Palaso v Kereme [2017] PGNC 231; N6816 (27 February 2017)

N6816

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 387 OF 2014

BETWEEN:

BETTY PALASO, AS COMMISSIONER GENERAL OF INTERNAL REVENUE COMMISSION
Plaintiff

AND:
DR PHILLIP KEREME AS CHAIRMAN of
PUBLIC SERVICES COMMISSION
First Defendant

AND:
PUBLIC SERVICES COMMISSION
Second Defendant

AND:
MATHIAS PAUSI
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Gavara-Nanu J.
2016: 20 July
2017: 17 & 27 February

JUDICIAL REVIEW- Application for judicial review – Employee charged with serious disciplinary offences - Strong denial of the charges by the employee - Evidence against employee not credible - Evidence of employee corroborated by independent credible evidence- Employee dismissed from his employment - Dismissal unlawful.

JUDICIAL REVIEW - Serious disciplinary offences - Standard of proof in hearings before public bodies or authorities and the Public Services Commission- Appropriate standard of proof should be ‘proof upon cogent and convincing or compelling evidence’ – Evidence relied on to charge and dismiss the employee falling short of the required standard of proof.

JUDICIAL REVIEW – Penalty – Employee dismissed from his employment - Most serious form of penalty – Employer failing to properly investigate and consider crucial evidence favouring the employee – Employee denied a fair hearing.

JUDICIAL REVIEW - Reimbursement of employee’s lost salaries and entitlement – Appropriate period for such reimbursements – Employer careless in the investigations – Conduct of employer bordering on negligence.

JUDICIAL REVIEW – Public Services Commission annulling dismissal of the employee and ordering his reinstatement – Employer refusing to reinstate the employee – Employee unfairly and unlawfully denied the benefit of the Public Services Commission decision – Employee unfairly denied his salaries and entitlements by the employer - Period of reimbursement of all lost salaries and entitlement long but appropriate – Reimbursement of salaries and entitlements for such long period appropriate to serve as a specific and general deterrence against such conduct of an employer or a public body or authority – Special and exceptional circumstances.

Cases cited

Betty Palaso as Commissioner General of IRC v. Philip Kereme, as
Chairman of Public Service Commission and Others N6638
Eddie Gabir v. Richard Koronai [1988-89] PNGLR 406
Re James Eki Mopio [1981] PNGLR 416

Counsel

H. Hebrew, for the Plaintiff
M. Kadai, for the First and Second Defendants
W. Mapiso, for the Third Defendant

27^th February, 2017

1. GAVARA-NANU J: This is an application by the plaintiff made pursuant to a notice of motion filed under Order 16 r 5 (1) of the National Court Rules, seeking review of the decision of the first and second
   

defendants (PSC), made on 15 May,2014, annulling the dismissal of the third defendant from his employment as an auditor with the Internal Revenue Commission (IRC), based at the IRC Mt. Hagen office, and ordering his reinstatement. The third defendant was dismissed from his employment by the plaintiff on 17 August, 2012, allegedly on serious disciplinary grounds.

2. The third defendant’s dismissal resulted from complaint letters sent by a tax payer based in Mt. Hagen, namely, George Kainda and his employee, Jimmy Yaso to the plaintiff that they paid K1, 000.00 to the third defendant after the third defendant asked them for the money for assisting George Kainda with his Tax Returns. The two letters were sent to the plaintiff in October, 2011. The letters have a direct bearing on this application, thus they are reproduced here in full:
   

GK Welding

P.O. Box 1090

MOUNT HAGEN

Western Highlands Province

Ph#:

Internal Revenue Commission
P.O. Box 777
PORT MORESBY
National Capital District
Papua New Guinea

ATT: BETTY PALASO

RE: LETTER OF COMPLAINT

I am George Kainda, who is the owner of the GK welding would like to bring forward this matter towards your attention.

The welding shop is a very little workshop that operates on cash basis that means, sometimes operates for business and sometimes never operates.

However, some big companies like Ela Motors, Boroko Motors and PNG Motors, etc would like to give me business so I had to have the certificate of complance (sic) to deal business with them.

