Harou v Solok [2009] PGNC 250; N3929 (8 April 2009)

N3929

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 260 OF 2008

GERRY HAROU AND PAYANG ETE
Plaintiffs

V

JOHN SOLOK, EXECUTIVE MANAGER, CUSTOMER SERVICES,
PNG WATERBOARD
First Defendant

PNG WATERBOARD
Second Defendant

Madang: Cannings J
2008: 12 September, 24 October;
2009: 8 April

JUDICIAL REVIEW – disciplinary proceedings – review of decision to find officers of governmental body guilty of disciplinary offences and impose penalties of dismissal and demotion – whether charges laid under correct provisions of disciplinary code – whether the person who determined the charges had power to do so – whether officers had a separate right to be heard on penalty.

Two officers of a governmental body were charged under the body's disciplinary code with being negligent and inefficient. They were found guilty and given notice of termination of employment. They appealed to the managing director who revoked the decisions to terminate their employment and decided instead to demote and transfer them. They sought judicial review on the grounds that (1) as to the guilty findings, (a) the charges were laid under incorrect provisions of the disciplinary code and (b) irrelevant considerations were taken into account; and (2) as to the decisions to punish them, (a) the person(s) who decided on punishment lacked power to terminate their employment and (b) they were denied natural justice as they were not given a right to be heard on the question of penalty.

Held:

(1) As to the guilty findings, two errors of law were made, in that:

• (a) the charges were laid under incorrect provisions of the disciplinary code, in a manner that was confusing and misleading and intrinsically unfair; and
• (b) the person(s) determining the charges took irrelevant considerations into account, viz adverse comments on the plaintiffs' performance, which they had no prior opportunity to comment on.
  

(2) As to the decisions regarding punishment, one error of law was made, in that:

• (a) the person(s) who terminated their employment had no power under the disciplinary code to do so; but
• (b) there was no separate right to be heard on penalty and therefore no denial of natural justice in that regard.
  

(3) The errors of law made in connexion with the guilty findings were significant and warranted quashing those decisions.

(4) The court accordingly quashed the decisions that the plaintiffs were guilty of disciplinary offences and the decisions that they be demoted and transferred, and ordered that they be reinstated to their original positions and paid back-pay.

Cases cited

The following cases are cited in the judgment:

George Kakas v Commissioner of Police, SCM No 17 of 2005, 29.07.07
Jeffrey Afozah v Commissioner of Police (2008) N3300
Kita Sapu v Commissioner of Police (2003) N2426
Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797
Paul Saboko v Commissioner of Police (2006) N2975

JUDICIAL REVIEW

This was an application for judicial review of the decisions to find two officers of a governmental body guilty of disciplinary offences and impose punishment on them.

Counsel

B Tabai, for the plaintiffs
A Walne & P P Siminzi, for the defendants

8 April, 2009

1. CANNINGS J: Two officers of the Waterboard based at Madang, the plaintiffs Gerry Harou and Payang Ete, were subject to disciplinary charges. They responded to the charges. Then the first defendant, John Solok, the Executive Manager of the Customer Services Division, wrote to each of them and told them that the charges had been sustained and their services were terminated forthwith. They appealed to the Managing Director, Patrick Amini, who revoked the decisions to terminate their employment and decided instead to demote and transfer them.

2. The Waterboard is a governmental body established by the National Water Supply and Sewerage Act 1986.

3. The plaintiffs are applying for judicial review of (1) the decisions to find them guilty and (2) the decisions concerning punishment.

GROUNDS OF REVIEW

4. As to the guilty findings, they allege that two errors of law were made:

(a) the charges were laid under incorrect provisions of the disciplinary code; and

(b) irrelevant considerations were taken into account.

5. As to punishment, they argue that two errors of law were made:

(a) the person(s) who decided to terminate their employment had no power to do so;

(b) they were denied natural justice as they were not given a right to be heard on the question of penalty.

PRELIMINARY POINTS

6. Before dealing with the grounds of review there are some preliminary points raised by the defendants' counsel, Mr Siminzi, that need to be resolved. He submitted that the application for judicial review was procedurally defective for four reasons. First, no notice was given to the Secretary for Justice under Order 16, Rule 3(3) of the National Court Rules. Secondly, no notice of motion was filed under Order 16, Rule 5(1). Thirdly, no supporting affidavit was filed under Order 16, Rule 3(2)(b). Fourthly, there is no order on the court's file showing that leave was granted.

