Boki v Kipit [2021] PGNC 288; N8997 (5 August 2021)

N8997

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 195 OF 2019

BETWEEN:
MICHAEL BOKI
Plaintiff

AND:
BERNARD KIPIT AS CITY MANAGER NCD
First Defendant

AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 08^th July, 5^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 16 Rule 5 NCR – Termination of Employment – Security Driver – Suspension & Charges over unauthorized use of Commission Vehicle – Reply to Charges – Staff Disciplinary Committee deliberation – Charges sustained – Dismissal penalty – Appeal to Staff Appeals Tribunal – Appeal dismissed dismissal confirmed

Cases Cited:
Papua New Guinea Cases

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797

Raz v Matane [1986] PNGLR 38

Mond v Kiap [2012] N5356

In the Matter of The Constitution S57; Honk Kiap v Chairman of Board of Governors Kerevat National High School, Minister for Education and The State [1995] PGNC 34; N1381

Kerua v Council Appeal Committee of University of Papua New Guinea [2004] PGNC 240; N2534

Okuk and State v Fallscheer [1980] PNGLR 274

Overseas Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223.
Counsel

M. Philip, for Plaintiff
E. Tolabi, for First & Second Defendant.

RULING

05^th August, 2021

1. MIVIRI, J: This is the ruling on the notice of motion of the plaintiff of the 30^th July 2021. He was initially granted leave on the 30^th July 2019.
   
2. He is seeking certiorari to bring up into this Court the decision of the First Defendant to terminate him from employment with the second defendant Organization on the 16^th April 2018 and quash it. He alleges that the decision was harsh and oppressive. It was unreasonable within the Wednesbury sense and was an error of law. That the decision of the Staff appeals tribunal hearing and decision of the 08^th June 2018 did not comply with section 10 (5) of the NCDC Disciplinary Code in that he was not informed of the time and place of the hearing of the appeal.
   
3. The facts relevant are that he was acting security Supervisor of the second respondent. He commenced employment with them as security driver on the 10^th April 2000. He was promoted to security Supervisor in 2012. And was again promoted to senior security supervisor. He was charged and suspended on the allegation of unauthorized use of commission vehicle under the Code on the 02^nd March 2018. He replied to it within seven (7) days as required under the Code.
   
4. The Staff Disciplinary Committee (SDC) deliberated on the matter and issued his termination on the 16^th April 2018. He alleged that it failed to consider relevant evidence placed before it in its determination and termination. Because he was permitted by the Security Manager to use the vehicle as he did, so that the punishment upon him did not fit, and he had served 19 years in that employment. There was no misuse and termination were not in order given. He was inaptly suspended and charged because no disciplinary offence had been committed. Irrelevant matters were considered leading to his termination. And matters that were not in line with his duty were not considered by the Committee.
   
5. Plaintiff appealed within the required time 1^st May 2018 against the decision of the SDC to the Staff Appeals Tribunal (SAT). He raised that he was a first-time offender and leniency should have been exercised, he has served 19 years in that employment. And that there was no damage to the subject vehicle. There was no loss or suffering as a result. And therefore, the decision of the SDC was wrong as he had used the vehicle with authority for a purpose. These were not properly considered by the SAT in upholding the NCDC Disciplinary Committee. Further the decision was not communicated to him, nor was he served a copy. So, he had waited for four (4) months before following up with his lawyers and securing. He was replied to on the 22^nd November 2018 by the City Manager that a decision had already been made and communicated to him through an inter-office memo on 08^th June 2018. And a copy of that decision has not been given to him fulfilling clause 8 (2) (b) of the Code because it requires that the reason be given within two (2) days. It is mandatory and has been breached by the defendants. He was not notified of the hearing of the appeal and date for its hearing as required by clause 10 (5) of the Code.
   
6. The evidence that lights out these facts are, his own affidavit of the 21^st March 2019 filed the 28^th March 2019, second affidavit of the 31^st July 2020 filed 31^st July 2020. Affidavit of Timothy Gena sworn and filed on the 31^st July 2020.
   
7. The evidence in reply is by one Jim Bailey Manager human resources also member of the SDC.
   
8. It is disputed that he was not properly notified by the NCDC appeal Tribunal of the date and hearing of the appeal matter. Further he disputes culpability in the matter. And there is no destruction to the subject vehicle including misuse as sustained. His termination was harsh and oppressive considering. Because he was authorized to use the subject vehicle.
   
