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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 95, 96, 97, 98, 99, 100 & 101 OF 2007 (JR)
BETWEEN:
Martin Kenehe (OS 95/07), Aita Sanangkepe (OS 96/07), Sakius Donnis (OS 97/07),
Joan Kalama (OS 98/07), Andrew Nuabo (OS 99/07), Banjamin Yalo (OS 100/07), Synell Ko’ou (OS 101/07),
Plaintiffs
AND:
Allan Jogioba as Chairman of Teaching Services Commission
First Defendant
AND:
Michael Pearson as Acting Commissioner, Operations
Second defendant
AND:
The Independent State of Papua New Guinea
Third defendant
Waigani: Injia, DCJ
2008: 11th July 2008
JUDICIAL REVIEW – two decisions the subject of review, ie the decision to suspend plaintiffs and secondly to demote four and dismiss three of them – issues arising - Whether decision of First Defendant to demote and or dismiss Plaintiffs, and not providing reasons for their actions amounts to breach of natural justice – whether first and second defendants are in breach of mandatory provisions of Teaching Service Act – whether persons disciplined under s.95 of TSA can be subjected to disciplinary procedure under Part VII of TSA – whether defendants actions were harsh and oppressive – ss.41 & 59 (2) of the Constitution, ss 87 (2), (3) and (4), and 95 Teaching Services Act, O.16 r.3 National Court Rules
JUDICIAL REVIEW – three (3) issues for Court to determine - whether the disciplinary process set out in Part VII Div 4 & 5 apply to teachers who are dealt with under s 95 - whether decisions of the defendants are in breach of the mandatory procedural requirements of s 87 (2), (3), and (4) of the TSA - whether s 95 provides a separate and distinct disciplinary process for dealing with breach of s 95(1)(a), (b) and (c)
PRACTICE AND PROCEDURE - judicial review relief is a specialized remedy in public law available at common law and is discretionary – general rule - administrative appeal or review process has to be exhausted first prior to leave application for judicial review – grounds of review and relief sought to be addressed in leave stage to deserve hearing on issues and evidence only based on those grounds –most grounds are not proper grounds where judicial review relief is available
JUDICIAL REVIEW – determination of remaining issues - whether s.95 of TSA is a valid law – whether s.95 is harsh and oppressive – whether court lacks jurisdiction to determine validity – whether appointment of an Independent Investigation Team was ultra vires s 11 of the Act - s.95 cannot be declared invalid under s41 of Constitution – not a proper ground – common law equivalent of s 41 of Constitution is under the Wednesbury principle of unreasonableness
PRACTICE AND PROCEDURE – remedies – TSC failed to conduct its own independent investigation and hearing into the matter as required by TSA - decisions by Teaching services Commission is quashed by an order for certiorari – plaintiffs to remain suspended pending proper hearing before TSC –each plaintiff to be restored to substantive position and paid their full backdated entitlements - s 95 (2) Teaching Services Act
Cases Cited
Joe Ponau v The Teaching Service Disciplinary Committee and the State (2006) N3059
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122.
Paul Asakusa v Andrew Kumbakor, Minister for Housing (2008) N3303
Sausau v PNG Harbours Board (2006) N3253.
Counsel:
N Kera, for the plaintiffs
No appearance for the defendants
11th July, 2008
1. INJIA, DCJ: These are seven separate applications for judicial review made under O 16 of the National Court Rules. The hearing of each application was consolidated because they raised the same issues for determination.
2. The plaintiffs are school teachers. Except for Mr Ko’ou who is a lecturer with the PNG Education Institute and Mr Kenehe who is the Headmaster of Gerehu Secondary school, the other plaintiffs are primary school teachers. They seek review of disciplinary actions taken against them by the defendants for their role in a nation-wide strike conducted by teachers throughout Papua New Guinea in 2006.
3. There are two decisions the subject of review. The first is a decision made between 10th – 14th July 2006 to suspend each plaintiff under s 95(1) of the Teaching Service Act 1988 ("the Act"). The second is decisions made on 3rd October 2006, under s 95 (2) of the Act to demote four of the plaintiffs and dismiss three of them. In the case of Mr Kenehe he was demoted from Education Officer level 9 to 6, Mr Sanangkepe from 2.7 to 2.6, Mr Donnis from 5 to 4 and Mr Kalama from 7 to 4. Mr Nuabo, Mr Yalo and Mr Ko’ou were dismissed from the Teaching Service.
4. The respondents were personally served with the Notice of Motion and supporting affidavits and notice of hearing but they or their lawyer failed to attend the hearing. I granted leave to the plaintiffs to proceed ex parte.
5. The hearing proceeded by way of uncontested affidavit evidence and both oral and written submissions made by Mr Karl of counsel for the plaintiffs. Submissions were concluded and I reserved my decision which I now deliver.
6. The relief sought and grounds relied upon are set out in the amended Statements filed under O 16 r 3(2)(a) of the National Court Rules. The grounds set out in each Statement are essentially the same and I set them out in full.
