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Ponau v Teaching Service Commission Disciplinary Committee [2006] PGNC 58; N3059 (26 May 2006)

N3059


PAPUA NEW GUINEA


[IN THE NATIONAL COURT OF JUSTICE]


OS NO 480 OF 2002


JOE PONAU
Plaintiff


V


TEACHING SERVICE COMMISSION
DISCIPLINARY COMMITTEE
First Defendant


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Lae: Cannings J
2006: 8, 26 MAY


JUDGMENT


ADMINISTRATIVE LAW – judicial review of decision of Teaching Service Commission Disciplinary Committee to terminate employment of a teacher.


ADMINISTRATIVE LAW – need to follow statutory procedures when laying disciplinary charges – person laying charge and suspending an officer must be authorised by law to do so – duty to give relevant documents to decision-maker – Teaching Service Act 1988, Part VII (discipline).


ADMINISTRATIVE LAW– natural justice – duty to give reasons for administrative decisions – decisions made under disciplinary code affecting reputation and livelihood of a person.


JUDICIAL REVIEW – remedies – declaration of illegality – reinstatement – back-pay – damages.


The plaintiff was a teacher at Lae Technical College. He was a member of the Teaching Service. The Chairman of the Board of Directors of the College laid a disciplinary charge against him and suspended him. The plaintiff responded and his matter was subsequently dealt with by the National Education Board Disciplinary Committee, the National Education Board and the Teaching Service Commission Disciplinary Committee. He was found guilty of the charge, dismissed from the Teaching Service and deregistered as a teacher. He applied for judicial review on grounds that: the Chairman was not authorised by law to charge or suspend him and had failed to give relevant documents to the National Education Board Disciplinary Committee and other bodies failed to give reasons for their decisions; and the penalty of dismissal and deregistration was unreasonable.


Held:


(1) The Chairman was not authorised to charge or suspend a teacher and, having assumed the role of charging officer, failed to give the necessary documents to the National Education Board Disciplinary Committee. The first ground of review was upheld.

(2) Three (3) of the decision-makers involved in the plaintiff’s dismissal and deregistration failed to discharge their duty to give reasons for their decisions: the National Education Board Disciplinary Committee, the National Education Board and the Teaching Service Commission Disciplinary Committee. Thus they had no good reasons and their decisions were made in excess of jurisdiction and bad in law. (Mision Asiki v Manasupe Zurenuoc (2005) SC797 applied.) The second ground of review was upheld.

(3) On the presumption that the plaintiff had properly been found guilty, as charged, the penalty of dismissal and deregistration was not unreasonable in the Wednesbury sense. The third ground of review was dismissed.

(4) As two (2) grounds of review were upheld the matter was ripe for judicial review.

(5) Remedies in judicial review proceedings are at the discretion of the court and in the circumstances the court:

(a) declared that the decisions of the National Education Board Disciplinary Committee, the National Education Board and the Teaching Service Commission Disciplinary Committee finding the plaintiff guilty of a disciplinary offence and recommending or imposing his dismissal and deregistration are unlawful;

(b) ordered the plaintiff’s reinstatement and re-registration; and


(c) ordered that the plaintiff be paid back-pay to the date he was taken off the payroll.


Cases cited:
The following cases are cited in the judgment:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Clement Kilepak v Ellison Kaivovo (2003) N2402
Gideon Barereba v Margaret Elias (2002) N2197
Graham Kevi v Teaching Service Commission Disciplinary Committee [1997] PNGLR 659
John Magaidimo v Commissioner of Police (2004) N2752
Michael Anis Winmarang v David Ericho and The State (2006) N3040
Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797
Morobe Provincial Government v Minister for Village Services (1994) N1215
Niggints v Tokam [1993] PNGLR 66
Ombudsman Commission v Peter Yama (2004) SC747
Paul Pora v Commissioner of Police (1997) N1569
Paul Saboko v Commissioner of Police and The State (2006) N2975
Peter Luga v Richard Sikani (2002) N2285


Abbreviations:
The following abbreviations appear in the judgment:


CJ – Chief Justice
DCJ – Deputy Chief Justice
J – Justice
No – number
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
OS – originating summons
SC – Supreme Court references


JUDICIAL REVIEW


This was an action in which the plaintiff sought judicial review of his dismissal as a member of the Teaching Service.


Counsel:
J Kais, for the plaintiff
No appearance for the defendants


INTRODUCTION


1. CANNINGS J: This is a judgment on an application for judicial review. The plaintiff was found guilty of sexually harassing female students at Lae Technical College, where he was a teacher. He was dismissed and deregistered. He claims that incorrect disciplinary procedures were followed and that the decisions to find him guilty and to dismiss and deregister him were unlawful. The main issue is whether the correct procedures were used. If they were not, what are the consequences? If mistakes were made, should the plaintiff be reinstated?


DEFENDANTS


2. The court documents describe the first defendant as "Teaching Services Commission Disciplinary Board". That is clearly a mistake as there is no body of that name. The correct name is "Teaching Service Commission Disciplinary Committee". That is the body that finally dismissed the plaintiff as a member of the Teaching Service. The judgment should bear the correct name. I am satisfied that the name of the first defendant can be changed without prejudice to anybody. I have therefore ordered the removal of the former and the addition of the latter under Order 5, Rules 8 and 9 of the National Court Rules.


BACKGROUND


3. The plaintiff, Joe Ponau, commenced his teaching career in 1983. He specialised in the field of metal fabrication and welding. He taught at Madang, Port Moresby, Mt Hagen and Arawa until 1997 when he was appointed Section Head, Metal Fabrication and Welding, at Lae Technical College. He held that position until his dismissal in 2002.


4. His dismissal related to three (3) sexual harassment incidents in late 2000 and early 2001. Complaints were made to the Secretary of the National Department of Education who dispatched two (2) officers from Port Moresby to investigate the complaints. Disciplinary charges were laid against the plaintiff. He responded. He was found guilty and recommended for dismissal. He appealed but his appeal was turned down and his dismissal was confirmed. All of those things happened in the period from May 2001 to April 2002. It is important to set out the train of events in that period in detail.


