Nawe v Mondia [2016] PGNC 134; N6269 (3 May 2016)

N6269

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NOS. 868 & 869 OF 2014

SINCLAIR NAWE & WESLEY NAKS
Plaintiffs

V

MICHAEL MONDIA, CHAIRMAN BEON DISCIPLINARY BOARD
First Defendant

COMMISSIONER OF THE CORRECTIONAL SERVICE
Second Defendant

Madang: Cannings J
2015:18 June, 11 August,
2016: 3^rd May

JUDICIAL REVIEW – disciplinary proceedings – review of decision to find members of disciplinary force guilty of disciplinary offence and impose penalty of dismissal – whether statutory procedures followed – whether plaintiffs given a fair hearing – whether penalty excessive.

Two members of the Correctional Service were charged with disciplinary offences in relation to the escape of detainees at the correctional institution at which they were stationed. They were suspended, charged, found guilty and dismissed from the Correctional Service. They applied for judicial review of the decisions to suspend them, to find them guilty and to impose the penalty of dismissal, on four grounds: that (1) they were suspended for an excessive period without being charged, contrary to the Correctional Service Act; (2) they were given insufficient notice of the hearing and nature of the charges, contrary to the Correctional Service Act; (3) they were denied natural justice; and (4) the penalty of dismissal was excessive and failed to take account of relevant considerations.

Held:

(1) Section 52(3) (a) of the Correctional Service Act provides that suspension of a member expires upon failure to lay a charge within two weeks after the date of suspension. That requirement was not adhered to and therefore an error of law was committed.

(2) Section 40(5) of the Correctional Service Act provides that if a member is charged with a serious disciplinary offence he shall be given at least seven days’ notice of the hearing of the charge and informed clearly that he is being so charged. Those requirements were not adhered to and therefore errors of law were committed.

(3) A Disciplinary Board that hears a charge against a member of the Correctional Service must, perforce of the Constitution and the underlying law, conduct the hearing fairly and in a way that it is seen to act fairly. It must also comply with the procedural requirements of Section 31 of the Correctional Service Regulation. Those procedures were not followed and therefore errors of law were committed and there was a denial of natural justice.

(4) The penalty imposed for commission of a serious disciplinary offence must be one of those prescribed by Section 44 of the Correctional Service Act and in the case of dismissal from the Service can only be imposed by the Commissioner after taking into account the considerations prescribed by Section 44(5). Here, there is no evidence that those considerations were taken into account and therefore errors of law were committed.

(5) As the errors of law were serious, the decisions to suspend the plaintiffs, to find them guilty of disciplinary offences and to dismiss them were quashed. The Court ordered that they be reinstated to their original positions and paid back-pay.

Cases cited:

The following cases are cited in the judgment:

Gerry Harou v John Solok (2009) N3929
Henry Wavik v Martin Balthasar (2013) N5272
Manuel Gramgari v Steve Crawford (2012) N4950
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Rabaul Shipping Limited v Peter Aisi (2006) N3173
Re Fisherman’s Island [1979] PNGLR 202

JUDICIAL REVIEW

These are applications for judicial review of decisions to find two members of the Correctional Service guilty of disciplinary offences and to impose on them the penalty of dismissal from the Correctional Service.

Counsel:

A Meten, for the Plaintiffs
S Maliaki, for the Defendants

3^rd May, 2016

1. CANNINGS J: Two former members of the Correctional Service, Sinclair Nawe and Wesley Naks, apply for judicial review of decisions of the defendants, the Chairman of a Disciplinary Board and the Commissioner of the Correctional Service, which resulted in their dismissal from the Correctional Service. They were found guilty of disciplinary offences in relation to the escape of detainees at Beon Correctional Institution, Madang Province, at which they were stationed.
   
