In the Matter of The Harbours Board Disciplinary Appeals Tribunal; Gwaitep v Harbours Board and Tomutnaram [1994] PGNC 16; N1309 (12 September 1994)

Unreported National Court Decisions

N1309

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 50/94
IN THE MATTER OF THE HARBOURS BOARD DISCIPLINARY APPEALS TRIBUNAL
AND
JIMMY GWAITEP - PLAINTIFF
AND
HARBOURS BOARD - 1ST RESPONDENT
AND
MICHAEL TOMUTNARAM - 2ND RESPONDENT

Kavieng

Doherty J
22 July 1994
12 September 1994

CERTIORARI - principles to be applied to Disciplinary Boards.

The Plaintiff sought order quashing the decision of the Respondent corporation reducing him in rank and transferring him after finding him guilty of disciplinary offences.

Held

(1) The 1st Respondent had a discretion under that part of its regulations to charge its employees.

(2) The ruling in Niggints v Henry Tokam & Others Unreported N1158 applied in principle to the Respondent but as it had not been handed down at the time of the hearing in the instant case there was not error if it was not followed.

(3) Principles of sentencing in criminal law do not apply to civil disciplinary cases but a disciplinary Board such as the 1st respondent is obliged to consider all facts concerning the individual and the case before it.

Cases Cited

Godfrey Niggints v Henry Tokam Paul Songo & The State Unreported N1158

Counsel

Mr Ousi for the Plaintiff

Mr Emilio for the Respondent

12 September 1994

DOHERTY J: The Plaintiff sues the Respondent Corporation pursuant to Order 16 of the National Court Rules for an order that the decision of the Harbours Board Appeals Tribunal made in June 1993 be quashed, a declaration that the penalty imposed by the Chairman was excessive and an order that the Plaintiff be reinstated to his original position with all entitlements as to pay etc.

The application arises out of a decision by the Harbours Board Appeals Tribunal following disciplinary action against the Plaintiff Jimmy Gwaitep.

The Plaintiff did not adduce evidence other than that stated in his supporting statement and it would appear that the facts and events leading up to this hearing are not disputed.

The Plaintiff was employed by the Harbours Board, a statutory corporation under the Harbours Board Act Chapter 264.

The Harbours Board has a Conditions of Employment Determination which sets out the powers of the Board to hire employees and provides for disciplinary action against employees who do not perform to the standards of employment set down by the Act.

The disciplinary powers include, at Clauses 123 and 124 and 125, provisions for minor and serious offences. The offences include use of intoxicating liquors to excess viz Clause 123.

“123. An officer who:

(a) ...

(b) wilfully disobeys or disregards a lawful order made or given by any person having authority to make or give it;

(c) is negligent or careless in the discharge of his duties;

(d) is inefficient or incompetent from causes within his own control;

(e) uses intoxicating liquors or drugs to excess;

(f) solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his official duties (other than his official remuneration);

(g) is guilty of any disgraceful or improper conduct either of his official capacity or otherwise; or

(h) having made or subscribed an oath or affirmation in the form of the Schedule to the Ordinance, does or says anything in violation of that oath or affirmation,

is guilty of an offence and is liable to be dealt with and punished under this Part.”

The Plaintiff was, and still is, employed by the Harbours Board and on the 15th of September 1992, he was employed at Rabaul Harbour as Assistant Port Manager. The Port Manager was scheduled to go overseas and it was the Plaintiff’s understanding that he had been recommended and was likely to be the acting Port Manager. However, this did not eventuate and another employee, lower in rank to the Plaintiff, was appointed as acting Manager.

From the Legislation and the facts before me, I am satisfied that the Respondent Corporation has a discretion to make appointments in acting positions as it thinks fit and proper for the official running of its operations.

The Plaintiff was clearly aggrieved at the decision and seems to have taken it as a personal insult. He reacted in a way that seems quite immature to me and possibly only served to confirm the Respondent Corporation’s assessment of him. On Tuesday the 15th of September, the Plaintiff was drunk and came to the office between 11.30 and 16.21 under the influence of liquor, he then phoned the Port Manager’s home and used language (the exact words are unknown) which was considered abusive and obscene to the Port Manager’s wife. He also was alleged to have been offensive to the cashier clerk in the office on that same day. On the 17th of September (which I note is the day after Independence Day which was a Public Holiday) he also came to the office at 10.00am under the influence of liquor and insulted the newly appointed Acting Manager. The following day, the 18th of September, he again was under the influence of liquor during working hours at the office. The following week on Thursday the 1st of October, he again came to the office in the afternoon between 1pm and 4.30 under the influence of liquor and again on the following day, 2nd of October 1992, he was again under the influence of alcohol and acted in a disorderly manner in front of staff and clients of the Harbours Board.

