Lainda v Mokono [2023] PGNC 427; N10581 (14 November 2023)

N10581

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 121 OF 2022

BETWEEN:
ELIZABETH LAINDA
Plaintiff

AND:
HENRY MOKONO
First Defendant

AND:
NATIONAL HOUSING COMMISSION
Second Defendant

AND:
THE STATE
Third Defendant

Waigani: Purdon-Sully J
2023: 07^th November

JUDICIAL REVIEW – Practice & Procedure – Application for leave for judicial review – National Court Rules, Order 16 rr 3, 4 and 5 – Originating Summons - Statement in Support - Notice of Motion – Pleadings – Need to plead leave and the decision to be reviewed in the Originating Summons and the Notice of Motion– Substantive Notice of Motion – National Court Rules, Order 16 r 5 – Power of the Court on leave applications.

JUDICIAL REVIEW – Practice and Procedure – National Court Rules; Order 16 rr (1) and (2) – Types of cases for which an application for judicial review may be made – Notice of application for leave for judicial review to the Secretary for Justice – Mode of services for such notice – Commencement of an application for judicial review.

Cases Cited:

Papua New Guinean cases
Re Recount of Votes [1990] PNGLR 441
Kekedo v Burns Philp (PNG) Ltd [1998-99] PNGLR 122
Hagoria v Ombudsman Commission of Papua New Guinea [2003] PGNC 111; N2400
Koki v Inguba [2009] PGNC 161; N3785
Klapat v National Executive Council [2014] PGNC 186; N5536
Ilau v Somare [2007] PGNC 265; N5511
Ombudsman Commission v Yama [2004] PGSC 30; SC747
Asiki v Zurenuoc [2005] PGSC 27; SC797
Lupari v Somare (2008) PGNC 121; N3476

Overseas Cases
Council of Civil Service Unions v Minister for Civil Service [1985] AC 374

Counsel:
Jimmy Apo, for Plaintiff
No Appearance for the 1^st, 2^nd & 3^rd Defendants

DECISION

14^th November 2023

1. PURDON-SULLY J: This is a substantive application for judicial review made pursuant to a Notice of Motion filed 30 May 2023 pursuant to a leave to apply for judicial review granted by a Judge of this court on 15 May 2023.
   
2. On 8 June 2023, leave was granted to discontinue the proceedings against the Third Defendant, the Independent State of Papua New Guinea.
   
3. The Plaintiff relies upon her Notice of Motion filed 30 May 2023, her statement pursuant to Order 16, Rule 3(2)(a) of the National Court Rules and her verifying affidavit filed 7 December 2022.
   
4. I have considered the submissions, oral and written, on behalf of the Plaintiff, together with authorities provided to me on the issue of reinstatement.
   
5. The matter was listed on 7 November 2023 for substantive hearing.
   
6. There was no appearance for the First Defendant, Henry Mokono, the Managing Director of the National Housing Corporation. I had the court orderly call their names before I stood the matter down at about 12:15 pm during the luncheon break. There were no appearances for either Defendants when the court resumed at 1:30 pm.
   
7. I am satisfied that the First and Second Defendants are aware of the proceedings having been served on 2 June 2023 with the Plaintiff’s Notice of Motion and Court Order granting leave. An acknowledgement of service to that effect is annexed to the Affidavit of Service of Joseph Rara sworn 6 June 2023, the filing date on that document of 8 June 2021, obviously incorrect.
   
8. Further, the First and Second Defendants were represented by Mr. Yomba when the matter was before another Judge of this court on 11 October 2023 when the matter was set down for trial on 7 November at 9:30 am.
   
9. Neither Defendant has complied with the order of Justice Dowa of 8 June 2023 which required the parties to file and serve their affidavits by 30 June 2023.
   
10. In the circumstances outlined I proceeded to hear the matter in the absence of the First and Second Defendants.
    
11. Turning to the substantive claim, the Plaintiff seeks the following orders:
    
    1. An order in the Nature of Certiorari that the decision of the First Defendant made 27 May 2022 to dismiss/terminate the Plaintiff from the employment with the Second Defendant pursuant to Clause 166)1)(e) of the National Housing Corporation Amended Determination No 1 of 1990 and Clause 15.36 of the Public Service General Orders for absconding be quashed.
    2. An order in the Nature of Mandamus that the Plaintiffs be reinstated into her position of Para-Legal Clerk with the backed dated salaries and entitlements.
    100. Costs.
         