2. Each application for judicial review is based on four grounds: (1) they were suspended for an excessive period without being charged, contrary to the Correctional Service Act; (2) they were given insufficient notice of the hearing and nature of the charges, contrary to the Correctional Service Act; (3) they were denied natural justice; and (4) the penalty of dismissal was excessive and failed to take account of relevant considerations.
   

FACTS

3. The events at the centre of this case occurred in 2013. On 21 March, 49 detainees escaped from Beon Correctional Institution at some time, which remains unknown, between 0900 and 1600 hours. Both plaintiffs, who held the rank of Warder, were rostered on duty that day, as a rear tower guard. Sinclair Nawe was to work the 0600 to 1400 shift. Wesley Naks was to work the 1400 to 2200 shift. Neither turned up for work, both claiming to be sick on that day.
   
   • ➢ On 23 March the Commanding Officer of Beon Correctional Institution, Tita Wada, suspended both of them, amongst other members, from duty, on full pay.
     
   • ➢ On 25 March an investigation team arrived from Correctional Service headquarters to conduct an investigation into the escape.
     
   • ➢ On 22 May the terms of the plaintiffs’ suspension were amended in that they were paid at the rate of 50% of their salary.
     
   • ➢ On 24 June the plaintiffs’ suspension was uplifted and they were each given notice by a Discipline Officer, Chief Inspector Raymond Gideon, that they were the subject of a complaint and investigation regarding the mass escape of 21 March.
     
   • ➢ On 28 June the Discipline Officer notified them that he had completed his investigation and decided that they each had a case to answer. He charged them each with an offence under Section 39(b) of the Correctional Service Act, which states:
     

A member who ... absents himself from duty other than as is provided under this Act ... is guilty of a disciplinary offence and is liable to be dealt with and punished under this Act.

4. The Discipline Officer gave the following summary of events leading to the charge:
   

On the 21^st of March 2013 you did not obtain proper authority from the authorities at Beon Correctional Institution to stay away from work. You were rostered to perform duty from [0600 to 1400, in the case of Nawe, and 1400 to 2200 in the case of Naks] at the Rear Tower however you did not turn up for duty without any reasonable excuse.

During your absence 49 prisoners escaped from lawful custody between the hours of 0900 and 1630 by cutting a hole in the main compound perimeter fence underneath the Rear Tower to make their getaway.

5. The Discipline Officer, also on 28 June, gave the plaintiffs notice that the charges would be heard by the Beon Disciplinary Board in the Commanding Officer’s office at 9.00 am on 4 July.
   
   • ➢ On 4 July each plaintiff attended his disciplinary hearing before the Disciplinary Board, chaired by the first defendant.
     
   • ➢ On 5 July the Disciplinary Board found the charges proven against each plaintiff and recommended to the Commissioner that they be dismissed from the Correctional Service.
     
   • ➢ On 30 October the Commissioner signed a notice of dismissal in respect of each plaintiff, which was expressed to take effect immediately.
     
   • ➢ On 26 November the Commissioner’s decision was conveyed orally by the Commanding Officer to the plaintiffs and soon afterwards they were removed from the payroll.
     

GROUND OF REVIEW (1): EXCESSIVE SUSPENSION PERIOD

6. The plaintiffs argue that their suspension from duty, which extended from 23 March to 21 May 2013 on full pay, and from 22 May 2013 to 24 June 2013 on half pay, was unlawful as it contravened Sections 52 and 53 of the Correctional Service Act.
   

Section 52 (suspension) states:

(1) Where a member is suspected of having committed a serious offence, or an offence under circumstances which are such that the Commissioner believes that the member concerned should not continue the performance of his duty, the member may be suspended by the Commanding Officer.

(2) Suspension may be effected before, at the time of or after the laying of the charge, and may be lifted by the Commanding Officer.

(3) An order suspending a member shall expire immediately upon—

(a) failure to lay a charge within two weeks; or

(b) the dismissal of the charge; or

(c) the imposition of a penalty, except a penalty under Section 44(1)(b) or (d).

