Napo v Melange [2004] PGDC 45; DC340 (2 April 2004)

DC340

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO1 OF 2003

BETWEEN

JAMES NAPO
Appellant

v

DAVID MELANGE
First Respondent

COMMISSIONER
CORRECTIONAL SERVICE
Second Respondent

OLI: Chairman – CS Appeals Tribunal
2004: January 7, 30; February 5, 20; April 2

Counsel
Appellant in Person
Mr Chris Waiange for Respondents

REASONS FOR DECISION

OLI – DCM: The Appellant Mr James Napo appeals from a decision of the Commissioner of Correctional Service to accept the Disciplinary Board’s recommendation to dismiss him from employment as a warder with the Correctional Service of Papua New Guinea. The Disciplinary Board recommended for the Appellant’s dismissal after having found him guilty of a disciplinary charge pursuant to Section 39 (b) of the Correctional Service Act 1995, in that the Appellant was absent from duties continuously for a period of seven (7) months 18 days without lawful excuse.

GROUNDS OF APPEAL

The appellant advances, in my view, only one legal ground of appeal pursuant to Section 44 (1) of Correctional Service Act, namely, that the penalty of dismissal was excessively severe. The Appellant, however, tried to address other peripheral issues to justify his own action but at the same time to show how he felt about the Disciplinary Board’s failure to accord him a fair hearing and made reference to the following to demonstrate that, had the Disciplinary Board address their mind to the following relevant generic considerations, the decision would not have been recommendation for dismissal from Correctional Service to the Correctional Service Commissioner. The submission in support are as follows:

1. Lack of proper consideration

The Appellant claims that Board has failed miserably to properly ascertain and consider the circumstances surrounding the nature of his burden of welfare and marital problems. The Board did not even go to the extent of closely examining the contents of his statement. The Board, in his view, has even failed to imagine the very extreme of extreme distress, pressure and frustration that he was going through, so that would have been sufficient to give the Board a clear picture of understanding of his case before drawing the conclusion of dismissal recommendation. The fact is that this world encompasses problems and man will never escape the problem, to which he was no exception.

There is no legal basis for this argument, nor is there any supporting evidence that Board did lack proper consideration. However for Board to do so would be to open the floodgate of such behaviour, especially those in excess of a month or a shift is bad enough. This required shift supervision to find substitute to maintain the normal security strength at all sections of the institution. Thus, prolong absenteeism with no lawful excuse had direct and threaten the maximum security strength, thus ought to be viewed as a serious matter and one that calls for serious consequences. The Board in their final deliberation did take that view and recommended accordingly.

2. Attempts made to resume at Bihute have failed

The Appellant further claimed that the Board did not have mercy to consider and award some leniency in his favour on his unsuccessful attempts to resume duty at Bihute. The Appellant alleges that due to non-ethical job differences of the local Goroka warders and their boss, he was unfortunately been victimised by the bad working environment situation at that time.

Whilst this submission is sound and reflect, at least the best intentions of the appellant to get back to work early by trying to resume duty at Bihute. But such attempt was unsuccessful and that is about all he did and nothing more.

There was no attempt at all on his part to get back to Bomana nor attempt to contact Bomana of his prolong delay to return to Bomana.

Whilst the reason behind this submission is sound, it lacks real action on his part to bail himself out from the circumstances he trapped himself under.

3. My conscience was robbed off

The Appellant submitted that his ability was tested with the very extreme of the extreme distresses, pressure and frustration as one main factor, which has distorted his brain; as a consequence the good conscience in his mind was robbed off. Though that was clearly explained in his statement for the Board’s perusal, Appellant claims that, that must have been brushed aside. The Appellant believes that the mind lost was the main reason for not seeking proper avenues for redress.

In his view, the Board has failed to assess the significance of the said issue and this, he thinks, appears to indicate the Board’s weakness.

This submission sounds very academic but lacks expert evidence from accredited psychologist to give such view and opinion in the circumstances of the appellant when he first complained of such a mental syndrome or disorder as referred to as robbing of his conscience.

4. My apologies not valued

In his statement and also during his verbal submissions he re-iterated that the mistake was the first of its kind in his career as a warder. He humbly and sincerely submitted his apology to the Commanding Officer, the Board members and the Department for the mistake he made.

He also claimed that he begged the Board to show mercy, since he had not disappointed the Board by denying the allegation. The open Court (District, National and Supreme Courts) do favour and show mercy on those first time offenders, who made plea of guilty in the Court. The Appellant felt confused as to why his plea was ignored thus leading to, in his view, breaches of natural justice.

This submission in my view would be of any persuasive value, if appellant has a clean and unblemished employment track record.

The appellant’s employment track record on file before this serious disciplinary charge reveals record of two previous absenteeism. The first absenteeism charge was laid under S. 44 (1)(a) of Correctional Service Act on 11/10/01 and fine imposed was in the sum of K100.00. In 2002, appellant has a record of unexplained absent from duty on two shift periods to wit: (1) 25th – 29th May 2002 and again; (2) on 1st – 12th June 2002 respectively.