7. These points may have had merit if they had been raised earlier. But they have been overtaken by events in 2008. Leave was granted by Salika J on 18 July. There is an endorsement on the court file to that effect. I set the matter down for trial at the callover on 1 September. The trial commenced on 12 September when the plaintiffs' evidence was admitted. Mr Walne represented the defendants then, and the preliminary points were not raised. The second day of the trial was 24 October. That was when the preliminary points were first raised. That was far too late. They are procedural issues only. The defendants have not been prejudiced by any non-adherence to the Rules. For the avoidance of doubt, I exercise the discretion of the court under Order 1, Rule 7 of the National Court Rules to dispense with compliance with the requirements of the Rules referred to. To do otherwise would be unjust.

(1) THE GUILTY FINDINGS

(a) Were the charges laid under incorrect provisions of the disciplinary code?

8. The Waterboard disciplinary code prescribes different procedures according to whether the person being charged is a casual employee, a temporary employee, a permanent officer or a contract officer and whether the charge alleges a minor or a serious offence.

9. The plaintiffs were permanent officers. Minor offences by permanent officers are to be charged using a form 5 notice of charge and a form 6 notice of punishment. The punishment is a caution, reprimand or fine not exceeding K50.00. Serious offences by permanent officers are to be charged using a form 7 notice of charge and a form 8 notice of punishment. Serious offences attract a wider range of punishments, including a caution, reprimand, fine not exceeding K100.00, reduction in pay, demotion, transfer, suspension with or without pay and recommendation to the Managing Director for dismissal.

10. The plaintiffs were each served with a 'Notice of Charge under Section 5.2.3 PNG Waterboard Rule No 2.5.6', which also stated 'Permanent Officers Form 5 Minor Offence'. It was the wrong form. Mr Siminzi, for the defendants, concedes that but submits that it was an oversight, a minor typographical error that should not render the entire disciplinary proceedings void.

11. I can accept that this was an oversight but to label it a minor typographical error is not warranted. It was confusing and misleading and intrinsically unfair. An officer receiving such a charge would reasonably believe that he was facing only a minor charge and that if found guilty, the maximum punishment would be a caution, a reprimand or a K50.00 fine. It was an error of law.

(b) Were irrelevant considerations taken into account?

12. Mr Tabai, for the plaintiffs, pointed out that in letters Mr Solok wrote to each plaintiff notifying that the charges were sustained and that their services were terminated, he took irrelevant considerations into account: factors that were not part of the charges, which the plaintiffs had no opportunity to respond to.

13. Mr Harou, the Branch Administration Officer, was found guilty of three charges. He committed a breach of 'the Act' (which was unspecified), was negligent and inefficient, in that he:

• failed to administer and organise purchase of materials to complete baffles;
  
• failed to administer and organise purchase of chemicals urgently required for water treatment resulting in lack of treated water in some areas of Madang, putting lives of customers at risk and affecting sales;
  
• failed to administer and effect registration of motor vehicles at Madang branch.
  

14. In his letter to Mr Harou advising that 'Management has assessed your response to the disciplinary charges', Mr Solok, after giving reasons for sustaining each charge, stated:

In addition to these charges that have been sustained, general investigations on the overall performance of Madang branch reveal that there are high incidences of customer complaints relating to billing accuracy and bills not delivered on time. Records of your attendance reveal also your continuous absenteeism from work that has resulted in the lack of leadership and coordination of staff who report to you. For instance, the Meter Readers have no proper schedule to coordinate their regular meter reading duties.

In view of the aforesaid, it is concluded that you have totally lost your sense of commitment to your official duties and responsibilities. The charges sustained as well as other reports of performance discrepancies received pose a serious threat to the business of the PNG Waterboard thus cannot be tolerated by Management any further. It is therefore resolved that 'your services are no longer required' and your employment with the PNG Waterboard is TERMINATED forthwith.

15. Mr Ete, the Branch Distribution Supervisor, was found guilty of two charges. He committed a breach of 'the Act' (which was unspecified), was negligent and inefficient, in that he:

• failed to plan, organise and execute 38 distribution job sheets, which led to reduced water sales and loss of revenue;
  
• failed to plan and organise a distribution team to maintain the General Hospital bulk water meter, causing frustration to a major customer.
  