(4) Where a penalty is imposed on a member pursuant to Section 44(1) (b) or (d), and that member appeals, the order suspending the member will remain in force until the appeal is determined.

7. Section 53 (pay during suspension) states:
   

(1) Subject to Subsection (2), where a member has been suspended in connection with a charge of an offence under this Act, he is entitled to receive his pay during the period of suspension unless he absconds or the Commissioner orders otherwise.

(2) A member on suspension for an alleged offence of misappropriation, fraud or stealing of Government property or funds shall not be eligible to receive his pay during the period of suspension, unless the Commissioner otherwise determines to pay to the member a certain percentage of the member's salary.

8. I uphold the plaintiffs’ arguments. Section 52(3) (a) provides that suspension of a member expires upon failure to lay a charge within two weeks after the date of suspension. The plaintiffs were suspended on 23 March 2013. They were not charged until 28 June 2013. Their suspension should have expired on 6 April 2013. They were unlawfully suspended from 7 April to 28 June 2013.
   
9. I find that the decision to suspend them on half-pay, from 22 May to 28 June 2013, was unlawful for a further reason. Section 53(1) provides that a suspended member “is entitled to receive his pay during the period of suspension unless he absconds or the Commissioner orders otherwise”. The term “his pay” can only mean full pay. The plaintiffs were entitled to be paid their full pay when they were suspended unless they absconded or the Commissioner ordered otherwise. There is no evidence that they absconded. Nor is there evidence that the Commissioner ordered that they be suspended on half pay. Ground 1 is upheld.
   

GROUND OF REVIEW (2): INSUFFICIENT NOTICE OF HEARING AND NATURE OF CHARGES

10. The plaintiffs argue that the Discipline Officer’s notice dated 28 June 2013, which stated that their disciplinary hearing would be on 4 July 2013, contravened Section 40 (procedure for dealing with offences) of the Correctional Service Act, which states:

(1) A person who believes that an offence has been committed by a member may make a complaint to the Discipline Officer.

(2) The Discipline Officer shall make an investigation of a complaint under Subsection (1).

(3) An investigation under Subsection (2) shall include an opportunity for the member alleged to have committed the offence to give an explanation or reason for the alleged offence.

(4) Following an investigation under Subsection (2), the Discipline Officer shall—

(a) dismiss the matter as trivial; or

(b) charge the member with a minor or serious offence.

(5) A member charged with an offence under this Part shall be given at least 72 hours notice of the hearing of a minor offence and 7 days notice of the hearing of a serious offence unless the member and Commanding Officer or Disciplinary Board agree to a lesser period.

(6) All procedures and proceedings shall, except where provision is made for a specific period of time, be conducted as expeditiously as possible.

11. Mrs Meten for the plaintiffs submitted that two separate requirements of Section 40(5) were not met: the plaintiffs were not given seven days’ notice of the hearing and they were not informed clearly whether they were being charged with a minor offence or a serious offence. The first argument is easy to determine: the plaintiffs were given only six days’ notice of the hearing. Seven was required. This was an error of law.
    

To appreciate the second argument it is necessary to quote the heading of the notice of charge, dated 28 June 2013, which was expressed in the same terms for each plaintiff:

NOTICE OF MINOR (Sec 41) SERIOUS (Sec 42) CHARGE UNDER SECTION 39(b) OF THE CORRECTIONAL SERVICE ACT 1995

12. The words “Serious (Sec 42)” are underlined in the original notice of charge. This appears to have been done to indicate to the recipient of the charge that the charge will be dealt with as a “serious offence” as distinct from a “minor offence”. However, I uphold Mrs Meten’s submission that the decision whether to deal with a disciplinary matter as a minor offence or a serious offence is a very significant one. It determines who will hear the charge: the Commanding Officer in the case of a minor offence (Section 41) or the Disciplinary Board in the case of a serious offence (Section 42). It also determines the penalties to be imposed if the member is found guilty (Job Tamoko v Michael Waipo (2014) N5852). For minor offences, the penalties are limited to a caution, a reprimand, a fine not exceeding K200.00 or restitution not exceeding K40.00 (Section 43). For serious offences the available penalties are a fine not exceeding K1, 000.00, a recommendation of demotion, a caution or reprimand and a recommendation of dismissal (Section 44).
    