Therefore, I went to the Internal Revenue Commission for assistant (sic) and one officer namely, Jerry Singi came across and told me to pay some money so I gave him K1,600.00 cash but nothing was done for me. Then I told the other officers and one officer namely Mathias Pausi came across and told me that he will help me by doing all the necessary things.

Finally, he helped me and obtained the COC on the 23^rd March, 2011 therefore he told me to pay in some money to assist me to do the Income Fax (sic) return (sic) for the years 2007, 2008, 2009, 2010 so I gave him K1,000.00 on the month of November 2010 and on the month of April 2011 I gave him K1,000.00 to complete my work because there is nobody to do my accounting and book keepings because the workshop is very small and sometimes do not have business because it is like a trade store.

Finally, I found out that the officers here in Mount Hagen which their names are mentioned are performing day light robberies onto my little pocket without doing the right thing to help me. Therefore, I am bringing this matter towards your attention and ask your kind help to advis (sic) me the real things to do in order for my little welding shop to do business.

I kindly ask your office to take further action onto the officers mentioned respectively. I am in doubt because I cannot trust the officers to help me fill out all the forms which your office needs them.

I have no other options but to lodge this complaint towards your favourable actions.

Your favourable action towards this letter will be much highly appreciated.

Yours faithfully,

(Signed)
....................
GEORGE KAINDA

__________________________________

GK Welding

P.O. Box 1090

MOUNT HAGEN

Western Highlands Province

10^th October, 2011

Internal Revenue Commission
P.O. Box 777
PORT MORESBY
Papua New Guinea
ATT: STEVEN T/ARKO

RE: LETTER OF COMPLAINT

I am JIMMY YASO, who is the workshop Supervisor would like to bring forward this matter toward your attention.

The welding shop is a very little workshop that operates on cash basis that means, sometimes operates for business and sometimes near (sic) operates.

However, some big companies like Ela Motors, Boroko Motors and PNG Motors, etc. would like to give business so I had to have the certificate of compliance to deal business with them. Therefore, went to the Internal Revenue Commission Office here in Mount Hagen for Assistant (sic) and one officer namely, Jerry Singi came across and told me that he will help me on the condition that I pay some money. So I and the workshop owner (George Kainda) gave him K1,600.00 cash on the 16^th June 2011 in his office to help me gain the complance (sic) but nothing was done for me up until the end of the business year. Then I told another officer namely Mathias Pausi came across and told me that he will help me by doing all the necessary things.

Finally, he helped me and obtained the coc (sic) ON THE (sic) 23^RD (sic) March, 2011 which was an Interim COC which will expire on the November, 2011. After doing all this things, I got a letter form (sic) the IRC (Head Office) in Port Moresby advising me to lodge my annual returns so I had to go to the same officer to get some advise how to do this and I went into Mathias Pausi’s Office and he told me to pay K2,500.00 to lodge the returns for the following years, 2007, 2008, 2009, 2010.

So I had only 1,000 to pay him so I gave this amount on the 18^th of April, 2011 in his office at the presence of the workshop owner (George Kainda) and I told him to sign a clarification form which I attached to this letter.

Finally, I found out that the officers here in Mount Hagen which their names are mentioned are performing day light robberies onto my little pocket without doing the right thing to help me. Therefore, I am bringing this matter towards your attention and ask your kind office to refund my money or the concern (sic) officers can pay back my money.

As a tax payer I have no other options but to lodge this complaint towards your favourably actions.

Yours favourable actions will be much highly appreciated.

Yours faithfully,

(Signed)
....................
JIMMY YASO
Ph#: 73124566

____________________________________

3. After receiving these letters, the plaintiff launched an investigation into the complaints. The third defendant denied the allegations made against him in the two letters.
   
4. After considering the evidence, including the report of the IRC Disciplinary Committee, the plaintiff charged the third defendant with three serious disciplinary offences, viz; (i) that he solicited and accepted K1,000.00 from George Kainda on 18 April, 2011. (ii) that he received K1,000.00 from George Kainda in the discharge of his official duties as Provincial Auditor for the Western Highlands and used the money, a conduct which was improper and disgraceful; and (iii) that he assisted George Kainda on 18 April, 2011, to prepare and lodge his Tax Returns for a fee of K1,000.00. The three charges were laid under s. 50(i) and (h) of the Public Service Management Act 1995.
   
