N8580

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.  926 OF 2018 (CC3)

BETWEEN
JOHN TALU
Plaintiff

AND
HIDES GAS DEVELOPMENT COMPANY LIMITED
First Defendant

AND
EXXONMOBIL PNG LIMITED
Second Defendant

Waigani:  Thompson J
2020:    8th & 14th October

EMPLOYMENT LAW - Claim for wrongful termination – notice period under S34 of Employment Act - claims for special and general damages – necessity to provide admissible and credible evidence in support of each claim – employee who is wrongfully terminated only entitled to receive payment as if he had been lawfully terminated

Counsel:

Mr J. Talu, in person
Mr M. Ipape, for the First Defendant
Ms J. Nigs, for the Second Defendant

14th October, 2020

1.	THOMPSON J: FACTS:    The First and Second Defendants are parties to a Services Outline Agreement for the PNG LNG Project, whereby the First Defendant provides employees to work as required by the Second Defendant.  The Plaintiff was employed by the First Defendant pursuant to an Employment Agreement signed on 8 August 2013, by which he was assigned to work with the Second Defendant.  The relevant terms of the Agreement included that the Plaintiff shall comply with all the First and Second Defendants’ rules and policies, that his employment could be terminated if his services were no longer required or if he breached the applicable rules or polices, and that notice of termination or payment in lieu of notice would be provided in accordance with the Employment Act.
2.	Evidence showed that the First and Second Defendants’ written rules and policies included a “Harassment in the Workplace Policy” which defined harassment to include inappropriate conduct including derogatory remarks, which have the effect of creating a hostile or offensive work environment.  The Policy provided that any act of harassment would be subject to disciplinary action up to and including termination.
3.	The Second Defendants’ evidence was that the Plaintiff’s conduct over a period of time included rudeness, loss of temper and the use of offensive language to his fellow workers.  Following an incident on 14 September 2018 when the Plaintiff swore at and used rude language to his supervisor at a meeting with his fellow workers, the Second Defendant informed the First Defendant that it required the Plaintiff to be replaced.
4.	On 1 October 2017 the First Defendant sent a text message to the Plaintiff, who was on a field break in Hela, saying that he had been terminated and requiring him to return to the work place and sign the relevant termination papers.
5.	On 2 October 2017 the First Defendant issued a letter to the Plaintiff giving formal notice that due to his conduct and workplace harassment, his services were no longer required, and that his employment was terminated with effect from 2 October 2017.  The letter required him to return company property before his final entitlements would be paid.  There was no evidence that this letter was given to the Plaintiff.
6.	The Plaintiff did not return to the workplace or sign the termination papers.  The First Defendant appears to have taken the view that although they had calculated his final entitlements which, notwithstanding his summary termination, included two weeks pay in lieu of notice, they could not pay the monies into his bank account until they had received the Termination Payroll Advice from the Second Defendant and until the Plaintiff had signed the relevant paperwork.
7.	The Second Defendant packed the Plaintiff’s personal effects which had been left at the worksite, into boxes, and delivered them to the First Defendant at the Hides site, where they still remain.
8.	The Plaintiff claims that his conduct on 14 September 2017 was insufficient to justify termination and as a result, he was wrongfully terminated, and entitled to be paid all his salary and allowances from 14 September 2017 to date, together with special damages for his failure to repay a Bank loan and for expenses incurred in travelling to and staying in Port Moresby to pursue his claim, and general damages for hardship and suffering, plus interest and costs.
Issues