9. The Court is not concerned as to whether or not his conduct on that day is culpable, nor is the court concerned whether there were damages that emanate from the vehicle in possession of the plaintiff. Or whether it was with or without approval. These are matters to the substance of the case. Judicial review does not concern itself with the substance, but the process that is arrived in the decision. So, for our purposes here it is not concerned with the termination because of the use of the vehicle. The procedure is what it is in judicial review: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). If the termination was a result of the procedures within that were affected to arrive, then judicial review does not lie in favour of the plaintiff here.
   
10. Plaintiff was charged for unauthorized use of motor vehicle ZNC 324 on two occasions. Firstly, on Thursday 05^th October 2017 at 10.00pm and then on Friday 17^th November 2017. And that on each occasion he went to attack one Lawrence Remos of Dorido Street, June Valley. He denied the charges explaining that the vehicle was used with permission obtained prior from his supervisor. And it was to attend a mediation and not twice.
    
11. In this regard the relevant evidence is from Jim Bailey Human Resources Manager of the National Capital District Commission. He deposes that the allegation against the plaintiff was reported by one Lawrence Remo. That on Thursday 05^th October 2017 about 10.00pm and on Friday 17^th November 2017 at about 5.30pm the Plaintiff used a NCDC vehicle registered as ZNC 324 to attend to personal matters. He used that vehicle to carry a group of individuals who were intoxicated and they drove to Mr Remos residence. They then physically assaulted him. Which was for outstanding compensation payment. As a result, he suffered serious bodily injury to his forehead. And he evidences by annexure “A” and “ B” the medical report taken from St John’s Ambulance and from the Port Moresby General Hospital on the 17^th December 2017. Both documents show a serious head and chest injury the victim was weak to walk and was bleeding from his head.
    
12. Annexure “C” is a complaint that was lodged with the city Manager against the plaintiff Michael Boki by Lawrence Remos who was the patient in the report by St John’s Ambulance and the Port Moresby General Hospital. He states and verifies the attack by the plaintiff using the official vehicle from the National Capital District Commission. And of the Plaintiff picking up a large stone and hitting him on the head as he lay on the ground after he was assaulted over demands exerted by the plaintiff for him to pay K 20, 000. 00 for a prior assault upon another.
    
13. This assertion of Lawrence Remos is corroborated by Nicky Tom who was at the scene and witnessed what was done by the plaintiff to the complainant. He gives exact replicates of that event. That is further supported by another witness Stella Pilamp in all material aspects pertaining to the assault perpetrated upon Lawrence Remos by the Plaintiff. These are annexures “D” and “E” of the affidavit of Jim Bailey Human Resources Manager of the National Capital District Commission.
    
14. Annexure “F” is a copy of the instrument signed by the city manager Leslie Alu charging and suspending the plaintiff over the allegation. It was served on him at 11. 15pm at the Human Resources office. That instrument is headed, Notice of suspension under section 21 of the National Capital District Commission Staff Disciplinary Code. It is to the plaintiff and reads; Take notice that in accordance with section 21 subsection (1) & (2) of the National Capital District Commission Staff Disciplinary Code, you are hereby suspended from duty/ without pay in connection with a charges to be brought against you once investigations are completed within five (5) working days.
    
15. You are not allowed to enter any of the Commission properties or premises during the period of suspension let alone office of the Human Resources Manager and if you are in possession of any of the Commission properties you are required immediately to return these properties to the office of the City Manager. You are required to vacate the Commission premises soon after being issued this notice.

Dated this 2^nd day of March 2018. Signed Leslie Alu City Manager

16. And there is certification of it being served witnessed by one Jim Wazzu on 2^nd March 2018 at 11.15am. The plaintiff acknowledges also and signs the same. Over the page is yet another document which is the Notice of Charge of the Plaintiff. He is charged with committing a breach of the Staff Disciplinary Code. And he is charged with being guilty of disgraceful conduct or misconduct in his official capacity or otherwise. The details of what he is alleged to have done are set out in particulars to him. And he is notified that he replies to and provide any respond to it within seven (7) days. And that if no reply is forthcoming, he is deemed to have admitted the charges. Again, it is signed by the City Manager Leslie Alu. The service details are acknowledged by Jim Wazzu as having served on the plaintiff 02^nd March 2018 at 11.15am. The plaintiff acknowledges receipt.
    