5. On 10 May 2001, the then Secretary for Education, Peter Baki, wrote to the Principal of Lae Technical College. He said he had received a complaint from a parent of a female student about the plaintiff’s conduct and he was sending an investigation team to inquire into the matter. The team had terms of reference which were, amongst other things, to ascertain whether the plaintiff had made sexual advances to the complainant or any other female students.


6. The investigation team came to the College in mid-May 2001 and interviewed the plaintiff and the complainant and other female students.


7. On 22 June 2001, the Chairman of the Board of Governors of Lae Technical College, Elliott Harding, charged the plaintiff with a serious disciplinary offence, alleging that he had sexually harassed three (3) female students. The charge stated:


"TAKE NOTICE that you are hereby charged for committing an offence within the meaning of Section 83(g) of the Teaching Service Act, namely that:


Charge:


Your conduct is disgraceful and improper in your official capacity or otherwise, so as to reflect on the teaching profession.


Facts:

  1. That on Friday 4 May 2001, at Lae Technical College, you requested [Student No 1], a female 2nd Year Business Studies student, to see you in your office. Once she entered your office, you locked the door and showed her assessment marks to her. After that you requested her to give you a hug. She knew you were a close friend of her family and therefore she decided to give you a friendly hug. You in turn hugged her and held her tightly and on the third time you hugged her you kissed her. On the fourth hug, you tried to kiss her again but she managed to push you away form herself. You finally released her and unlocked the door for her and she left. Your unwelcome action amounts to sexual harassment of a female student and an abuse of trust placed on you as a teacher and thereby reflects on the teaching profession.
  2. That in January 2001 at Lae Technical College, you met [Student No 2], a female 2nd Year Business Studies student at the college campus and requested her to talk to you in your office. Once she entered your office, you then locked the door and proceeded to talk to her about her assessments. You then requested her to hug you and when she did, you held on her tightly and you kissed her on her face and cheeks. She struggled to free herself and finally managed to push you away from herself and walked over to the door. You then unlocked the door and she left your office. Your unwelcome behaviour amounts to sexual harassment of a female student and, an abuse of trust placed on you as a teacher and thereby reflects on the teaching profession.
  3. That in Term 4 of 2000, at Lae Technical College, you met [Student No 3], a female 2nd Year Stenography student and you requested her to go with you to your office. Once she entered your office, you then locked the door and started talking to her about her parents. Then you requested her to give you a hug but she refused, so you walked over to her and hugged her. You held on to her tightly while she was struggling to free herself and finally you let go off her when she told you that her friends were waiting for her outside your office. Then you unlocked the door for her and she left your office. Your unwelcome action amounts to sexual harassment of a female student, and an abuse of trust placed on you as a teacher and thereby reflects on the teaching profession.

AND TAKE FURTHER NOTICE that in accordance with Section 85(2) of the Act, I hereby call upon you to state in writing to me, whether you admit or deny the truth of the charge, and give any explanation you think fit in respect of the said charge for consideration by the National Education Board Disciplinary Committee.


AND TAKE FURTHER NOTICE that in accordance with Section 18(1) of the Teaching Service Regulation, if no reply is received from you within 7 days after the receipt of the charge, you may be deemed to have admitted the truth of the charge."


8. On the same day that he was charged, which was 22 June 2001, the plaintiff was suspended with pay. The charging officer, Elliott Harding, told him to respond to First Assistant Secretary Human Resources, Department of Education, Waigani.


9. The plaintiff responded to the officer nominated, in a letter dated 25 June 2001. He denied all allegations of sexual harassment. He admitted hugging student No 1 after counselling her about her poor marks in her progress tests but denied kissing her as they were both chewing betel nut. He admitted hugging student No 2 but denied kissing her or holding her tightly. He admitted hugging student No 3 but denied holding her tightly and said that when she struggled he let her go. He said that he had no improper motives or intention regarding any of the students. He said that this was the first time he had ever been charged and that he loved teaching and wanted to continue in his chosen profession. He submitted that if found guilty, he should be reprimanded or demoted and that he was willing to apologise to the students and compensate them.


10. On 3 October 2001, the plaintiff received a letter dated 20 September 2001 from the Acting Chairman of the National Education Board Disciplinary Committee. The letter was headed "RESULT OF YOUR APPEAL TO THE NATIONAL EDUCATION BOARD DISCIPLINARY COMMITTEE". It stated:


"This letter serves to inform you that in the National Education Board Disciplinary Committee Meeting No 2 held on 19 September 2001, the committee recommended to the National Education Board for your dismissal and de-registration from the Teaching Service.


The above recommendations are because you committed a breach of the Teaching Service Act as per Section 83(g) of the Act. "Your conduct is disgraceful and improper in your official capacity or otherwise, so as to reflect on the teaching profession."


The members of the National Education Board Disciplinary Committee do not condone such behaviour you exhibited so they agreed to recommend to the National Education Board for your dismissal and de-registration from the Teaching Service.


For your information and action."


11. On 8 October 2001, the plaintiff wrote a letter of appeal to the Chairman of the National Education Board.


12. On 7 November 2001 the plaintiff was served with a "Notice of Decision on Charge of Serious Disciplinary Offence". It was dated 29 October 2001 and signed by the Chairman of the National Education Board, Peter Baki. The notice stated:


"TAKE NOTICE that the National Education Board has considered the finding and recommendation of the Disciplinary Committee as to the charge against you, namely that [here the charge was recited] ... and has found you guilty of the offence charged therefore, [sic] imposed the penalty of dismissing you from the Teaching Service.


TAKE FURTHER NOTICE that you may, if you so wish, appeal against the finding and the penalty imposed or both, in writing to the Teaching Service Disciplinary Committee, within five weeks after the receipt of this notice. Your appeal, if any, should be addressed to the Chairman Teaching Service Commission Disciplinary Appeals Committee, PO Box 6268, Boroko, NCD."