9.	The law in relation to wrongful termination of employment is well-settled.  
10.	Subject to any contractual terms, an employer may hire and fire at any time, without giving a reason, and without giving notice (New Britain Oil Palm Ltd and ors v Vitus Sukuramu (2008) SC 946).
11.	If an employee is terminated in breach of his contractual terms, he has been wrongly terminated.  The measure of his damage flowing from that breach, is the amount which he would have received if his employment had been lawfully terminated in accordance with the terms of the contract.  (Pama Anio v Aho Baliki and Anor (2004) N2719, PNGBC v Jeff Tole (2002) SC 694, and Porgera Joint Venture Manager Plaza (PNG) Ltd v Robin Kaim (2010) SC 1060).
12.	Here, the employment contract did not contain any prescribed disciplinary procedure to be followed prior to termination.  The contract only provided that notice of termination or payment in lieu would be given in accordance with the Employment Act.
13.	As the Plaintiff had been employed by the First Defendant for four years and three months, then in accordance with S34 (4) (c) of the Employment Act, he was entitled to be given two week’ s notice.
14.	The Plaintiff was not given two weeks, or any, notice of his termination.   The Defendants say that this was because the First Defendant was entitled to terminate for cause without notice due to his breaches of the First and Second Defendants’ rules and polices, and in particular, the Workplace Harassment Policy.
15.	The Plaintiff denies that his conduct was sufficient to amount to breaches of the rules and policies, but says that even if it did, it was not sufficiently serious to warrant termination, whether with or without notice.
16.	The Employment Agreement says that any breach of the rules and policies is a ground for termination.  It is arguable whether the Plaintiff’s single act of swearing, without a prior history of such conduct, would fall within the written definition of workplace harassment, which tends to indicate that the conduct must be repeated, in order to amount to a breach of a policy.  The Defendants’ evidence was that the conduct had been repeated, although no documentary record was produced to verify this.  
17.	If the Plaintiff’s conduct was sufficient to amount to a breach of the employment agreement, and if that breach amounted to sufficient cause for summary termination, then the termination was lawful and the Plaintiff would not be entitled to receive any payment in lieu of notice.
18.	If the Plaintiff’s conduct was not sufficient to justify summary termination, so that his summary termination was wrongful, it does not follow that the Plaintiff is entitled to receive his salary from the date of his dismissal.  He is only entitled to receive what he would have received if he had been lawfully terminated ie. by being given two weeks’ notice under the Employment Act.  As he was not given notice, he would be entitled to receive two weeks pay in lieu of notice.
19.	In the event, it is of no practical effect whether or not the Plaintiff was entitled to receive two weeks’ notice, as the First Defendant had already offered payment in lieu.  The First Defendant’ s evidence was that they had calculated the Plaintiff’s entitlements comprising his outstanding Long Service Leave, Annual Leave and two weeks’ pay in lieu of notice, totaling K4,806.00.
20.	The Plaintiff further claimed reimbursement of expenses which he had incurred as a result of travelling to and remaining in Port Moresby to pursue his claim with the Labor Department and with lawyers.  The evidence showed that the Plaintiff’s usual residence was with his wife and children in Hela, he was recruited from Hela, and his field breaks were to be taken in Hela.  He was in Hela on a field break at the time of his termination.  His cause of action arose in Hela.  There was evidence that there was a Labor Department office in Mt Hagen, and National Courts in Mt Hagen, Tari, and Mendi.  There are also lawyers in each of those places.  It was not necessary for the Plaintiff to fly to Port Moresby to either consult the Labor Department or engage lawyers or to file proceedings.  Once lawyers had been engaged and proceedings issued, it was also unnecessary to remain in Port Moresby.   The proceedings could have been transferred to Tari, Mendi or Mt Hagen, to avoid him continuing to incur costs in Port Moresby.
21.	The Plaintiff was under a duty to mitigate his loss following the termination.  He gave no evidence of seeking or obtaining other employment.  By his decision to travel and remain in Port Moresby, he added to rather than mitigated his loss.
22.	The Plaintiff’s travel to and stay in Port Moresby since September or October 2017, did not arise from his termination.  It arose from the way in which he chose to contest his termination, by consulting the Labor Department and lawyers in Port Moresby.  
23.	In any event, no evidence was produced in support of this part of the claim.  The onus is on the Plaintiff to produce admissible and credible evidence to prove the loss which he claims to have suffered (PNGBC v Jeff Tole, supra).   In the absence of such evidence, the claim was not made out, and no damages could be awarded.
24.	The Plaintiff had also claimed relief for his failure to repay a bank loan.  No particulars had been pleaded, and no evidence was given.  This part of the claim was not made out, and no damages could be awarded.
