Maron v PNG Waterboard [2003] PGNC 40; N2471 (30 July 2003)

N2471
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

OS 213 OF 2002

SELAN MARON
(Plaintiff)

-V-

PNG WATERBOARD
(Defendant)

MADANG : SAWONG J.
2002 : 25TH, 26TH, SEPTEMBER
2003 : 30TH JULY

ADMINISTRATIVE LAW - Judicial Review - Employer and employee – Member of Management Team – Serious disciplinary charges – Notice of Penalty of Dismissal contained reference to other Sections on which charges had not been laid is a technical defect and is overcome by the full and unequivocal admissions of guilt – Senior employee stealing monies meant for employer – Applicant acted corruptly - Papua New Guinea Waterboard Act and Rules.

- Punishment not excessive –
- Application for Judicial Review referred.

CASES CITED:
Kekedo v Burns Philp [1988-89] PNGLR 121.

LEGISLATION REFERRED TO:
National Water & Sewerage Act No. 68 of 1986
The Waterboard Rules No. 2-5-6.

Counsel:

J. PURINGI, for the Plaintiff

A. WALNE, for the Defendant

30th July, 2003

DECISION

SAWONG J: This is an application for judicial review of the decision of a statutory body, namely the Papua New Guinea Waterboard (the Waterboard) that resulted in the termination of the employment of the plaintiff with the defendant. In the application the applicant seeks the following declarations:

1. The termination of the plaintiff is unlawful.
2. The four charges laid against the plaintiff by the defendant’s delegated officer are bad for the duplicity.
3. The proceedings held by the defendant to hear the charges and consequently terminate the plaintiff were bad and unlawful.
   

The applicant seeks the following orders:

1. That the plaintiff be re-instated to his former position with the defendant.
2. That the defendant pay the applicant all his entitlements as from the date of his termination.
3. That the defendant pay to the applicant damages that have been suffered as a result of his termination.
4. That the defendant pay the applicants costs and interests.
   

From all the evidence the following are the facts in this case. The applicant was employed by the defendant since 1987. From 1987 to the time of his termination in 1999 he held various positions with it. At the time of his termination he held the position of Reticulation Supervisor at the Madang branch of the Waterboard. In that capacity he was in-charge of all the plumbers and assistant plumbers in the distribution section and as such he was a member of the branch management team. The branch management team included himself, the production supervisor, branch administration officer and the branch manager. He was therefore a senior member of the branch management team. During 1999 the applicant connected or caused to be connected four water supply connections for four different persons. The particulars of these were that on the 19th January, 1999 he connected water supply to the premises of one, Lawrence Leonard and one, pastor Raymond Kadidu without these customers filling out an application form and paying the appropriate fees to the collector of public monies or the cashier at the Waterboard office for the connection of water supply to their premises. In fact they paid their monies to the applicant. Then on the 15th May, 1999 he authorised the connection of water supply to the premises of one, Peter Lyakae at Portion 112 without this customer filling out the application form and paying the appropriate fee for connection of the water supply to the cashier at the Waterboard office in Madang. Once again, this customer paid the fee to the applicant.

On the 14th June, 1999 the applicant further authorised the connection of water supply to the premises of one, Jackson Mom when this customer did not submit an application for the connection nor the payment of water connection fees to the cashier at the Waterboard office. Once again, this customer paid the fees to the applicant. In all instances the applicant received the monies from these individuals and did not pay these monies to the Waterboard. He kept the monies and used them for himself.

Each of the above connections of water supply was done through the installation of water meters obtained from the storeroom or workshop of the Waterboard through the unlawful authorisation by the applicant. The authorisation for the instalments of new water meters for connection water supply to all premises would only be made by the branch manager from the water connection applications submitted together with the payment of necessary fees to the Waterboard.

After the investigation by the branch manager and the administration officer of the Waterboard in Madang, it was discovered that monies were paid to the applicant by all of the above named customers but these monies were not handed over to the cashier at the Waterboard office nor the collector of public monies on behalf of the defendant.

The applicant was subsequently interviewed by the branch manager in the presence of the branch administration officer after the investigation established that the alleged unlawful connections had been done. At that interview the applicant admitted to the four offences and he was charged under Rule 2.5.6 s. 1.3.3 (g) and (h) on the 18th June, 1999 in relation to the offences involving pastor Raymond Kadidu and Lawrence Leonard and on the 22nd of June, 1999 in relation to the offences involving Peter Lyakae and Jackson Mom.

