Section 36 of the Employment Act (Chapter 373) is symmetrical: it gives grounds to the employer and matching grounds to the employee. Both sides can walk away without notice in the situations it specifies.
Section 36(1) — the employer’s grounds
(i) wilfully disobeys a lawful and reasonable order;
(ii) misconducts himself by an act or omission inconsistent with the due and faithful discharge of his duties;
(iii) is guilty of fraud or dishonesty;
(iv) is habitually neglectful of his duties;
(v) is imprisoned for a period exceeding seven days;
(vi) is continually absent from employment without leave or reasonable excuse;
(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 without notice at common law.
Several of the grounds carry a threshold that is easy to miss:
- “Wilfully” disobeys, and the order must be lawful and reasonable. Refusing an unlawful or unreasonable instruction is not ground (i).
- “Habitually” neglectful — a single lapse is not enough.
- “Continually” absent, and without leave or reasonable excuse. One absence, or an absence with a reasonable explanation, does not qualify.
- Imprisonment must exceed seven days.
Section 36(2) — the employee’s grounds
(i) induced him to enter the contract by force, fraud, or a statement misleading in any material particular relating to the employment;
(ii) has been convicted of an offence against or contravention of this Act or any other law relating to the employee or his dependants;
(iii) has been negligent or careless in the discharge of his duties towards the employee or his dependants under the contract, this Act or any other law;
(iv) has committed an act or omission inconsistent with the due and faithful discharge of his obligations towards the employee or his dependants; or
(v) has ill-treated the employee;
or (b) on any other common law ground.
An employee who leaves because of ill-treatment, or because the job was misrepresented at recruitment, or because the employer has failed in its duties to the employee’s dependants, is not simply abandoning employment. Section 36(2) makes that a lawful termination without notice.
Note how often the subsection refers to dependants. Obligations under the Act on repatriation, housing, rations and medical treatment extend to accompanying dependants, and a failure there can found a section 36(2) termination.
Section 36(3) — as soon as practicable
Termination under subsection (1) or (2) shall be made as soon as practicable after the happening of the event on which the termination is based.
This is a real constraint on both sides. An employer who learns of misconduct and does nothing for weeks — keeping the employee at work, perhaps to finish a job — may be unable to rely on it later. The same applies to an employee who continues working long after the ill-treatment or the discovery of a misrepresentation.
Where an investigation is genuinely needed, “as soon as practicable” allows time for it — but the employer should be able to show what was being done and why the time was reasonably required.
Process, and what the section does not say
Section 36 states grounds. It does not itself prescribe a hearing. But two things bear on process:
- the employer must be able to prove the ground if it is challenged — which in practice means investigating, putting the allegation to the employee, and recording the response; and
- where a public authority is the employer, the principles of natural justice under section 59 of the Constitution apply to the decision.
- Identify the ground in section 36(1) precisely.
- Investigate promptly and record what is found.
- Put the allegation to the employee and record the answer.
- Decide and act as soon as practicable.
- Confirm the termination and the ground in writing.
- Deal with final wages, final pay, and any repatriation obligation.
Section 36(4) — the Industrial Relations Act is not excluded
This Act does not prevent termination of a contract of service under this section being the subject of an industrial dispute under the Industrial Relations Act.
So a dismissal that is lawful under section 36 can still become an industrial dispute. That is a separate process with its own machinery, and for unionised workplaces it is often the practical route. See the Industrial Relations Act in the PacLII 1986 Revised Edition, read with the amending Acts of 1991 and 1998.
Section 37 — obligations on termination of an attested contract
Where an attested contract is lawfully terminated, the employer must comply with Division 7 — the repatriation provisions — and with the other requirements section 37 specifies. Lawful termination does not end the employer’s obligations.
If you are dismissed summarily
- Ask for the ground in writing.
- Check it against the section 36(1) list — and against the thresholds: wilful, habitual, continual, more than seven days.
- Check the timing. A long delay between the event and the dismissal engages section 36(3).
- Collect your records — the contract, payslips, any warnings, and the dates.
- Claim what is owed — wages to the date of termination, accrued recreation leave, and any repatriation entitlement.
- Consider the industrial route under section 36(4) as well as a court claim.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Employment Act (Chapter 373) — ss 33–37; Part III Divisions 6 and 7
- Industrial Relations Act — PacLII 1986 Revised Edition
- Constitution — s 59
- Porgera Joint Venture v Kami [2010] PGSC 11; SC1060
- Murua v Ramu Nico Management (MCC) Ltd [2013] PGNC 28; N5092
- Tawa v Mainland Holdings Ltd [2020] PGNC 469; N8727
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.