12. The Plaintiff did not press Order 1(a) of her filed Notice of Motion.
    

BACKGROUND

13. The Plaintiff is a single mother who was employed as a Para-Legal Clerk in the Legal Division of the Second Defendant from 10 October 2009 until she was suspended without pay on 7 January 2022 and her employment terminated on 25 May 2022.
    
14. The Notice of Suspension in Form D.5 dated 8 January 2022 which is Annexure A to her affidavit filed 7 December 2022 relevantly provided:
    

TAKE NOTICE that pursuant to Clauses 160(1)(a) and 167(1) of the NHC Determination No. 1 of 1990 (Amended), you are hereby Suspended without Pay.

AND TAKE FURTHER NOTICE that your actions have also contravened Clause 15.36 of the Public Services General Orders with specific reference to Abscondment which is a very serious disciplinary offence that warrants termination. However, you are suspended with immediate effect as of the date of this notice.

The suspension stems from your persistent and chronic abscondment and absenteeism from official duties. As indicated by your sectional boss, you have been warned and reprimanded on several occasions last year but there has been no sign of improvement on this unethical behaviour. The latest being your absenteeism from duties for the whole of this week as confirmed by the staff attendance book. Your action/inaction is affecting the smooth flow of the legal section considering the importance of your duties as a Paralegal Officer.

This leaves me with no option but to have you suspended immediately.

15. The Notice of Suspension was signed under the hand of the First Defendant.
    
16. The Plaintiff’s evidence at [2] of her affidavit is that she was served with the Notice of 13 January 2022. She responded the same day by letter dated 12 January 2022 as follows:
    

Dear Sir

SUBJECT: NOTICE OF SUSPENSION – ELIZABETH LAIND

With regard to my suspension notice I received on 13 January 2022, I respond accordingly.

During the Christmas vacation period, I was in my village, Ialibu Southern Highlands Province.

On 2^nd January 2022, I was to travel from Hagen to Port Moresby but was down with Malaria so I could not fly in then so on 3^rd of January 2022, went to Ialibu Hospital and got treated for malaria.

I attach copy Medical Report for your information.

As soon as I was well, I flew in from Hagen on the 8^th of January 2022 and commenced duties on the 10^th of January 2022.

Attached please find travel details.

My apologies if there was any problem caused due to my absence to the legal section.

17. The attached Medical Certificate on the letterhead of the Ialibu Rural Hospital, noted inter alia that the Plaintiff was unfit for duties from 3 to 7 January 2022 because of malaria and pneumonia. The Plaintiff also enclosed travel details in the form of an Air Niugini receipt evidencing her travel from Mt Hagen to Port Moresby on 8 January 2022.
    
18. She received no response to her letter.
    
19. The Notice of Suspension was made pursuant to Clause 160(1)(a) and 1679(1) of the National Housing Corporation Determination No. 1 of 1990 (Amended) (the Determination).
    
20. Part 10 of the Determination details the procedures to be adopted by the Second Defendant for Disciplinary breaches by its officers and employees.
    
21. An ‘employee’ is defined in Clause 4(1) of the Determination as a person employed to render temporary or causal assistance to the Second Defendant. An “officer” is defined as an officer of the service but does not include an employee, a person employed in an honorary capacity, or a person remunerated by fees, allowances or commission only.
    
22. Clause 160(1)(a) of the Determination provides:
    

An officer or employee has committed a disciplinary offence, if he:

1. Commits a breach of the NHC Act 1990 or and/this Determination.
   

23. Clause 167(1) of the Determination provides:
    
    1. Where an officer does not report for duty without good reason for a period of 2 weeks (10 working days), then the officer will be charged with a serious disciplinary offence under Clause 160, subclause (1)(a).
       
