N11478
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 1267 OF 2015

BETWEEN
JOSEPH POMAH
 Plaintiff

AND
MARTIN BIGIGIEN 
First Defendant

AND
PNG POWER LIMITED 
Second Defendant

WEWAK & WAIGANI: MAKAIL J
4 AUGUST,  1, 12 SEPTEMBER 2025  
 
LIABILITY – Breach of contract of employment – Unlawful termination of employment – Grounds of – Abscondment from duties – Temporary relief arrangement 

ASSESSMENT OF DAMAGES – Contract of employment – Award of damages – General damages – Special damages – Measure of damages – Damages awarded for period of notice – Three months’ notice

Cases cited
Porgera Joint Venture v Robin Kami (2010) SC1060

Counsel:
Mr O Dekas, for plaintiff
Mr S Gor, for defendants 

JUDGMENT 

1.	MAKAIL J: This is an action for breach of contract of employment whereby the plaintiff alleges that he was unlawfully terminated from the position of Senior Installation Inspector by the defendants on 14 November 2014.

2.	The plaintiff tendered the following:

	(a)	his affidavit sworn and filed on 19 March 2018 – exhibit “P1”; and

(b)	his affidavit sworn on 2 September 2018 and filed on 5 September 2018 – exhibit “P2”.

3.	The defendants tendered the following:

(a)	affidavit of Derrick Dusava sworn and filed on 20 September 2016 – exhibit “D1”; 

(b)	affidavit in support of Bustin Joseph sworn on 7 April 2017 and filed on 10 April 2017– exhibit “D2”;

(c)	affidavit in support of Joe Wanu sworn on 28 July 2018 and filed on 30 July 2018– exhibit “D3”;

(d)	affidavit in support of Bustin Joseph sworn on 25 July 2018 and filed on 30 July 2018– exhibit “D4”;

(e)	affidavit in support of Collin Koi sworn on 5 August 2022 and filed 10 August 2022 – exhibit “D5”; and

(f)	affidavit of Mozo Lavison sworn on 17 March 2023 and filed on 20 March 20123 – exhibit “D6”.

3.	I have read these affidavits and find that the plaintiff was employed by the second defendant as its Senior Electrical Installation Inspector (Grade 8) pursuant to a contract of employment dated 30 January 2014 (“contract”).  The term of the contract is three years.  The plaintiff’s place of work is Wewak.  

4.	Clause 5 of the contract provides:

“The Contract Officer shall serve PNG Power in the job and capacity as specified in item 2 of Schedule A and in such other capacity and at such location as determined by PNG Power from time to time.”	

5.	On 19 June 2014, five months into the contract, pursuant to clause 5 of the contract, the plaintiff received a circular from the first defendant advising him to take up the position of Senior Inspector at Kokopo on a relieve arrangement basis.

6.	The defendants issued to the plaintiff a return airline ticket on Air Niugini to Kokopo departing Wewak on 30 June 2014 and return on 20 July 2014.  

7.	The plaintiff departed Wewak for Kokopo on 30 June 2014.  He commenced the temporary relief work in Kokopo and return to Wewak on 20 July 2014.  

8.	On 15 August 2014 the Regional Manager of New Guinea Mainland of the second defendant wrote to the plaintiff and served a notice of abscondment from duties.  The notice informed him that he was not at work in Kokopo.  Subsequently, the plaintiff was put off the payroll commencing on 24 August 2014.  

9.	On 27 August 2014 the plaintiff wrote to the defendants explaining why he returned to Wewak.  His understanding of the direction to go to Kokopo was for 
temporary relief work.  When 20 July 2014 came, he returned to Wewak using the return airline ticket.  

10.	On 20th November 2014 the defendants wrote to the plaintiff advising him that he was terminated effective on 22nd August 2014.  Despite numerous attempts to get the defendants to reverse their decision to terminate him, they did not.  

11.	Meanwhile, the plaintiff was living in the defendants’ provided accommodation.  When he was terminated, he did not vacate it.  Instead, when the defendants asked him to vacate it, he obtained an interim injunction from the National Court on 9 September 2018 and stopped the defendants from evicting him from the accommodation.

12.	The plaintiff’s counsel submits that the plaintiff’s termination is unlawful because it is in breach of clause 5 of the contract in that, the plaintiff complied with the defendant’s direction based on the circular dated 19 June 2014 by taking up the temporary relief work in Kokopo on 30 June 2014 and returned to Wewak on 20 July 2014.  Accordingly, there was no basis for defendants to assert that he was at fault in not remaining in Kokopo beyond the date of his return ticket.  

