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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1188 OF 2018
BETWEEN:
RAKA SINAKA
Plaintiff
AND:
KEVIN BARTELS
First Defendant
AND
CHEMCARE GROUP LIMITED
Second Defendant
AND
ISAAC MOL-POLICE OFICER
Third Defendant
Lae: Dowa J
2022: 8th March
2024: 16th February
EMPLOYMENT LAW – claim for unlawful termination – plaintiff alleges defendant unlawfully terminated him from employment- due to allegations of fuel theft in the course of his employment – plaintiff alleges the defendant had no evidence of the theft allegations and referral to police and subsequent arrest and charge by police were false and unlawful- issues are whether the plaintiff’s termination and referral to police and the laying of criminal charge lawful-whether the plaintiff is entitled to any damages – plaintiff has established that his termination and criminal prosecution was unlawful. termination – plaintiff has already been paid his entitlements including leave pay – thus no award made.
DAMAGES – unlawful accusation and unlawful prosecution – breach of constitutional rights – assessment of damages following finding of liability merger of various claims – award of K20,000.00 general damages
Cases Cited:
Papua New Guinean Cases
Saki v Kangleon (2019) N7860
Kerowa v Harriman (2017) N6940
Ruhuwamo v PNG Ports Corporation (2019) N8021
PNGBC v Tole (2002) SC694
Tawa v Mainland Holdings Ltd (2020) N8727
David Kofowei -v- Siviri & Others [1983] PNGLR 44
Pawa Kombea -v- Semal Peke [1994] PNGLR 572
Lucas Roika -v- Peter Wama (1997) N1373
Molomb -v- Independent State of PNG (2005) N2861
Yooken Paklin v The State (2001) N2212
Samot v Yame (2020) N8266
Kinsim Business Group Inc-v Joseph Homwafi, John Kalaut & State (1997) N1634
Yambaki -v- Namues (2022) N9983
Overseas Cases
Livingstone-v-Rawyards Coal Co.(1908) 5App.Cas25(HL)
Counsel:
R Sinaka, Plaintiff in person
J Langah, for the Defendants
DECISION
16th February 2024
1. DOWA J: This is decision on a the substantive matter after trial on both issues of liability and quantum.
2. The Plaintiff claims, he was unlawfully terminated from employment on 2nd October 2014 on allegations of fuel theft. He was also referred to the police and was criminally charged. He now seeks damages for unlawful termination of employment, for unlawful prosecution, defamation and for breach of constitutional rights.
Facts
3. Prior to 2nd October 2014, the Plaintiff was employed by the second Defendant as Supervisor of Huon Gulf Service Station, Lae Morobe Province.
4. On 1st May 2014, during his employment the first and second Defendants found out there was a theft of 5,000 litres of fuel to the value of K17,000.00. The Plaintiff and two other employees were questioned. The Plaintiff was referred to the Police for further questioning and the laying of criminal charges. The Plaintiff was taken to the Lae Police Station, was questioned, and released after police officers from the Fraud Squad found no evidence to lay a criminal charge against the Plaintiff. The Plaintiff returned to work and maintained his innocence.
5. About five (5) months later, on 1st October 2014 at the insistence and instructions of the first Defendant, the Plaintiff was apprehended by the third Defendant. He was taken to the Lae Police Station and was arrested and charged with the offence of stealing despite there being no evidence. He was released on cash bail of K 300.00. Next day on 2nd October 2014, the Plaintiff was terminated from employment by the first and second Defendants.
6. In respect of the criminal charges, the Plaintiff denied the charge. He was committed to stand trial in the National Court. On 15th September 2015, the Plaintiff was discharged after the prosecution presented a Nollie Prosequi.
7. Aggrieved by the decisions and actions of the Defendants, the Plaintiff institutes the current proceedings seeking damages for unlawful termination and for false prosecution.
8. The first and second Defendants filed a Defence, denying the claim and a Cross Claim against the Plaintiff for the loss of the fuel. The third Defendant did not participate in the proceedings despite being served the Writ of Summons and other documents.