13. The decision whether to deal with a disciplinary matter as a minor offence or a serious offence is so significant that it is incumbent on the Discipline Officer who gives notice of the charge, to clearly and unequivocally notify the member how the charge is to be dealt with (Gerry Harou v John Solok (2009) N3929). Here, that requirement was not met. The notice was clumsily drafted, ambiguous and confusing and an error of law was thereby committed. Ground 2 is upheld.
    

GROUND OF REVIEW (3): DENIAL OF NATURAL JUSTICE

14. The plaintiffs argue that they were not given a fair hearing by the Disciplinary Board. They each have given evidence for the purposes of this judicial review that they were not given the opportunity to speak or explain their answers to questions and were restricted to giving yes or no answers and were not given the opportunity to bring witnesses to support their case. There was no evidence from the defendants rebutting that evidence. Nor was any record of the proceedings of the Board presented in evidence. The only evidence presented by the defendants was the Commissioner’s notice of dismissal of each plaintiff.
    
15. In this situation it is necessary to invoke the fact finding principle that if one side of a case presents evidence on a disputed fact and the opposing side presents no evidence to contradict it, the court is obliged to make a finding of fact that is supported by the evidence that has been presented unless that evidence is so incredible that it would not be reasonable to accept it (Re Fisherman’s Island [1979] PNGLR 202, Rabaul Shipping Limited v Peter Aisi (2006) N3173, Manuel Gramgari v Steve Crawford (2012) N4950). I consider that the plaintiffs have given credible evidence and that the defendants have had ample opportunity to rebut it and have failed to do so. I don’t think the plaintiffs’ description of how the hearing was conducted is so incredible that it ought to be rejected. I accept their evidence and make these findings of fact:
    
    • they were not given the opportunity to speak or explain their answers to ;questions;
    • they were restricted to giving yes or no rs;
    they were not give given then the oppo opportunirtunity to bring witnesses to support their
    • It is settled law that any person in public employment (especially a member of a disciplined force) who is charged with a disciplinary offence is entitled to the protection of the rules of natural justice. Section 59 (principles of natural justice) of the Constitution states:
      

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

17. The person charged must be given a fair hearing and the charge must be heard and determined within a reasonable time by an impartial decision-maker (Lawrence Sausau v Joseph Kumgal (2006) N3253, Henry Wavik v Martin Balthasar (2013) N5272). Those are the minimum requirements. Further details can be prescribed by legislation. In the case of members of the Correctional Service, further requirements are imposed by Section 31 (hearing of disciplinary offences) of the Correctional Service Regulation, which states:
    

(1) The Commanding Officer or Disciplinary Board hearing a charge of a disciplinary offence against a member shall conduct the hearing in the following manner:—

(a) ensure that the member is informed of the procedure for the hearing; and

(b) have the charge read, including—

(i) the name of the informant; and

(ii) the details of the place of the alleged disciplinary offence; and

(iii) the details of the provision of the Act, Regulation or Standing Orders allegedly contravened; and

(c) ensure that the member is given an opportunity to state a plea; and

(d) where the member does not plead guilty, then—

(i) the informant shall present the evidence in support of the charge and call relevant witnesses; and

(ii) following the presentation of the evidence of the charge, the member shall be given a reasonable opportunity to present his case and call relevant witnesses; and

(iii) the informant and the member shall be given an opportunity to cross-examine, including cross-examination of witnesses; and

(iv) the Commanding Officer or Disciplinary Board shall either dismiss the charge because there is insufficient evidence to support the charge or determine that the member is guilty of the offence; and