16. In his letter to Mr Ete advising that 'Management has assessed your response to the disciplinary charges', Mr Solok, after giving reasons for sustaining each charge, stated:

Additional to these 2 charges that have been sustained, your overall performance appraisals for the last performance period (30/06/04 to 30/06/05) was rated 'Average'. Particular areas that were rated 'Below Average' were your 'work output in terms of quantity' and your ability to 'plan, organize, direct and control duties of your section'. As a senior officer, your level of performance is considered unacceptable. This is also evident in the huge backlog of distribution jobs for the Branch that have not been attended to.

Take note also that Management has received separate reports that you have high incidences of using official Waterboard time and resources such as the vehicle to conduct your own personal business. One such report registered on your file is a memo statement dated 27/08/04 by an officer namely James Gabu who alleged you had harassed and threw punches at him causing bodily harm (bleeding nose) for not attending to a job after your whereabouts for the whole morning of that day was not known. This attitude is a serious offence, especially for senior officers of your level.

In view of the aforesaid, it is concluded that you have totally lost your sense of commitment to official duties and responsibilities for over a long period of time. The above offences pose a serious threat to the business of the PNG Waterboard thus cannot be tolerated any further. It is therefore resolved that 'your services are no longer required' thus TERMINATING your services forthwith.

17. By making the above statements Mr Solok made adverse findings and comments regarding the performance and conduct of each officer that were not the subject of the charges. Were these irrelevant considerations? Arguably not, because Mr Solok made the comments after sustaining the charges. It is possible to regard them as considerations he took into account when deciding to impose the penalty of termination but not when sustaining the charges. However, reading his comments in the context of the reasons he gave for sustaining the charges, the better view is that they were part and parcel of his decision to sustain the charges. I find that they were, as a matter of law, irrelevant considerations. It was an error of law to take them into account. It was also unfair and a denial of natural justice, as neither officer was given the chance to respond to them (George Kakas v Commissioner of Police, SCM No 17 of 2005, 29.07.07; Jeffrey Afozah v Commissioner of Police (2008) N3300).

(2) THE DECISIONS ON PUNISHMENT

(a) Did the person(s) deciding on punishment lack power to terminate employment?

18. The disciplinary code, Section 5.3.3(e), provides that the maximum punishment for a serious disciplinary offence is:

recommend to the Managing Director that the officer be dismissed from the Waterboard Service.

19. The officer determining the charge has no power of dismissal. In the present case, there was no recommendation for dismissal or termination. Mr Solok notified each plaintiff that his employment was terminated forthwith.

20. It is unclear whether he was making that decision himself or whether he was conveying a decision made by some other decision-making body. On the one hand, he signed each letter in his own name as Executive Manager, Customer Services Division, which gives the appearance that he was the decision-maker. On the other hand, each letter begins by saying that "Management has considered your response ..." and concludes with "I trust you understand the position of Management and accept the decision taken"; which suggests that it was not Mr Solok making the decision himself, he was just conveying the decision of "Management". Mr Siminzi added to the confusion in his submissions by referring to Mr Solok as the head of the Executive Committee, when there was no evidence that he held that position. Also there is no reference in the disciplinary code to an Executive Committee.

21. Whatever the case, there was a clear breach of the disciplinary code as the person(s) determining the charge – whoever that was – could only make a recommendation for dismissal. Whether it was Mr Solok, Management or the Executive Committee who made the decision to terminate employment, that decision was made without power.

(b) Was there a denial of natural justice?

22. The argument is that if an officer is found guilty of a disciplinary offence, he must be given a right to be heard on the question of penalty. This is what happens in a criminal court. If an accused person is found guilty, a separate sentencing hearing is conducted. He has the opportunity to address the court and his lawyer makes submissions on the sentence. It is a fair procedure but there is no rule of law that says it is necessary to adopt it when dealing with disciplinary, as distinct from criminal, offences. In Kita Sapu v Commissioner of Police (2003) N2426, Kirriwom J surveyed the authorities on this issue and reached that conclusion. I did likewise in Paul Saboko v Commissioner of Police (2006) N2975.

23. The plaintiffs did not have a right to a separate hearing on the question of penalty. So there was no denial of natural justice in that regard.

SUMMARY OF DETERMINATION OF GROUNDS OF REVIEW

24. To sum up:

(1) As to the decisions to find the plaintiffs guilty, two errors of law were made, in that:

(a) the charges were laid under incorrect provisions of the disciplinary code, in a manner that was confusing and misleading and intrinsically unfair; and

(b) the person determining the charges took irrelevant considerations into account, viz adverse comments on the plaintiffs' performance, which they had no prior opportunity to comment on.