13. On 12 November 2001, the plaintiff submitted an appeal to the Teaching Service Commission Disciplinary Committee. It was along the same lines as his appeal to the Chairman of the National Education Board of 8 October 2001. He said that he was appealing under s.85(11) of the Teaching Service Act. He pointed out that despite the heading on the letter of 20 September 2001 from the National Education Board Disciplinary Committee, this was his first appeal. He reiterated that he was innocent of the allegations of sexual harassment and that the penalty of dismissal and deregistration was harsh, oppressive and inhumane. He said the Disciplinary Committee gave no reasons for its recommendations and ignored his experience and expertise as a teacher and it was clear that the allegations had been manufactured by those with sinister motives.


14. On 15 April 2002, the plaintiff received a "Notice of Decision on Appeal in respect of Serious Disciplinary Offence". It was dated 28 February 2002 and signed by two (2) persons. One signed as Chairman and one as Member. Their names were not provided. The notice stated:


"The Teaching Service Commission Disciplinary Committee has considered your appeal against the National Education Board’s decision to terminate you from the Teaching Service, the notice of which was set out in the Notice of Decision dated 29/10/2001 and it has decided to uphold the decision of the National Education Board."


15. That marked the end of the disciplinary process. The plaintiff was taken off the payroll. The plaintiff took the view that he had exhausted his right of appeal. He filed an application for leave to seek judicial review on 26 August 2002. Leave was granted on 9 October 2002.


16. The substantive application for judicial review was heard at Lae on 8 May 2006. Mr Kais of Pryke & Janson Lawyers appeared for the plaintiff. There was no appearance by the defendants. An administrative officer of the Lae branch of the Solicitor-General’s Office attended the hearing and told me that there was no lawyer available. He had given me the same reason for not going ahead with the case on a previous occasion so I heard the matter.


17. Mr Kais tendered three (3) affidavits and, obviously, the defendants tendered none. The facts set out above are therefore uncontested.


GROUNDS OF REVIEW


18. The plaintiff relies on three (3) grounds of review:


the charging officer, Elliot Harding, was not authorised by law to lay the disciplinary charge or to suspend the plaintiff and failed to send a copy of the charge, the plaintiff’s response and his report on the matter to the Disciplinary Committee, therefore Sections 85(1), 90(1) and 85(3) of the Teaching Service Act were breached;

the Disciplinary Committees and the other bodies involved in the disciplinary process failed to give reasons for their decisions (at the hearing, I granted leave under Order 16, Rule 6(2) of the National Court Rules for this to be added as a ground of review).

the penalty of dismissal and deregistration was unreasonable and manifestly excessive, harsh and oppressive, contrary to Section 41 of the Constitution, and failed to take account of relevant considerations, in particular the fact that the plaintiff was a first offender and was an experienced and competent teacher.

RELIEF SOUGHT


19. The plaintiff seeks four (4) substantive remedies:


  1. a declaration that his dismissal from the Teaching Service and deregistration as a teacher was unlawful;
  2. an order that he be reinstated as a teacher (at the hearing, I granted leave under Order 16, Rule 6(2) of the National Court Rules for this to be specified as additional relief);
  3. an order that he be paid back-pay covering the period since he was taken off the payroll;
  4. damages for unlawful termination.

20. This case raises four (4) major issues:


Were the correct disciplinary procedures followed? This issue will address the first ground of review.

Did any of the decision-makers fail to discharge any duty to give reasons for their decisions? This addresses the second ground of review.
  1. Was the penalty unreasonable or excessive? This addresses the third ground of review.
  2. If the answer to any of the above is yes, the matter will be ripe for judicial review and the question will be: what remedies, if any, should be granted to the plaintiff?

FIRST ISSUE: WERE THE CORRECT DISCIPLINARY PROCEDURES FOLLOWED?


21. To resolve this issue it is necessary to explain the disciplinary and appeal procedures prescribed by Part VII (discipline) of the Teaching Service Act. They are quite elaborate.


Part VII of the Teaching Service Act


22. This consists of six (6) divisions, covering s.79 to s.95.


Division VII.1 (disciplinary committees) consists of s.79 to s.82. It establishes three (3) types of disciplinary committees and provides for their composition:


23. Both the National Education Board Disciplinary Committee and the Teaching Service Commission Disciplinary Committee dealt with the plaintiff’s matter, and he contends that they both made errors of law.


24. Division VII.2 (disciplinary offences) consists of Section 83. It creates nine (9) different types of disciplinary offences. The plaintiff was charged under Section 83(g), which states:


"A member of the Teaching Service who ... is guilty of disgraceful or improper conduct in his official capacity or otherwise, so as to reflect on the teaching profession ... is guilty of a disciplinary offence and is liable to be dealt with and punished under this Part."


25. Division VII.3 (minor offences) consists of s.84. It sets out the procedure for dealing with minor disciplinary offences. The plaintiff’s matter was not dealt with as a minor offence so this section is not relevant to the present case.


26. Division VII.4 (serious offences) consists of s.85. It sets out the procedure for dealing with serious disciplinary offences. This section is at the centre of this case and it is necessary to set it out in full. Section 85 (dealing with serious offences) states:


"(1A) For the purposes of this section, the Provincial Administrator in a province is the Departmental Head in relation to members of the Teaching Service employed in the province.


(1) If a person authorized by the Commission to deal with serious disciplinary offences has reason to believe that a member of the Teaching Service has committed a disciplinary offence that, in his opinion, could not be properly dealt with under Section 84, he may charge the member with the offence in the prescribed manner.


(2) On a charge being laid against a member, he shall—


(a) promptly be given a copy of the charge; and

(b) be directed—


(i) to reply promptly in writing, stating whether he admits or denies the truth of the charge; and

(ii) to give any explanation that he desires to give in regard to it,


and if a reply is not given by the member within the prescribed time he shall be deemed to have denied the truth of the charge.


(3) The person who laid the charge shall send—


(a) a copy of the charge; and

(b) any statement or explanation given by the member charged; and

(c) his report on the matter,


to the National Education Board Disciplinary Committee in the case of a charge against a member occupying a position in a national institution, and in any other case to the Provincial Disciplinary Committee.