Relief sought:
7. There are eighteen (18) relief sought, as follows:
2. A Declaration that Section 95 of the Teaching Services Act 1988, does not apply to Industrial Actions organized by the Papua New Guinea Teachers Association in accordance with the Industrial Organisation Act, 1963 and that accordingly the decisions of the first and second defendants are null and void.
3. A declaration that the first and second Defendants suspended, demoted or dismissed the plaintiffs for participating in an industrial action and for being an officer, delegate or member of an industrial organization and that such action(s) contravenes Section 63 of the Industrial Organisation Act and Section 47 of the Constitution and therefore amounts to an error of Law on the face of the records and is accordingly null and void.
7. Alternatively, a declaration that the First Defendant’s decision on or about 3rd October 2006 in respect of each plaintiff referred to above, was a denial of natural justice contrary to Section 59 of the Constitution.
8. A Declaration that the First and Second Defendants failed to rely on any evidence, or if they did then such evidence was unreliable and therefore the decisions made are null and void for no evidence and for being unreasonable.
9. A Declaration that the first and second defendants took into account irrelevant considerations when disciplining the plaintiff and that such decision is accordingly null and void.
10. A declaration that the First and Second Defendants failed to observe the principles of natural justice enshrined in s 59 of the Constitution in that they:-
(a) Failed to give reasons for their decisions when suspending and demoting or dismissing the plaintiffs and that such failure amounts to a breach of Natural Justice provided to the plaintiffs under section 59(2) of the Constitution and accordingly such decisions are null and void.
(b) Failed to charge the plaintiff before disciplining the plaintiffs and that such a failure amounts to a breach of Natural Justice provided to the plaintiffs under section 59(2) of the Constitution and accordingly such decisions are null and void.
(c ) Failed to conduct a hearing before disciplining the plaintiffs and that such failure amounted to a breach of Natural Justice provided to the plaintiff under section 59(2) of the Constitution and accordingly any decisions made during or at the time of the purported hearing is null and void;
(d) Alternately, failed to accord to the plaintiffs the right to be heard and that such failure amounted to a breach of Natural Justice guaranteed to the plaintiff under section 59(2) of the Constitution and that accordingly decisions made during the purported hearing is null and void; and
(e) Alternatively, they failed to conduct a fair hearing against the plaintiff and that such a failure amounted to a breach of Natural Justice guaranteed to the plaintiff under section 59(2) of the Constitution and that accordingly decisions made during the purported hearing is null and void.
Grounds relied upon
8. There are thirteen (13) grounds of review, as follows:
1. The plaintiff are members of the Papua New Guinea Teachers Association (PNGTA), an Association incorporated under the Industrial Organisation Act, 1965. From November 2004 to April 2006 the PNGTA was negotiating with the Teaching Services Commission (TSC) to address Industrial Issues relating to the employment conditions of the Plaintiff and other members of the PNGTA. On 10th may, 2006 PNGTA organized a Nation-wide strike and on 19th May, 2006 the TSC and the PNGTA entered into a Memorandum of Understanding, whereby it was agreed under clause 9 that every teacher on strike will resume normal duties on 22nd May, 2006 with the Commission reserving the right to consider case by case the application of Section 95 of Teaching Service Act in the case where a teacher disregards the Notice of return to work on Monday 22nd May 2006. The Plaintiffs and all members of the Teaching Services complied with the Memorandum of Understanding and attended work on the 22nd May 2006. On 5th July, 2006 it was evident that the PNGTA had breached clause 4 of the MOU which provided that the PNGTA will rectify the teachers’ payroll discrepancies and the unpaid entitlements by the 5th of July, 2006. On 10th of July, 2006 the PNGTA issued a circular to its members to go on Strike and as a result the Plaintiff were suspended on 10th July, 2006. This Strike was part of an industrial action taken out by the PNGTA on behalf of its members. For this reason section 95 of the Teaching Services Act has no application on the members who were exercising their right to belong to an Industrial Organization as provided for under section 47 of the Constitution of the Independent State of Papua New Guinea.
2. Section 63 of the Industrial Organization Act protects employees who are members of Industrial Organizations, in that it prevents employees from injuring employees for reasons that the employee is an officer, delegate or member of an industrial organization. The strikes of 10 May and 10 July 2006 are all related to the Industrial Disputes between the PNGTA and the Teaching Services Commission (TSC) and for this reason the plaintiff who is an officer of PNGTA is guaranteed protection under Section 63 of the Industrial Organizations Act.
3. Section 11 of the Teaching Services Act, 1988 provides for the General powers of the TSC. Under section 11(1)(c) of the Act, the TSC is endowed with the power to establish Boards of Enquiry from time to time, and under section 11(7) of the same Act the TSC provides the board of enquiry with Terms of Reference for any investigation, it is required to undertake. Evidence show that the Board of Enquiry that was set up to investigate the Teachers Strike case was appointed by the Third Defendant in this proceedings. The Teaching Services Act does not authorize the Third defendant to appoint any board and therefore the board that sat on or around the 19th September, 2006 to investigate and purportedly heard the plaintiff’s matter did not have the jurisdiction and further were not given the terms of reference for the investigation therefore their purported finding and decision are null and void.