Trial
9. The trial was conducted on 8th March 2022. Both parties agreed to rely on Affidavit evidence filed in Court without cross-examination. The parties then presented their submissions on 22nd March 2022 and the decision was reserved which is now delivered.
Issues
Evidence
12. The Defendants rely on the following Affidavits:
Plaintiff’s Evidence-Raka Sinaka
13. This is the summary of the Plaintiffs evidence. The Plaintiff was employed by the second Defendant for more than seven (7) years commencing 23rd August 2007 under an oral contract of employment. He was terminated from employment on 2nd October 2014. At the time of termination, he was employed as Supervisor of Huon Gulf Service Station run by the second Defendant. About five months earlier, on 1st May 2014, the first and second Defendants made allegations of fuel theft against the Plaintiff and two others. They were brought to the Lae Police Station and questioned. The investigations were led by Chief Sergeant of Police, Gibson Wamboli. The police concluded there was no evidence to take any action against the Plaintiff. The Plaintiff went back to work until 1st of October 2014, when he was arrested by third Defendant at the request of the first Defendant.
14. The Plaintiff deposes that the defendants knew that there was no evidence against him, yet they proceeded with the criminal charge against him even against the advice of the fraud squad who initially investigated the complaint. There were other suspects like Andrew Gaijah, and one Charles Tilga, the driver of the delivery truck who were not questioned and charged. He deposes that fellow employee Andrew Gaijah who was identified as a witness for the State admitted he (Andrew) was coerced by the first Defendant to put the blame on the Plaintiff.
15. The result was they did not have any evidence to produce in the National Court and the prosecutor decided to file a Nollie Prosequi on 15th September 2015.
16. The Plaintiff says due to the false accusations, he lost his job and his liberty, He suffered shame, anxiety, and mental and emotional stress over a long period of time. He was unable to get another job due to the damaged reputation.
Gibson Wamboli
17. Gibson Wamboli gives evidence for the Plaintiff. He is a Chief Sergeant of police and the Officer In Charge of Fraud Squad Division, Lae. He deposes he investigated a criminal complaint laid by the first and second Defendants against the Plaintiff on the 1st of May 2014. The matter was referred to him by Detective Inspecter Russel Egimbari. The complaint related to an alleged theft of fuel worth K 17,000.00 belonging to Freddies Famili Stoa. During the investigation, the investigation team established that the Plaintiff was the Service Station Supervisor. They found out that the Plaintiff signed other documents but did not sign the safe discharge certificate (SDC) No 014223, which was signed by one Chris Karoven after discharge of all fuel. There was a clear indication that the Plaintiff was out for lunch when the subject fuel was discharged. This was also shown in the file created for Charles Tilga, the driver of the delivery truck from East West Transport. The Fraud Squad related their findings to the first Defendant, Kevin Bartels, advising him that there was no evidence to charge the Plaintiff. He deposes that the first Defendant pursued the matter and insisted that police charge the Plaintiff. He deposes he was instructed by Inspector Mol the third Defendant to hand over the file to him which he did.
Russel Egimbari
18. Inspector Russel Egimbari is a senior policeman, Second In Charge of the Criminal Investigation Division (CID), Lae. He deposes he received a report of fuel theft at Freddy Family Stoa fuel Station which occurred on 1st May 2014. The complaint came from Kevin Bartels, the first Defendant. He deposes he referred the matter to the Fraud Squad to investigate. The Fraud Squad members on completion of their investigations reported that there was no evidence connecting the Plaintiff to the alleged theft. He learnt later that the first Defendant contacted Inspector Mol, the third Defendant who then took the files from the Fraud Squad and had the Plaintiff charged for the theft of the fuel.