(2) As to the decisions to impose the penalty of dismissal, one error of law was made, in that:

(a) the person(s) who terminated their employment had no power under the disciplinary code to do so; but

(b) there was no separate right to be heard on penalty and therefore no denial of natural justice.

WHAT RELIEF, IF ANY, SHOULD BE GRANTED?

25. The next question is: what remedies should the court grant? This sort of issue was explained by the Supreme Court in Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797 in these terms:

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. As Sheehan J stated in Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:

... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

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.

26. The starting point is to look at the decision and the nature of the errors of law that the court has identified. The two errors of law made in the decisions to find the plaintiffs guilty were significant ones, warranting the quashing of those decisions.

27. Mr Siminzi submits that no other relief, such as quashing the Managing Director's decisions to demote and transfer the plaintiffs, should be granted. He says that that relief was not sought in the originating summons. Furthermore, the plaintiffs were not granted leave for review of the Managing Director's decisions. They were only granted leave to review the decisions to terminate their employment.

28. I do not accept that submission. It is correct that the originating summons did not expressly seek an order quashing the Managing Director's decisions. However, it did seek leave for review of his decisions to reinstate the plaintiffs to lower positions. The granting of leave allowed the court to review the Managing Director's decisions, not just the decisions of Mr Solok, the Management or the Executive Committee. Also, the final remedy sought in the originating summons was "such further or other orders the court [thinks fit]". The originating summons is poorly drafted but it is clear that the plaintiffs were wanting the court to quash the decisions that they be demoted and transferred.

29. If I were to uphold Mr Siminzi's submission on this narrow procedural point it would lead to an unjust result, something the court should avoid in light of Sections 155(4) and 158(2) of the Constitution. Section 155(4) confers on the National Court an inherent power to make, in such circumstances as seems to it proper, such orders as are necessary to do justice in the circumstances of a particular case. Section 158(2) requires that in interpreting the law the court shall give paramount consideration to the dispensation of justice.

30. The plaintiffs have succeeded in showing that the decisions finding them guilty of serious disciplinary offences were infected by significant errors of law. The natural consequence of this is that all subsequent decisions based on those unlawful decisions, including the Managing Director's decisions to demote and transfer the plaintiffs, should be quashed.

31. The final issue concerns reinstatement and back-pay. Should the plaintiffs be reinstated and compensated for the loss of salary they incurred from the date of the Managing Director's decisions, 28 March 2008, to the date of their reinstatement?

32. 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 or his employment status has otherwise been unlawfully altered, it does not necessarily follow that the court will order reinstatement and/or back-pay. Each case must be considered on its merits.

33. Here, the disciplinary proceedings miscarried from the start, when the plaintiffs were charged under the wrong provisions of the disciplinary code. They have succeeded in establishing three errors of law. It follows that they should be reinstated.

34. As to back-pay, the plaintiffs say that they did not receive the letter from the Managing Director until 17 April 2008. They filed the originating summons three weeks later. They acted quickly. In these circumstances, it is appropriate that they be awarded back-pay calculated according to the date of reduction of salary.

JUDGMENT

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

(1) the decisions, finding the plaintiffs, Gerry Harou and Payang Ete, guilty of disciplinary offences, conveyed by letters by the first defendant, John Solok, dated 11 October 2007, are quashed;

(2) the decisions to demote and transfer the plaintiffs, conveyed by letters by the Managing Director of the Waterboard, Patrick Amini, dated 28 March 2008, are quashed;

(3) the second defendant, the Waterboard, must reinstate the plaintiffs to their former positions at the Madang branch or if either position is unavailable each plaintiff must be reinstated in a way that makes him an unattached officer of the Madang branch and in either case he must from the date of reinstatement be paid salary and other emoluments at a level equivalent to those paid in respect of his former position;

(4) reinstatement of each plaintiff must be effected within 30 days after the date of entry of this judgment;

(5) the Waterboard must within 30 days after the date of entry of this judgment pay back-pay to each plaintiff, calculated according to the date of reduction of salary;

(6) costs of these proceedings are to be paid by the Waterboard to the plaintiffs on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
____________________________

Tabai Lawyers: Lawyers for the Plaintiff
Ninai Lawyers: Lawyers for the Defendants