25.	The Plaintiff next claimed general damages for hardship and suffering.  His submission was that he endured hardship by having to live with his extended family in Port Moresby, away from his wife and children in Hela, and further suffering by not being able to go to his mother’s funeral in Hela.  
26.	However, it was not the termination of his employment in Hela which made the Plaintiff live in Port Moresby and not return to Hela.  It was his own decision to travel to Port Moresby and remain there.
27.	Further, the case authorities are clear that any such claim for damages must be supported by appropriate independent evidence (PNGBC v Jeff Tole, supra).
28.	There was no evidence here of any unusual treatment in the circumstances of the termination.  All terminations are likely to be stressful or difficult for the employee, but there must be evidence of something more than that, to justify an award of damages. There needed to be proven damage or negative physical or mental impact on him, supported by appropriate medical or other evidence (PNGBC v Jeff Tole, supra).  No such evidence was produced.
29.	The Plaintiff did not return from his field break to his place of work to discuss his termination, or to collect his personal effects, or to receive his final pay.  Instead, he travelled to Port Moresby and began to seek ways of challenging the termination.  Any subsequent hardship or suffering was due to his decision to remain in Port Moresby away from his family and his home, and not to any conduct of the First or Second Defendants.  He could have returned to his home and family at any time, and also could have collected his personal effects.  This claim has not been made out.
30.	In relation to his personal effects, the Defendants had no legal obligation to collect them, but the Second Defendant did so, boxed them, and delivered them to the First Defendant at the Hides Site.  The Plaintiff did not return to the Hides Site as requested to collect his effects, and the boxes remained there.  The Plaintiff’s evidence was that he was misinformed by the First Defendant’s office in Port Moresby that the boxes would be made available to him in Port Moresby.
31.	In the circumstance, it would be appropriate for the Plaintiff to nominate a place for collection of the boxes, in either Port Moresby or Hela, and the First Defendant shall thereupon have the boxes available for the Plaintiffs’ collection at the nominated place.
Conclusion
32.	The First Defendant had the right to terminate the Plaintiff’s employment for breach of the policies and rules or for any reason it saw fit, and to give notice or payment in lieu in accordance with the Employment Act.  I therefore find that the First Defendant was entitled to terminate the Plaintiff’s employment for breach of the First and Second Defendant’s rules and policies.  I am not satisfied that the First Defendant was entitled to terminate without notice.  I find that the Plaintiff was therefore entitled to be given either two weeks’ notice or payment in lieu.
33.	The Plaintiff was not employed by the Second Defendant, and has failed to make out any cause of action against the Second Defendant.
Interest and Costs
34.	If the First Defendant had taken steps to ensure that the Second Defendant provided them with the paperwork necessary to finalize calculation of the Plaintiffs entitlements, they should have been able to pay those entitlements into the Plaintiff’s bank account in October 2017, even if the Plaintiff had not signed any acknowledgments or termination papers.
35.	There was no evidence that the First Defendant had paid the amount of the Plaintiff’s entitlements into court, pursuant to Order 8 Rule 69 of the National Court Rules, which would have had the effect of preventing the Plaintiff from accruing an entitlement to interest and costs.  There was also no evidence that either the First or Second Defendants had made any settlement offers prior to the hearing, even if only for a discontinuance of the proceedings without payment of costs
36.	Pursuant to Order 22 Rule 25, where a Plaintiff in an action for tort or contract recovers a sum of less than K10,000.00, he shall unless the Court otherwise orders, be entitled only to costs on the District Court Scale.
37.	I therefore make the following Orders:
(1)	Judgment is entered for the Plaintiff against the First Defendant in the sum of K4,806.00, plus interest at the rate of 8% pa pursuant to the Judicial 	Proceedings (Interest on Debts and Damages) Act from the date of service 	of the amended writ of summons on 6 September 2018 to the date of 	 judgment.

(2)	The First Defendant is to pay interest at the rate of 8% pa pursuant to 	the Judicial Proceedings (Interest on Debts and Damages) Act from the date of the judgment until payment, unless the judgment is paid within 30 days 	of being served with the judgment. 

(3)	The Plaintiff is to nominate a specific and reasonable place in either Port Moresby or Hela, for collection of his personal effects, and the First Defendant shall thereupon make those personal effects available for the Plaintiff’s collection at that nominated place.

(4)	The First Defendant is to pay the Plaintiff’s costs in accordance with the District Court Scale, to be agreed or taxed, and on the basis that the 	Plaintiff was not legally represented at the hearing.

(5)	The Second Defendant is to pay its own costs.	
__________________________________________________________________
Public Solicitors Office: Lawyers for Plaintiff 
Denton PNG: Lawyers for Defendants