(4) If, after considering the matters sent to it under Subsection (3) and any further reports that it thinks relevant, the National Education Board Disciplinary Committee or Provincial Disciplinary Committee, as the case may be, is of the opinion that the charge has been sustained, it may recommend to the National Education Board or the Provincial Education Board, as the case may be, that it—


(a) caution or reprimand the member; or

(b) fine him a sum not exceeding K100.00; or

(c) defer an increment for a period not exceeding 12 months; or

(d) reduce his salary by one or more increments; or

(e) reduce him to a lower classification; or

(f) recommend to the Commission his dismissal from the Teaching Service.


(5) Where it is in the interests of a member who has been found guilty of a disciplinary offence under this section to do so, the National Education Board, in the case of a member occupying a position in a national institution, and in any other case the Provincial Education Board, may, after considering the representations (if any) of the member, transfer him to a vacant position in some other educational institution.


(6) A member transferred in accordance with Subsection (5) shall be deemed to hold an acting appointment to the new position, made under Section 71.


(7) A transfer under Subsection (5) shall not be deemed to be a penalty for the offence.


(8) The National Education Board shall consider any finding and recommendation of the National Education Board Disciplinary Committee, and the Provincial Education Board shall consider any finding and recommendation of the Provincial Disciplinary Committee, and may—


(a) accept or reject them; or

(b) impose any other penalty specified in Subsection (4).


(9) The Board shall, in the prescribed manner, promptly inform the member of its decision under Subsection (8).


(10) The decision of the Board under Subsection (8) is subject to appeal and confirmation in accordance with the succeeding provisions of this section.


(11) The member may, within the prescribed time and in the prescribed manner, appeal to the Teaching Service Commission Disciplinary Committee on the ground of innocence of the offence or the excessive severity of the punishment.


(12) The Teaching Service Commission Disciplinary Committee may—


(a) confirm or reject the decision; or

(b) impose any other penalty specified in Subsection (4),


and its decision is final.


(13) Where a Board imposes a penalty specified in Subsection (4)(a), (b), (c), (d) or (e), the Commission shall confirm the decision of the Board unless the member concerned appeals in accordance with Subsection (11).


(14) Where a Board makes a recommendation under Subsection (4)(f) the Commission may, subject to any appeal under Subsection (11), reduce the classification or dismiss the member or impose any other penalty specified in Subsection (4).


(15) Where a Board reduces the classification of a member, the Board shall, subject to an appeal under Subsection (11), and after consultation with the Commission, transfer the member to a position of the same classification to which he has been reduced.


(16) A decision of the Commission under this section is final.


(17) Unless the Commission otherwise directs, the deferment of an increment under this section does not affect the date on which payment of the next increment is due."


27. Further provisions governing serious disciplinary offences are set out in s.18 of the Teaching Service Regulation (serious disciplinary offences), which states:


"(1) For the purposes of Section 85(1) of the Act, the prescribed manner of charging a member of the Teaching Service with a disciplinary offence is for the person authorized by the Commission to cause to be served on the member, personally or by registered post—


(a) a notice of charge in Form 13; and

(b) a statement; and

(c) a pre-paid envelope addressed to the person who laid the charge.


(2) The prescribed time for the purposes of Section 85(2) of the Act is seven days after the date of service of the relevant notice of charge.


(3) A statement under Section 85(2) of the Act shall, within the prescribed time, be—


(a) given personally to the person who served the charge or the person who laid the charge; or

(b) forwarded by registered post to the person who laid the charge.


(4) When a Board has made a decision under Section 85(7) of the Act, it shall promptly inform the member concerned of its decision by causing a notice in Form 14 to be served on him, personally or by registered post.


(5) The prescribed time for the purposes of Section 85(10) of the Act is five weeks after the date of service of the relevant notice of decision.


(6) For the purposes of Section 85(10) of the Act, an appeal may be made by giving or forwarding by registered post, within the time prescribed by Subsection (5), a notice of appeal to the Chairman of the Teaching Service Commission Disciplinary Committee.


(7) Where the Teaching Service Commission Disciplinary Committee has made a decision on an appeal under Section 85(11) of the Act, it shall cause a notice of decision on appeal in Form 15 to be sent to—


(a) the appellant; and

(b) the convicting authority; and

(c) Headquarters, Department of Education.


(8) Where the Commission—


(a) confirms a decision of a Board under Section 85(12) of the Act; or

(b) reduces or dismisses a member, or imposes some other penalty under Section 85(13) of the Act,


it shall cause a notice in Form 16 to be sent to—


(c) the member concerned; and

(d) the National Education Board or the District Education Board, as the case may be; and

(e) Headquarters, Department of Education."


28. Division VII.5 (proceedings etc of disciplinary committees) consists of s.86 to s.88. It prescribes the powers and procedures of the disciplinary committees established by Division VII.1. Section 86 empowers the chairman of a disciplinary committee to summon any person to give evidence and to require any person to produce documents to the committee. Section 87 obliges the chairman of a committee to notify the member of the Teaching Service concerned of the time and place of a hearing. The member (ie the teacher who has been charged) then has the right to produce witnesses. The member is also entitled to appear at the hearing, examine witnesses, and address the committee, personally or by a lawyer or agent. Section 87(5) imposes significant obligations on the committee concerning the nature of its proceedings. It states:


"The Disciplinary Committee shall make a thorough investigation without regard to legal forms or solemnities or the rules of evidence, and may inform itself on any matter in such manner as it thinks proper."


30. It does not form part of the plaintiff’s case that there was a breach of
s.87 by either of the disciplinary committees that dealt with his matter. This is surprising as it appears that he was not notified of the time and place of the hearings. Nor was he given the opportunity to appear before the committees. I will comment on that later.


31. Division VII.6 (miscellaneous) consists of s.89 to s.95. Amongst other things it provides the procedure, in s.90, for suspension of a teacher. The plaintiff alleges that s.90(1) was breached. It states:


"If it is considered that an alleged disciplinary offence is of such a nature that the member of the Teaching Service concerned should not continue in the performance of his duty, the Commission or a person authorized by the Commission for the purpose, or in case of emergency any person authorized to lay charges under this Part, may suspend the member from duty."