24. The Notice of Suspension also asserted that the Plaintiff’s actions had contravened Clause 15.36 of the Public Services General Orders.
    
25. In accordance with the provisions of the Public Services (Management) Act 1995 (as amended), No 15 of the National Public Service General Orders details the disciplinary procedures for all officers of the Public Service, other than those employed on contracts.
    
26. Clause 15.36 which is titled ABSCONDMENT is in terms similar to Clause 167(1) of the Determination. It provides that where an officer does not report for duty without good reason for a period of 10 working days, then the officer will be charged with a serious disciplinary offence under General Order 15.19 (a) and removed from payroll. General Order 15.19 is in similar terms to Clause 160(1)(a) of the Determination.
    
27. The Plaintiff sent a further letter to the First Defendant dated 10 March 2022 which relevantly said:

While I took some time to read the suspension notice and agree that I was absent for the whole week as stated in my suspension notice as I was sick with Malaria, I was not absent for duties for two (2) weeks as stated under Clause 167(1) of the National Housing Corporation Determination No 1 of 1990 as amended or Clause 15.36 of the Public Services General Orders.

The suspension without pay is causing me a lot of financial difficulties and as such would appreciate if a determination could be made as soon as possible (sic) taking into account of the fact that I was not absent for two (2) weeks and further, because I was sick, I could not attend duties for one (1) week.

Should you have any questions, I can be contacted on (phone number included).

28. She received no response to that letter.
    
29. By Notice of Dismissal in Form D.2 dated 25^th May 2022 under the hand of the First Defendant and received on 3^rd June 2022, the Plaintiff was dismissed from her employment. The Notice relevantly provided:
    

TAKE NOTICE that pursuant to Clause 166 (1)(e) of the NHC Determination of 1990 (Amended) you are hereby dismissed/terminated from official duties effective as of the date of this Notice.

Your dismissal/termination ensues from the following facts:
1. Chronic abscondment and absenteeism, poor attendance and

punctuality as expressed by your boss, the Principal Legal Officer.

2. This is a chronic behaviour as confirmed by record on your Personal and DC files dating back to 2015.
3. There is overwhelming evidence of repetition of this unethical behaviour and there is no guarantee that there will be any improvement.

These actions of yours evoked the application/imposing of Part 10, Clause166, Sub Clause (1)(e) of the abovementioned Determination and Public Services General Order 15.36 which is a serious disciplinary offence.

Therefore, you are hereby TERMINATED/DISMISSED forthwith.

Should you consider this decision to be improper or unlawful, you are given the liberty to seek redress from DPM and/or Public Services Commission through a “Review of Personal Matters”.

30. There is no evidence that before being dismissed, the Plaintiff was served with a charge in Form D.6 in accordance with the procedures provided by the Determination. The need to take another step and serve the Plaintiff with a charge, to which she then had a right of reply, is clear from the combined reading of clauses 160(2), 162, 163(1), 163(2), 163(4), 164(2) and 165 of the Determination, supported by the two forms provided in the Determination to facilitate the suspension procedure and the charge procedure. A Notice to Suspend must be in form D.5 and the Charge in Form D.6.
    
31. In the Notice of Dismissal, the Plaintiff was invited to seek redress, if aggrieved, from the DPM (probably the Department of Personnel Management although not stated) and/or the Public Services Commission. She was not referred to the review procedure under the Determination in the form of the Disciplinary Appeals Committee (see Clause 153). It is the Plaintiff’s case that the Committee is now defunct, if it ever existed, the Plaintiff having tried unsuccessfully to see redress through that procedure by the letter to the Committee, care of the Second Defendant, dated 3 June 2022. The Plaintiff did not receive a reply to that letter.
    
32. On 22 June 2022, the Plaintiff also made application for a review of the decision to dismiss to the Public Services Commission pursuant to section 18 of the Public Services (Management) Act 1995. Her application was unsuccessful, the Commission finding that it had no jurisdiction in the matter as the Second Defendant was not a Department of the National Public Service.
    
33. The Plaintiff’s evidence at [8] of her affidavit is that she also wrote to the Public Solicitor’s Office for assistance however was told to await the outcome of her application to the Public Service Commission.
    