4. Section 87 of the Teaching Services Act 1988 provides for the manner in which proceedings before a committee is to be conducted. Under this section, the charging member and the chairman of the disciplinary committee is mandated to, where practical, given to the plaintiff a copy of all documents intended to be used at the hearing at least 7 days before the date fixed for the hearing. It is our submission that no hearing was held, alternatively if the interview by the investigation committee on or around the 19th was the hearing then we submit that the above mandatory provisions were not complied with especially in terms of provision of documents intended to be used for the interview or purported hearing.
5. The second industrial Action by PNGTA was effected on 10th July 2006. On the same day members of the NCDC branch of PNGTA were suspended from the teaching services. The plaintiffs were also suspended. It must be noted that over 30,000 teachers went on a Nation wide strike on May 10th and July 10th 2006. The question of what type of criteria was used to suspend teachers and on what evidence remains an issue given the fact that three days is not sufficient to establish such. The only reasonable conclusion would be that the plaintiffs were suspended and later demoted or dismissed because of their position as officers of the PNGTA.
6. Section 90(2) of the Teaching Services Act, 1988 provides that suspension may be effected before, at the time or after the laying of the charge. This implies that the charge may come before at the time of or after the suspension but not after the disciplinary hearing. In this case the plaintiff’s purported hearing took place on or around the 19th September 2006. The plaintiff was still not charged and on 5th October, 2006 when the plaintiffs were disciplined and demoted to a position lower than his substantial position or dismissed.
7. The defendants did not conduct any hearing before disciplining the plaintiffs. On or around 19th September, 2006 the defendants were conducting an investigation through a committee known as the independent strike investigation committee whereby short interviews were conducted with other suspended members of the PNGTA. This committee was an investigation committee and could not be the disciplinary Committee having the power to discipline the plaintiffs. Alternatively, if such a committee is a Disciplinary Committee (which is denied) then it is submitted that the committee failed to accord the plaintiffs their right to be heard. The plaintiffs were not given any documents or directed to any witnesses whose evidence amounted to a case warranting the application of section 95 of the Teaching Service Act, 1988. The lack of evidence and the lack of reasonable grounds is evidence in the defendants Notice of Demotion where no reasons whatsoever were given for the disciplinary action taken. This clearly breaches section 59(2) and section 41 of the Constitution.
8. The defendants’ actions has caused substantial hardship to the plaintiffs who were demoted .On or about 10th July, 2006 they were suspended without pay, they were not reinstated to payroll until 5th October, 2006 when they were demoted to a position lower than their substantial position and in spite of being disciplined and reinstated to a demoted position, they were not paid their fortnightly salaries for another seven months, adding the time they were suspended, the plaintiff s have been without pay for a period of eleven (11) months. This has caused the plaintiffs hardship, distress, frustration which has greatly affected they health, psychology and also that of their families.
9. The First Defendant’s decision to suspend the Plaintiffs without relying on credible evidence is contrary to Section 41 of the Constitution, harsh, oppressive and is not reasonably justifiable in a democratic society having proper regard for the rights and dignity of mankind.
10. By Section 59 of the Constitution, persons whose interests are affected by the decision of an authority whether quasi-judicial, judicial or administrative are required to be accorded natural justice.
11. There is an arguable case before the Court and the balance of convenience favour the Plaintiffs.
12. The Plaintiffs has suffered loss of salaries and entitlements due to the First and Second Defendant’s decisions to demote or dismiss them.
Issues for determination by the Court
9. Mr Karl of counsel for the plaintiffs has identified 3 main issues to be considered and determined by the court which are set out in his amended written submissions which he handed up in Court at the hearing, and two further issues which he sets out in his supplementary submissions which he filed on 18th January 2008. The six (6) issues are as follows:-
1. Whether or not the decision of the First Defendant on or around 4th October 2006 to demote and or dismiss the Plaintiffs without charging them amounts to a breach of natural justice under s 59(2) of the Constitution.
2. Whether or not the decision of the First and Second Defendants on or around 4th October 2006 are in breach of the mandatory provisions of s 87 (2), (3) and (4) of the Act.
3. Whether persons disciplined under s 95 of the Act can be subjected to disciplinary procedures under Part VII of the TSA 1988.
4. Whether or not the decision of the First Defendant on or around 4th October 2006 to demote and or dismiss the plaintiffs from the teaching service without providing reasons for such actions amounted to a breach of natural justice under s 59 (2) of the Constitution.
5. Whether the summary of disciplinary procedures outlined in s 95 of the Act should comply with principles of natural justice under ss 59 and 60 of the Constitution.
6. Whether the actions taken under s 95 of the Act was harsh and oppressive under s 41 of the Constitution.
10. Mr Karl has made extensive submissions on these issues which I do not need to set out in great depth. It is sufficient to refer to the pertinent parts of his submissions in my discussions.