Four different charges were laid against the applicant by the District manager as delegated officer. Each of the charges gave notice to him to respond to the charges within 14 days. On the second of July, 1999 he responded to all charges in writing. In that response he admitted that he had received those monies and had not accounted or given to the Waterboard at the relevant material times. He sent his reply to the Managing Director. On the 22nd of July, 1999 the Managing Director sent to the applicant Notice of Punishment. The Managing Director in that Notice of Punishment stated that the applicant be dismissed in the Waterboard services. The notice also contained an appeal provision in that it stated that the applicant had 14 days within which to appeal to the Waterboard Executive Team (WET) against the punishment imposed. On or about the 2nd of August, 1999 he appealed against the decision of the Managing Director to the Waterboard Executive Team. On 27th August, 1999 the Waterboard Executive Team considered the appeal and dismissed the appeal. It affirmed the decision of the Managing Director to have the services of the applicant with the Waterboard terminated.

THE ISSUES.

The issues can be summarised into three (3) categories and these are:

1. Whether the applicant should be re-instated to his former position.
2. Whether the applicant should be paid his entitlements back-dated to the date of his termination.
3. Whether the applicants should be paid damages for alleged suffering since his termination.
4. Question of costs.
   

SUBMISSIONS

Both counsels have filed written submissions. I have read and considered carefully each of the submissions. Mr Puringi submits that the defendants relevant servants and or agents did not properly follow the disciplinary procedures set out in the rules of the defendant. He submitted that the first error that occurred was that the plaintiff had been charged by Mr Otiwani after receiving the report from the District Manager and the investigation report. He says that Mr Otiwani then set to determine the charges and raise a Notice of Penalty and recommended to the Managing Director to dismiss the plaintiff. This he submitted was improper and did not follow the proper procedures. Mr Puringi submits that it was improper for the same person laying the charge to also determine the penalty.

Mr Walne argues that, that is not the case here because the evidence is that the Divisional Head, Mr Otiwani only laid the charge and made recommendations on what penalty should be imposed. He submitted that it was the Managing Director who decided what the penalty was. He submitted that the Managing Director was not bound to follow the recommendations made by the Charging Officer be it the District Manager or the Divisional Head. He submitted that in the present case the Managing Director after reviewing the evidence and in the exercise of his powers and in consideration of the seriousness of the offences committed decided to dismiss the applicant.

He submitted that the evidence is quite clear that the applicant admitted stealing those monies. He further submitted the applicant repaid the monies after he was charged. The applicant did not disclose a receipt of those monies from the four customers as soon as or shortly after he received those monies to the District Manager to whom he would normally report nor did he repay those monies. On the first two counts he received the monies on the 19th January, 1999 and he paid them on the 28th June, 1999. On the next two counts he received the money on the 14th and 15th of May, 1999 and repaid the monies on the 18th June, 1999. The repayments were made well after the investigations and interviews were conducted. Also by the time he made the first repayment the charges had already been laid. Mr Walne submitted that the applicant had concealed his actions and he thus had no intention of repaying the monies he took when he first committed these offences.

Secondly, Mr Puringi submitted that the Notice of Penalty Mr Otiwani raised for signing by the Managing Director also wrongly stated and informed the Managing Director that the plaintiff had committed other offences under Rules 1.3.3 (c), (d) and (e) when in-fact he had not been charged with those offences.

Mr Walne submits that the inclusion of the charges under s.1.3.3 (c) (d) and (e) on the Notice of Punishment did not place any added weight or force on the decision to terminate the applicant. He submitted that the charges under s. 1.3.3 (g) and (h) can stand alone lead to the applicant’s termination. He submitted that whilst the references to s.1.3.3 (c) (d) and (e) on the Notice of Punishment where erroneous this did not and should not have any effect at all on the decision of the Managing Director to terminate the applicant’s services, given the facts and circumstance.

Thirdly, Mr Puringi submits that no Notice of Penalty stating Mr Oiwani’s recommendations for dismissal was ever delivered to the plaintiff with a further notice advising him that is the plaintiff of his right to appeal to the Managing Director against his determination of the penalty. Accordingly he submitted that this denied the plaintiff a right of appeal against Mr Otiwani’s recommendations for dismissal.

Mr Walne has submitted that the applicant was given every opportunity to be heard before the final decision to terminate him was made. He was interviewed, where he spoke of the alleged offences. He was given the opportunity to reply to the charges after they were laid. He was given the opportunity to appeal the decision of the Managing Director to the Waterboard Executive Team. He submitted that in the circumstances, natural justice was accorded to the applicant at every stage of the process.

He submitted that stealing of monies is a serious matter and that alone is sufficient reason to terminate his services.

DECISION

There is no contest between the parties that the appropriate laws are the National Water and Sewage Act No. 68 of 1986 (the Act) and the disciplinary rules made pursuant to that Act, namely Rule 2-5-6.