34. On 7 December 2022, the Plaintiff sought leave for judicial review. Leave was granted by Justice Dowa on 15 May 2023. I have read His Honour’s decision.
    

GROUNDS

35. The Plaintiff seeks review of the decision to dismiss her on two (2) grounds:
    
    1. Breach of Natural Justice
    2. Ultra Vires
       
36. It is contended on behalf of the Plaintiff that she was not afforded an opportunity to be heard and thus denied natural justice in the process that led to the termination of her employment in that she was not served with a charge in writing in Form D.6 to which she had a right of reply.
    
37. It is further contended that the Plaintiff’s termination was ultra virus because:
    
    1. The authority breached the provisions of the Determination in that it did not follow the procedures which required the Plaintiff to be served with a written charge in Form D.6 before dismissal and afford her an opportunity to respond; and
    2. The authority was wrong in dismissing the Plaintiff for a breach of Clause 167(1) for being absent for 10 days when she was absent for only 5 days leading to an invalid decision.
       

ISSUES

38. The issues are:
    
    1. Whether in dismissing the Plaintiff from her employment, the Defendants acted beyond their powers or authority such that the dismissal should be set aside for want of jurisdiction; and
    2. Whether in the process of dismissing the Plaintiff, the Defendants failed to accord her natural justice.
       

LEGAL PRINCIPLES

39. Judicial review is a process that enable a court to ensure that the actions of a public body do not contradict the Constitution or other laws. It is not concerned with the decision itself but with ensuring the integrity of the decision-making process. Its purpose is to see from the records of the decision-making authority whether it acted in excess of its jurisdiction, or failed to comply with the rules of natural justice, or made an error on the face of the record (Re Recount of Votes [1990] PNGLR 441; Kekedo v Burns Philp (PNG) Ltd [1998-99] PNGLR 122; Hagoria v Ombudsman Commission of Papua New Guinea [2003] PGNC 111; N2400; Koki v Inguba [2009] PGNC; N3785).
    
40. The grounds of judicial review are founded on the principles of English common law, a non-exhaustive list of those grounds codified in Order 16 Rule 13 of the National Court Rules and other laws. Those grounds include where a decision is made ultra virus or without jurisdiction.
    
41. A decision-maker acts ultra virus if he fails to understand correctly the law that regulated his decision-making and give effect to it. If his power is not properly exercised, then the exercise may be struck out because it is unlawful (Council of Civil Service Unions v Minister for Civil Service [1985] AC 374).
    
42. Passing by or failing to act in accordance with mandatory disciplinary procedures required by enabling legislation may result in a decision to suspend to be set aside because it is infected with illegality having been made beyond the authority’s powers (Klapat v National Executive Council [2014] PGNC 186; N5536).
    
43. Where there is an error of law or where the decision maker has failed to take into account relevant considerations or ignores a relevant fact that goes to its jurisdiction, the decision may also be reviewable by reason of the exercise of its power not being properly exercised and its authority exceeded.
    
44. Breach of natural justice is a common law ground as well as a constitutional law requirement, s.59 of the Constitution, for example, allowing for the consideration of the principles of natural justice in judicial and administrative proceedings, with the minimum requirement of natural justice stated to be “the duty to act fairly and in principle to be seen to act fairly.” (s. 59(2)).
    
45. In Koki (supra) Yalo AJ said at [4]:
    

It is quite unique in our jurisdiction as to how we have valued and recognised the importance of fairness or the principles of natural justice. Firstly, we have adopted the common law principles of natural justice as our underlying law. Secondly, the principles of natural justice are ensured all throughout our statutes. As if these were inadequate, we have provided for it in our Constitution at section 59. Above all these, the Constitution has laid down the minimum standard of the principles of natural justice. We have provided for fairness at all levels of the hierarchy of laws in our jurisdiction. So, there is an onerous obligation to serve the minimum standard of the principles of natural justice.

46. It is a well-recognised principle that it would be a breach of the principles of natural justice if a person was denied the opportunity to be fairly heard before a decision was made contrary to their interests (Re Recount of Votes (supra) per Sheehan J; Ilau v Somare [2007] PGNC 265; N5511 per Cannings J at [66]).
    