Facts:
11. The Teaching Service Commission is responsible for administering the affairs of teachers throughout PNG. Its functions are spelt out under the Teaching Service Act 1988. Most teachers throughout PNG are members of the PNG Teachers Association Inc (PNGTA). One of its main objectives is to represent teachers in matters concerning their welfare. It is a registered industrial organization under the Industrial Organization Act (Ch 173). The plaintiffs occupy key positions in the management of PNGTA. Mr Kenehe is its Vice President, Mr Ko’ou is the southern region President, Mr Nuabo is the President of NCD branch of PNGTA, Mr Sanangkepe is the Vice President of the Western Highlands branch of PNGTA, Mr Donnis is the Vice President of NCD branch, Ms Joan Kalama is the female representative of the southern region and Mr Yalo is an active member of the NCD branch.
12. In early May 2006, members of the teaching service staged a nation-wide strike over their terms and conditions of employment. The strike commenced on 10th and ended on 22nd May 2006. The PNG Teachers Association (PNGTA) organized the strike. The State through the Teaching Service Commission (TSC) and the PNGTA negotiated an end to the strike. On 19th May 2007, PNGTA and TSC entered into an agreement by way of a Memorandum of Understanding (MOU). On 19th May 2006, the MOU was registered by the Industrial Registrar under s 12 of the Teaching Service Conciliation and Arbitration Regulation (Ch 73), as Determination No. 1 of 2006. TSC agreed, inter alia, to prepare and present a NEC submission for K73 million to be allocated to address payroll discrepancies and the teachers agreed to resume duties and the TSC agreed to.
13. In July 2006, disagreements emerged over TSC’s compliance with its obligations under the MOU. PNGTA threatened another nation-wide strike. TSC responded by suspending six of the plaintiffs between 10th – 14th, July 2006. The plaintiffs Mr Kenehe, Mr Donnis, Mr Nuabo and Mr Yalo, were suspended on 10th July, Mr Kalama on 13th, Mr Sanangkepe on 14th. Mr Ko’ou was suspended on 13th October 2006. The suspension notices were issued under s 95 (1) of the Act. The wording of the notices issued to each plaintiff was in the same terms. The notice states, as follows:
"Act, sec. 95(1)
Reg. Sec 19(4)
To: (Officer name & address stated).
NOTICE OF SUSPENSION FOR STRIKE" WHEREAS there is reason to believe that you have committed an offence or offences within the meaning of Section 95(1) of the Teaching Service Act, you are hereby suspended from duty and this takes effect from the date of this notice.
AND TAKE NOTICE that you are suspended without pay and that this suspension remains in force until the matter is dealt with and disposed of.
AND TAKE FURTHER NOTICE that you are required under s 95(1) of the Teaching Service Act to show cause to the Teaching Service Commission within seven (7) days of receipt of this notice of suspension as to why you should not be dismissed from the Teaching Service.
Dated this 10th July 2006.
(signed)
___________________
(Signature of Authorized Person)."
14. All the plaintiffs, except Mr Kenehe, responded to the notice of suspension in writing. Mr Kenehe replied on 25th September 2006 denying the charge and gave his explanation.
15. There is little evidence on what happened next. If the notice of hearing dated 30th August 2006 issued to Mr Donnis is of any indication, it shows that the notice was in relation to a pre-arranged interview with an investigation team appointed by Department of Education. The notice states:
"Dear sir,
SUBJECT: HEARING OF APPEALS ON SUSPENSION
You are advised that the Independent Strike Investigation Team appointed by the Secretary for Education, Dr Joseph Pagelio, will be hearing the case on your suspension under section 95 of the Teaching Service Act on Monday 4th September 2006 at 9:00am at the TSC Conference Room on the 7th Floor Fincorp Building.
You are summoned to be in attendance for any interview required by the team.
On Monday, you are to report to Mr Harley Kila (Executive Officer) who will give you further instructions on the matter.
( signed)
Alan JOGIOBA
Acting Chairman"
16. As to what transpired at the "hearing", it appears from Mr Kenehe’s evidence that he attended the "hearing" on 19th September, 2006. There was no hearing conducted into any disciplinary charge. He was questioned by the Legal Officer of TSC one Alex. The questioning lasted for several minutes. He was not shown any documents. Mr Kenehe asked a question which was not answered. He was allowed to leave after the interview ended. Mr Donnis attended the hearing and the proceedings were similar to that applied to Mr Kenehe. Mr Kalama also attended the hearing and he was questioned by Mr Pearson whom he says was dominating, Mr Nuabo and Mr Yalo attended the hearing and they were questioned. Mr Sanangkepe did not attend the "hearing". In respect of Mr Ko’ou, it is not clear from his evidence if he attended the hearing.
17. On 5th October 2006, the notices of penalty were issued. The notice issued to Mr Kenehe dated 4th October 2006, states:
"Dear Mr Kenehe,
SUBJECT: DECISION OF TEACHING SERVICE COMMISSION FOLLOWING YOUR SUSPENSION UNDER TEACHING SERVICE ACT, SECTION 95.