The appellant did not challenge the two previous record of absenteeism, thus, only confirms the obvious outcome the Board took in this case, in view of the unprecedented unauthorised absent from duty from 25th May 2002 to and including 13th January 2003, a total period culminated into seven (7) months and 18 days altogether.

5. Breach and abuse of procedures

The Appellant felt that quick conclusion of recommendation by the Disciplinary Board for his termination was premature and branded it as childish. In his opinion he viewed the Board had abused the process because they should first consider reprimanding or imposing a monetary fine as penalty for such a behaviour. The appellant alluded to some of the alternative punishment the Board should have considered. However, Appellant conceded that repeated behaviour of the same breach again, would then require the Board to recommend dismissal. In Appellant’s opinion, failure thereof is indeed a breach of procedures, thus amount to denial of his natural justice.

The proposition by appellant is quite contrary to his own reasoning process. The absenteeism, in his case, is not the first time that he had committed. This offence was committed twice before this charge. Thus, breach and abuse of process submission, do not, in my view, assist him at all.

6. Reasons neither fictional nor manufactured

The Appellant claims that his defence reasons are neither fictional nor has been manufactured to defend the allegation. He admitted that welfare and marital problem was on-going for a long period. The Appellant made specific reference that big senior officers at the Headquarters were aware of it as well as Bomana Gaol too. The attached court documents are proof to that problem. To start of with, there is a record of Court Order attached in this appeal. The Court Order referred to a adultery case made on 6th March 2002 against the appellant and co-accused. One might ask what this got to do with absenteeism charge? I have no difficulty, however, with such reference to such Court Order as they only confirm the marital problem you complained of, and thus going towards to confirm the period you absent yourself from duty as referred to as "unauthorised" leave. I agree that facts pertaining to adultery and absenteeism are real and therefore neither fictional nor manufactured. But this are facts that only explain your prolong absence from duty, but they do not, in any way legitimise your prolong absence from duty without proper authorisation.

The Tribunal having addressed your conceivable grounds of appeal and reasons pertaining to your deserting the Institution which resulted in the unauthorised leave taken for a total period of seven (7) months 18 days from 25th May 2002 to and including 28th June 2003 is indeed a relatively abnormal and unacceptable period of leave without proper authorisation.

I view your reasons for desertion the institution is more personal and the reasons are quite self-centred and self-inflicted to say the least. Your personal life and who you want to bring into your life, apart from the first marital relationship is your personal choice and how you manage it is entirely your business but with one exception. So long as your conduct and choices do not impact or conflict with the Institutional interest and its global mandate to maintain and provide proper security at Bomana Gaol Institution.

In your case, you have a marital problem here in Port Moresby and that results in adultery charges being laid against you and your co-partner of which you and your co-partner were found guilty as charged and ordered to pay K500.00 each as compensation.

After this, I note that your personal focus shifted from your marital problems or challenges to that of your only son from your first relationship because, he was sent away to your de facto wife’s relatives to her village in Eastern Highlands Province – where you also come from. This was done without your permission. You choose to go home and hope to bring him back, presumably in June 2002. You did, but you under estimated the magnitude and enormity of the challenge you were committing yourself into. It turned out that you could not resolve the problem with your de facto wife’s relatives and families until you engaged Police assistance in January 2003. You eventually returned with your son to Bomana with financial assistance from your cousin brother who fork out your return air ticket to Port Moresby.

You were effectively away from duty from 25th May 2002 to 13th January 2003, an unauthorised leave of absence for a period of 7 months 18 days is a serious matter. I view such a conduct is a serious matter because, such an attitude to work results in uncaring attitude to professional duty transcend into unauthorised prolong period of absence. This very attitude undermined and threatened the safe and secure internal security for the prisoners at the institution because it affects the manpower in any one shift in a roster. As a Warder, the appellant knows that safe and secure containment of prisoners is the paramount interest to Correctional Service and Bomana Gaol is no exception. The general public rightly demands that. Walking off from duties without notice, permission or any other manner of lawful excuse is simply unbecoming of a Correctional Service personnel, not to mention the prolonged period of absence. The same is true in any other employment situation whether in the Public or the Private Sector.

It is indeed an undisputed fact that your unauthorised absence is particularly aggravated by the fact that it was a prolonged one that culminate into aggregate figure of 7 months 18 days altogether.

The tribunal view your conduct of prolong absence from duty without proper authorisation is indeed a serious matter and a serious concern to Institutions internal security. As such tribunal could not find otherwise and differ from the Board’s decision and its recommendation to Commissioner Correctional Service for your dismissal.

The tribunal dismiss the appeal in its entirety and confirms Board’s decision and its recommendation to Correctional Service Commissioner. Parties to meet their own costs.

The Tribunal orders accordingly.

In Person: Applicant
Mr Chris Waiange: Respondent