Summary of the disciplinary and appeals process


32. It is a challenging exercise to summarise these provisions in a way that makes them understandable. I think the best way to do it is to first set out the persons and bodies involved in the process and then to describe the steps to be followed in the event that a member of the Teaching Service is charged with a serious disciplinary offence.


The persons and bodies


33. They are:


the charging officer, the person described in s.85(1) as "the person authorised by the [Teaching Service] Commission to deal with serious disciplinary offences";

the National Education Board Disciplinary Committee;

the National Education Board;

the Teaching Service Commission Disciplinary Committee; and

the Teaching Service Commission.

The steps


34. Step 1 is the laying of the charge. Only a "person authorised by the Commission to deal with serious disciplinary offences" can lay the charge, under s.85(1). Closely allied to the laying of the charge is the decision whether to suspend the member. A member can be suspended before, at the time of or after the laying of the charge. A suspension can be effected by the Teaching Service Commission or by a person authorised by the Commission for the purpose or in an emergency, any person authorised to lay charges under Part VII of the Act. The circumstances in which a suspension ceases and other issues such as whether the suspension is with or without pay are dealt with in s.90 of the Act.


35. Step 2 is the service of the charge on the member. This is dealt with in s.85(2) of the Act and s.18(1) of the Regulation.


36. Step 3 is the member’s reply to the charge. The member has seven (7) days to reply (s.85(2) of the Act and s.18(2) of the Regulation). The reply must be personally given to the person who served the charge or the person who laid the charge or forwarded by registered post to the person who laid the charge (Regulation, s.18(3)). If the member does not reply within the prescribed time he or she is deemed to have denied the truth of the charge (Act, s.85(2)).


37. Step 4 is the sending of the relevant documents to the National Education Board Disciplinary Committee. This is the duty of the person who laid the charge (the charging officer). The relevant documents are: a copy of the charge, any statement or explanation given by the member charged and the charging officer’s report on the matter (Act, s.85(3)).


38. Step 5 is the hearing of the matter by the National Education Board Disciplinary Committee, the nature and purpose of which is prescribed by
s.85(4) and s.87 of the Act. The National Education Board Disciplinary Committee must notify the member charged of the time and place of the hearing, give the member copies of all documents intended to be used at the hearing and afford the member the opportunity to appear before it and address it. It is obliged to make a thorough investigation and determine whether it is of the opinion that the charge has been sustained. If it forms that opinion it may recommend the next course of action to the National Education Board, which will by virtue of s.85(4) be:


(a) a caution or reprimand;
(b) a fine;
(c) deferral of an increment;
(d) a salary reduction;
(e) reduction to a lower classification; or
(f) a recommendation to the Teaching Service Commission for dismissal from the Teaching Service.

39. Step 6 is consideration and decision on the matter by the National Education Board. This step applies if the National Education Board Disciplinary Committee has formed the opinion that the charge has been sustained. The National Education Board may accept or reject any finding or recommendation of the National Education Board Disciplinary Committee and impose any penalty specified in s.85(4) or transfer the member to a vacant position in some other educational institution. It must promptly inform the member of its decision. The powers and duties of the National Education Board are set out in s.87(5) to s.87(9) of the Act and s.87(4) of the Regulation. The National Education Board can directly impose any of the penalties in s.85(4)(a) to (e). As for s.85(4)(f) – which relates to dismissal – the function of the National Education Board is to make a recommendation to the Teaching Service Commission for dismissal. The Board does not itself effect the dismissal.


40. Step 7 is the member’s right of appeal to the Teaching Service Commission Disciplinary Committee. The member has five (5) weeks to appeal after service of the National Education Board’s decision. The appeal may be on the ground of innocence of the offence or excessive severity of the punishment. A notice of appeal must be given or forwarded by registered post to the Chairman of the Committee. (Act, s.85(10) and (11); Regulation, s.18(5) and (6).)


41. Step 8 is consideration of the matter by (a) the Teaching Service Commission or (b) the Teaching Service Commission Disciplinary Committee, depending on whether the member has appealed against the decision of the National Education Board.


42. Step 8(a): If the member has not appealed, the matter goes to the Teaching Service Commission. If the Board has imposed a penalty under s.85(4)(a) to (e), the Teaching Service Commission is obliged by s.85(13) to confirm the decision of the Board. If the Board has made a recommendation for dismissal under s.85(4)(f), the Commission has a discretion to exercise under s.85(14). It can dismiss the member, reduce the member’s classification or impose any other penalty specified by s.85(4). The Commission’s decision is final per force of s.85(16).


43. Step 8(b): If the member has appealed, the matter is dealt with by the Teaching Service Commission Disciplinary Committee. Its powers and procedures are similar to those of the National Education Board Disciplinary Committee as it is also subject to Division V.5 of the Act. That is, it must notify the member charged of the time and place of its hearing of the matter, give the member copies of all documents intended to be used at the hearing and afford the member the opportunity to appear before it and address it. It is obliged to make a thorough investigation without regard to legal forms or solemnities or the rules of evidence. The Teaching Service Commission Disciplinary Committee may by virtue of s.85(12) confirm or reject the decision of the National Education Board or impose any other penalty specified in s.85(4). The Teaching Service Commission Disciplinary Committee’s decision is final per force of s.85(12).


Who is the charging officer?


44. Various provisions such as s.85(1) of the Act refer to "a person authorised by the [Teaching Service] Commission to deal with serious disciplinary offences". The practice has been for the Commission to execute instruments of authorisation, by which it authorises certain categories of officers to lay charges against certain categories of members of the Teaching Service.


45. The most recent instrument of authorisation is dated 16 January 2002. It states that in relation to members of the Teaching Service employed in Technical Colleges, the person authorised to lay charges and suspend such members is the First Assistant Secretary, Human Resource Development, National Education Department Headquarters, Waigani.