5. On 02 August, 2012, the third defendant replied to all three charges in which he vehemently denied the charges.
   
6. The principal defence raised by the third defendant was that he was mistakenly identified by George Kainda and Jimmy Yaso as the one who got K1,000.00 from George Kainda. He claimed that another person by the name of Stolz Martin Makins, who used to work at the Mt. Hagen IRC office, was the one who got the K1,000.00 from George Kainda. In support of this claim, he referred to a letter dated 6 February, 2012, which was purportedly written and signed by George Kainda and Jimmy Yaso; the same two persons who sent the two complaint letters to the plaintiff. The letter was addressed and sent to the plaintiff. In the letter, the two men told the plaintiff that the person who got K1,000.00 from George Kainda was Stolz Martin Makins not the third defendant, thus corroborating the third defendant’s story. The two men apologized in that letter that they mistakenly named the third defendant in their respective complaint letters. The letter concluded with this sentence: “If you need any other information, please contact us.” The letter had George Kainda’s business name letterhead, it is instructive and is reproduced here in full:
   

GK WELDING SHOP

P.O. BOX 1090

MT. HAGEN

Western Highlands Province

Ph: 7210 7577 / 73124566

______________________________________________________

06^th February, 2012

The Commissioner General

Internal Revenue Commission

P.O. Box 777

PORT MORESBY,

National Capital District

Attention: Nigel Gerson – Internal Affairs & Integrity

Dear Sir,

RE: ALLEGATIONS AGAINST MATHIAS PAUSI – OFFFICER MT. HAGEN.

We write this letter to inform your office regarding the matter mentioned above.

We were approached by an officer from your office in Mt. Hagen to assist us in our tax matters and we did give money to that person to assist us in our case. The person who came to us is not Mathias Pausi, but we found on later that he had used Mathias Pausi’s name. His name is Stolz Martin Makins.

He pretended to be Mathias Pausi and did out GP remittances, COC applications, and Income tax Returns and asked for K1,000.00 which we paid.

We are sorry that we used Mathias Pausi’s name in this case and apolozise (sic.) for implicating him and ask that his name be removed.

If you need any other information, please contact us.

Yours Faithfully,

(Signed) (Signed)

_______________ __________________

George Kainda Jimmy Yaso

Workshop Manager Workshop Supervisor

7. In his reply to the charges, the third defendant among other things, told the plaintiff that he had suggested to the IRC investigators that they arrange a meeting with George Kainda and him so that they could discuss the matter and resolve it once and for all. That request appears to have been ignored by the IRC investigators. This is confirmed by the plaintiff through her lawyer Mr. Hebrew of counsel who told the Court that the IRC investigators only phoned George Kainda and Jimmy Yaso and discussed the letter with them. Mr. Hebrew also told court that the letter was faxed to George Kainda, he said both men denied any knowledge of the letter. It is to be noted that the IRC investigators did not conduct any interviews with George Kainda and Jimmy Yaso regarding this letter. It is important to note at this juncture that the information given by Mr. Hebrew clearly lacks evidentiary value as it is hearsay.
   
8. The IRC Disciplinary Committee conducted its own hearing on the matter. At that hearing, the third defendant again denied the charges. He told the Committee that he was wrongly charged. The Committee in its decision nonetheless recommended to the plaintiff that the third defendant be dismissed.
   
9. On 17 August, 2012, the plaintiff in the exercise of the powers conferred on her by s. 52 (5) of the Public Service Management Act, dismissed the third defendant from his employment.
   
10. On 12 September, 2012, the third defendant applied to the PSC to review his dismissal (complaint). On 15 May, 2012, the PSC made its decision annulling the third defendant’s dismissal and ordered his reinstatement to his previous substantive position. In its decision, the PSC found that; (i) the plaintiff relied on hearsay evidence to charge and dismiss the third defendant; (ii) the third defendant was not given a fair hearing by the IRC investigators; (iii) that the IRC investigators did not conduct any interviews with George Kainda and Jimmy Yaso so as to positively establish the identity of the person who got K1,000.00 from George Kainda; (iv) that there was strong evidence from the third defendant that he did not get the K1,000.00 from George Kainda and that the person who got the K1,000.00 from George Kainda had forged his signature in a number of documents that the plaintiff relied on; and (v) the dismissal of the third defendant was against the evidence and the weight of the evidence.
    