The Teaching Service Commission (TSC) has considered your involvement in the aiding, abetting, fomenting and/or taking part in a strike that interfered with, prevented or was intended or calculated to interfere with or prevent the working of the Education System, or any part of it or the conduct of an institution, or the giving of some or all instruction in an education institution.
The Teaching Service Commission, after investigation and hearing, has decided to:-
Your suspension is uplifted with effect from 3rd October 2006 and you are to be paid at your new salary level effective 03/10/06.
Yours Sincerely,
(signed)
ALAN JOGIOBA
Acting Chairman,- Teaching Service Commission."
18. Except for Mr Ko’ou, the plaintiffs received similar notices of decision with different penalties. In Mr Ko’ou’s case, additional reference was made to his appearance on National TV and public statements on newspapers threatening to stage strike and disrupt national school examinations.
Disciplinary process under the Teaching Service Act 1988
19. Before determining the grounds of review, it is useful to set out the main steps or features in the disciplinary process set out in Part VII (Discipline).
20. Div. 2 (Disciplinary Offences), s 83 sets out disciplinary offences as follows:
"83. Disciplinary offences
A member of the Teaching Service who—
(a) commits a breach of this Act; or
(b) wilfully disobeys or disregards a lawful order made or given by a person having authority to make or give it; or
(c) is negligent or careless in the discharge of his duties; or
(d) is inefficient or incompetent from causes within his own control; or
(e) uses intoxicating liquor or drugs to excess, so as to impair his professional competence; or
(f) solicits or accepts a fee, reward, gratuity or gift in connexion with the discharge of his duties (other than his authorized remuneration), except in a case or in circumstances in which gifts of a customary or traditional nature are freely exchanged; or
(g) is guilty of disgraceful or improper conduct in his official capacity or otherwise, so as to reflect on the teaching profession; or
(h) having taken an oath or made an affirmation or declaration under this Act, does or says anything in violation of that oath, affirmation or declaration; or
(i) abuses his authority or his relationship with subordinates, is guilty of a disciplinary offence and is liable to be dealt with and punished under this Part."
21. The disciplinary offences are divided into two parts. Division 3 sets out the procedure for dealing with minor disciplinary offences and Div.4 sets out the procedure for dealing with serious disciplinary offences. In the present case, as the disciplinary offence alleged may appear to fall under the serious offence category, I will confine my discussions on the procedure under Div. 4.
22. Div. 5 provides for the procedure to be followed by "disciplinary committees". The term "disciplinary committee" is defined in s 1 of the Act to mean Provincial Disciplinary Committee (PDC), the National Education Board Disciplinary Committee (NEBDC) or the Teaching Service Commission Disciplinary Committee (TSCDC). The existence of these disciplinary committees is expressly mentioned in Part VII and they are bodies which exist independent of the Provincial Education Board, National Education Board and the Teaching Service Commission.
23. The provisions of Div. 4 and Div. 5 apply to all disciplinary committees.
24. The main features or steps in the disciplinary process were recently canvassed by Cannings J in Joe Ponau v The Teaching Service Disciplinary Committee and the State (2006) N 3059. His Honour sets out eight (8) steps. I have identified nine (9) main steps or features in the disciplinary process in respect of serious disciplinary offences, much of which are similar to those identified by His Honour.
25. The nine (9) steps I have identified are:
26. Section 95 of the Act which comes under Part VII Div.6 (Miscellaneous) sets out the procedure for dealing with teachers who go on strike, as follows:
"95. Strikes
(1) A member of the Teaching Service who has aided, abetted, fomented or taken part in a strike that interferes with, prevents, or is intended or calculated to interfere with or prevent—
(a) the working of the Education System, or any part of it; or
(b) the conduct of an institution; or
(c) the giving of some or all instruction in an educational institution, or to have attempted to do so,
shall be immediately suspended without pay by a person authorized by the Commission to lay charges under this Part and shall be required in the prescribed form to show cause to the Commission within seven days of receipt of the notice of suspension why he should not be dismissed from the Teaching Service.
(2) The Teaching Service Commission, after investigation and hearing and without regard to the disciplinary procedures laid down under this Part may—
(a) dismiss the member; or
(b) reduce him to a position of lower classification; or
(c) reduce his salary; or
(d) transfer the member to any other position at the same school or in any other school."
27. In the present case, three issues arise for determination as follows:
(a) Whether the disciplinary process set out in Part VII Div 4 & 5 apply to teachers who are dealt with under s 95;
(b) if so, whether the decisions of the first and second defendants made on or around 4th October 2006 are made in breach of the mandatory procedural requirements of s 87 (2), (3), and (4) of the Act.
(c) If not, whether s 95 provides a separate and distinct disciplinary process for dealing with breach of s 95(1)(a), (b) and (c).
28. In my view, s 95 completely outlaws strike action by teachers, it creates disciplinary offences for teachers who go on strike and provides its own disciplinary procedure for dealing with those disciplinary offences. Subsection (2) makes this clear when it provides that the TSC may conduct an "investigation and hearing without regard to the disciplinary procedure" under Part VII. Section 95 (1) creates a disciplinary offence which is distinct from but in addition to the disciplinary offences set out in s.83. Both ss 83 & 95 come under Part VII (Discipline). It follows that the 9-step disciplinary process that I have set out above does not apply to teachers dealt with under s 95.