Andy Ikime
19. Andy Ikime is a Detective Constable attached to the Criminal Investigation Division (CID) Lae. He deposes he was present to corroborate Inspector Mol when he conducted a Record of Interview with the Plaintiff on 1st October 2014. After the conclusion of the Record of Interview, he heard Inspector Mol telling the Plaintiff that the police have no evidence against him, but the company, referring to the second Defendant, would provide the evidence, so he proceeded to arrest and charge the Plaintiff.
Lawson Mumunipa
20. Lawson Mumunipa is a former policeman. He deposes he escorted one Andrew Gaijah a fellow worker with the Plaintiff for questioning at the CID office. He was present at the CID office when Andrew Gaijah was questioned by CID Officer, Russel Egimbari. During the questioning, Mr. Gaijah stated that Raka Sinaka, the Plaintiff, was not involved and was innocent of the theft allegation. The Plaintiff’s name was given to the police because, the first Defendant, Kevin Bartels, and one Michael Bosa, the branch Manager of the second Defendant forced and threatened him to name the Plaintiff as a suspect. Mr. Gaijah went on to say that all the stealing at the second Defendant’s Service Station was done without the knowledge of the Plaintiff.
Defence Evidence
21. The Defendants rely on the evidence of Nigel Merrik and Susan Gari. Mr Merrik is the lawyer for the first and second Defendants. Mr. Merrik deposes that the current proceedings is an abuse of the process because the Plaintiff filed an earlier proceeding in WS No 1398 of 2016 between the parties was dismissed with costs on 7th September 2018. He deposes further that the costs were taxed and allowed in the sum of K 19,815.00 which remains due and unpaid.
22. The second witness, Ms. Susan Gari, is the Group Human Resource Officer with Chemcare Group Limited, the second Defendant. She deposes that the information contained in the Defendants Amended Defence and Cross claim are true. She deposes further that the Plaintiff was paid his entitlements as calculated by the Labour Office were paid in full by the second Defendant on 17th December 2015 and there is nothing due and outstanding.
Plaintiffs Submissions
23. The Plaintiff submits he was unlawfully terminated from employment and falsely accused and charged with a crime he did not commit. He submits he is innocent of the allegations of theft of fuel. The police who did the initial investigations cleared him of any wrongdoing. He submits it was the first Defendant who insisted that he be charged, coercing fellow workers, especially Andrew Haija to testify against him. Since there was no evidence, they could not continue with the prosecution and filed a Nollie Prosequi. He submits that the first and second Defendants knew they had no evidence against him yet chose to accuse him falsely. As for the third Defendant, he had no credible evidence with him and was wrong to arrest and charge him. As a result, he suffered, lost his employment as well as tarnishing his good character. He suffered loss in income and suffered mental and emotional pain causing distress. He therefore seeks compensation for the loss he suffered as pleaded in the statement of claim.
Defendants Submissions
24. Mr Langah, counsel for Defendant, submits that the Plaintiff left employment voluntarily after he was arrested and charged and therefore there is no unlawful termination. Even if the Court finds there was unlawful termination of employment, the Plaintiff is not entitled to any damages apart from the payment for the notice period which he has been adequately settled in a mediation exercise which took place on 17th December 2015. Irrespective of, whether the termination was legal or not, the Plaintiffs entitlements were paid in full, and there is nothing owing, relying on the authority in the cases of PNGBC v Tole (2002) SC694, Saki v Kangleon (2019) N7860 and Tawa v Mainland Holdings Ltd (2020) N8727.
25. Finally, counsel for the first and second Defendants, submits that there is nothing wrong or irregular with the arrest and prosecution of the Plaintiff by the third Defendant. The first and second Defendants made a genuine complaint to the police for the theft of 5,000 litres of fuel and the Plaintiff was the immediate Supervisor to be blamed for the theft. Counsel submits further that the handing up of the Nollie Prosequi does not mean the Plaintiff won the case on the merits.