46. However, that instrument post-dates the charging and suspension of the plaintiff, which took place in June 2001. It appears that the instrument of authorisation applicable at that time was one executed under the repealed Teaching Service Act, Chapter No 71 of the Revised Laws. It stated:


TEACHING SERVICE ACT CHAPTER NO 71


AUTHORISATION


The Teaching Service Commission, by virtue of the powers conferred by Sections 79, 80 and 85 of the Teaching Service Act Chapter No 71 and all other powers it enabling, hereby authorizes in the Department of Education, the persons occupying the offices specified in Column 1 of the Schedule prescribed hereunder to lay disciplinary charges against the persons specified in Column 2 of the Schedule.

________________________________________________________________

Column 1 Column 2

Persons authorized to lay Persons against whom

charges and to suspend. charges may be laid.

______________________________________________________________

First Assistant Secretary Members employed in

for General Education Teachers Colleges and

Services. National High Schools.

________________________________________________________________

First Assistant Secretary Members employed in

for Special Education Technical Colleges.

Services.

________________________________________________________________

Inspectors for Community Members employed in

Schools. Community Schools.

________________________________________________________________

Inspectors for Vocational Members employed in

Centres. Vocational Centres.

________________________________________________________________

Inspectors for Provincial Members employed in

High Schools Provincial High Schools.

________________________________________________________________


47. That instrument, executed under the repealed Act, continued to have effect after the repeal of the Teaching Service Act Chapter No 71 by the Teaching Service Act 1988 due to s.160 (acts, etc, done under repealed acts) of the 1988 Act, which states:


"(1) All acts, matters and things done or suffered under or for the purposes of the repealed Act or the Regulations or Determinations or Directions made under the repealed Act shall be deemed to have been done or suffered under the equivalent provisions of this Act or the Regulations.


(2) Without limiting the generality of Subsection (1), but subject to Sections 158 and 159 that subsection applies to any act, matter or thing relating to appointment, promotion, transfer or discipline."


48. The instrument of authorisation executed under the repealed Act was a thing done under the repealed Act relating to discipline and is deemed to have been done under the equivalent provisions of the 1988 Act. It continued to have effect until it was impliedly repealed and replaced by the instrument of authorisation dated 16 January 2002.


Three sub-grounds


49. In support of his first ground of review the plaintiff alleges three (3) errors of law:


50. I uphold each of the plaintiff’s arguments.


No power to lay charge


51. At the time he laid the charges Elliott Harding was the Chairman of the Board of Governors of Lae Technical College. He had no power or authority to lay charges against any member of the Teaching Service employed by the College. The person authorised at that time was the First Assistant Secretary for Special Education Services. Now, the person authorised to lay charges under the instrument of 16 January 2002 is the First Assistant Secretary, Human Resource Development, National Education Department Headquarters, Waigani. It appears that at no time has the Chairman of the Board of Governors of a Technical College been authorised to lay disciplinary charges. There is no evidence or suggestion that such Chairmen have been delegated any power to lay charges by any person possessing the appropriate authority. It follows that Mr Harding acted ultra vires (without power) contrary to s.85(1) of the Teaching Service Act. An error of law was made at the commencement of the disciplinary process.


No power to suspend


52. For similar reasons Mr Harding acted ultra vires when he suspended the plaintiff. Though the suspension notice served on the plaintiff stated that Mr Harding was acting under the authority of the Teaching Service Commission he, in fact and in law, had no such authority. Section 90(1) of the Teaching Service Act was breached. This amounted to another error of law at the commencement of the disciplinary process.


Failure to give documents


53. I described as step 4 of the disciplinary process the sending of the relevant documents to the National Education Board Disciplinary Committee. This is the duty of the charging officer under s.85(3) of the Act. It must be done after the member has replied to the charge. The relevant documents are: a copy of the charge, any statement or explanation given by the member charged and the charging officer’s report on the matter. This step was not carried out in the present case. All that happened was that the charging officer told the plaintiff he should respond to the First Assistant Secretary, Human Resources, Department of Education, Waigani. Section 90(1) of the Teaching Service Act was breached. This amounted to another error of law at the early stages of the disciplinary process.


Conclusion re first ground of review


54. The first ground of review is upheld in the three (3) respects contended for by the plaintiff. Correct disciplinary procedures were not followed.


SECOND ISSUE: DID THE DECISION-MAKERS FAIL TO DISCHARGE ANY DUTY TO GIVE REASONS?


55. The duty to give reasons is now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official’s decisions. If a decision-maker has a duty to accord natural justice, there is a duty to give reasons; and if no reasons are given, that means there are no good reasons and the decision-maker will have acted in excess of jurisdiction. (Ombudsman Commission v Peter Yama (2004) SC747, Injia DCJ, Sakora J, Sawong J; Mision Asiki v Manasupe Zurenuoc (2005) SC797, Jalina J, Cannings J, Manuhu J; Niggints v Tokam [1993] PNGLR 66, National Court, Amet J; Michael Anis Winmarang v David Ericho and The State (2006) N3040, National Court, Cannings J.)


56. These principles are particularly pertinent when a public official faces disciplinary charges, where their reputation and livelihood are at stake. It does not matter if the statute under which the charges are laid does not expressly require reasons to be given. If there is no express duty to give reasons, the duty will be implied. This was made clear by Lenalia AJ, (as he then was) in a case directly relevant to the present case: Graham Kevi v Teaching Service Commission Disciplinary Committee [1997] PNGLR 659.


57. The plaintiff was a lecturer at Mt Hagen Technical College who was dismissed after being found guilty of disciplinary offences under the Teaching Service Act 1988. One of his grounds of review was that the Teaching Service Commission Disciplinary Committee failed to give reasons for its decisions to find him guilty and impose the penalty of dismissal. His Honour upheld that ground of review and stated:


"It is a requirement that a tribunal or a board should give reasons for its decision. The reasons are obvious. The principle contains elements of fairness and if the defendant was to be fair to the plaintiff, reasons should be given to the fullest practicable extent and set out in writing. Secondly a "reasoned" decision is essential in order that, where there is a right of appeal, the applicant can assess whether he has good grounds to appeal and he can be able to prepare well to meet the case. In my view if it is an obligation to state the reasons for a decision together with a right of appeal against the decision, the tribunal is more likely to concentrate its mind carefully on the decision. The giving of reasons would be an assurance that the decision made by the board or tribunal is free from arbitrariness."