29. Section 95 provides a complete and exclusive procedure for dealing with striking teachers, as follows:
30. The procedure under s 95 as set out above is a special procedure. It provides a summary procedure by which strike actions taken by teachers, whether threatened or actual, is dealt with promptly, decisively and also fairly. Strike action by teachers interferes with or prevents the proper working of the education system and the operation of teaching institutions and adversely affects the education of thousands or hundreds of thousands of school children. The summary disciplinary procedure stipulated in s 95 in my view is a power that TSC must, of necessity, posses.
Summary disposal of unmeritorious grounds of review and issues
31. Judicial review relief is a specialized remedy in public law which is available at common law. It is very much discretionary. The Courts guard against abuse of its judicial process by busybodies and persons with trivial or misguided complaints over administrative errors or mis-judgments who too often use the Courts to rehash or reargue their case in as much as the same manner in which they did or would have done before the statutory tribunal or authority whose decision is challenged on review. The nature of the relief that is available, the grounds on which they are available and the procedure by which an application for judicial review if filed and pursued in court are well defined by rules of court and well established principles of law. It is a restrictive process and not an open forum people with misguided complaints over administrative errors and mis-judgments to rehash or reargue their case before the Court, on any conceivable ground and raise material and issues which have no basis in law and the pleadings of proper grounds of review.
32. Judicial review is about the decision-making process under statute. It is concerned with the decision itself. The grounds on which judicial review relief is available are set out in Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122. The primary relief and consequential relief available in judicial review are specifically prescribed by O16 r 1. The relief sought and grounds pleaded must be properly and sufficiently pleaded in the Statement filed under O16 r 3; they must relate to established and recognized grounds of review at law. The grounds must be pleaded clearly and sufficiently to conform to the "proper and sufficient pleading" test: see Paul Asakusa v Andrew Kumbakor, Minister for Housing (2008) N3303. The relief sought and grounds relied upon must be specific and precise and not duplicitous. Matters of evidence and submissions on the law or evidence are not required to be pleaded in the Statement.
33. The material or evidence relied upon at the trial must relate to and be relevant to those grounds as expressly pleaded. At the hearing parties will not be permitted to advance grounds which clearly lack merit, or introduce new grounds which are not pleaded and produce evidence or material and raise issues and submissions which have no connection with the grounds pleaded.
34. There is one important aspect in regard to the appropriate decision and grounds of review relating to it that I should clarify. Where a statute stipulates an administrative appeal or review process to review the decision of a primary decision-maker, as a general rule, that appeal or review process must be exhausted first before leave for review is granted: Kekedo v Burns Philp (New Guinea) Ltd, supra; O 16 r (6). The decision the proper subject of judicial review is the decision on appeal or review and not the primary decision. In the primary hearing, the plaintiff is expected to put his or her entire case to the decision-making body or authority. An appeal lies from that decision. In the appeal, the plaintiff is expected to put her entire case for review of the primary decision before the appeal body. Judicial review lies against the decision of the appeal body. On judicial review, as a general rule, the plaintiff is not permitted to challenge the primary decision or reargue or rehash arguments raised before the primary–decision making body. Also on judicial review, as a general rule, the plaintiff on review will not be permitted to rehash the same case or arguments raised or to raise new issues which were not raised before the appellate body and considered by it. The primary task of the Court is to review the decision on the record, made by the appeal body and determine whether the grounds of review are established by the plaintiff and the appropriate relief ought to be granted. The review court will not, should not and has no jurisdiction to go outside the scope of matters considered by the appellate body.
35. One of few exceptions to the general rule is allegations of denial of natural justice under the two constituents of that principle, namely nemo judex in sua causa and audi alterm partem. There are those cases where the plaintiff or another person is directly affected by the decision and claims that he or she was not given an opportunity to be heard by the primary body or the appeal body; or that subsequent to the decision, evidence comes to light after the decision that members of the decision-making body were unduly influenced in making the decision such that the decision-making process was tainted. In such cases, the plaintiff or such other person may be allowed to raise new matters and to adduce "fresh evidence" to prove his or her case. These principles are well established.
36. With the increase of judicial review matters coming before the court in recent years, the pleading of the relief and grounds relied upon and the multiplicity of issues and matters raised at the hearing of a substantive application, it is evident in may cases that much improvement needs to be done. It is for this reason that at the hearing of the leave application and at the direction hearing, the grounds of review and the relief sought should be addressed so that only those grounds and relief and issues and evidence which are proper and deserve a hearing on the merits and judicial determination are allowed to proceed to a hearing. A similar exercise should be carried out at the hearing of the substantive application in case some of those matters escape proper scrutiny at the leave or directions hearing stage. Also in this exercise, grounds which offend proper pleading requirement and /or clearly lack merit should be identified at a preliminary stage of the hearing of the substantive application for review and weeded out to prevent waste of court’s time on what is clearly unmeritorious grounds administrative matters which have a tendency to abuse the court process.