Section 22 of the Act gives the Waterboard powers to make rules for the staff of the Board. It reads:

"22. Rules of the staff of the Waterboard.

1. The rules may make provisions in relation to the staff of the Waterboard and, in particular, may –

(a) subject to the Salaries and Conditions .. Committee Act, prescribed the terms and conditions of employment; and

(b) make provision for a Superannuation or other retirement benefits scheme to provide benefits for the staff; and
(c) prescribed disciplinary procedures, creation and abolition of officers, classification of officers, promotion of officers and other matters for the regulation of the service of the Waterboard.

2. In the absence of rules under Subsection (1), the provision of regulations or general orders pertaining to the National Public Servants shall, in so far as applicable, apply".
   

It can be seen then that pursuant to s.22 (1) (c) of the Act the board has power to make rules relating, inter alia, to prescribe disciplinary procedures. Pursuant to that power the board on the 28th of February, 1995 formulated rules relating to discipline. This is set out in Rule 2-5-6. The Rule sets out offences and procedures to be used for the different classifications of staff. Different provisions have been made to cover the different classifications of staff. There are four classifications. These are, casual employees, temporary officers, permanent officers and contract officers. In this case the court is concern with a previous permanent officer. It is therefore not necessary to consider the disciplinary proceedings relating to the other category of employees.

Rule 1.3.3. deals with permanent officers. It is useful to set this out in full. It reads:

"1.3.3. Permanent Officers.

An officer who:-

(a) commits a breach of this Act; or
(b) accepts in the course of official duty, divulges, directly or indirectly, any information concerning public business or any matters of which he has official knowledge; or
(c) wilfully disobeys or disregards a lawful order made or given by a person having authority to make or give it; or
(d) is negligent or careless in the discharge of his/her duties; or
(e) is inefficient or incompetent from causes within his/her own control; or
(f) uses intoxicating liquors or drugs to excess; or
(g) solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his official duties (other than his official remuneration); or
(h) is guilty of disgraceful or improper conduct in his/her official capacity or otherwise; or
(i) having taken an oath or made an affirmation in the form in the Schedule, does or says anything in violation of it; or
(j) is charged with a Criminal offence relating to his/her duties.

is guilty of a disciplinary offence and is liable to be dealt with and punished under this Rule.

Suspension maybe effected before, at the time of, or after the laying of the charge, & may be removed at any time.

The Head of Service or his/her delegated officers may determine all matters except dismissal, which is determined by the Managing Director".

Rules 1.3.3 (g), (h) provides that a permanent officer who "solicits or accepts a fee or reward or gratuity or gift in connection with the discharge of his official duties (other than his official remuneration)" or "is guilty of disgraceful or improper conduct in his/her official capacity or otherwise; is guilty of a disciplinary offence and is liable to be dealt with and punished under this Rule.

The Rule also provides that the head of service or his/her delegated officers may determine all matters except dismissal which is determined by the Managing Director.

Clause 3 of the rules provides who can impose punishment on an offender. It reads:

"3. Who can punish an offender (Delegations).

For casual employees the delegations are as for laying charges.

For all other staff the Managing Director will determine punishment.

It is essential that the delegate determining a charge is a different person to the one laying the charge".

By virtue of this, a delegated officer has no power to dismiss any permanent officer. He/she has power to determine all other things, such as conducting an investigation or laying of charges or making recommendations for appropriate penalty. The power to dismiss rests solely with the Managing Director. It does not lie with any delegated officer.

In so far as permanent officers are concerned the rule provides that it is the Managing Director who will determine punishment. Rule 4 sets out the procedures to be followed in charging an offender.

Rule 5.3.3 deals with punishments to be applied to permanent officers involving serious offences. It provides:

"The punishment to be applied is – caution or reprimand or:

(a) fine the officer the sum not exceeding K100.00; or

(b) reduce the officer’s pay; or

(c) reduce the officer to an office having lower classification; or

(d) in addition to or instead of imposing a punishment specified in paragraph (a), (b) or (c) transfer the officer to some other office or locality; or

(e) recommend to the Managing Director that the officer be dismissed from the Waterboard service; and/or
(f) suspend the officer from duty; and/or
(g) recommend to the Managing Director that the suspension be without pay".

From these rules it seems to me that where an allegation is made against a permanent employee the delegate of the Managing Director would decide if in fact an offence has been committed within the rules. If it is and the officer must also decide whether the offence is serious or not. At that point the delegate will also have to decide whether to issue a caution or reprimand instead of charging the officer concerned.