11. The plaintiff raised four grounds of review; (i) the PSC decision was ultra vires because it was given in breach of the mandatory requirement under s. 18 (3)(d) (i) of the Public Service Management Act, that such decision be made within 90 days (statutory period) from the date the PSC received the complaint; (ii) the PSC applied technical rules of evidence to reach its decision, which the plaintiff argued was contrary to the decision in Eddie Gabir v. Richard Koronai [1988-89] PNGLR 406. The Court in that case said a Departmental Head or a public body or authority dealing with a disciplinary matter is not a court of law therefore such Departmental Head, or public body or authority is not bound by technical rules of evidence. The plaintiff argued that the evidence against the third defendant was sufficient, thus his dismissal was proper and legal; (iii) the PSC erred in its finding that the third defendant was denied natural justice. The plaintiff submitted that the requirements of ss.37 and 59 (2) of the Constitution were met and the third defendant was given an opportunity to be heard and was fully heard before his dismissal; (iv) the PSC erred in finding that the third defendant was not identified as the person that got K1,000.00 from George Kainda. As to the Statutory Declaration which was purportedly sworn by George Kainda and which purportedly exonerated the third defendant, the plaintiff argued that it was irrelevant because it was sworn after the third defendant was dismissed; and (v) the evidence against the third defendant was overwhelming, therefore the PSC erred in concluding that there was lack of credible evidence to support the charges against the third defendant and his eventual dismissal.
    
12. The plaintiff also claimed that Stolz Martin Makins was interviewed by the IRC investigators and he denied getting K1,000.00 from George Kainda.
    
13. The PSC on the other hand argued that the evidence supporting the third defendant’s claim that he was mistakenly identified as the person who got K1,000.00 from George Kainda had not been discredited because the evidence or the materials the plaintiff relied on to dispute and challenge the third defendant’s claim were lacking in credibility and weight. The PSC further argued that its decision was not ultra vires because s. 18 (3) (d) (i) of the Public Services Management Act, which prescribes the statutory period also grants it power to extend the period, thus allowing it to give its decisions outside the period, in cases where the PSC can prove with credible evidence that the reasons for such delay were beyond its control.
    
14. The PSC also argued that if the plaintiff’s argument that, its decision was unlawful and or ultra vires because it had applied technical rules of evidence in reaching its decision was accepted by the Court, that would pave the way for the Heads of Departments and other public bodies or authorities to rely on hearsay and less than credible evidence to charge and discipline their officers. It was argued that such an approach is contrary to the legislative intent behind s. 18 (3) (a), (b) and (c) of the Public Services Management Act, which require the PSC to summons the persons mentioned in the provision, including the officer making the complaint; and to consider all the facts relative to the complaint, including views of the persons summoned, which may be provided in written statements.
    
15. It was also submitted that the argument by the plaintiff is contrary to the spirit and dictates of s. 192 of the Constitution which provides that the PSC is not subject to direction or control by anyone when carrying out its functions. The essence of this argument is that the plaintiff or anyone else for that matter cannot tell the PSC how it should conduct its hearings when reviewing complaints by aggrieved public servants.
    
16. The third defendant stressed that no written statements were obtained from George Kainda, Jimmy Yaso and Stolz Martin Makins by the IRC investigators regarding the letter of 6 February, 2012. It was argued that this oversight left huge gaps in the plaintiff’s case.
    
17. In Betty Palaso as Commissioner General of IRC v. Philip Kereme, as Chairman of Public Service Commission and Others N6638, I discussed the power given to the PSC by s. 18 (3) (d) (i) of the Public Service Management Act, to extend the statutory period prescribed by this same provision. I said for the PSC to properly exercise this power, there must first be an application for an extension of the period and there must be evidence that the reasons for the delay were beyond the control of the PSC. The application for an extension of the statutory period may be made by the PSC officer who is in-charge of the matter either on his own initiative or at the prompting or direction of the PSC.
    