Consideration of the Issues
26. I have considered the evidence and submissions of the parties carefully. I find there is sufficient evidence to establish the Plaintiff’s claim on the balance of probability. The evidence shows the alleged theft of fuel took place on 1st May 2014. The matter was referred to police by the first Defendant. The complaint was received by Detective Inspector Russel Egimbari. Inspector Egimbari referred the matter to the Fraud Squad for investigation led by Chief Sergeant Gibson Wamboli who conducted the investigation. Sergeant Wamboli gave evidence that after conducting the investigations, he found no evidence to charge the Plaintiff and cleared him of any wrongdoing. The first defendant was advised of the findings. The first Defendant was also advised of other potential suspects who may have been involved.
27. Despite the initial clearance, the first Defendant insisted that the Plaintiff be charged and this time, the complaint was lodged with the third Defendant, Inspector Isaac Mol. On 1st October 2014, the Plaintiff was arrested and charged by the third Defendant. During the conduct of the Record of Interview, the third Defendant made a statement conceding that they (the police) have no evidence against the Plaintiff but the company, referring to the second Defendant, would have the evidence so they proceeded to charge the Plaintiff. After going through the committal hearings, the Plaintiff was committed to stand trial in the National Court. As it turned out the State did not have the necessary evidence to proceed with the trial and decided to file a Nollie Prosequi on 15th September 2015.
28. The Court notes the first and second Defendants are entitled to lodge a complaint to the police for crimes committed against them and the State. However, in the present case, the police officers who did the initial investigations made a professional assessment that there was no evidence to take any criminal action against the Plaintiff. The insistence by the first Defendant on pursuing the matter despite the professional advice given as to the lack of evidence borders on infringement and deprivation of the Plaintiff’s constitutional rights of personal liberty and the protection of law.
29. The Defendants have not rebutted the evidence of innocence presented by the Plaintiff, supported by witnesses, who are all policemen, three of whom appear to be still serving officers. I accept their evidence as credible in the absence of any evidence to the contrary. The only evidence presented by the Defendants came from Susan Gari, the Group Human Resource Officer of the second Defendant. The relevant part of her evidence is contained at paragraph 5 of her Affidavit sworn and filed 3rd May 2021(Exhibit D3). Paragraph 5 reads:
“5. I refer to the amended Defence and Cross Claim dated 27th November 2018and filed in these Proceedings particularly paragraphs 3 (j) to (l) inclusive of the Amended Defence and paragraphs 3-12 inclusive of the Cross Claim. I can confirm the information contained in those paragraphs are accurate.”
30. In my view, a bare statement affirming the statements in the pleadings is not evidence for the purposes of rebutting the evidence of the Plaintiff.
31. At this juncture, the Court is mindful of the third Defendants role. A police officer is independent and is not subject to direction or control by anyone under section 197 of the Constitution. He has a discretion as allowed by the Constitution to make his own assessments whether to lay a criminal charge. In the exercise of that discretion, the Constitution places a duty on an officer to execute his function in an impartial and objective manner. In the present case, the evidence shows the relevant file was already in the custody of Sgt Womboli who cleared the Plaintiff of any wrongdoing. The evidence shows the third Defendant took the file off Sgt. Womboli to pursue the matter at the urging of the first Defendant. There is evidence that the third Defendant admitted the police did not have evidence at the time of conducting the Record of Interview but proceeded to arrest and charge the Plaintiff regardless. In doing so, it appears that the third Defendant did not act with professional objectivity and his conduct was unreasonable. The result is the laying of a criminal charge against the Plaintiff was without good cause and thus, unlawful.
32. The third Defendant did not present evidence in rebuttal. In fact, the third Defendant did not participate in the proceedings. The Court records show he was served the Writ of Summons on 8th October 2018 by one Jack Opi. The third Defendant did not file his Notice of Intention to Defend nor a Defence in the proceedings.
