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Bokorum v Divine Word University [2023] PGNC 306; N10472 (12 September 2023)

N10472

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 145 OF 2022

PAIAS BOKORUM
Plaintiff

V

DIVINE WORD UNIVERSITY
First Defendant

ARCHBISHOP DOUGLAS YOUNG SVD,
CHAIRMAN, DIVINE WORD UNIVERSITY
Second Defendant

FR PHILLIP GIBBS,
PRESIDENT, DIVINE WORD UNIVERSITY
Third Defendant

Madang: Cannings J
2023: 20^th July, 18^th August, 12^th September

HUMAN RIGHTS – Constitution, s 41 (proscribed acts), s 59 (principles of natural justice), s 37 (protection of the law) – termination of employment – written contract of employment – whether employer terminated employee’s employment in a way that was harsh and oppressive – whether employer obliged to comply with principles of natural justice and give employee a proper hearing before terminating employment – whether employee denied full protection of the law.

The defendant employer of the plaintiff terminated his three-year written contract of employment twelve months before the expiry of the contract, while the plaintiff was on long-service leave. He had been employed by the first defendant for 17 years prior to the commencement of the contract. The defendant invoked a clause of the contract providing for termination by the defendant with three months’ pay in lieu of notice. The plaintiff commenced proceedings against the first defendant and two of its senior personnel. His cause of action was not breach of contract, but breach of human rights, under ss 41 (proscribed acts), 59 (natural justice) and 37 (protection of the law) of the Constitution. He argued that he was treated harshly and oppressively, denied a right to be heard and denied the full protection of the law. He sought damages.

Held:

(1) Human rights in Papua New Guinea, which are enshrined in the Constitution, are of universal application and apply to contracts of employment, including cases of termination of employment.

(2) The defendants did not treat the plaintiff harshly or oppressively. The defendants terminated the contract in accordance with the contract. They acted reasonably and respectfully and politely. There was no breach of s 41 of the Constitution.

(3) The plaintiff had no right to be heard on the question of his termination. There was no breach of the principles of natural justice and no breach of s 59 of the Constitution.

(4) The plaintiff was not denied the protection of the law. He was protected by the terms of the contract of employment. The contract remains enforceable.

(5) The proceedings were dismissed with costs, subject to a declaration that the first defendant remains liable to pay the plaintiff his final entitlements.

Cases Cited

The following cases are cited in the judgment.

New Britain Palm Oil Ltd v Sukuramu [2008] PNGLR 479
Paru v Kotigama & B-Mobile (2015) N6089

Counsel

B W Meten, for the Plaintiff
M Kispe, for the Defendants

12^th September 2023

1. CANNINGS J: The plaintiff, Paias Bokorum, is suing his former employer, Divine Word University, for breach of human rights. He claims damages. This judgment is a determination of that claim.

2. These are the facts. On 22 December 2021 the president of Divine Word University Fr Phillip Gibbs (third defendant) wrote a letter to the plaintiff, notifying him that his contract of employment with Divine Word University (first defendant) would be terminated with effect from midnight on 31 December 2021.

3. The plaintiff was then the Vice-President, Corporate Affairs, employed under a three-year written contract of employment, which commenced operation on 1 January 2020. He was on long-service leave in December 2021 and due to resume duty on 1 January 2022. He had been employed by the University in various roles for 17 years prior to that contract.

4. The plaintiff was aggrieved by his termination. He did not accept that the reasons given in Fr Gibbs’ letter (changes in administration of the University’s businesses, new talent required, no suitable ongoing role for the plaintiff) were genuine. He wrote back to Fr Gibbs on 24 December 2021, expressing the view that the real reasons for his termination were “personal, preconceived and premeditated”. He requested that, to avoid legal action, he be paid out the balance of his contract.

