N8712

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 135 OF 2014

BETWEEN:
RAWALI KILA
Plaintiff

AND:
PNG PORTS CORPORATION
LIMITED
First Defendant

AND:
STANLEY ALPHONSE
Chief Executive Officer of PNG PORTS
CORPORATION LIMITED
Second Defendant

Waigani: Hartshorn J.
  2019: 4th March

Trial

Cases Cited: 

James Geama v. OTML Shares in Success Ltd (2011) N4269
Max Umbu v. Steamships Ltd (2004) N2738 
New Britain Oil Palm Ltd v. Vitus Sukuramu (2008) SC946
Tarere v. Australia and New Zealand Banking Group (PNG) Ltd [1988] PNGLR 301

Counsel:

Mr. I. David, for the Plaintiff
Mr. E. Korua, for the First and Second Defendants

4th March, 2019

1. HARTSHORN J. The plaintiff claims damages for unlawful termination of his employment and breaches of his Constitutional Rights pursuant to Sections 41 and 59 Constitution. 

Background

2. The plaintiff pleads amongst others that he was employed by the first defendant as its assistant business manager. His employment was terminated after he had authorised the release of a motor vehicle (vehicle) from the first defendant’s wharf. The plaintiff claims that he had the discretion to authorise the release of the vehicle after necessary requirements were met by the vehicle owner. The first defendant claims amongst others that the plaintiff did not have the discretion to release the vehicle without the approval of the General Manager Operations and that in releasing the vehicle, the plaintiff had breached his contract of employment and the relevant policies of the first defendant. The first defendant was therefore entitled to terminate the plaintiff’s contract of employment without notice.

Consideration

3. In paragraph 13 of the plaintiff’s statement of claim it is pleaded that the first defendant did not investigate into the plaintiff’s matter, presumably the reason that the plaintiff was suspended, while the plaintiff was on suspension. It is clear from the evidence of Mr. Joe Aisa, the General Manager, Corporate Affairs of the first defendant, that the Business Assurance Department of the first defendant conducted an investigation into the allegations against the plaintiff, and its Internal Audit Investigation Report is annexed to Mr. Aisa’s affidavit which was tendered into evidence without objection from the plaintiff.

4. The plaintiff pleads in paragraph 15 of his statement of claim that the plaintiff’s employment was terminated without lawful basis as:

a)	the plaintiff did not commit an offence of serious and wilful misconduct;

b)	the plaintiff acted in good faith in authorising the release of the vehicle on 21st June 2011;

c)	the first defendant failed to investigate into the plaintiff’s matter before terminating his employment, contrary to clause 10.2 of the Employment Contract.

5. In regard to c) above, as mentioned the evidence discloses that the first defendant by its Business Assurance Department did conduct an investigation into the allegations against the plaintiff and prepared an Internal Audit Investigation Report.

6. In regard to b) above, I am satisfied that the defendant did not act in good faith as from a perusal of the evidence, the Employment Contract, Policies, Directions and Code of Conduct of the first defendant, the plaintiff did not have the discretion to release the vehicle from the wharf without the approval of the General Manager Operations (formerly the Chief Operating Officer).

7. In regard to a) above:

i)	the plaintiff’s employment contract was terminated for reasons that included “serious and wilful misconduct”. Serious and wilful misconduct does not have to be established under clause 11.2 of Employment Contract for the first defendant to be entitled to terminate the plaintiff’s employment contract without notice, (for instance under clause 11.2(d) guilt of any improper conduct, or under clause 11.2(a) a breach of the employee’s obligations under the contract, is sufficient for termination without notice). 

ii)	“serious and wilful misconduct” is referred to in the first defendant’s code of conduct which is referred to in clause 4.3(b) of the Employment Contract. Based upon the finding of the Internal Audit Investigation Report the first defendant was entitled to terminate the plaintiff’s employment for serious and wilful misconduct.