Seven disciplinary charges, one in relation to each of the foregoing incidents, was laid against him on the 26th of October 1992, that is approximately 3 weeks from the last incident and one month from the 1st. It is not suggested that the defendant delayed in taking action against the Plaintiff.

The Plaintiff immediately replied to the Board stating, inter-alia:

“in his (Regional Port Manager - Rabaul) letter to head office recommended me to be acting in his office during the period of absence. To my surprise on the 15th of September 1992 (his last day in office) he told me that another Officer would be acting in his office for the period and not me.

Being next in salary grade and also the next in line under him in this Port, you can assure how I felt and the situation I was in that day 15th of September 1992. Bearing this reason alone, I took the frustrations that far resulting in those seven (7) charges all alcohol related. (sic)

The above is my explanation for the seven (7) charges and I have also admitted to those charges as I felt the Regional Port Manager, Mr Joshua ToUna let me down after his very own recommendations.

Finally I must say and honestly admit that during these dates specified in the seven (7) charges, the Port was not busy and in fact no ships were along side or in Port.” (sic)

He also said “he did not fail to perform his duties” and took this action to “ease his feelings by having a few beers on the specified dates” and in the period “no complaints were lodged by the Boards employees or Port users.” This would appear to be an incorrect inference. The activities must have reach the notice of the Head Office in order for these charges to be instigated. He put forward points including the way he was informed of the new appointment, the fact that more senior officers were not investigated and the way the investigation was carried out. He also submitted in his view that the suspension and seven (7) charges were too severe.

His views in this letter were taken account according to the affidavits to the Corporate Secretary of the Harbours Board. Also taken into account were prior disciplinary charges against the Plaintiff in 1991. It is not disputed that the Plaintiff had been given an opportunity to present his case to the Board and did so by way of the letter I quoted in part above.

The Board considered the reply of the Plaintiff and on the 5th of December 1992 made decisions on each of the counts and fined the Plaintiff K40, on the 2nd demoted him from Grade 10 Level 5 to Grade 9 Level 7. On the 3rd demoted him further to Grade 8 Level 7. On the 4th, demoted him further to Level 6 Grade 8. On the 5th demoted him further to Level 5 Grade 8 and the 6th demoted him further to Level 4 Grade 8. On the 7th demoted him by transferring him from a Grade 3 Port to a Grade 1 Port, viz from Rabaul to Popondetta.

The Plaintiff was informed that he could appeal this decision and he did appeal the decision and it was considered at the hearing on the 28th of May 1993. The appeal and 13 pages of written submission by the Plaintiff were before the Board and considered. In that he basically says it was unfair and/or suggests that he had little time to respond to the original complaint laid against him. He also appears to challenge the facts of the charges i.e. that he was drunk or drinking but adduces no real evidence to suggest that the behaviour as stated in the charges either did not occur or was mistaken.

It is clear on the facts that the Plaintiff had an opportunity to be heard at the appeals tribunal. Before this court the Plaintiff relies heavily on the ruling of the Chief Justice (Amet J as he then was) in Godfrey Niggints v Henry Tokam, Paul Songo & The State, Unreported N1158 and submits that the penalty was oppressive as it should have been dealt with under s. 124 of the Harbours Board Rules. Counsel for the Plaintiff suggested that there should be only one punishment as the charges were laid under one section and the effect of the penalties was that he was gradually demoted in one day. He points to the first three charges and says that they all occurred on one day. It does not seem to be disputed that there are different events although two (the abuse of the Port Manager’s wife and the Clerk) were on the same day and arise out of the other charge, that is the drunkenness.

The Plaintiff points out that the Board in assessing his appeal did not give reasons for their decision. He concedes there is nothing in the Act which obliges the Board to give reasons but refers to the ruling in Niggints v Henry Tokam & Ors Supra. At page 9 of that judgement, it was stated “the statement of principle I now enunciate is that the Departmental Head who decides in his discretion on proper consideration of the Commission’s recommendation not to accept it should state the reasons for not so accepting the recommendation. It is not sufficient to dismiss the recommendation in the way the First Respondent did...” If no reasons are stated other than this kind of statement then it leaves the court with no option than to conclude there were no goods reasons at all.

Public Officials discharge public duties are required for public accountability to provide reasons for their actions and decisions. If their decisions affect substantial interests and welfare of other officers and their families then good management and common sense principles of fairness require that reasons be given.

That decision related to recommendations going from the Public Service Commission to the Commissioner of CIS concerning a CIS Officer and his dismissal. The Public Service Commission made recommendation which the Commissioner for CIS refused to accept. He gave no reasons for his refusal.

That judgment of the National Court, was not binding on the Harbours Board since they were not directly affected by the case but is of very persuasive authority as it relates to any State Institution or Corporation and enunciates principles of practice for Public bodies and their dealings with their employees.