17. Annexure “G” of the affidavit of Jim Bailey Human Resources Manager of the National Capital District Commission is the minutes of the meeting before the SDC relating to the allegation against the plaintiff. It is counter signed by the 8 members who comprise that committee. And annexure “H” is the termination notice to the plaintiff of the 16^th April 2018. To which all were considered including the response of the plaintiff. And that committee confirmed the SDC decision to terminate the plaintiff.
    
18. This is a matter that followed procedure set out above to arrive at termination of the plaintiff. Importantly the allegations against the plaintiff’s conduct as a staff of the defendants was proved. He was given an opportunity to respond to which he did and that was considered firstly in the SDC and then again in the SAT. On both occasions he was found guilty and the penalty of termination was considered as appropriate given all set out above. He was given an opportunity to respond to the allegations that were levelled against him. Given the material set out above the allegations were made out against him. And was considered serious and therefore the penalty of dismissal. Process and procedure within were followed to give effect to his demise. There is therefore no error demonstrated as to breach of procedure in the decision that was taken by the defendants. The decision stands in law against the plaintiff. And this ground is not made out in favour of the plaintiff and is dismissed.
    
19. It was not unreasonable within the Wednesbury sense given all the particular’s set out above. Given these facts it was drawn the conclusion it was made to from those facts and circumstances. There was no error of law let alone unreasonableness in the sense of the Wednesbury case. Opportunity was accorded and he responded and was led to what was laid out at the end, termination given the gravity of the facts depicted. It was open to the Committee on the facts. They were in a better position to see the matter first hand. They were functioning as called and not against they considered what was laid out against and arrived at what was in law discretionary to them. They opted and this Court will not step in to set that aside and substitute its own: Raz v Matane [1986] PNGLR 38 (30 January 1986).
    
20. It is not an unreasonable decision and stands because the plaintiff has not pointed to the decision of the SAT or even before that the decision of the SDC as to where they went into error: Mond v Kiap [19 September 2012] N5356. The plaintiff has not pointed to where it is unreasonable given the facts set out above. The duty was upon the plaintiff he alleged impropriety on the part of both the SDC and the SAT but has failed to point to the evidence establishing and discharging the burden of preponderance. He must point by reference to the decision of the appellant body SAT and point to where they did not consider the assertions that he makes. It is his case and it is upon he who asserts to prove on the balance of preponderance that what he alleges is not on the record of the proceedings in his determination leading to his termination. He has not and cannot bear the fruits he prays for: In the Matter of The Constitution S57; Honk Kiap v Chairman of Board of Governors Kerevat National High School, Minister for Education and The State [1995] PGNC 34; N1381 (29 September 1995). The disciplinary records must speak what is alleged.
    
21. Just as a final year economic student at the University of Papua New Guinea was required to show on the face of the record of disciplinary proceedings where the error was in Kerua v Council Appeal Committee of University of Papua New Guinea [2004] PGNC 240; N2534 (2 June 2004), prompting this Court to find failure to consider the student’s case. And therefore, acceding to his plea for injustice and unreasonableness, quashing the decision of the student disciplinary Committee and putting him back to the University. For our purposes here that is not the case of the plaintiff. He has not demonstrated to sway in his favour.
    
22. Plainly this is not a case analogous to Okuk and State v Fallscheer [1980] PNGLR 274 disciplinary procedure has been accorded to its fullest nothing has been left. That is the minimum and is borne out by annexure “A” true copy of the reply to the charges by the Plaintiff in his affidavit of the 31^st July 2020 review book page 102. It is a very detailed explanation but is self-serving and sets him out of the picture painted of the matter by independent observers. It is not unreasonable within the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223. There is no error demonstrated to the required balance to vitiate in favour of the plaintiff’s cause. He is lacking and therefore his cause of action will be dismissed with costs following.
    
23. The formal orders of the court are:
    
    • (1) Judicial review is refused.
    • (2) Costs will follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Korerua & Associate Lawyers: Lawyers for the Plaintiff /Applicant

Kopunye Lawyers: Lawyers for the Defendant