13.	The defendants submit that the plaintiff was directed to return to Kokopo at his own costs because his returning to Wewak on 20 July 2014 was without their approval.  When he refused to return to Kokopo, he was terminated.  

14.	I note that clause 5 is expressed in clear terms.  It follows that the second defendant has discretion to direct the plaintiff to serve in another capacity and at another location from time to time.  In this case, the second defendant directed the plaintiff to serve in Kokopo on a relief arrangement basis.  The plaintiff was issued a return airline ticket to Kokopo.  The return date from Kokopo was 20 July 2014.  

15.	However, the circular does not state when the temporary relief arrangement will end.  Relying on the return ticket, the plaintiff returned to Wewak on 20 July 2014.  Given the absence of when the temporary relief arrangement in Kokopo will end, it was open to the plaintiff to return to Wewak on 20 July 2014.

16.	On the other hand, there was no legal basis for the defendants to direct the plaintiff to return to Kokopo at his own costs.  Further,  for the foregoing reasons, I uphold the plaintiff’s submissions and find that the plaintiff’s termination from the second defendant’s employment is unlawful.  

17.	Accordingly, judgment on liability is entered against the defendants.

18.	As to damages, the plaintiff seeks general damages, special damages, interest and legal costs.  For general damages, his counsel submits that he should be awarded a sum of K22,000.00 to compensate him for the financial hardship, anxiety and stress because of his termination from employment.  

19.	The counsel for the defendants did not make any submissions in response to the award sought by the plaintiff.  However, I note from exhibit “D6” the witness’s account that the plaintiff is employed by Newcrest-Lihir following his termination from the second defendant.  

20.	The plaintiff does not contest this account.  Accordingly, I am satisfied that the plaintiff has obtained an alternative employment and has mitigated his losses.  In addition, he did not tender any medical report to show the extent the loss of employment has done to his health and loss of support to his children’s education.  For these reasons, he will be awarded a sum of K5,000.00 for financial hardship, anxiety and stress. 

21.	For special damages, the plaintiff’s counsel submits that the plaintiff should be awarded a total sum of K352,708.00 comprising of lost salaries, lost housing allowances, lost leave fares and lost motor vehicle allowances.  

22.	On the other hand, the counsel for the defendants submit that based on the law and reinforced by the Supreme Court in Porgera Joint Venture v Robin Kami (2010) SC1060, the plaintiff is entitled to an award of damages for period of notice.  

23.	According to clause 4 of the contract which states that “PNG Power will give three (3) months Notice to the Contract Officer to terminate this Contract and likewise the Contract Officer will give PNG Power three (3) months Notice to terminate this Contract …..”, the defendants submits that the plaintiff is entitled to a three months-notice and should be awarded a total sum of K16,466.39.

24.	I uphold the defendants’ submission that the plaintiff will be awarded damages based on period of notice which was adopted by the Supreme Court in Porgera Joint Venture (supra).  In this case, according to clause 4 of the contract, the period of notice to terminate the contract is three months.  Adopting the base salary of K65,865.56 per annum divided by one month gives K5,488.79.  For three months is K16,466.39. I award this sum.  

25.	Finally, as damages for breach of contract is restricted to a period of notice, the plaintiff’s submissions for an award for lost housing allowances, lost leave fares, and lost motor vehicle allowances are refused.  

26.	On the other hand, the defendants make a submission that the sum of K16,466.39 as damages for loss of employment be set off against the plaintiff’s occupation of the accommodation because clause 13 of the contract does not give the plaintiff the right to claim lost housing allowance if he has been provided accommodation. I dismiss this submission because the plaintiff has the benefit of the interim injunction and until it is set aside or discharge, the plaintiff is entitled to the accommodation. 

27.	As to interest, I award it at the rate of 8% on the total judgment sum of K21,466.39 (K5,000.00 + K16,466.39) from the date of issue of writ of summons to date of final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

28.	Finally, as the successful party, I order the defendants to pay the plaintiff’s costs of the proceedings, to be taxed, if not agreed.
  
29.	The final terms of the order are:

1.	Judgment on liability is entered against the defendants.

2.	Judgment is entered against the defendants in the total sum of K21,466.39.

3.	Judgment is entered for interest at the rate of 8% on the total judgment sum of K21,466.39 from the date of issue of writ of summons to date of final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

4.	The defendants shall pay the plaintiff’s costs of the proceedings, to be taxed, if not agreed.
________________________________________________________________
Lawyers for plaintiff: Ogenson Lawyers	
Lawyers for defendants: Gor Lawyers