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Matthew v Ling [2020] PGNC 406; N8665 (30 November 2020)

N8665

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 257 OF 2019

BETWEEN:
SONNY MATTHEW FOR AND ON BEHALF OF HIMSELF AND PETER JAL, JERRY GANZ, MATTHEW AMBONG, ARNOLD ARUMBAI, THADDEUS MARK, MICHAEL AURIP, GOMIA KIMIN, GEORGE KAMBIN, LUKE SAPI AND EKI MUNAME
Plaintiff

AND:
JEFFREY LING, GENERAL MANAGER, MADANG TIMBERS LIMITED
First Defendant

AND:
FRANCIS KALIP, HUMAN RESOURCE MANAGER, MADANG TIMBERS LIMITED
Second Defendant

AND:
MADANG TIMBERS LIMITED
Third Defendant

Madang: Narokobi J
2020: 26^th October, 30^th November

HUMAN RIGHTS – Whether the plaintiffs have established a cause of action for breach of their rights under ss 37, 41, 54 and 59 of the Constitution on the pleadings and the evidence

NEGLIGENCE – Whether the plaintiffs have established a cause of action for breach of duty of care on the pleadings and the evidence

The plaintiffs are former employed security guards of the third defendant. They are suing the defendants for breach of human rights and negligence.

Held:

(1) The plaintiffs have established a cause of action for breach of human rights under s 41(1)(a),(b) and (c) of the Constitution and are entitled to damages for the infringement.

(2) The claims for breach of ss 37, 54, 59 and for negligence are dismissed.

Cases Cited:

Kuman v Digicel (PNG) Ltd (2013) SC1232
Morobe Provincial Government v Kameku (2012) SC1164
Pama v Gens (trading as Kanagio Security Services) (2020) N8358
Petrus v Telikom PNG Ltd (2008) N3373
Simon v Koisen (2018) N7075

References referred to:

CPC Final Report 1974

Counsel

Mr B Wak, for the Plaintiffs
Mr B Meten, for the Defendants

JUDGMENT

30^th November, 2020

1. NAROKOBI J: This is a trial on liability for infringement of human rights and for breach of duty of care occasioning negligence.
   

Background

2. The plaintiffs are security guards of the third defendant. Some of them have been terminated. They are claiming unpaid entitlements and damages occasioned from their treatment. They say this constitutes a breach of their rights and negligence on the part of the defendants.
   

Issues

3. The main contention in this proceeding is firstly whether the plaintiff’s right has been infringed and secondly whether the defendants breached the duty of care it owed to the plaintiffs?
   
4. The rights claimed to have been infringed are ss 37, 41, 54 and 59 of the Constitution.
   

Evidence

5. The following are the evidence tendered before the court by the plaintiffs and the defendants:
   

6. All in all, the plaintiffs tendered 10 affidavits and the defendant tendered one (1).
   

The Plaintiffs Case

7. The plaintiff’s case is that when they were asked to sign a contract of employment for a fixed fortnightly salary of K450, they did not know what they were signing. Upon realizing the change in the salary they took the matter up with the human resource unit in the management but were refused. They then complained to the Department of Labour. After the Department’s intervention they reached an agreement for them to be paid overtime for 2019 only and not all the way back to 2014. It was then that they were asked to collect their final entitlement which includes the overtime from 2019 only and resign as the third defendant was now going to engage the services of a private firm. They allege that their termination was done out of reprisal for their actions.
   
8. In support of their claim the plaintiffs rely on the affidavits identified as P1 to p10, inclusive.
   
9. A summary of what each affidavit states is set out hereunder.
   

10. In submissions the plaintiff submitted that the actions of the defendants have led to the breach of the following rights of the plaintiffs – ss 37, 41, 54 and 59 of the Constitution.
    
11. They seek orders for the court to find the defendants liable for the two causes of action pleaded.
    

Defendant’s Case

12. The defendant refutes the claim and submits that they have done everything properly and all the documents signed was signed after it was explained to them. They say that the company has taken a management decision to terminate company guards and employ a private firm of security guards.
    