8. As to whether the first defendant was entitled to terminate the plaintiff’s Employment Contract for cause, the plaintiff pleads that his duties included the authorising of the release of goods from the first defendant’s wharf and that he authorised the release of the vehicle after necessary requirements for the release of the vehicle were met by the vehicle owner. The defendants’ plead that they admit that the plaintiff’s duties included authorising the release of goods from the wharf, but that the plaintiff’s responsibilities extended to include compliance with all Rules, Regulations, Policies, Directions and the Code of Conduct of the first defendant. Further, the plaintiff’s authority to release goods from the wharf was subject to the approval from the General Manager Operations, and to ensure the internal process governing the release of cargo was complied with.

9. By his pleading, the plaintiff acknowledges that any authority that he may have had to release goods from the wharf was not unfettered and that he could only release goods from the wharf if necessary requirements were met.

10. On 29th March 2011, the defendants had issued a circular specifying processes and procedures to be followed before cargo could be released from the wharf. The circular was to be complied with by all staff of the first defendant including the plaintiff. The plaintiff was aware of the circular. The plaintiff breached the content of the circular by releasing the vehicle on 21st June 2011. The plaintiff maintains that this was on the basis that he was entitled to exercise his discretion as a manager.

11. The plaintiff was suspended pursuant to his Employment Contract and an investigation was conducted by the first defendant’s Business Assurance Department. The plaintiff was requested to give his statement concerning the allegations, which he did twice.  Following the compilation of the Internal Audit Investigation Report, in which his termination was recommended, the plaintiff was terminated.

12. After a detailed consideration of the evidence, I am not satisfied that the first defendant terminated the Employment Contract of the plaintiff unlawfully and as pleaded. The plaintiff has not proved otherwise to the required standard and I note in this regard that there was no cross examination of witnesses.

13. In regard to the claim that the first defendant failed to interview the plaintiff before terminating his contract of employment, thereby denying the plaintiff natural justice contrary to s.59 Constitution; the underlying law of Papua New Guinea does not contain a right to be heard on dismissal in an ordinary employer and employee relationship: New Britain Oil Palm Ltd v. Vitus Sukuramu (2008) SC946 at [28]. Section 59(1) Constitution is made subject to the Constitution and to, “any statute”. The Employment Act as well as the Port Moresby Common Rule, concern and regulate amongst others, the terms of contracts of service between an employer and employee. There is no requirement in the Employment Act for an employee to be interviewed before his contract of employment is terminated. In any event, as submitted by the defendants, the plaintiff was requested to give his statement, which he did twice. Consequently, the plaintiff was afforded an opportunity to refute or challenge the allegations raised against him.

14. In regard to the plaintiff’s termination being harsh and oppressive contrary to s. 41 Constitution; for s.41 to apply, the act about which complaint is made must be an, “….. act that is done under a valid law.” As Schedule 1.2 (1) Constitution defines, “law” to include the underlying law, there is an argument that, “law” in s. 41 is not confined to a constitutional law. I am not of the view however that, “law” includes an act performed pursuant to the terms of a private contract. An employer when performing his functions is doing so pursuant to the contract and not under a valid law, whether it be constitutional, underlying or other law. To interpret, “law” in s.41 Constitution to cover this scenario would be to abandon the usual principles of statutory interpretation. Consequently, I am not of the view that the plaintiff is able to rely upon s. 41 Constitution. This claim is rejected: James Geama v. OTML Shares in Success Ltd (2011) N4269; Tarere v. Australia and New Zealand Banking Group (PNG) Ltd [1988] PNGLR 301 and Max Umbu v. Steamships Ltd (2004) N2738.
15. Further, in any event, I am satisfied that given the grounds, and finding contained in the Internal Audit Investigation Report, the defendants were entitled to take the actions that they did in regard to the plaintiff and those actions cannot be considered to be harsh and oppressive in the circumstances.
16. Consequently for the above reasons, this proceeding should be dismissed.

Orders
17.  The Court orders that:
a)	This proceeding is dismissed;
b)	The plaintiff shall pay the defendants’ costs of and incidental to this 	proceeding to be taxed if not otherwise agreed;
c)	Time is abridged
__________________________________________________________________
Office of the Public Solicitor: Lawyers for the Plaintiff                                       
Kuman Lawyers: Lawyers for the Defendants