I note that the decision in Niggints (Supra) was given on the 15th of July 1993 and the hearing of the PNG Harbours Board Appeal Tribunal which determined the Plaintiffs appeal was on the 28th day of June 1993, that is before the decision of the National Court in Niggints v Tokam & Ors. It could not have been known to the Harbours Board Appeal Tribunal nor apply to them at the time.

Whilst I consider the general principles apply, I consider it would be unfair to say that the Board breached a decision of the National Court when that court had not handed down the decision. I think there is also a distinction here between what happened in the Niggints case, where it obviously the foundation of fact was that the Commissioner had acted contrary to recommendations of two independent groups. Here the Plaintiff admitted the facts but sought to give an explanation of his past behaviour and the behaviour that gave rise to the charges.

Those explanations amount to admissions that he had been drinking in the course of his working day but not the entire working day and said that he was not “drunk and disorderly”. Hence in fact, his appeal grounds went to confirm his behaviour. So whilst I agree that the ruling in Niggints should apply to the Harbours Board, I consider (1) that they could not have been aware of it at the time as the decision had yet be made and (2) the Plaintiff gave no good reasons to show that the Board was in error in laying charges against him.

The Plaintiff says that he should have been dealt with under Clause 124 and not Clause 125, Clause 124 being the minor charges provision. I consider that the Board has a discretion under which Section it charges an employee, a parallel could be drawn on the discretion of the Prosecutor in a criminal matter. In any event, the allegations were serious and were not of a minor nature and I see no error in the decision of the Board in laying charges under the more serious provisions.

The second leg of the argument is on the punishment handed down on the Plaintiff. They were that the totality of punishment had effect of lowering the applicant by 6 grades in one day and in doing so resulted in a loss of salary and monetary entitlements which amount to reduction in his income and status. The Plaintiff says concurrent rather cumulative punishment should have been imposed.

Concurrent and cumulative sentences are principles which apply in criminal cases. This is a civil matter relating, fundamentally, to a breach of a contract, that is a contract of employment which obliges a person to act in accordance with the terms of his employment, those terms being set out in the Harbours Board Regulations.

Certainly the principles of having an opportunity to speak before a tribunal and having a fair hearing apply to a situation such as this one but I consider it would be inappropriate to transfer the principles of cumulative and concurrent sentences to a civil proceeding.

The principles which apply in criminal cases are not on a par with the Disciplinary provisions of a contract of employment. Even if I was to apply the concept of concurrent sentences to these facts what would be the outcome? Firstly, where a criminal offence or a series of criminal charges arise out of the same situation or facts, (for example in a case of fraudulent forgery and uttering, the same series of events is needed to achieve both charges), a concurrent sentence usually is imposed. Here we have separate incidents occurring on six (6) different days. It appears to me that the plaintiff was drunk on the first day. He had an opportunity, maybe with a “hangover”, to think better of it but he went ahead and got drunk on another day.

These are not same series of events all arising from the same incident. There are different events on different days when the plaintiff had more than enough time to think better of his behaviour. Hence I do not think that basic concept of concurrent sentences would apply to this situation both for reasons of law and reasons of fact.

The “totality principle” also applies in criminal cases that is where a series of sentences for different offences are imposed at the same time. The principle is that together they should not be too severe or too crushing on a person.

Here we have a situation where the plaintiff we could say was not “a first offender”. (I use the expression with care as this is definitely not a criminal situation). He had two prior incidents for which he was found to be in breach of disciplinary provisions and he does not dispute those.

The Board was therefore entitled to take a less lenient attitude to him. It appears to me in a situation such as this, he was lucky not to have been terminated.

He says as part of his grounds that there were no ships in port. That is not a reason for coming drunk to work. Lawyers, magistrates, judges could say “I have no court cases today”, that does not entitle anyone to come drunk to work.

He has conceded that he was drunk and that he was abusive. Being abusive is different from failing to do a job properly. It is a separate incident. I consider the Disciplinary Board must look at the status of the applicant or plaintiff and the facts as a whole. On the facts before me I consider that this plaintiff deliberately, on separate days, got himself into a drunken state. These are not seven incidents arising on one day. They are different days, different locations and he made a definite decision or allowed himself to get drunk on each of those separate days. For that reason I do not consider that the Board erred. I find that the Board considered his grounds which they were obliged in law and in fairness to do.

I consider that they had powers to discipline him in the way they did and, although I must say the way the punishment was pronounced looks a little odd on first reading, I cannot see that the Board erred in making their decision.

The powers of this court are only to change the Board’s decision by way of certiorari if the Board made an error either in law, equitable principles or in following their own regulations. I cannot on the facts before me see that they erred in any of these ways and as such I do not uphold the plaintiff’s application. I dismiss the application for certiorari with the costs to be agreed or to be taxed.

Lawyer for the Plaintiff: Warner Shand

Lawyer for the Defendant: Mr Emilio