Once the delegate decides that it is a serious offence warranting a formal charge to be laid, and then the appropriate form is filled out and served on the officer concerned. The delegate then awaits the receipt of a reply from the officer concerned. If the officer is of the view that the offender be dismissed, he makes that recommendation to the Managing Director. The recommendation together with the charges and the responses are sent to the Managing Director. The Managing Director considers all these and makes a decision on the verdict and penalty.

Further it is trite law that judicial review of administration actions is not concerned with the decision itself but with the decision making process. As Kapi DCJ in Kekedo v Burns Philp [1988-89] PNGLR 121, said at 124:

"The circumstances under which judicial review may be available are where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable Tribunal could have reached or abuses its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision making process".

I deal with the first submission. In my view this submission is baseless and without merit. It is based on the mis-conception of the procedures that was used. Rule 1.3.3 states that the Head of Service or his /her delegated officers may determine all other matters except dismissal which is to be determined by the Managing Director. This means that where a permanent officer is to be dismissed, it must be done by the Managing Director and no one else. In the present case evidence is that Mr Otiwani only made recommendations on penalty to the Managing Director. The Managing Director in the exercise of his powers under the rules decided to terminate the services of the applicant. The Notice of Penalty annexure "C" to Mr Puringi’s affidavit of August, 2002 shows that quite clearly.

He appealed against that decision to the Waterboard Executive Team where he was heard. The Waterboard Executive heard him on his appeal but dismissed his appeal. It confirmed the Managing Director’s decision to terminate his services. In my view the plaintiff had been given all opportunities. He was heard at every stage of the process. I would dismiss this ground.

Mr Puringi’s next argument may be dispose off fairly easily. In regard to that submission I accept the submissions made by Mr Walne on that aspect. In my view whilst the references to other offences alleged to have been committed under r. 1.3.3 (c), (d) and (e) where erroneous, they did not place any added weight or force to determine fate of the applicant. The applicant was charged under s. 1.3.3 (g) and (h) which standing alone would lead to the applicant’s termination. The evidence here is that he received four lots of monies from four different customers which he kept and used. In effect he stole from his employer. In my view these are serious not because of the amounts that were involved but because by the very nature of the offences committed, in that he committed four distinct serious offences of dishonesty, warranting instant dismissal.

I think the over-riding reason why the plaintiff’s arguments on these points must fail is that, he made full and equivocal admissions to the charges laid against him. That must in my opinion overcome any technical procedure or defects. Here the plaintiff pleaded guilty and ask for leniency. The fact that the Notice of Punishment referred to s.1.3.3 (c) (d) and (e), in my view cannot affect or invalidate the charges which were properly laid under the Waterboard rules and the penalty that was imposed on him. As I have alluded to earlier, the applicant had admitted the charges and made full admissions. In those circumstances it is totally absurd for the applicant to expect the court to exonerate him from the guilty findings against him and the decision to dismiss him.

As to the punishment itself, a dismissal is the ultimate and most serious punishment under the rules of the Waterboard. The circumstances in which the charges were laid are very serious. He was a senior staff and part of the Management Team in the Madang office. He was expected to be honest in his work and conduct himself with integrity. Here, he received monies from four different people on four different occasions, which were meant for his employer. He did not pay those monies back until long after the charges had been laid. Stealing of monies meant for an employer, particularly where the employee is a senior officer, are in my opinion very serious matters which warrant dismissal. Here he acted corruptly in all the circumstances.

The Managing Director of the defendant had a discretion under r.5.3.3 to impose the punishment which he considered was appropriate in the circumstances of the case. He was not bound to accept the recommendations that may have been made to him by his delegated officers. In the present case he in the exercise of that discretion considered that dismissal was appropriate. I cannot find any error in the exercise of that discretion. I therefore uphold punishment imposed by the defendant and dismiss this submission.

I would also dismiss the application on the basis that there has been undue delay in making the application for judicial review. In view the fact that counsels have not addressed this point, I will only give very brief reasons on this aspect. Order 16 r.4 of the National Court Rules provides that, where in any case the court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant any reliefs sought on the application if, in the opinion of the court, the granting of the relief sought would likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration.

When leave was granted to the plaintiff by the court it did not mean that the reliefs sought would be given at the end of the substantive hearing. The evidence in this case is that the decision which is sought to be reviewed namely, the decision of the Waterboard Executive Team was made in July, 1999. The application for leave and the originating process was filed on the 26th April, 2002 a period of two (2) years and nine (9) months since the decision was made. In my view the granting of the relief sought is likely to cause substantial hardship to the Waterboard and in my view it would certainly be detrimental to good administration of the Waterboard.

For these reasons I dismiss the application with costs to the defendant.
____________________________________________________________________
LAWYER FOR THE PLAINTIFF : PURINGI LAWYERS
LAWYER FOR THE DEFENDANT : MR. ALFRED WALNE