18. In this case, there was an application for an extension of the statutory period and there was evidence that the reasons for the delay were beyond the control of the PSC. It follows that there was nothing improper in the PSC granting the extension of the statutory period.
    
19. The principal ground upon which the PSC annulled the dismissal of the third defendant and ordered his reinstatement was that the plaintiff had no credible evidence to support the charges laid against the third defendant and his eventual dismissal. The PSC argued that it was not enough for the IRC investigators to interview George Kainda and Jimmy Yaso by telephone only, after receiving the letter of 6 February, 2012, assuming there were such telephone interviews. It was argued that there should have been some independent evidence, such as written statements from the two men to support and to substantiate the plaintiff’s claims.
    
20. The PSC also relied on the Statutory Declaration which was purportedly sworn by George Kainda on 28 August, 2012. In the Statutory Declaration, George Kainda for the second time purportedly stated explicitly that it was Stolz Martin Makins who got K1,000.00 from him, not the third defendant. In the last paragraph of the Statutory Declaration, George Kainda said he was available for interview by the IRC officers, if they wanted to verify the Statutory Declaration. It is also instructive to reproduce the Statutory Declaration in full:
    

PAPUA NEW GUINEA

Oaths, Affirmations and Statutory Declarations Act (Chapter 317)

STATUTORY DECLARATION

I, MR. GEORGE KAINDA of GK Welding PO Box 1090, Mt Hagen Western Highlands Province

Do solemnly and sincerely declare that:-

1. I am the owner and Manager Director of GK welding and currently based in Mt Hagen in the Western Highlands Province of Papua New Guinea.

2. I recall that on the 18^th April, 2011, I was approached by a man who held himself out to be employed by the Internal Revenue Commission in Mt. Hagen, WHP.
   

3. He assisted me and my company with the tax returns and later demanded K1,000.00 which me and my company paid in cash.

4. The man told me that his name was MATHIAS PAUSI, but later when I confirmed with other reliable sources and employees of IRC, I discovered that the said person was STOLZ MARTIN MAKINS and NOT MATHIAS PAUSI.
   

5. I now clearly confirm and can certainly say that the person who solicited the sum of K1,000.00 from me on the 18^th of April, 2011 was STOLZ MARTIN MAKINS and not MATHIAS PAUSI [who is the Provincial Auditor-Mt. Hagen].

6. STOLZ MARTIN MAKINS impersonated and held himself out to be MATHIAS PAUSI, forged his signature and solicited K1,000.00 from me on the 18^th of April 2011 after preparing my tax returns.

7. I further say that if I am needed for an interview to confirm what I have deposed in this statutory declaration, shall make myself available at an earliest convenient time possible.

AND I make this solemn declaration by virtue of the Oaths, Affirmations and Statutory Declarations Acts Chapter No. 317 conscientiously believing the statements contained therein to be true in every particular.
DECLARED at Mt Hagen ) (c)...(signed)......
the 28^th day of August, 2012, ) Before me

)
) (d) ...(signed)........

) (e)...Semel Malaga

[Lawyers & Commissioner for Oaths]

21. The plaintiff however argued that the Statutory Declaration was irrelevant because it was sworn after the third defendant was dismissed.
    
22. It is not disputed that no written statements were obtained from George Kainda, Jimmy Yaso and Stolz Martin Makins by the IRC investigators after the plaintiff received the 6 February, 2012, letter.
    
23. In regard to the standard of proof in the hearings before the public bodies or authorities including the PSC, I stated in Betty Palaso v. Dr. Kereme & Others (supra), that the appropriate standard should be proof upon cogent and convincing or compelling evidence. I said this standard of proof guarantees the person charged with a disciplinary offence(s), a fair hearing and the full protection of the law. In my view, this standard of proof would require proof upon evidence that is credible. Obviously, hearsay evidence cannot be credible. The rationale behind this view is that the person charged with a disciplinary offence(s) will, if found guilty suffer some form of penalty, one of which can be dismissal, as in this case. Thus any penalty given to such a person or officer should be based on credible evidence or evidence that is cogent and convincing or compelling. This view also accords with the enunciation of the law by the Supreme Court in Re James Eki Mopio [1981] PNGLR 416.
    
