Copio v Dihm [2024] PGNC 176; N10838 (7 June 2024)

N10838

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 543 OF 2014

BETWEEN
BRIAN YOMBON COPIO
Plaintiff

AND
WILLIAM DIHM, ACTING SECRETARY FOR FOREIGN AFFAIRS & TRADE
First Defendant

AND
NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2022: 13^th December
2024: 7^th June

LIABILITY – Breach of contract of employment – Head of Mission – Wrongful dismissal from employment – Dismissal on ground of insubordination – Serious disciplinary offence – Claim of denial of right to response to disciplinary charge – Claim of no service of disciplinary charge in prescribed form – Breach of right to be heard – Proof of – Liability not established – Proceedings dismissed

Cases Cited:
Papua New Guinean Cases

Leo Niu v. The State (2000) N1986

Overseas Cases

Ridge v. Baldwin [1963] UKHL 2; [1964] AC 40
Counsel:

Mr Solomon Wanis, for Plaintiff
Mr Russel Uware, for Defendants

JUDGMENT

7^th June 2024

1. MAKAIL, J: It must be stated at the outset that this is one of the many long outstanding matters in the Civil Court Track 1, the writ of summons, having been registered in the Court filing system on 29^th May 2014. For different reasons, one of them been negotiations for out of court settlement, it was not listed for trial and the plaintiff had been frequenting the Court for directions hearing as noted from the numerous Court file endorsements dating back to 4^th December 2014. It was not until the pre-trial conference and listings on 13^th December 2022 that the Court took the initiative to put to counsel for parties and it was agreed that the trial of the matter be on paper with written submissions to be filed. A decision on liability, and if any, assessment of damages is to follow suit.

Brief Background Facts

2. This is the judgment. By this proceeding, the plaintiff sues the defendants for wrongful dismissal from employment as Papua New Guinea High Commissioner to Solomon Islands with concurrent accreditation to the Republic of Vanuatu and seeks special damages for lost salary and allowances, general damages for distress, hardship and frustration, interests and costs. The cause of action is one of breach of contract of employment.

Parties’ Evidence

3. The plaintiff relies on the following:

(a) His affidavit sworn and filed 19^th November 2014, and
(b) His affidavit sworn and filed 31^st October 2022.

4. The defendants rely on a sole affidavit by Magdalene Mo-He sworn and filed 30^th July 2021.

Undisputed Facts

5. From the affidavits, the following are the undisputed facts, the plaintiff was appointed by the second defendant through its decision number 35/2011 on 2^nd March 2011 as Papua New Guinea High Commissioner to Solomon Islands with concurrent accreditation to the Republic of Vanuatu for a period of four years effective from the date of the second defendant’s decision number 35/2011.

6. The plaintiff took up the appointment at the High Commission in Honiara, Solomon Islands on 22^nd April 2011 and returned to sign his Head of Mission contract of employment (“Contract”) on 17^th April 2012.

7. By a letter dated 20^th November 2012 the former Acting Secretary of the Department of Foreign Affairs (“acting Secretary”) directed the plaintiff to cease attending the Melansian Spearhead Group (“MSG”) meeting in Port Moresby and return to Honiara. This letter was in response to a letter by the plaintiff dated 14^th November 2012 requesting approval for him to attend the Melanesian Spear Head Group (“MSG”) meeting and another meeting in Port Moresby from 22^nd – 23^rd November 2012 and his complaint about the acting Secretary not responding to his request for approval.

8. It is abundantly clear from the letter by the acting Secretary that the acting Secretary determined that it was not necessary for the plaintiff to attend the MSG meeting and the other meeting, especially the MSG meeting because “The Government sees so much duplication of functions and activities by MSG in many areas including security, customs, police, aviation, taxation and so forth...........which have been adequately serviced by existing arrangements/mechanism.”

9. Secondly, “.........the Department is greatly hampered by resources especially human resources capacity constraints at HQ level” and “.........the HQ does not have the luxury of time to attend to non-vital/critical commitments.”

