In the Matter of the National Judicial Staff Service Appeal Tribunal; Re Leo Yanjuan [1999] PGDC 27; DC266 (29 November 1999)

DC266

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

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

V

In The Matter Of An
Appeal by Leo Yanjuan Of Maprik, West Sepik Province
Defendant

Mt. Hagen: M.M. Pupaka
1999: 29th November

Counsel
Appellant in Person
Mr. W. Hagahuno for the NJSS

M.M. PUPAKA: The Appellant has appealed against the decision of the Deputy Secretary of the NJSS dated 06/04/98. That decision was imposed on the Appellant after he was charged that ....

"You have been absent from duty without any valid reason or appropriate leave or approval for that matter from 29th to 31st December, 1997, and from 2nd January 1998 up until now."

The charge is dated 2nd February 1998 so the last act of absence referred to in the charge began on the 02/01/98 and continued up to 02/02/98 and possibly longer. The decision imposed after the charge was found to have been sustained reads:

"*Demotion to next salary level.

*Further warning that any re-occurrence of such or similar act

will attract a much severe penalty".

The Appellant’s notice of appeal is based on excessive severity of penalty. The Appellant refers to having already received punishment (of sorts) in being put off the pay for four (4) consecutive paydays.

On the appeal, I am satisfied the Appellant was allowed every opportunity to reply to the charge, which the Appellant did. The Appellant seems to have admitted the charge. He attempted to justify his acts of absences by saying he was not paid HDA for a acting stint as Clerk of Court during the Clerk of Court’s leave of absence. He also says he was in debt to his bank during his own absences from work, due to which fact he found he was unable to pay his fares to work.

However, I find that those were not valid reasons for being absent from work and his financial situations are matters rightly within his own control. He can only have been presumed to have been incompetent in the discharge of his duties by failing over and in matters within his own control. I would accept that that was the conclusion reached by the Deputy Secretary on the material before him. In this appeal I should find that to be the case. The Secretary, through his Deputy Secretary, can only have accepted the misconduct warranted the penalty that was imposed. For that reason I am unable to detect any merit in this appeal, and consequently I would not disturb the Secretary’s decision.

Appellant says he was not paid on four (4) consecutive pay periods. First of all I am unable to find that as a matter of fact mostly due to there being not one scrap of evidence on this. The Appellant does not say which pay periods he was not paid.

Secondly the Clerk of Court at Maprik does refer to the Appellant being suspended without pay. Even though the Clerk of Court means, by his memo dated 03/03/98 – Annex "D", to request for the appellant to be put back on pay and limit the Appellant’s penalty to the period of suspension without pay, the Clerk nonetheless refers to the appellant being absent from work for 12 working days. The Clerk also does not say which or during what period the Appellant was suspended without pay.

Therefore, I am unable to conclude during which period the Appellant was suspended from work without pay. It is at least clear the Appellant was absent from work from 02nd January 1998 to at least 02nd February 1998, the day he was charged. The appellant has not challenged this so I would accept that he was absent during those times and, as I said, possibly longer. That means the Appellant was absent from work for the whole of January 1998 – a duration of two pay periods. Now the Clerk of Court at Maprik by his memo dated 03/03/98, says the Appellant resumed duties on the 20/01/98 at 7.45 am. If what the Clerk of Court says is correct the Appellant ought to challenged the truth of the disciplinary charge. However, he did not. He conceded the charge.

Then again if the Appellant was suspended without pay for two pay periods, that fact is not on record. However not that it matters in any significant respect. A suspension without pay is simply that. An officer under suspension is not working for the employer, in this instance, the NJSS, during the suspension period. And if he/she is suspended without pay he/she can not later ask for any pay that he/she has not worked for or earned. The discretionary power to suspend an officer with or without pay is simply that – a discretionary power that belongs by law to the CEO of the employing authority, in this instance, the Secretary of the NJSS and his delegates.

What all that means for the appellant in this matter is that, once again, I can not be satisfied the Appellant was not paid for any days worked. It does seem he may have been suspended without pay if reliance were to be placed on the Clerk of Court’s, (at Maprik), assertion. But more importantly the Appellant has not worked for the NJSS for a month and possibly more. Either by reason of suspension or absence, if a worker does not put in any work for the employer, the worker must expect to both, not getting paid, and also expected to get penalised with a dismissal from work if a charge preferred against him is sustained.

In this instance the Appellant can expect to miss two (2) fortnight’s pay for being absent from work for that long. He can also expect not to be paid if he was suspended without pay whilst a charge was pending. Which pay periods the Appellant refers to, as to whether those were during his absence or while he was under suspension is not clear so no conclusion, one way or the other, can properly be reached by this Tribunal.

However, the Appellant may be saying he worked and for which work he did not get paid. If that is so this Tribunal can only say the appellant ought to follow that up with the NJSS salaries people to sort that out. If it is the Appellant’s argument that he was both not paid for work done (pay rightly due to him) and penalised with a demotion there is no evidence of that being the case. The Notice of Decision clearly spells out what the Secretary’s punishment imposed on the Appellant was and I can not read anything into or out of that Notice of Decision. The Appellant was never penalised with any fine, pay cut or any such penalty. He got demoted to the next (lower) salary level available against his position.

Before I leave off I would like to refer to one aspect of the law generally, which aspect most if not all workers, especially within the NJSS, are not fully aware of in an Appeal situation. When a penalised member of the NJSS lodges an appeal against the Secretary’s decision, whether it be on the grounds of innocence or excessive severity, the appellant risks being imposed with a higher range of penalty. For instance in this case the Appellant was demoted to the next salary level (lower). He has appealed against that saying that penalty is excessively severe. I have already said I find nothing wrong with the penalty under the circumstances, however if I were to find that the Secretary was overly or otherwise lenient, I would impose a higher penalty against this Appellant, even recommend to the Judicial Council for the Appellant to be dismissed. This Tribunal has such powers under the NJSS Act 1987, Section 19(2)(b). Nonetheless, having detected nothing wrong with the penalty imposed I confirm the Secretary’s decision and dismiss the appeal.

In Person: Complainant
W. Hagahuno: Defendant