13. The defendant relies on only one (1) affidavit, that of Jeffrey Ling sworn on 29 August 2019.
    
14. A summary of what the deponent states is set out hereunder.
    

15. In the defendant’s contention no right has been infringed and all entitlements due to the plaintiffs have been paid.
    

The Law

16. The relevant provisions of the Constitution being considered as to whether they have been infringed are ss 37, 41, 45 and 59.
    
17. The plaintiffs also say that the manner in which they were treated was negligent, and in that regard has to prove the following (Kuman v Digicel (PNG) Ltd (2013) SC1232):
    
    • There was a duty of care;
    • The duty was breached; and
    • Damages ie injuries, distress etc was suffered as a result.
      
18. I will state the findings of facts against each of these areas of the law and consider whether they establish the cause of action as claimed.
    

Right to Protection under the Law, Constitution s 37

19. Section 37 of the Constitution provides a number of rights within the general ambit of that provision.
    
20. The defendant contends that the plaintiffs have not particularized which right under s 37 of the Constitution was breached.
    
21. I have considered the submissions of the plaintiff and visited their statement of claim, and I am in agreement with the defendant in their submissions. I therefore dismiss this claim.
    

Proscribed Acts, Constitution s 41

22. Section 41 of the Constitution is in the following terms:
    

“41. Proscribed acts.

(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.”

23. I have to determine whether the plaintiff was treated in a manner that was contrary to any of the succeeding paragraphs of s 41(1) of the Constitution, that is s 41(1)(a), (b) or (c) and thereby establishing a cause of action.
    
24. A definition of s 41(1) of the Constitution was provided in Petrus v Telikom PNG Ltd (2008) N3373 and endorsed by the Supreme Court in Morobe Provincial Government v Kameku (2012) SC1164. In Petrus the court relevantly said:

“7. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts. 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:

1. harsh; or
2. oppressive; or
3. not warranted by the requirements of the particular circumstances;
4. disproportionate to the requirements of the particular circumstances;
5. not warranted by the requirements of the particular case; or
6. disproportionate to the requirements of the particular case; or
7. otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.”
   
25. I turn now to the facts of the case, bearing in mind my findings of facts on the balance of probability and see whether they show a breach of s 41(1) of the Constitution.
    
26. I find the facts led by the plaintiffs to be cogent, credible and corroborated. The evidence shows that the manner the plaintiffs were treated were harsh and oppressive. The following circumstances were harsh and oppressive.
    
27. The defendants actions to pay the plaintiffs a fixed salary of K450 per fortnight from when it commenced in 2014 to 2019 was to avoid paying the plaintiffs for actual hours worked as required under Par IV, Conditions of Employment of the Employment Act, Ch 373, especially s 52 and the Minimum Wages Board Determination No 1 of 2014 to pay K3.50 per hour as of 3 July 2016. It does not take into account the number of hours worked beyond a normal eight (8) hour working day from Monday to Friday and then at time and a half on a Saturday and double time on Sunday as well as double time on public holidays. As such it was harsh and oppressive in the circumstances.
    
28. I find that only paying them for hours worked in 2019 was to avoid meeting the requirements as spelt out by the Labour Department in their brief to the defendants dated 16 July 2019.
    
29. Such actions were not only harsh and oppressive but were not warranted by the circumstances of the case and not reasonably justifiable in a democratic society where people need to live on a decent wage.
    
30. The defendants were wrong to negotiate with the plaintiffs if the basic requirements of the employment laws to be paid according to the Employment Act was not met in the first place. A need for negotiation would arise if the terms to be negotiated was above the minimum term. Such action was therefore not warranted by the requirements of a particular case.
    
31. I am inclined to draw the inference that what the defendants did to the plaintiffs was in reprisal for taking their matter up with the Labour Department. If the defendants wished to terminate the plaintiffs, all it had to do was to pay the plaintiffs the minimum requirements under the relevant laws and then terminate them by giving the required notice period or paying them money in lieu of notice. Such action was therefore harsh and oppressive. The defendants have not led evidence to show that as of the date of filing the case against them by the plaintiffs, they have in fact engaged a private security firm to provide security for them. I can only conclude that the actions to terminate was in direct reprisal for taking up the matter with the Labour Department. It is true that the defendants have the right to terminate but the manner in which it was done was harsh and oppressive.
    