10. Finally, the plaintiff was reminded of the “......instructions concerning deployment of HOMs in the region and travel away from point of accreditation” and was further informed that “....... your request to travel was neither necessary nor did it require any response,” and that he was “......directed to immediately cease from continuing attendance of the current MSG meetings and return to Honiara.”

11. Despite the directive to return to post, in a letter to the acting Secretary dated 26^th November 2012 the plaintiff expressed his disappointment in relation to the directive for him to return to Honiara and complained about the manner in which he was being treated by the acting Secretary and the officers of the Department. Also, he outlined his reasons for attending the MSG meeting, one of which was, “in the MSG SOM and FMM in Fiji held from 15 – 30 March this year, you have also denied my attendance claiming that my colleague in Fiji and Headquarters staff would cover the meetings. While your priority was on coverage, my concern was on appropriate representation and active participation when I was determined to participate given my understanding of PNG’s interest in Solomon Islands and Vanuatu.”

12. Significantly, the plaintiff explained to the acting Secretary that “............the MSG has recently increased its core functions given the contemporary issues, concerns and questions confronting the region. Whilst the primary objectives of MSG are beneficial to member states, its values should be extended beyond traditional boundaries to attract reciprocal relationship with similar regional bloc and has significant influence over other smaller islands states. The traditional conduct of international relations and diplomacy has penetrated into multidimensional areas.”

13. By letter dated 26^th November 2012, the acting Secretary advised the plaintiff that he was suspended from performing any duties on behalf of the State because he “........ had caused a situation of insubordination to occur when [he] did not return immediately to Honiara when [he was] instructed to do so........” Also, the acting Secretary informed the plaintiff that “Consistent with Section 24.1, (b), of the same Terms and Conditions of Employment, you are required to respond in writing within seven (7) days of the date of this letter. The matter will be brought to the Foreign Minister’s attention as stipulated by the same Terms and Conditions of your Employment upon receipt of your response.”

14. Upon receipt of the letter from the acting Secretary, the plaintiff provided his response in a letter dated 27^th November 2012. He informed the acting Secretary that he did respond to the letter from the acting Secretary dated 19^th November 2012 which was served on him by Ms Julie Wapo on Tuesday 20^th November 2012 at 5:00 pm at Airways Hotel in Port Moresby and “As instructed, I ceased to attend FMM but remained in the capital and received my host Prime Minister and concluded several important consultations. As indicated, I did an appropriate response on 26 November expressing my disappointment on several issues (refer attached).”

15. Finally, the plaintiff informed the acting Secretary that “......Port Moresby – Honiara Air Niugini sector is only scheduled on Fridays and Sundays. As a result, I could not return to post on any other days I returned on Sunday (25/11/2012) as ticketed.”

16. By a letter dated 3^rd December 2012, the acting Secretary informed the plaintiff that he remained suspended, and his matter was referred to the Minister for Foreign Affairs. He will be informed in due course of the decision and direction of the Minister. Despite this, the plaintiff sent an email to the acting Secretary dated 5^th December 2012 and questioned his professionalism and competence in addressing the matter. Also, he maintained that the matter did not warrant a charge against him, and he will be in “business as usual”.

17. Meanwhile, the plaintiff was involved in a motor vehicle accident in Honiara on the night of 9^th December 2012. The accident received wide media publicity in the local newspaper. By a letter to the acting Secretary dated 14^th December 2012 the plaintiff informed the acting Secretary of the accident.

18. By a letter dated 3^rd January 2013 the acting Secretary advised the plaintiff of his “administrative recall” and for him to cease from any official engagement. Then it was not until 30^th January 2013 that the second defendant through its decision number 25/2013 revoked the appointment of the plaintiff. The plaintiff was informed of the second defendant’s decision in a letter by the acting Secretary dated 8^th February 2013. Finally, the plaintiff was paid a sum of K35,373.89 as his final entitlements.

