N10471
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 43 OF 2022

TOM DIAMA
Plaintiff

V

ANDREW BARTER, MANAGING DIRECTOR, 
MELANESIAN TOURISM SERVICES LIMITED 
First Defendant

MELANESIAN TOURISM SERVICES LIMITED, 
TRADING AS MADANG RESORT HOTEL
Second Defendant

Madang: Cannings J
2023:  21st July, 24th August, 12th September 

HUMAN RIGHTS – Constitution, s 41 (proscribed acts) – termination of employment – whether treatment of plaintiff by the defendants’ after termination of employment was harsh and oppressive or otherwise proscribed by s 41 – allegation that plaintiff and his family were forced to sleep overnight outside the house that had been their home in harsh conditions. 

The plaintiff claimed a breach of human rights arising from the circumstances in which his employment was terminated by the defendants. He claims that while he was organising himself and his family to vacate their accommodation, the keys were removed from him and they were locked out and forced to sleep in the cold and wet conditions that night. He claims that he was treated harshly and oppressively contrary to s 41 of the Constitution. 

Held:

(1)	All evidence for both sides was in affidavit form. The plaintiff failed to prove his case on the facts.

(2)	There was no breach of human rights.

(3)	Case dismissed. 

Cases Cited

The following cases are cited in the judgment. 

Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
Morobe Provincial Government v John Kameku (2012) SC1164
Paru v Kotigama & B-Mobile (2015) N6089
Petrus and Gawi v Telikom PNG Ltd (2008) N3373

Counsel

B B Wak, for the Plaintiff
T M Ilaisa, for the Defendants 

12th September 2023

1.     CANNINGS J: The plaintiff, Tom Diama, is suing his former employer, Melanesian Tourism Services Ltd (second defendant) and its managing director, Andrew Barter (first defendant) for breach of human rights. He claims damages. This judgment is a determination of that claim. 

2.    These are the facts. On 18 October 2022 Mr Barter wrote a letter to the plaintiff, notifying him that his employment with Madang Resort Hotel was terminated, effective immediately, because of his continued violation of company policies concerning alcohol consumption and service of alcohol at the workplace. Mr Barter referred to an incident the previous evening where the plaintiff was drunk and disorderly around the poolside area and from late afternoon to 8.30 pm approached bar staff insisting that he be served alcohol. Mr Barter gave the plaintiff to 4.00 pm the next day to vacate the company accommodation at the Hotel. He stated that it should be left in satisfactory condition and that the plaintiff should not sabotage any hotel equipment or damage any plumbing within the premises.

3.     The plaintiff was a plumber, employed under a written employment agreement of indefinite duration, which commenced operation on 1 September 2021. He was employed in that capacity for 19 years before he was terminated on a previous occasion, in July 2021, for similar reasons to his termination on 18 October 2022: drinking alcohol at the workplace. He was re-engaged on 1 September 2021. He had received warning notices regarding alcohol abuse on a number of occasions.

4.    The plaintiff was aggrieved by the manner of his termination. He claims that on 19 October 2022 while he was organising himself and his family to vacate their accommodation, the keys were removed from him and they were locked out and forced to sleep in cold and wet conditions that night. 

5.    The plaintiff commenced these court proceedings against the defendants on 2 December 2022. 

CAUSE OF ACTION

6.    The plaintiff’s cause of action is not breach of contract, but breach of human rights. He argues that his human rights under s 41 (proscribed acts) of the Constitution were breached by the defendants. 

7.    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.

8.    Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164, 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.

9.    Under s 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. 

10.    The plaintiff argues that he was treated harshly and oppressively, by being given only one day to move out of the family home, being locked out of the home and being forced to sleep outside overnight in cold and wet conditions.

11.     In determining this claim I make two opening statements of principle. 

12.     First, human rights in Papua New Guinea, which are enshrined in the Constitution, are of universal application and apply to contracts of employment and to cases of termination of employment. There is a view expressed from time to time that human rights have no application in an employment context. That view is, in my view, wrong in principle. I said this in Paru v Kotigama & B-Mobile (2015) N6089:

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).

13.    The defendants did not argue that point in this case. It is nonetheless worth repeating from time to time.

14.     Secondly, this is the plaintiff’s case and he bears the onus of proving it. This is a fundamental principle of litigation and its application here is reinforced by s 41(2) of the Constitution. 

WAS THERE ANY BREACH OF HUMAN RIGHTS?

15.    Having considered the evidence and the careful and well-researched submissions of counsel for the plaintiff, Mr Wak, and counsel for the defendants, Mr Ilaisa, I conclude that there was no breach of human rights, for the simple reason that the plaintiff has failed to prove the facts on which his case relies. 

16.    He gives evidence that the keys were removed from his possession and he was locked out of the house and he and his family had to sleep outside on the night of 19 October 2022 and that he was treated like a criminal and not given enough time to leave. His evidence is supported by evidence from his three daughters and his son.

17.    The defendants’ evidence supports a different version of events. The first defendant Mr Barter deposed in an affidavit that the plaintiff had been given numerous warnings in the past including a final one on 7 September 2022 regarding abuse of alcohol on the company premises. Mr Barter deposes that the plaintiff was given his termination notice at 9.00 am on 18 October 2022 and that he (Mr Barter) spoke to him later that day and told him he had until 4.00 pm the next day to vacate the company accommodation. He deposes that the plaintiff did not object or say that he needed more time. Mr Barter’s version of events is supported by evidence from the hotel maintenance manager, Max Tuivanuavou, who deposes that he on 18 October 2022 served the termination notice on the plaintiff and that he on 19 October 2022 supervised the plaintiff’s vacation of the company accommodation. He deposes that by the early afternoon of the 19th, most of the plaintiff’s properties had been removed, but that at 4.00 pm the plaintiff asked him for a bit more time and that request was acceded to and at 5.00 pm the plaintiff gave him the house keys. He deposes that shortly afterwards, he saw the plaintiff drive out of the hotel premises in a white single-cab vehicle. 

18.    All of the evidence for both sides was given in affidavits. No affidavit tendered was objected to. All affidavits were admitted into evidence. None of the evidence in the defendants’ evidence seemed far-fetched or outlandish. 

19.     I was left with the impression that the defendants had been more than fair with the plaintiff over many years and that he must have been regarded by the late Sir Peter Barter, the founder of the second defendant, as a very good worker, who unfortunately had a problem with alcohol. I find it difficult to believe that the defendants would have treated the plaintiff in the way he says he was treated.

20.    There was no oral testimony of any witness and I was not given the opportunity or responsibility to assess their demeanour or to determine who was telling the truth or who was bending the truth or twisting facts. I can only work on the affidavits for both sides.

21.    The plaintiff has failed to persuade me that his version of events should be preferred to the defendants’ version. 

22.     It has not been proven that the defendants acted harshly or oppressively or in any way proscribed by s 41 of the Constitution. 

CONCLUSION

23.    The plaintiff’s claim fails. There was no breach of human rights. There is no entitlement to damages. Costs will follow the event. 

ORDER

(1)	The proceedings are entirely dismissed. 

(2)	The plaintiff shall pay the defendants’ costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.

(3)	The file is closed.
________________________________________________________________
Bradley & Co Lawyers: Lawyers for the Plaintiff
Thomas More Ilaisa Lawyers: Lawyers for the Defendants