32. All these instances in which the plaintiff was treated by the employees of the fourth defendant have been established as facts, and in my respectful view, amount to breach of s 41(1)(a),(b) and (c) of the Constitution. In this regard, I also find relevant the several National Court decisions to support my view - Pama v Gens (trading as Kanagio Security Services) (2020) N8358, Petrus v Telikom PNG Ltd (2008) N3373 and Simon v Koisen (2018) N7075, where the court found that the manner in which an employer treats his or her employee may amount to breach of s 41(1) of the Constitution. In Pama, I held amongst other findings, that failing to respond to correspondence of the Labour Department amounts to breach of s 41. In Petrus, the issue was not being paid the appropriate salaries. For Simon the concerned issue was the abrupt transfer notice to the plaintiff to move to another work location. This case falls within the range of the circumstances of these National Court decisions.
    
33. Consequently, my ultimate view on this issue is that the plaintiffs have established a cause of action under s 41(1)(a),(b) and(c) of the Constitution on the balance of probability against all the defendants.
    

Freedom of Conscience, Thought and Religion, Constitution s 45

34. In relation to Section 45 of the Constitution, it is in the following terms:
    

“45. Freedom of conscience, thought and religion.

(1) Every person has the right to freedom of conscience, thought and religion and the practice of his religion and beliefs, including freedom to manifest and propagate his religion and beliefs in such a way as not to interfere with the freedom of others, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).

(2) No person shall be compelled to receive religious instruction or to take part in a religious ceremony or observance, but this does not apply to the giving of religious instruction to a child with the consent of his parent or guardian or to the inclusion in a course of study of secular instruction concerning any religion or belief.

(3) No person is entitled to intervene unsolicited into the religious affairs of a person of a different belief, or to attempt to force his or any religion (or irreligion) on another, by harassment or otherwise.

(4) No person may be compelled to take an oath that is contrary to his religion or belief, or to take an oath in a manner or form that is contrary to his religion or belief.

(5) A reference in this section to religion includes a reference to the traditional religious beliefs and customs of the peoples of Papua New Guinea.”

35. Whilst I can appreciate the plaintiffs claim in that they were not accorded the opportunity to freely make a decision, however, after reading s 45 carefully and having regard to the CPC Report, Chapter 5, Pat 1, p10, I am inclined to take the view that the general thrust of that provision is inclined towards freedom of worship according to a person’s choice of faith or to no faith at all. It was therefore incumbent upon the plaintiffs to plead the particular right that is being infringed and provide adequate case authorities to strengthen its claim for breach of this right. On this basis, I will accede to the defendant’s submissions and dismiss this claim.
    

Principles of Natural Justice, Constitution s 59

36. The law as it stands, fairly or not is that in a private employer/employee relationship the employer has the right to hire and fire. What is required is the payment of the notice period. The authorities that the plaintiff relies on is in the public sector where claims are made by way of a judicial review. This is a private employment situation. Requirements to comply with s 59 of the Constitution does not arise. I therefore dismiss this claim.
    

Negligence

37. The plaintiffs have not pursued the claim of negligence in their submissions but instead made submissions on unlawful termination. Unlawful termination was not pleaded in the statement of claim. They have therefore not persuaded me to the requisite standard to find the defendants negligent.
    

Orders

38. In light of the foregoing I make the following orders:
    
    1. The plaintiffs have established a cause of action for the breach of their rights under s 41(1)(a),(b) and (c) of the Constitution.
    2. Consequently, the plaintiffs have established a cause of action for failure by the third defendant to pay the plaintiffs their lawful final entitlements.
    3. All the other claims are dismissed.
    4. Plaintiffs make the necessary application to have the deceased plaintiff Eki Munume substituted by his wife Elizabeth Munume.
    5. Matter shall be listed for 15 February 2021 at 9.30am for directions hearing for assessment of damages.
    6. Costs of the proceedings to date is awarded in favour of the plaintiffs and will be ascertained after the conclusion of trial on assessment of damages.
    7. Time is abridged.
       

Bradley Wak Lawyers: Lawyers for the Plaintiffs
Meten Lawyers: Lawyers for the Defendants