In the Matter of the National Judicial Staff Service Appeal Tribunal; Re Ronald Erich and Ealu Favave [1999] PGDC 24; DC267 (8 November 1999)

DC267

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

In The Matter Of The National Judical Staff Service Appeal Tribunal Pursuant To Section 18 Of The National Judicial Staff Service Act 1987
Complainant

V

In The Mattter of Appeal By Ronald
Erich; And Ealu Favave, Both of Waigani
Defendant

Mt. Hagen: M. Pupaka
1999: 05th & 8th November

Counsel
The Appellants in Person
Mr. W. Hagahuno for the NJSS

M.M. PUPAKA: Both these two Appellants have appealed to this Tribunal against their respective penalties imposed on them by the Secretary. I will deal with their appeals together as their grounds of appeal are similarly grounded, on innocence, and their respective charges relate to absentees from work.

The Appellant Favave Ealu was charged that he had absented from work on the dates 24th, 15th, 16th, 22nd, 23rd and 27th of July 1998, and then from 8th to the 13th of August 1998 without approved leave or any valid reason. The charge is dated 27/11/98.

The Appellant seems not to have replied to this charge. The Secretary, through acting Deputy Secretary, Mr. Humphrey John, then "terminated" the Appellant from the NJSS on the bases that the charge was not contested and therefore the charge was borne out as laid. The only problem with that Notice of Decision is that the Secretary though his delegate has attempted to "terminate" the Appellant instead of recommending dismissal to the Judicial Council, (per Section 16 (5)(e) of the NJSS Act 1987). However, not that it matters in any significant sense. The Secretary can only have recommended dismissal. He has no authority to dismiss or terminate outright, and despite the wording of the Notice of Decision, the effect of the finding on the charge and the subsequent decision after the finding can only be accepted to be only one thing: That the Appellant be dismissed from the NJSS by the Judicial Council.

On the appeal the Appellant has raised the issue of innocence. He has said he had lawful reasons for being absent for all those days he was accused of being absent from work. He says the days 8th and 9th of August, 1998 are his off days. He says he had to go to his home for a funeral and burial on the 14th, 15th and 16th of July 1998. But before he departed he advised his supervisor. He then says he was injured while he was at home for the funeral and so upon arrival back at work he had to obtain leave to go to the hospital. That was from 22nd to the 27th of July 1998. Then from the 8th to the 13th of August 1998, he was also on leave due to medical reasons. He say the 8th and 9th of August 1998 were his off days so he was not absent for those days.

The appellant has produced two (2) Duty Roaster Sheets and two (2) Medical Reports for the purposes of this appeal. Unfortunately I can not accept and consider these extra materials. The Appellant was charged and asked to reply. He had ample opportunities for doing just that. He was obliged to provide these materials to the Secretary upon being charged. He chose not to do that. The only materials before the Secretary, or rather the Secretary’s delegate, were some five (5) memos from the Appellant’s Supervisors, over a period of time, to the Appellant’s Section Head – Deputy Sheriff – either notifying or complaining of the Appellant’s habitual absences and work attitude.

Worse of all there is no leave forms that the Appellant signed or filled to be absent from work. The Appellant clearly recalls not filling in any leave forms. The nature of his employment with the NJSS was as a Security Guard. That means the Appellant is rostered for duty with others. In the event that he is absent, and his absence is approved, others are called to fill in for him to guard court property and premises. When the Appellant and indeed others like him, take off without leave, Supervisors just can not know to make alternative arrangements. The point is that security guards can not just knock off without approved leave.

In the end, I find nothing wrong with the Secretary’s view that the Appellant can not remain in the NJSS as a security guard. The reason is simple. He is just too plain unreliable and that is just that. There was enough evidence before the Secretary to warrant the penalty of recommendation for dismissal and the Secretary’s discretion should not be disturbed. I can only make the recommendation that Humphrey John, for the Secretary, did not make, by making that recommendation to the Judicial Council, for the Appellant to be dismissed form the NJSS.

The Appellant Ronald Ericho was a probationary officer in the NJSS. He had been initially an Officer in the NJSS. He had initially worked for NJSS and then resigned of his own accord. Then, as it seems, he was re-employed. All those dates are not certain but the fact that he, after re-employment, was absent from work for 10 (ten) months is at least certain.

The appellant says he was suspended from work and then no one saw to it that he was informed to return to work, hence the lengthy absence. He seems to be quite sincere in saying this. However ten (10) months is not ten (10) days or ten (10) weeks, the Appellant should have queried of his situation at least once. I find it surprising that he did not attempt to find out the out come of this alleged suspension with anyone. For a Probationary Officer that he was the appellant seems to have taken too much for granted – that a job was still waiting for him if and when he went back. Predictably he has learnt different.

However all that is probably unconnected with the charge that was laid. The Appellant was charged, on the 06/06/998, with the charge that he had ............ "constantly been absconding duties every Thursdays of each pay days".

To that charge the Appellant never replied. He, in this appeal, admitted not replying to the charge. He gives no explanation for not replying to the charge.

Then on the 23/06/99 the acting Deputy Secretary notified the Appellant that he was terminated from employment in the NJSS. The reasons given were that basically he had been absent without leave for 10 months as I alluded to above. The Acting Deputy Secretary considered that the appellant had basically terminated himself from employment.

The Appellant has raised the issue of innocence in this appeal. However, I do not deem it of any consequence to consider the reason advanced. What seems all too clear is that the Appellant was a Probationary Officer. He had not yet quite become an officer in the NJSS. He had not filled out and subscribed to the oaths and affirmation required by the NJSS Act 1987, (Section 12). He was then charged with a charge, which to this day, as it seems, remains undetermined.

By law, under the NJSS Act 1987, the Appellant can not avail himself of the NJSS appeal provisions. Those such re-courses are for those who are "officers" in the NJSS, which officer the Appellant is not – not just yet. However this is not to say the Appellant’s treatment at the hands of the NJSS is in any way unfair. I can only agree that the acting Deputy Secretary was not too far off the mark when he informed the Appellant that the latter had terminated himself from employment.

Ergo I dismiss the Appellant Ronald Ericho’s appeal and confirm the Secretary’s decision dated 23rd June 1999. I further point out that there are no Legal bases to recommend dismissal of this Appellant, either by the Secretary, or this Tribunal, to the Judicial Council.

In Person: Complainant
W. Hagahuno: Defendant