did deserve to be sacked, he didn’t deserve to be personally abused. That was kicking a man when he was down.
    
24. The human rights provisions of the Constitution are all about humanity. Dealing with people with humanity and decency. Section 41 is a very important provision. Terminating someone’s employment is a significant event. Even if it is done under a valid law it must be done with humanity, not harshly and oppressively as happened in this case.
    
25. Mr Simon has under Section 41(2) discharged on the balance of probabilities the burden of showing that Section 41(1)(a) and (c) of the Constitution applies and has thereby established a cause of action in breach of human rights.
    
26. He has failed to establish a cause of action in respect of other breaches of human rights alleged in the human rights enforcement application form, by which the proceedings were commenced.
    

4 WHAT ORDERS SHOULD BE MADE?

27. I invoke Section 58(2) (compensation) of the Constitution, which states:
    

A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

28. The applicant is a person whose rights and freedoms declared and protected by Division III.3 of the Constitution (basic rights) have been infringed. He is entitled to an award of reasonable damages against the persons who infringed his rights and freedoms: the respondents. This is a case in which it is appropriate to also award exemplary damages, as a form of punishment and as a deterrent to such harsh and oppressive conduct by this employer and to employers generally. I award reasonable damages of K2,000.00. And I award K2,000.00 exemplary damages. It is not appropriate to award interest. The applicant represented himself and has clearly incurred expenses in pursuing this matter. I award him costs of the proceedings in the fixed sum of K1,000.00.
    

ORDER

(1) It is declared that:

(a) the applicant has established a cause of action in breach of human rights against the respondents, constituted by the respondents acting harshly, oppressively and otherwise without reasonable justification and therefore unlawfully contrary to Section 41(1) of the Constitution; and

(b) the applicant has failed to establish a cause of action in respect of other breaches of human rights alleged in the human rights enforcement application form, by which the proceedings were commenced.

(2) The respondents shall, under Section 58(2) of the Constitution, pay to the applicant reasonable damages in the sum of K2,000.00 plus exemplary damages of K2,000.00, being a total award of damages of K4,000.00.

(3) The respondents are not liable to pay any interest on damages.

(4) The respondents shall pay the applicant’s costs of the proceedings in the fixed sum of K1,000.00.

(5) The respondents shall pay all sums due to the applicant under this order by 28 February 2018.

(6) The application for enforcement of human rights is thereby determined and the file is closed.

Judgment accordingly.
________________________________________________________________
Albatross Law : Lawyers for the Respondents