24. When the penalty is termination or dismissal from employment, as in this case, the effects and consequences can be permanent and far-reaching because the person would lose not just his employment but all the benefits and privileges that go with his employment as well. In cases where the person dismissed is innocent, that would be of grave injustice to the person and the fair redress for such a person in my view is to restore him as much as possible to the position he enjoyed before his dismissal.
    
25. The public bodies or authorities should be wary and cautious in exercising their powers to discipline their officers. To discipline an officer or a public servant involves a process that takes time; it is not something that can be done in a rush or hastily. The decision to penalize should be made as the last resort and such a decision should be made only after all aspects of the process are fully exhausted.
    
26. The standard of proof discussed above is higher than the civil standard, and in my view it will safeguard the civil servants from being unnecessarily and unfairly charged and disciplined and made subject to the rigour of the disciplinary processes, including dismissal from their employments. See also James Eki Mopio (supra).
    
27. I am therefore firmly of the view that an innocent civil servant who is dismissed from his employment would deserve to be put back to the position he enjoyed, not only in terms of employment but also in terms of the monetary benefits, before his dismissal. In my view the sufferings such person is forced to go through would constitute special or exceptional circumstances, which would warrant such a redress, especially full restoration of all the lost monetary benefits. I find that the third defendant fits into this situation.
    
28. The PSC is an independent constitutional office and is empowered to decide on how to conduct its hearings of the complaints it receives from aggrieved public servants. This power extends to cover its investigations into the complaints including collection of evidence, and in that regard, s. 18 of the Public Services Management Act, sets out the procedure the PSC has to follow in its review of the complaints. The standard of proof discussed above is in my view commensurate with this procedure, and that is the standard of proof the PSC applied in reaching its decision in this case.
    
29. I accept the findings of the PSC that the evidence relied on by the plaintiff to lay disciplinary charges against the third defendant and to dismiss him from his employment fell far short of meeting the required standard of proof.
    
30. Given that the third defendant had vehemently denied the charges, and the effect of the letter of 6 February, 2012, which was purportedly written and signed by George Kainda and Jimmy Yaso which undeniably exonerated the third defendant, the IRC investigators should have instead of relying on the telephone interviews with George Kainda and Jimmy Yaso, assuming there were such telephone interviews, conducted interviews with both men and obtained their statements. Such statements would have constituted independent evidence proving two things, first; there were interviews done with George Kainda and Jimmy Yaso regarding the letter, second; they did not write the letter. There is no such independent evidence in support of the plaintiff’s claim and to corroborate their denial of writing and signing the 6 February, 2012. All that the court has is a narrative by Mr. Hebrew of what the IRC investigators told him, which clearly is hearsay. As a matter of law, the onus is on the plaintiff to prove her assertion that the third defendant was the one who got K1,000.00 from George Kainda. The plaintiff failed to discharge this onus.
    
31. In the circumstances, I find that the PSC decision was not ultra vires and the PSC did not err in its decision.
    
32. The plaintiff also argued that the PSC was wrong in relying on the Statutory Declaration because it was sworn after the third defendant was dismissed. I reject this argument basically because whilst it is true that the Statutory Declaration was sworn after the third defendant was dismissed, that did not bar the plaintiff from giving it due consideration and acting on it. It was still within the plaintiff’s power to revisit the issue of dismissal. In my view, that was the proper thing to do given that the Statutory Declaration was the second time George Kainda had purportedly in explicit terms told the plaintiff that it was Stolz Martin Makins who got the K1,000.00 from him and not the third defendant. It was also in the plaintiff’s interest to check if the Statutory Declaration was genuine, because if it was found to be genuine then that would have had the effect of rendering the third defendant’s dismissal unlawful. The decision by the plaintiff to ignore the Statutory Declaration was a fatal mistake because as I said earlier, the decision amounted to the third defendant being denied a fair hearing.
    
33. The Statutory Declaration being evidence given under oath carried a lot of weight and force.
    

34. But even when putting aside the Statutory Declaration, there was no credible evidence upon which the plaintiff could rely to charge the third defendant with any disciplinary offences, because the two complaint letters by George Kainda and Jimmy Yaso had been subsequently denied and contradicted in every material particular by the letter of 6 February, 2012 and the Statutory Declaration which were purportedly written and sworn by George Kainda and Jimmy Yaso, who were the very people who wrote the two complaint letters. It follows that the evidence of the plaintiff as it stands leaves the letter of 6 February, 2012 and the Statutory Declaration unchallenged.