58. I agree with and adopt those principles of law. I conclude that each of the following bodies involved in the disciplinary processes under Part VII of the Teaching Service Act has a duty to give reasons for its decisions:


The Teaching Service Commission, when it makes its decision to confirm a decision of the National Education Board or whether to dismiss a member of the Teaching Service. (Referred to as step 8(a) in the summary of the process earlier in this judgment.)

The Teaching Service Commission Disciplinary Committee, after it conducts a hearing, makes a thorough investigation and makes its decisions whether to confirm or reject a decision of the National Education Board or to impose some other penalty. (Referred to as step 8(b) in the summary of the process earlier in this judgment.)

59. The reasons must be sufficiently detailed to show that the decision-maker has carefully considered all relevant documents, in particular the charge and the member’s reply and the statements of witnesses; has made clear and rational findings of fact; has applied the relevant law in determining whether the member is guilty; has taken account of relevant considerations and disregarded irrelevant considerations in deciding on the appropriate penalty.


60. Those standards were not met in the present case.


61. When the National Education Board Disciplinary Committee wrote on 20 September 2001 to the plaintiff to tell him that it had decided to recommend his dismissal, the only reasons given were that he had committed a disciplinary offence under s.83(g) of the Teaching Service Act and that the Committee does not condone such behaviour. These are not reasons. The Committee did not explain why it concluded that he had committed a disciplinary offence. Nor did it say what matters it took into account in deciding to recommend dismissal. No indication was given that the Committee had taken account of the plaintiff’s response to the charge or even that it had considered whether the plaintiff might be not guilty of the charge. The letter addressed to the plaintiff was perversely headed "Result of Your Appeal to the National Education Board Disciplinary Committee". He wasn’t appealing. The Committee was not sitting as an appellate body. It was making a primary decision on whether the plaintiff was guilty of the charge. The title to the letter suggests the Committee fundamentally misconceived its functions and responsibilities.


62. When the National Education Board wrote to the plaintiff on 29 October 2001 to tell him that he had been found guilty and he would be dismissed, the only reasons given were that it had considered the findings and recommendation of the National Education Board Disciplinary Committee. These were not good reasons. No indication was given that the Board gave any fresh or independent consideration to the matter.


63. When the Teaching Service Commission Disciplinary Committee wrote to the plaintiff on 28 February 2002 to tell him that it had decided to uphold the decision of the National Education Board the only reason given was that it had considered his appeal against the Board’s decision to terminate him. This was not a reason in any sense of the word.


Conclusion re second ground of review


64. The second ground of review is upheld. At least three (3) errors of law were made. Three (3) of the decision-makers involved in the plaintiff’s dismissal and deregistration failed to discharge their duty to give reasons for their decisions: the National Education Board Disciplinary Committee, the National Education Board and the Teaching Service Commission Disciplinary Committee. They had no good reasons and their decisions were made in excess of jurisdiction.


THIRD ISSUE: WAS THE PENALTY UNREASONABLE OR EXCESSIVE?


65. I will address this issue presuming, for the moment, that the plaintiff has properly been found guilty as charged, ie that he has been guilty of disgraceful and improper conduct by sexually harassing three (3) female students. The question to ask, based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 and adopted and applied in numerous cases in Papua New Guinea is: was the decision to dismiss and deregister the plaintiff so unreasonable, no reasonable person in the position of the Teaching Service Commission Disciplinary Committee would have made that decision? (For example, see Ombudsman Commission v Peter Yama (2004) SC747, Supreme Court, Injia DCJ, Sakora J, Sawong J; Paul Saboko v Commissioner of Police and The State (2006) N2975, National Court, Cannings J.)


66. Having regard to all the circumstances of this case, I am inclined to answer this question in the negative. The decision was not unreasonable. Sexual harassment of students in an educational institution is a very serious matter and there is a strong argument to say that a teacher properly found guilty of such an offence should be dismissed.


67. Each case would have to be decided on its merits, however. All mitigating factors would need to be taken into account and the decision-maker would need to be able to show – by giving proper reasons – that it had lawfully exercised its discretion in concluding that dismissal was the appropriate penalty.


68. In the present case, three (3) decision-makers failed to give proper reasons for concluding that the plaintiff should be dismissed. Their decisions are bad in law for that reason. However, they are not bad in law due to them being unreasonable in the Wednesbury sense.


Conclusion re third ground of review


69. The third ground of review is dismissed. If the plaintiff had properly been found guilty the penalty of dismissal would not have been unreasonable or excessive.


SUMMARY OF DETERMINATION OF GROUNDS OF REVIEW


70. To sum up:


ground No 1 – correct disciplinary procedures not followed – is upheld;

ground No 2 – failure to give reasons – is upheld;

ground No 3 – penalty of dismissal unreasonable – is dismissed.

71. Two (2) of the three (3) grounds of review have been upheld and the decisions of three (3) decision-makers to find the plaintiff guilty and to recommend or impose the penalty of dismissal are therefore ripe for judicial review.


72. The next issue is to decide what remedies, if any, should be granted to the plaintiff. Before doing that, I will digress to raise some other aspects of this case.


OTHER ASPECTS OF THE CASE


73. The plaintiff’s Order 16, Rule 3(2)(a) statement fails to refer to two (2) other irregularities in the way he was dealt with by the education authorities. For example:


74. It was surprising that these two (2) apparent irregularities were not put forward as grounds of review. As they were not included in the Order 16, Rule 3(2)(a) statement and leave to amend the statement to include them was neither sought nor granted, I will not have direct regard to them in determining the question of remedies. Their existence, however, supports the exercise of the discretion as to remedies in favour of the plaintiff.