47. It would also be a breach of the principle of fairness and a denial of natural justice if a public authority failed to follow prescribed procedures, committed an error of law in the decision-making process of failed to give adequate reasons to the person directly affected by its decision (Ombudsman Commission v Yama [2004] PGSC; SC747; Asiki v Zurenuoc [2005] PGSC 27; SC797).
    

DISCUSSION

48. Having considered the disciplinary processes outlined in the Determination, I have concluded that in reaching its decision of 25 May 2022 to dismiss the Plaintiff from official duties effective 25 May 2022, the Defendants acted ultra virus by:
    
    1. Failing to discharge its duty to follow the procedures in the Determination that regulated its decision-making by failing to serve the Plaintiff with a charge to which she then had a right of reply;
    2. Committing an error by choosing to dismiss the Plaintiff on the basis of a contravention of provisions of Clause 15.36 of the Public Services General Orders which had no application to her;
    100. Misinterpreting or misapplying the provisions of Clause 167(1) of the Determination where on the face of its record, the Plaintiff was absent for less than 10 days, her absence of 10 days a fact precedent that went to its jurisdiction to suspend and/or terminate the Plaintiff on the basis of abscondment.
         
49. These failures individually and collectively led to the Defendants exceeding their authority leading to an invalid decision to dismiss the Plaintiff.
    
50. With respect to the failure to discharge its duty to follow the disciplinary procedures required by the Determination, putting to one side that the Notice of Suspension in Form 5.D, served on the Plaintiff did not follow the format of the form provided, relevantly the Plaintiff was not served with a written charge in Form D.6. What the Defendants did was to attempt to bundle the Notice of Suspension and the Charge together, a process that was inherently unfair to the Plaintiff. Suspension and the process of laying a charge that could lead to dismissal were separate steps under the Determination, steps that potentially impacted how both the decision-maker and Plaintiff may choose to proceed and/or respond.
    
51. Whilst it is accepted the Determination enabled the authority to lay a charge at the same time as service on the Plaintiff of the Notice of Suspension, it did not absolve the authority from taking that step. The requirement to serve the Plaintiff with a written charge in the form provided, as soon as practicable, following her suspension (as required by Cause 164), was heightened by her having been suspended without pay and her written communication of 10 March 2022 to the First Defendant bringing to the attention of the Defendants her financial distress.
    
52. Whilst the Plaintiff was a serving officer of the Public Service at the time of her suspension, the provisions of the General Orders had no application to her as the terms and conditions of her employment and the disciplinary procedures to be followed in response to a breach of discipline were provided by the National Housing Corporation Act 1990 and its Determination, not the Public Services Management Act 1995 and its General Orders. The Defendants did not take issue with the finding of the Public Service Commission in that regard.^[1] Further, the fact that the relevant provisions of the Determination and the General Orders are in similar terms did not remedy the Defendants’ error.
    
53. With respect to the number of days the Plaintiff was absent, this was an issue that went to the question of abscondment. Whilst judicial review is limited to cases involving errors of law not errors of fact, the number of days the Plaintiff was absent was a jurisdictional or precedent fact. It was a fact that determined a relevant consideration, here one that the decision-maker either ignored or avoided in the course of its decision-making, namely whether the Plaintiff was absent for 10 days. The Notice of Suspension referred to an absence of 5 working days (“the whole of this week”), not 10 working days, an error that infected its ultimate decision to terminate. There is no evidence that having had that matter brought to their attention by the Plaintiff, they then discharged their duty to enquire into the matter, a duty implied by Clause 151 with respect to the purpose of disciplinary action and by Clause 166(1) of the Determination.
    
54. Even if I am wrong in finding that the authority’s actions were ultra virus leading to an invalid decision to dismiss for the reasons outlined, the decision to dismiss was otherwise infected or tainted by a failure on the part of the Defendants to act fairly with the Plaintiff by adhering to the rules of natural justice.
    