37. In the present case, there are a multiplicity of relief and grounds of review pleaded in the amended Statements which I have reproduced above. Many simply state obvious matters of law and statement of facts and many are duplications. Many of the grounds are not proper grounds on which judicial review relief is available. Many of them contain submissions on points of law and facts. The drafting of the relief and grounds leave much to be desired of counsel.
38. Mr Karl’s identification of only few issues which should be determined by this Court has assisted me a great deal in saving me precious time in sorting out this mess and refining the issues that I have to determine. I consider the issues raised by Mr Karl to be issues raised by many of the permissible grounds of review and I will consider and determine them. As for the rest of the grounds, I infer that the plaintiffs do not pursue them. I would summarily dismiss those grounds, in any case, if they were pursued.
DETERMINATION OF REMAINING GROUNDS OF REVIEW
39. The issues to be determined are posed in question form and determined below.
Is s 95 a valid law?
40. The plaintiff’s case is based on the construction of s 95. The first part of the challenge is the validity of s 95. Section s 95 as a whole is inconsistent with the rights of teachers given by s 47 of the Constitution and also by International Labour Organizations’ international Conventions on Freedom of Association and Rights to Organize Convention 1948 and Right to Organize and Collective Bargaining Convention 1949. Therefore the legislatures complete outlawing of strike action by teachers "are harsh and oppressive and cannot be reasonably justified in a democratic society having proper regard for the rights and dignity of mankind".
41. In my view, this court lacks jurisdiction to determine the validity, Constitutional or otherwise, of any statutory provision. This Court has jurisdiction to refer a constitutional question for determination by the Supreme Court under s 18 of the Constitution but I am not invited by the plaintiffs to exercise that power.
42. The grounds and arguments on this issue are dismissed.
Is s 95 harsh and oppressive?
43. It is argued by plaintiff’s counsel that the actions taken by TSC under s 95 are harsh and oppressive in the circumstances where the teachers exercised their right to strike as a way of collective bargaining to addressing their grievances over terms and conditions of employment. They should be declared invalid under s 41 of the Constitution.
44. In my view, this is not a proper ground for review or proper relief that is available in judicial review. The appropriate ground which is the common law equivalent of s 41 of the Constitution is under the Wednesbury principle of unreasonableness: see Sausau v PNG Harbours Board (2006) N3253. This ground is properly pleaded in ground seven (7).
45. The grounds pertaining to s 41 of the Constitution and arguments on this issue are dismissed.
Was s 95 (1) & (2) complied with? Was the appointment of an Independent Investigation Team ultra vires s 11 of the Act?
46. These two issues are related. The answer to these issues depends on the construction of Subsection (1) & (2). In relation to compliance with Subsection (1), in my view, the plaintiffs do not question the defendant’s compliance with s 95 (1). They were suspended for taking part in the strike. The plaintiffs, except Joan Kalama do not deny they participated in the strike action, either in an organizational capacity or otherwise. In respect of Joan, she annexes an "affidavit statement" to her affidavit which states she was at work at the times the strike took place. She attended the hearing before the TSC and I would think she gave the same explanation to the TSC but the TSC found she did participate and demoted her.
47. I am satisfied that the procedures prescribed by s 95(1) was complied with. The plaintiffs were suspended following the strike action. The notice of suspension was served on them. Through the notice of suspension, they were informed of the charge and given an opportunity to show cause why they should not be dismissed. Only Mr Kenehe replied or gave an explanation.
48. In relation to compliance with Subsection (2), Mr Karl makes two main submissions, First he submits it is implied from the phrase "investigation and hearing" that after the teacher is suspended, he or she must be given an opportunity to be heard in the investigative and the hearing on the matter before a decision is made on both guilt or innocence and penalty. In view of the 9-step disciplinary process under s 95 that I set out above, I accept this submission. Mr Karl’s second submission is that the appointment of the Independent Investigation Team was done contrary to s 11 of the Act and that it lacked jurisdiction to conduct the investigation and hearing that it conducted, based on which findings the plaintiffs were found guilty and punished.
49. I am satisfied that the Investigation Team appointed by the Secretary for Education which conducted the investigation which led to the decision made by TSC on both guilt and penalty had no power to conduct an investigation and hearing under s 95 (2). Section 95 (2) empowers the TSC, not some investigation team appointed by the Secretary for Education, to conduct that investigation and hearing and make the decision on guilt and penalty. The TSC is independent from the Department of Education which is headed by the Secretary for Education. Part II of the Teaching Service Act established the Commission and inter alia, prescribes its membership consisting of 3 commissioners appointed by the Head of State acting on advice. It conducts its own meetings and commissions its own investigations and makes its own decisions on matters which affect the welfare of teachers. The Commissions functions are spelt out in s.9 of the Act. One of its functions is to "ensure that decisions of other authorities under this Act or the Education Act 1983 do not infringe or abrogate the rights or conditions of service of members, and where those rights or conditions are infringed or abrogated- (i) to give such directions; and (ii) to take such other action within its power under this Act or any other law as may be necessary to correct the situation": s 9 (1)(b), (5),(6),(7),(8) &(9. The Commission has power to establish its own Boards of Inquiry to investigate matters relating to the terms and conditions of service and welfare of members: s 11 (1)(c). The Commission also has power to conduct its own independent investigations and conduct hearings and make decisions on any matter within its jurisdiction and this includes summonsing of witnesses and taking evidence on oath and requiring a person to produce documents: s 11 (1) (d),(e) & (f). Criminal offences are created for persons who fail to attend hearing or produce documents under summons: s 11 3) & (4).