33. In the absence of evidence to the contrary, the Court upholds the Plaintiffs submissions and find that the Plaintiff was falsely accused by the first and second Defendants. The Court also finds that the Plaintiff was unlawfully arrested and charged by the third Defendant with a serious criminal charge. In arriving at this conclusion, the Court is mindful of the Defendants’ submission that the presentation of a Nollie Prosequi does not necessarily mean that the Plaintiff has been discharged on the merits of the case. Whilst that view is legally correct, where allegations of falsehood in the complaint and laying of criminal charge are made against the Defendants, it is incumbent on the Defendants to bring in evidence to challenge the Plaintiff’s claim. They must give evidence providing reasons for the accusations and the laying of the charge. More importantly, they must explain why the State Prosecutor was allowed to present a Nollie Prosequi. In the absence of evidence and explanation, the Court is entitled to give due weight to the allegations and evidence of the Plaintiff.
34. Before the Court concludes on this issue, I refer to a matter raised in the evidence of Nigel Merrik in his Affidavit, filed 14th September 2020, (Exhibit D1). He deposes the proceedings are an abuse of the process because it is a repeat of the previous proceedings in WS No 1398 of 2016 between the parties which, he says, was dismissed on 7th September 2018. A perusal of the Court file shows that the Plaintiff’s proceedings in WS No 1398 of 2016 was discontinued, and not dismissed as stated by Mr. Merrik. Since the merits of and the issues arising in WS No 1398 of 2016 have not been resolved by a Court of competent jurisdiction, it is open for this Court to hear and decide on the issues raised in the current proceedings. I find no abuse of the process in the current proceedings.
35. The Plaintiff commenced employment with the second Defendant on 23rd August 2007. He was employed under an oral contract of employment and the minimum terms of his employment are those provided under
the Employment Act. He was in continuous employment with the second Defendant for seven years. He was terminated from employment on 2nd October 2014, after he was arrested and charged with stealing of fuel. The reasons given for termination of employment is for stealing
fuel belonging to the second Defendant.
36. The Employment Act 1978 provides for minimum terms of employment. The evidence shows that the Plaintiff was employed under an oral contract of service.
He was summarily dismissed. Summary dismissal of employment is provided for under section 36 of the Employment Act.
37. Section 36(1) reads:
GROUNDS FOR TERMINATION OF CONTRACT.
(1) An employer may terminate a contract of service without notice or payment instead of notice–
(a) where the employee–
(i) wilfully disobeys a lawful and reasonable order; or
(ii) misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties; or
(iii) is guilty of a fraud or dishonesty; or
(iv) is habitually neglectful of his duties; or
(v) is imprisoned for a period exceeding seven days; or
(vi) is continually absent from his employment without leave or reasonable excuse; or
(vii) is convicted of an offence or contravention of this Act or any other law relating to employment; or
(b) on any other ground on which he would be entitled to terminate the contract without notice at common law.:
38. The law on termination of simple employment contract is settled in this jurisdiction. In Ruhuwamo v PNG Ports Corporation (2019) N8021, Thompson J said this at paragraph 17-19 of her judgment:
“Relevant Law
39. The allegations against the Plaintiff were theft of fuel the property of the second Defendant and falls under section 36 of the Employment Act. The Plaintiff submits these allegations were not proven and remain mere allegations.
40. The Plaintiff submits he is innocent of the allegations of theft and the termination of employment is unlawful. The Court notes the submissions of counsel for the first and second Defendants that the Plaintiff walked off the job after he was charged and not terminated. However, the Defendant’s submissions are not supported by evidence. Rather, the Plaintiff was summarily terminated from employment without notice and payment in lieu of notice. Without repeating the findings in the preceding paragraphs, I find there is no evidence that the Plaintiff was involved in the alleged theft of the fuel. In the absence of rebuttal evidence from the first and second Defendants I find the termination of employment by the first and second Defendants is without cause and is therefore unlawful.
41. The first matter to be determined is whether the Plaintiff is entitled to any damages for unlawful termination of employment.