(v) where the Commanding Officer or Disciplinary Board determines that the charge is proven, impose a penalty under the Act; and

(e) where the member pleads guilty then—

(i) the informant shall present the evidence in support of the charge and call relevant witnesses; and

(ii) give the member an opportunity to give an explanation; and

(iii) impose a penalty pursuant to Section 43 or 44 of the Act; and

(f) the Commanding Officer or Disciplinary Board shall—

(i) inform the member of the decision; and

(ii) record the finding in the Disciplinary Hearings &##160;; < < Registe>

(2) A 2) A hearing by the Commanding Officer or Disciplinary Board under this Regulation shall be cted ws litormalnd tealityas expedixpeditioustiously as the requirements of the Act andt and this this Regu Regulatiolation and a proper consideration of the matters before the hearing and natural justice permit.

(3) The Commanding Officer or Disciplinary Board conducting the hearing is not bound by the rules of evidence but may be informed on any matter in such manner as they think appropriate.

18. I find that the plaintiffs were not given a fair hearing as they were not given the opportunity to speak or explain their answers to questions and were restricted to giving yes or no answers. The minimum requirements of natural justice were not complied with. Furthermore, the failure of the Board to give them the opportunity to bring witnesses to support their case breached Section 31(1) (d) (ii) of the Correctional Service Regulation. Ground 3 is upheld.
    

GROUND OF REVIEW (4): PENALTY OF DISMISSAL EXCESSIVE, FAILING TO TAKE ACCOUNT OF RELEVANT CONSIDERATIONS

19. The plaintiffs argue that the decisions of the Commissioner to dismiss them from the Correctional Service were made in error as (a) it was an excessive penalty and (b) there was a failure to take relevant considerations into account.
    
20. The Commissioner’s decisions were made on 30 October 2013 and conveyed through separate notices of dismissal, addressed to each plaintiff, which stated:
    

TAKE NOTICE that on 28 June 2013 at Beon Correctional Institution you were charged with committing a disciplinary offence under Section 39(b) of the Correctional Service Act 1995 (as amended) for absent from duty. That on 21 May [sic] 2013 you were absent from duty as rostered to work ... as Rear Tower Guard. As a result of your absence from duty 49 detainees escaped from lawful custody through a hole cut in the main prison compound perimeter fence right under or close to the Rear Tower where you were supposed to be on guard duty.

The Beon Correctional Institution Special Discipline Board during its hearing on your case recommended to the Correctional Service Commissioner that you be dismissed from further employment with the Correctional Service.

In accordance with Section 44(3) and (4) of the Correctional Service Act of 1995 I have calculated all circumstances applicable to the charge collectively with your personal reasons and as a result I agree to the recommendation of the Special Discipline Board and dismiss you from the Correctional Service.

Your dismissal takes effect as of this date. You may appeal against this verdict at the National Court for review if you wish to.

Dated this 30 day of October 2013.

MARTIN BALTHAZAR DCD

COMMISSIONER

21. Each decision was made under Section 44 (penalties for serious offences) of the Correctional Service Act, which states:
    

(1) One of the following penalties may be imposed under this section in respect of a serious offence—

(a) a fine not exceeding K1,000.00; or

(b) a recommendation to the Commissioner that the member be reduced to a rank having a lower classification, and to a salary within that classification; or

(c) a penalty referred to in Section 43(a) or (b); or

(d) a recommendation to the Commissioner that the member be dismissed from the Service.

(2) Apart from any penalty imposed under Subsection (1), a member may also be required to make restitution for loss or damage by way of payment of compensation to an injured party including, where applicable, the State.

(3) Where the Disciplinary Board makes a recommendation to the Commissioner under Subsection (1) (b) or (d), the Commissioner may accept or vary that recommendation.