50. The office of the Secretary for Education, his functions and the functions of his department are spelt out in the Education Act 1983. The Commission is not an agent of the Secretary for Education or his department, to carry out his functions in respect of teachers’ welfare and terms and conditions of employment. The Commission exists independent of the Department and its Secretary.
51. In my view, the disciplinary function given by s 95, is given to TSC to perform collectively by a duly constituted quorum in accordance with the powers and functions and procedures spelt out in Part II of the Act. As to the procedure to be adopted in conducting a "hearing and investigation" under s 95 (2), the TSC may use the procedural "investigation and hearing" powers given under Part II of the Act, in particular s 11. It is a special procedure which is distinct from the ordinary disciplinary procedure set out in Part VII of the Act.
52. In the present case, the plaintiffs were informed of the investigation to be conducted in the form of an interview to be conducted by the Investigation team appointed by the Department of Education. The interview was conducted by a legal officer by the name of Alex and Mr Pearson. It is not clear as to who the other members of the Investigation Team were. I am satisfied on the evidence before me that the Investigation team appointed by the Secretary for Education to deal with the matter under s 95 (2) was appointed without lawful authority and that it lacked jurisdiction to conduct such "investigation and hearing" under s 95 (2) of the Act. Consequently, the entire proceedings including investigation and hearing conducted and the decisions on guilt and penalty made by the TSC based on those findings must be quashed in their entirety
53. I am also satisfied that the TSC of its own failed to conduct its own independent investigation and hearing into the matter as required by s 95 (2). The plaintiffs have complained of the unfair manner in which the investigative and hearing was conducted. They have decried lack of adequate opportunity given to present their cases and unfair handling of their case when presented. These sorts of criticism or complaints gain validity when the independent "investigation and hearing functions" of the TSC given by s 95 and Part II of the Act get tangled up with the purely administrative functions of the Education Department headed by the Secretary for Education, particularly on matters affecting the welfare of teachers.
Was natural justice denied?
54. Second, he submits the common law principles of natural justice embodied in the audi alteram partem rule as adopted in s 59 of the Constitution and applied by Courts in many cases should be read into the investigation and hearing conducted under Subsection (2).
55. This argument is based on the common law principles of natural justice which is adopted by s 59 and to be developed by the Courts as part of the underlying law as mandated by s 60 of the Constitution and adopted, developed and applied by Courts in many cases in Papua New Guinea.
56. Those principles apply as part of the underlying law where there is no statutory provision governing a particular subject. In my view, the disciplinary procedure affecting members of the Teaching Service in PNG are prescribed by Part VII of the Act, in particular Div. 4 and 5 as they relate to serious disciplinary offences. Those provisions provide the exclusive procedure on teacher discipline. Some of the provisions are designed to afford an opportunity to the teacher concerned to be given an opportunity to be heard and ensure that the issues of guilt and penalty on the disciplinary charges are fairly determined by a neutral person or body which plays no part in the investigative, charging and prosecution process.
57. In relation to s 95 procedure, the two constituents of the principles of common law, namely audi alteram partem and nemo judex in sua causa are embodied in the disciplinary procedure set out in the disciplinary process set out in s 95 (2) and s 11 of the Act and they should be observed by the TSC in dealing with matters under the special disciplinary procedure under s 95. Whilst s 95 provides a summary procedure by which strike action, actual or threatened, is dealt with quickly and decisively, the Commission is also under a duty to act fairly and seen to be acting fairly, as required by s 59 of the Constitution. The minimum requirement is to afford an opportunity, a real opportunity and a fair one too, to the teachers concerned to present their case before a decision on guilt and penalty is made and enforced.
CONCLUSION
58. It follows that the decisions made by the "Teaching Service Commission, after investigation and hearing" conducted by the Independent Strike Investigation Team" appointed by the Secretary for Education must be quashed by an order for certiorari. As for the suspension under s 95 (1) I do not find any fault or error. Serious allegations have been made against the plaintiffs for their involvement in the May and July 2006 strikes and those allegations should be properly investigated and determined by the TSC. The plaintiffs will remain suspended and the matter will now go before the TSC to conduct a proper hearing in accordance with this decision. Each plaintiff will be restored to his or her substantive position prior to the decision and paid their full entitlements backdated to the time of the decision.
ORDERS
59. The formal orders of the Court are:
_____________________________________
Lomai Lawyers: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Respondents
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