55. The Plaintiff was a long-term officer employed by the Second Defendant whose livelihood was at stake. The consequences of her suspension and dismissal were serious. She had a right to be treated fairly where the First and Second Defendants were empowered to make a decision adverse to her interests. This included ensuring that in reaching its decision, the Plaintiff was accorded procedural fairness and due process.
    
56. It included the Defendants following the procedural steps required by Part 10 of the Determination as earlier outlined.
    
57. It included her right to know the charges against her, with reasonable particularity, before dismissal, to enable her to be heard and respond before a decision was made. Broad brush statements, presented under the guise of ‘facts’, in the Notice of Dismissal, facts that should have been sufficiently particularised in a charge with the detail of asserted past absenteeism, poor attendance and punctuality from 2015 together with particulars of communications to her in that regard from her superior and/or as recorded in her personal file, matters to which the Plaintiff had a right of response, do not permit a conclusion of fair consideration and hence fair treatment.
    
58. Further, the Plaintiff had put in issue the length of her absence from employment that led to her suspension, a fact relevant to abscondment and absenteeism. It was not only a relevant jurisdictional fact, in circumstances where the record suggested error on its part, natural justice and fair treatment required the authority to turn its mind to it and been seen to do so in its decision-making process.
    
59. Further, taking over four (4) months to make a decision without explanation or communication with the Plaintiff where, firstly, the Plaintiff had been suspended without pay and secondly, where the Determination was underpinned by the need for fairness and expedition (see for example Clauses 151 (the purpose of disciplinary action), 164(2) (a charge to serve as soon as practicable), 165 (the short time period required for the officer’s reply), and 166(4) (the requirements to notify the decision as soon as practicable upon receipt of the reply to the charge) does not permit a conclusion of fair treatment.
    
60. For the reasons given, I find that the grounds of ultra virus and breach of natural justice are made out.
    

REMEDY

61. Having upheld the grounds of review and having concluded that the decision to dismiss the Plaintiff is liable to be reviewed and set aside, the next question is whether the interests of justice require that the remedy of reinstatement sought by the Plaintiff should be granted. It does not automatically follow that a successful Plaintiff must be reinstated. The grant of the remedy is discretionary, the justice of the case determining whether reinstatement is to be granted or refused (Lupari v Somare (2008) PGNC 121; N3476; Asiki Zurenuoc (2005) PGSC; SC797).
    
62. Having considered the authorities provided to me by Counsel for the Plaintiff^[2], including the relevant principles that I am required to apply as identified in Lupari (particularly at [54], [56] – [63]), I have determined that the interests of justice require the Plaintiff’s reinstatement. It is a remedy that in the circumstances of this particular case is appropriate, just and convenient.
    
63. In reaching this conclusion, I have taken into account that the Defendants did not oppose reinstatement and/or seek that some other remedy be imposed.
    
64. They did not lead evidence, for example, that the reinstatement of the Plaintiff would lead to office disruption or that there had been a complete break-down in mutual trust between it and the Plaintiff such that reinstatement was contraindicated, or that the historical conduct of the Plaintiff revealed on judicial review was a relevant factor in informing the court’s discretion to grant the relief of reinstatement or that reinstatement would be administratively inconvenient or otherwise impose a particular burden on the Second Defendant either by reason of the position no longer being vacant or by doing so, impeding the commercial and social functions of the Second Defendant to inter alia improve and provide housing or some reason that would be contrary to the public interest, including good administration.
    
65. The only evidence before the court is the Notice of Suspension to the effect that the Plaintiff’s absenteeism was impacting the smooth flow of the legal section and the basis of the dismissal as detailed in the Notice to Dismiss. Without suggesting or under-estimating the negative operational impact of staff absenteeism on the Second Defendant and its impacts on the morale of co-workers who then have to make up for the loss of labour, in considering that evidence I take into account that the Plaintiff is a Para-Legal Officer. Whilst an important role, acknowledged as such by the First Defendant in the Notice of Suspension, she did not hold an executive or senior level management rank such as to suggest her reinstatement may cause damage to the overall interests of the Second Defendant.
    