5. Fr Gibbs wrote back on 29 December 2021, declining that request. He said the Council of the University stood by its decision to terminate the plaintiff’s contract under clause 18.1, which allowed the University to terminate the contract for any reason provided it pays the employee three months’ pay in lieu of notice.

6. The parties reached a stalemate. The termination of employment took effect. The defendants prepared the paperwork and a cheque for the plaintiff’s final entitlements but he has apparently refused to accept anything. The plaintiff commenced legal proceedings. Initially he filed judicial review proceedings but they were soon discontinued, then the plaintiff commenced the current proceedings.

CAUSE OF ACTION

7. The plaintiff’s cause of action is not breach of contract, but breach of human rights. He argues that his human rights under ss 41 (proscribed acts), 59 (natural justice) and 37 (protection of the law) of the Constitution were breached by the defendants.

8. He argues that he was treated harshly and oppressively, denied a right to be heard and denied the full protection of the law. He seeks damages. The defendants oppose the claim.

9. In determining this claim I make two opening comments, the first is general in nature, the second is specific to this case.

10. 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).

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

12. The second comment, which is directly relevant to the human rights at issue in this case, is that there was no breach of contract by the defendants. Termination of the contract was effected in accordance with clause 18.1 of the contract. There was no obligation on the defendants to give any reason for termination of the contract. But reasons were in fact given, and not accepted by the plaintiff. The defendants acted in accordance with the contract in offering to pay the plaintiff his final entitlements including the three months’ pay in lieu of notice.

WAS THERE ANY BREACH OF HUMAN RIGHTS?

13. Having considered the evidence and the careful and well-researched submissions of counsel for the plaintiff, Mr Meten, and counsel for the defendants, Ms Kispe, I conclude that there was no breach of human rights, for these reasons.

14. The defendants did not act harshly or oppressively or in any way proscribed by s 41 of the Constitution. They acted in accordance with the contract. The reasons given for the termination appeared reasonable. It would only be where an employer acted so irrationally or unreasonably or arbitrarily that it appeared that some vindictive action was being taken against an employee, that an argument might be entertained that the employer was being harsh or oppressive. Here the evidence shows that Archbishop Young and Father Gibbs were consistently polite and respectful in their communication with the plaintiff. The defendants’ conduct falls a long way short of being categorised as harsh or oppressive.

15. The plaintiff had no right to be heard on the question of termination of his employment. The principles of natural justice, recognised in s 59 of the Constitution, have no general application in an employment context. Only if a right to be heard is expressly conferred by a written contract of employment or if there is a procedural code that is spelt out in the contract and has to be followed, can it be said the rules of natural justice apply (New Britain Palm Oil Ltd v Sukuramu [2008] PNGLR 479). There was no such provision in the plaintiff’s contract of employment. He had no right to be heard. There was no breach of s 59.

16. The plaintiff was not denied the full protection of the law. Quite the opposite. He was given protection by the terms of his contract, which allowed the University to terminate it, provided it paid him three months’ pay in lieu of notice and paid his other final entitlements. There was no breach of s 37 of the Constitution. His contractual entitlements remain enforceable.

CONCLUSION

17. The plaintiff’s claim fails. There was no breach of human rights. There is no entitlement to damages. Costs will follow the event. The plaintiff is still entitled to three months’ pay in lieu of notice and other entitlements under his contract. His commencement of this case provides no good reason to deny him those entitlements. The defendants should not hold back any of what is due, because of any claim they have to costs in these proceedings or in the JR proceedings that the plaintiff discontinued.

ORDER

(1) The proceedings are dismissed.

(2) The plaintiff remains entitled to three months’ pay in lieu of notice and other final entitlements in accordance with the contract of employment and those entitlements, if not already paid, shall forthwith be paid by the first defendant to and accepted by the plaintiff and there shall be no deduction from those entitlements in respect of the costs of these proceedings or any other proceedings.

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

(4) The file is closed.

________________________________________________________________
Meten Lawyers: Lawyers for the Plaintiff
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Defendants