Breach of Right to be Heard

19. Having read the written submissions of counsel for the parties, it is common ground between the parties that the plaintiff was employed under a contract of employment for a period of four years. Also, it is common ground that clause 20 of the contract of employment provides for grounds of dismissal from employment and clause 24 provides for disciplinary process. The disciplinary process begins with suspension in writing of the plaintiff, next, the charging of the plaintiff of a disciplinary offence, then a response from the plaintiff to the disciplinary charge and finally, a decision by the National Executive Council (“NEC”).

20. Further, it is common ground that the common law principle of master and servant relationship applies in this jurisdiction. In the case of a contract of employment, Lord Reid explained in Ridge v. Baldwin [1963] UKHL 2; [1964] AC 40:

“The law regarding Master and Servant is not in doubt. There cannot be specific performance of a contract of service and the Master can terminate a contract of service at any time and for any reason or for none. But if he does so in a manner not warranted by the contract, he must pay damages for breach of contract.”

21. The common law position was aptly explained by Sevua J in Leo Niu v. The State (2000) N1986 as follows:

“I would formulate the law in this area as this. Where the contract of employment of a Departmental Head provides for disciplinary procedures and termination, the Departmental Head can only be lawfully terminated in accordance with those terms and conditions. Such terms and conditions remove the disciplinary procedures from the public law arena unless disciplinary procedures in the Public Services Management Act and the General Orders are incorporated into the contract of employment of the Departmental Head.”

22. Finally, it is common ground that the contract of employment applies in this case to determine whether the defendants breached the contract of employment and that the decision to dismiss the plaintiff from employment was wrong. This also means that the submissions by the plaintiff to rely on breach of natural justice under Section 59 of the Constitution is outside the contract of employment and will be disregarded. Where the contract of employment makes provision for the defendants to give the plaintiff an opportunity to respond to a disciplinary charge, the pertinent issue is whether the plaintiff was denied the right to respond to the disciplinary charge.

23. As to this issue, according to the findings of the Court above, the plaintiff was served a notice of charge under cover letter from the acting Secretary dated 26^th November 2012. This letter is in explicit terms. It stated that the plaintiff was suspended from performing any duties on behalf of the State because of insubordination. An act of insubordination is a ground for dismissal from employment under clause 20(c) of the contract of employment. Clause 20(c) states:

In the event that the Head of Mission [w]illfully disobeys or disregards a lawful order, [t]he Head of Mission is guilty of a serious disciplinary offence and the National Executive Council, acting on advice of the Secretary, may immediately terminate the employment without notice provided that the Disciplinary Procedure under Section 24 has been implemented.” (Underlining added).

24. The serious disciplinary charge of insubordination has its origins in the plaintiff’s defiance of lawful standing directive from the acting Secretary to all Heads of Missions to refrain from taking overseas trips from their place of commission, in this case, Solomon Islands.

25. The plaintiff was and ought to have known that he should have refrained from travelling and should not have expected any approval for his request to travel to Port Moresby to attend the MSG meeting from 22^nd – 23^rd November 2012. Despite this, he travelled to Port Moresby to attend the MSG meeting and expected his superior to accede to his travel request. When it was discovered that he had travelled to Port Moresby in defiance of the directive, he was directed by the acting Secretary to return to Solomon Islands forthwith.

26. He did, but not without a protest and procrastination. This is clearly evident in the letter he sent to the acting Secretary where he questioned the directive to have him returned to Solomon Islands and attempted to persuade the acting Secretary to reverse the decision and let him remain in Port Moresby. This is a further act of insubordination, and it cannot be emphasised enough that where a superior has issued a directive to a subordinate to comply, it must be complied with. There are no “ifs” and “buts”. On his return to Solomon Islands, the plaintiff sent another letter to the acting Secretary informing that the delay in returning to Solomon Islands was due to him attending to the host Prime Minister and conducting important consultations including the intermittent flights between Port Moresby and Honiara.

27. Worse still, after he was advised that he remained suspended from duty until a decision is made by the Minister for Foreign Affairs, he sent an email to the acting Secretary questioning the acting Secretary’s professionalism and competence in the handling of the matter and refused to stand down from duties. These series of acts are demonstrative of a person who is unwilling to accept directives from his superiors. Such conduct constitutes insubordination, and the decision of dismissal from employment was justified.