66. Nor is this a matter where the ill complained off, involves criminal behaviour or some form of financial malfeasance on the part of the Plaintiff where the court may properly infer eroded trust.
    
67. The difficulty for the court is that the Defendants did not attend the substantive hearing, the court in the circumstances entitled to infer by the fact of their continued legal representation (their lawyers had not filed a Notice of Ceasing to Act) that they were aware of the consequences of not doing so and that they either did not object to the remedies sought by the Plaintiff if the grounds of review were upheld, or did not want to be heard on remedy leaving the matter to the court.
    
68. I have also taken into account that whilst the Defendants may have felt they had just cause to dismiss the Plaintiff, they were in a position of power and the process they pursued was unfair to her. Dismissal is not a rubber stamp exercise, the Plaintiff’s livelihood at stake and their obligations under the Determination clear.
    
69. I have also taken into account the conduct of the Plaintiff on suspension. She responded on a timely basis. She sought at the earliest to explain herself and her absence to the First Defendant, supporting her explanation with relevant evidence. It cannot be reasonably suggested that ill-health by reason of malaria and pneumonia, supported by a medical certificate, did not prima facie present as a good reason for a work absence of that length, and occasion pause for thought on the part of the Defendants, irrespective of any view they may have had about her history.
    
70. The Plaintiff apologised for any disruption occasioned by her absence from work. Her written communications to the First Defendant were ignored. It is not a high bar for a public authority to have in place administrative procedures that, at a minimum, acknowledge the receipt of correspondence in disciplinary proceedings.
    
71. The First Defendant made no attempt to meet with the Plaintiff to seek to resolve the matter, given the imperative of the preamble to Clause 151 of the Determination and the contents of her letter of March 2022. If, for example, it was the view of the Defendants that the Plaintiff’s January 2022 absence was the “straw that broke the camel’s back” against a history of absenteeism and failure to meet workplace expectations, and if the evidence in support of their decision to dismiss was, as stated in the Notice to Dismiss, ‘overwhelming’, it is unclear why that could not have been outlined to the Plaintiff at the earliest to enable her to respond.
    
72. The Plaintiff then did all that she could to seek redress for a decision that she viewed as wrong. It included pursuing avenues suggested to her by the First Defendant that he should have known, if properly informed, were not open to her. The Plaintiff’s attempt to then follow an appeal process by written communication to the Second Defendant, that it must have also known was not open to her, was ignored without communication alerting her to that fact.
    
73. Finally, I am unable to ignore that having successfully been granted leave where a Judge of this court has found there to be an arguable case, there is no evidence of an attempt by the Defendants to seek a compromise with the Plaintiff, including a remedy other than reinstatement.
    
74. Whilst a grant of leave does not automatically suggest success at a substantive hearing, the Plaintiff, who was legally represented, was put to proof at a hearing the Defendants who did not attend.
    
75. In the circumstances as outlined, and in the absence of any evidence from the Defendants challenging either the reinstatement or payment of the benefits sought, in my discretion, I conclude that justice required an order in the terms sought by the Plaintiff.
    

ORDERS

76. I make the following order:
    
    1. An order in the nature of Prerogative Writ of Certiorari to move into the Court and quash the decision of the Second Defendant of 27 May 2022 to dismiss/terminate the Plaintiff from the employment of the Second Defendant pursuant to Clause 166(1)(e) of the National Housing Corporation Amended Determination No 1 of 1990 and Clause 15.36 of Public Service General Orders.
    2. An Order in the nature of Mandamus to compel the Second Defendant to reinstate the Plaintiff to the position of Para-Legal Clerk with backdated salaries and entitlements from the date of her suspension and subsequent termination of employment to the time of her reinstatement in accordance with this Order.
    100. Costs are awarded to the Plaintiff to be taxed if not agreed.
    4. Time for entry of the Order be abridged to the date of signing by the Court which shall take place forthwith.
       

________________________________________________________________
Apo & Co. Lawyers: Lawyers for the Plaintiff

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^[1] Annexure D in the Affidavit of the Plaintiff filed on 7 December, 2022.
^[2] Okuk v Fallcheer PNG [1980] PNGLR 274; Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122