FOURTH ISSUE: WHAT RELIEF SHOULD BE GRANTED?


75. As the Supreme Court emphasised in Mision Asiki v Manasupe Zurenuoc (2005) SC797 it is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose.


Declaration


76. The plaintiff seeks a declaration that his dismissal from the Teaching Service and deregistration as a teacher was unlawful. I have no hesitation in granting such a declaration. The disciplinary process against the plaintiff miscarried from the start when he was charged and suspended by an unauthorised officer and when, after the plaintiff made his reply, his reply and other relevant documents were not given by the charging officer to the National Education Board Disciplinary Committee. Three (3) serious errors of law were made, which infected the legality of everything else done later. Those errors were exacerbated by the failure of, in turn, the National Education Board Disciplinary Committee, the National Education Board and the Teaching Service Commission Disciplinary Committee to give reasons for their decisions. By themselves, these were very serious breaches of the principles of natural justice. Each successive failure made the excess of jurisdiction more acute than the previous one. By the time the Teaching Service Commission Disciplinary Committee made its decision, without giving reasons, to dismiss the plaintiff’s appeal, six discrete errors of law had been made. The entire process was flagrantly flawed, unlawful and unfair and the decisions to find the plaintiff guilty and to dismiss him from the Teaching Service and deregister him as a teacher were unlawful.


Reinstatement


77. This is an appropriate case in which reinstatement must be ordered. The plaintiff in his various submissions and appeals to the bodies that dealt with his case was at pains to emphasise his experience, competence and love for teaching. These points appear to have been genuinely made and the interests of justice dictate that he be reinstated to the Teaching Service and re-registered as a teacher. I will make orders accordingly.


Back-pay


78. As the Supreme Court emphasised in Asiki all remedies in judicial review proceedings are discretionary. If a person succeeds in establishing that he has been unlawfully dismissed from public employment and that he should be reinstated it does not necessarily follow that the court will order back-pay, ie payment of salary and other emoluments lost in the period since dismissal. Different approaches have been taken in the past.


79. On the one hand the courts have stressed that dismissed public officials who succeed in judicial reviews should not necessarily receive a windfall gain, ie ‘get paid for doing nothing’, if they are reinstated by order of the court. Cases in this category include: Paul Pora v Commissioner of Police (1997) N1569, National Court, Injia J; and Gideon Barereba v Margaret Elias (2002) N2197, National Court, Sevua J.


80. On the other hand there is a group of cases where the courts have ordered that the public official be both reinstated and paid salary and other emoluments lost by being unlawfully dismissed. Cases in this category include: Morobe Provincial Government v Minister for Village Services (1994) N1215, National Court, Salika J; Peter Luga v Richard Sikani (2002) N2285, National Court, Sakora J; Clement Kilepak v Ellison Kaivovo (2003) N2402, National Court, Lenalia J; and John Magaidimo v Commissioner of Police (2004) N2752, National Court, Gavara-Nanu J. Asiki’s case ultimately fell into this category.


81. In this case, the errors of law and breaches of natural justice have been so flagrant that I think the only fair thing to do is to order back-pay to the date of dismissal. I will make an order accordingly. I will make the order subject to further assessment by the National Court.


Damages


82. The Order 16, Rule 3(2)(a) statement makes only a vague claim for damages and in view of the conclusion I have reached about back-pay I am not inclined to uphold it. There is an argument to say that the plaintiff should be compensated for the distress and anxiety caused by his unlawful termination. However, he will end up receiving about four (4) years worth of lost salary and entitlements after not being gainfully employed as a teacher for about five (5) years (ie including the time that he was suspended, with pay). On balance, I think it is fair that he not receive any damages.


REMARKS


83. The disciplinary procedures for teachers employed in the National Education System of this country are extremely complicated and convoluted. The task of deciphering the scattered disciplinary provisions of the Teaching Service Act and the Teaching Service Regulation and the various instruments of authorisation and pinpointing the roles and functions of a seemingly myriad list of decision-making bodies make the Da Vinci Code look like child play.


84. It is sometimes said that there is a lack of discipline in the Teaching Service. After looking closely at the laws that are meant to impose and enforce discipline, it is easy to see why that is said. The laws, in my view, require a complete overhaul. They must be made clear and concise, simple and understandable.


85. The flaws in the laws, however, cannot be used to justify what happened in this case. The plaintiff, an experienced and competent teacher, faced very serious charges but was treated unfairly by a bureaucracy in which no person involved seemed to have any proper idea of their duties and responsibilities.


86. This judgment does not find that the plaintiff was not guilty of sexual harassment. However, there is a strong argument to say that he should never have to face the same charges again. He is entitled to be regarded as innocent and must be allowed to rejoin the Teaching Service with a clean slate. He will no doubt have learned many lessons along the way.


JUDGMENT


87. I grant the application for judicial review and direct entry of judgment in the following terms:


the decisions of the National Education Board Disciplinary Committee, the National Education Board and the Teaching Service Commission Disciplinary Committee finding the plaintiff, Joe Ponau, guilty of a disciplinary offence and recommending or imposing his dismissal from the Teaching Service and deregistration as a teacher are declared unlawful;
  1. the Teaching Service Commission must reinstate the plaintiff as a member of the Teaching Service and ensure that he is re-registered as a teacher under the Education Act within 30 days after the entry of this judgment and ensure that the plaintiff is consulted meaningfully in a way that allows for a genuine interchange and consideration of views as to the educational institution in which he will teach;
  2. the State must pay to the plaintiff a sum of money equal to the salary and emoluments, less tax, payable in respect of the position he held or an equivalent position, in the period from the date he was removed from the payroll to the date of his reinstatement;
  3. for purposes of assessment of that sum this matter shall be remitted to the National Court at Lae and the Registrar of the National Court or his delegate shall set the matter down for hearing for those purposes within 60 days after the date of entry of this judgment;
  4. costs of these proceedings are to be paid by the State to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
_________________________


Pryke & Janson : Lawyers for the Plaintiff
Solicitor - General : Lawyer for the Defendants

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