28. In the result, while the plaintiff strongly submits that he was denied the right to respond to the serious disciplinary charge, the overwhelming evidence is that the notice of charge was served on him in the form of a letter by the acting Secretary dated 26^th November 2012, that he clearly understood what he was charged for and provided a comprehensive response in a series of letters as outlined above. It follows that the plaintiff has failed to establish on the balance of probabilities that the defendants breached clause 24 of the contract of employment and that his dismissal from employment was wrongful.

Prescribed Form of Notice of Charge

29. The plaintiff relies on a further ground. In this ground the plaintiff submits that the notice of serious disciplinary charge was not in the prescribed form as set out in General Orders 9.30. He submits that in a case where the contract of employment is silent or makes no provision such as in this case, the acting Secretary was supposed to use the form in General Orders 9.30.

30. However, this ground overlooks the point that whether the plaintiff was served with a notice in the prescribed form, he does not deny that he received a notice of the serious disciplinary charge in the form of a letter from the acting Secretary and that he responded to it. The important consideration is not whether the notice is in the form of a letter or a prescribed form, but it must be expressed as a disciplinary charge and set out accurately the details of the allegations constituting the disciplinary charge to enable the officer to respond. On the other hand, where the plaintiff claims that the notice is not in the prescribed form, he must show how he has been prejudiced in his defence by the failure of the defendants to serve a notice in the prescribed form on him.

31. The notice in the letter by the acting Secretary dated 26^th November 2012 is expressed in very clear terms that the subject was “DISCIPLINARY CHARGE” and in the first paragraph, it states:

“This letter constitutes a notification that you had caused a situation of insubordination to occur when you did not return immediately to Honiara when you were instructed to do so as per the attached letter.”

32. In the fifth paragraph, the plaintiff was advised to respond to the disciplinary charge as follows:

“Consistent with Section 24.1, (b), of the same Terms and Conditions of Employment, you are required to respond in writing within seven (7) days of the date of this letter.”

Underlining added).

33. Later on, in the same letter, the plaintiff was advised:

“The matter will be brought to the Foreign Minister’s attention as stipulated by the same Terms and Conditions of your Employment upon receipt of your response.”

34. If he did not object to the use of the letter as notice of disciplinary charge and insisted on being served a notice in the prescribed form, it must then support the inference that he understood the content of the letter and the invitation to respond to the disciplinary charge, and he did. As noted above, he provided a comprehensive response in a series of letters to the acting Secretary in his defence of the disciplinary charge. This does not show that he has been prejudiced in his defence. It follows that this ground is without merit and dismissed.

Allegation of Motor Vehicle Accident

35. A further and final ground which the plaintiff did not plead in the statement of claim to put the defendants on notice is the allegation of him being involved in the motor vehicle accident in Honiara on 9^th December 2012. This ground emerged from submissions and can be found at paragraphs 33 – 37 of the plaintiff’s written submissions. While it is noted that this allegation was included at paragraph 6.iii of the submission to the second defendant for its consideration, it is immaterial because it was not the reason for the plaintiff’s dismissal from employment. Rather, it was the reason for the “administrative recall” of the plaintiff from Solomon Islands. The “administrative recall” was a decision made in the interest of the State, to protect the image and reputation of the country at the international level after the plaintiff was involved in a motor vehicle accident in December of 2012 and based on a no-fault policy of the Department of Foreign Affairs regarding Heads of Missions. That decision is not an issue this proceeding.

Conclusion

36. It has not been proved on the balance of probabilities that the defendants breached the contract of employment when they dismissed the plaintiff from employment. It follows the proceedings will be dismissed with costs. Finally, given this finding, it is not necessary to consider the question of damages.

Order

37. The final terms of the order of the Court are:

1. Liability has not been established.
   
2. The proceeding is dismissed forthwith.
   
3. The plaintiff shall pay the defendants’ costs of the proceedings, to be taxed, if not agreed.
   

________________________________________________________________
Solomon Wanis Lawyers: Lawyers for Plaintiff
Acting Solicitor General: Lawyers for Defendants