(4) Before imposing the punishment recommended by the Disciplinary Board or varied by the Commissioner, the Commissioner shall consider—

(a) the reports relating to the offence and the charge; and

(b) the reply and explanation of the member charged; and

(c) the evidence given before the Disciplinary Board.

(5) The Commissioner shall institute a monitoring process to ensure that there is consistency in the penalties imposed under Subsection (1) by Commanding Officers and Disciplinary Boards throughout the country.

22. I dismiss the first argument raised under this ground of review – that the penalty was excessive – for two reasons. First, to argue that a penalty was excessive is not a proper ground of judicial review. To be properly before the Court, it would need to be argued that the penalty was so unreasonable, absurd or irrational that no reasonable decision-maker in the position of the Commissioner could have arrived at that decision. Secondly, if the argument had been properly made, I would have concluded that a decision to dismiss a warder who has been properly found to have been unlawfully absent from duty at the time of a mass escape from a correctional institution was not a decision that was so unreasonable, absurd or irrational that it could not have been made by a reasonable person in the position of the Commissioner.
    
23. The second argument – that the Commissioner failed to take account of relevant considerations – is a much stronger one. If a Disciplinary Board recommends to the Commissioner, as it did in this case, under Section 44(1) (d), that a member be dismissed, the Commissioner may, under Section 44(3), “accept or vary that recommendation”. Before exercising that discretion the Commissioner is obliged by Section 44(4) to consider:
    

(a) the reports relating to the offence and the charge; and
(b) the reply and explanation of the member charged; and
(c) the evidence given before the Disciplinary Board.

24. There is no evidence that the Commissioner considered any of those matters before accepting the Disciplinary Board’s recommendations regarding the plaintiffs. The notice of dismissal describes the charge in the first paragraph, states the Board’s recommendation in the second paragraph and summarises the reasoning of the Commissioner in the final paragraph with the rather vague statement that “I have calculated [sic] all circumstances applicable to the charge collectively with your personal reasons and as a result I agree to the recommendation”.
    

The reasons given for accepting the recommendation are deficient. Relevant considerations were not taken into account. Ground 4 is therefore substantially upheld.

WHAT RELIEF, IF ANY, SHOULD BE GRANTED?

25. As all grounds of review have been upheld, 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 (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 Muggier (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.

The four errors of law made in the decisions to find the plaintiffs guilty were significant, warranting the quashing of those decisions.

26. The final issue concerns reinstatement and back-pay. Should the plaintiffs be reinstated and compensated for the loss of salary they have incurred? 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, it does not necessarily follow that the court will order reinstatement and/or back-pay. Each case must be considered on its merits.
    
27. Here, the disciplinary proceedings miscarried from the start, when the plaintiffs’ suspensions were unlawfully extended beyond 9 April 2013. Then they were unlawfully placed on half-pay. Then they were given insufficient notice of the disciplinary hearing. Then they were not given a fair hearing. Then the Commissioner failed to take relevant considerations into account when dismissing them. They have been affected by a series of significant legal errors. They deserve in these circumstances to be reinstated and paid pack-pay. As they have been represented by the Public Solicitor, I will allow the parties to bear their own costs.
    

ORDER

(1) The applications for judicial review are granted.

(2) The decisions of the first defendant of 5 July 2013 finding the plaintiffs guilty of disciplinary offences, are quashed.

(3) The decisions of the second defendant of 30 October 2013 dismissing the plaintiffs from the Correctional Service, are quashed.

(4) The second defendant shall:

• (a) within six weeks after the date of service of this order, reinstate the plaintiffs to their former positions and ranks at Beon Correctional Institution and restore them to the payroll; and
  
• (b) within three months after the date of service of this order, pay to each plaintiff the total amount of salary he has lost due to his suspension and dismissal in respect of the period from 23 March 2013 to the date of judgment.
  

(5) The parties will bear their own costs.

Judgment accordingly.

_________________________________________________________
Public Solicitor: Lawyer for the Plaintiffs
Solicitor-General: Lawyer for the Defendants