35. For the foregoing reasons, the application is dismissed with costs. I order that the third defendant be reinstated forthwith to the substantive position he held before his dismissal on 17 August, 2012, which was Western Highlands Provincial Auditor.

36. If it is not possible for the third defendant to be reinstated to that particular position, then a position which is equal to that position within the IRC staff structure without any loss of salary and entitlements.

37. I also order that the IRC reimburse the third defendant with all his lost salaries and entitlements and any other emoluments starting from when the IRC ceased paying them to him to today, viz; 17 February, 2017. In making this order, I fully appreciate that the period for such reimbursements is quite a long period. However, that is the actual period the third defendant was unfairly and unlawfully denied from receiving and enjoying them. That is not his doing and through no fault of his. He therefore should not be denied of them.

38. Furthermore, I have found that the plaintiff could have done more in investigating the complaints in order to ensure that the complaints were true and genuine. Especially, given that there was evidence clearly purporting to favour and exonerate the third defendant, viz; the letter of 6 February, 2012, and the Statutory Declaration, which in effect corroborated the third defendant’s claim that it was Stolz Martin Makins who got the K1,000.00 from George Kainda.

39. One other important thing to note is that the letter of 6 February, 2012, was written on George Kainda’s business name letterhead just like the two complaint letters. As a matter of logic and commonsense, this must re-enforce the claim by the third defendant that the letter was written and signed by George Kainda and Jimmy Yaso and was genuine. As to the Statutory Declaration, the stamp affixed to it shows that it was sworn before a Commissioner for Oaths, who was a lawyer, which shows that it is also genuine.

40. Following matters have direct bearing on my decision to order reimbursement of lost salaries and entitlements for the third defendant for the period so ordered. First, I find that the plaintiff was careless, if not negligent in investigating the matter. The letter of 6 February, 2012, and the Statutory Declaration were critical pieces of evidence which corroborated the third defendant’s evidence in every material particular. Further investigations should have been made to verify whether they were genuine or not. Second, based on the evidence before the Court, the third defendant was innocent of the charges, thus his dismissal from his employment was not only unlawful, but it also had no factual basis. Third, this application is challenging the decision of the PSC, but the person or the party that is most affected is the third defendant. He was caught in the middle of this court battle between the plaintiff and the PSC. He was dragged into this battle by the plaintiff and was forced to defend the action and in so doing, incurred legal costs. As a result of this application, the third defendant was also denied the right to enjoy the benefits of the PSC decision. Fourth, as a result of the plaintiff’s failure to conduct interviews with George Kainda, Jimmy Yaso and the third defendant regarding the letter of 6 February, 2012, after suggestions by all three of them to the plaintiff for such interviews, the third defendant was denied a fair hearing by the plaintiff. Fifth, as a result of this application, despite being innocent, the third defendant went through a lot of suffering. His integrity had also been called into question and tarnished.

41. In my view, these matters constitute special and exceptional circumstances which justify the Court in ordering reimbursement of all of third defendant’s lost salaries, entitlements and other emoluments up to the date of judgment.

42. This is not about awarding damages, for which mitigation of damages is a relevant consideration. This is about actual loss of employment and salaries and entitlements which were due and payable to the third defendant. Therefore it is only fair that the third defendant be paid all his lost salaries and entitlements for the period ordered. I consider the orders made herein regarding the reimbursement of lost salaries and entitlements and other emoluments and the period for such reimbursements to be necessary and justified given the special and exceptional circumstances of the case.

43. I leave the calculation of the actual period of lost salaries and entitlements and any other emoluments and the total amount to be paid to the third defendant and how such an amount is to be paid, to the parties to discuss and determine.

44. The plaintiff will pay the defendants’ costs of and incidental to the proceeding.

Orders accordingly.

_________________________________________________________
IRC Legal Division: Lawyers for the Plaintiff
PSC Legal Division: Lawyers for the First and Second Defendants
Guardian Lawyers: Lawyers for the Third Defendant