42. What then is the remedy for unlawful termination? The law is settled on unlawful terminations. Her Honour, Thompson J, stated the law in Saki v Kangleon (2019) N 7860 at paragraph 26 of her judgment:
“The law on unlawful termination is well settled. An employee who is unlawfully terminated, will receive as damages the amount which she would have been entitled to receive if she had been lawfully terminated. (See Pama Anio v Aho Baliki (2004) N2719, The Central Bank of PNG v Gabriel Tugiau (2009) SC 1013 and William Maninga v Ramu Sugar Ltd (2010) N4118). In order to receive damages, any actual loss and damage must be clearly pleaded with particularity, and then established by proper evidence at the hearing. If there is no proper foundation in the pleadings or no proper evidence to support the pleadings, no damages can be awarded. (See PNGBC v Jeff Tole (2002) SC 694 and Central Bank of PNG v Gabriel Tugiau (supra).”
43. It is clear, the only remedy available for unlawful termination of simple oral contracts of employment is for outstanding entitlements. In the present case, the evidence shows the Plaintiff was paid all his entitlements inclusive of long service and leave pay on 17th December 2015 and there is nothing outstanding. The Plaintiff has confirmed receiving his entitlements and therefore I will make no award.
46. The Court notes, the Plaintiff has sufficiently pleaded his claim for damages under the various heads of damages. However, the Plaintiff must prove the allegations with credible evidence.
General Damages
47. General damages are usually awarded for pain and suffering. In Livingstone-v-Rawyards Coal Co.(1908) 5App.Cas25(HL), Lord Blackburn said:
“where injury is to be compensated by damages, in settling the sum of money to be given for damages, you should as nearly as possible get at that sum of money which will put the injured party or who has suffered in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation”.
48. This principle of law is further qualified in the case of Kinsim Business Group Inc-v Joseph Homwafi, John Kalaut & State (1997) N1634. At page 6 of his Judgment, His Honour Bidar AJ said that the principle referred to as Restitutio in Integrum is not absolute. It is qualified to the extent that the injured party gets damages which naturally arise from the wrong done, not those which are too remote.
49. The present case is an appropriate one for an award in general damages. The Court notes the Plaintiff made detailed submissions but failed to produce the necessary evidence apart from the fact that he was falsely accused and charged. The only evidentiary matter before the Court is that the Plaintiff was charged with a serious criminal charge without evidence. He went through the Court process from 1st October 2014 until 15th September 2015 when he was finally exonerated. As a direct result of the false allegations and prosecution, the Plaintiff lost his job and was without employment since termination. He he suffered emotional distress, inconvenience, and shame. His liberty was also restricted by the bail conditions. He should be compensated.
50. What is then the appropriate award for false prosecution. Any damages in monetary terms be such amounts which put the injured party in the same position as he was before the injury or loss suffered. The amount for damages would depend on the seriousness of the case.
51. In determining the appropriate amount, the Court will have regard to the following comparable verdicts:
Special Damages-K 20,97000
INTEREST
54. The Plaintiff claims interest which shall be calculated at 8% pursuant to Judicial Proceedings (Interest on Debts & Damages) Act 2015. Interest at 8% from date of Writ of Summons on K 20,000.00 amounts to K 8,580.42 which shall be awarded.
COSTS
55. The Plaintiff sought an order for cost. Cost shall be awarded to the Plaintiff on a party/party basis, to be taxed, if not agreed.
SUMMARY
56. In summary the following shall be awarded:
b) Interest K 8,580.42
TOTAL K 28,580.42.
Who shall pay the judgment sum?
57. The first Defendant made the decision to lodge the complaint to the police on behalf of the second Defendant and thus the second Defendant is vicariously liable for the actions of the first Defendant. The third Defendant is equally liable for the decision he made to charge the Plaintiff and he is equally liable. The Defendants are therefore jointly and severally liable to pay the judgment sum.
The first and second Defendants Cross Claim
58. The first and second Defendants filed a Crossclaim. They have not called evidence and made no submissions. It seems they have abandoned the claim. It shall be dismissed.
Orders
59. The Court orders that:
________________________________________________________________
Raka Sinaka: Plaintiff in person
Warner Shand: Lawyer for the first and second Defendants
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