Kapera v Yaruso [2016] PGSC 49; SC1532 (31 August 2016)

SC1532

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM No. 11 OF 2013

BETWEEN:

MEMAFU KAPERA as
Managing Director of National
Broadcasting Corporation
Appellant

AND:
LILLIAN YARUSO
First Respondent

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Respondent

Waigani: Injia CJ, Batari & Hartshorn JJ.
2015: 31^st August,
: 09^th September,
2016: 31^st August

Application against quashing of decision to terminate employment

Counsel:

Mr. C. Kup-Ogut, for the Appellant
Mr. B. Geita and Mr. T. Ilaisa, for the First Respondent

31^st August, 2016.

1. BY THE COURT: This is a decision on an appeal against a National Court decision that amongst others, quashed the decision of the appellant Mr. Mamafu Kapera, the Managing Director of the National Broadcasting Corporation (NBC) (Mr. Kapera), to terminate the employment of the first respondent Ms. Lillian Yaruso and ordered her reinstatement as Personnel Officer at the NBC.
   

Background

2. Ms. Yaruso was suspended and charged for disciplinary offences by Mr. Kapera. Ms. Yaruso responded to the suspension and charges but was terminated by Mr. Kapera. Ms. Yaruso appealed her termination to the NBC Board. It purportedly refused her appeal and confirmed the termination. Ms. Yaruso successfully applied to the National Court to review the decision of Mr. Kapera to terminate her employment. The primary judge found amongst others that:
   
   1. the relevant law to consider to determine whether Mr. Kapera as Managing Director had acted within power is the National Broadcasting Commission (National Officers and Employees) Determination No. 1 of 1975 (Determination);
      
   2. the clause of the Determination under which Ms. Yaruso was suspended, charged and terminated is clause 155. As the penalty is termination, under clause 155 (d) (v), the Chairman of the NBC Board was obliged to recommend to the NBC Board Ms. Yaruso’s termination;
      
   100. Mr. Kapera was not the Chairman of the NBC Board. Even if he was meant to be Chairman as was submitted, he did not recommend to the NBC Board Ms. Yaruso’s termination as is required. Mr. Kapera improperly and unlawfully assumed the role of the NBC Board and purportedly terminated Ms. Yaruso. He acted ultra vires his powers;
        
   4. further, the purported termination was without basis, Mr. Kapera did not act in good faith and appears to have been biased against Ms. Yaruso.
      

This appeal

3. Mr. Kapera appeals on grounds that are in essence that the primary judge erred in:

1. finding that Mr. Kapera as Managing Director did not have the power to terminate an employee of NBC for cause;
   

b) making an order for Ms. Yaruso’s reinstatement;

100. ordering 50% solicitor client costs to be paid by Mr. Kapera personally to Ms. Yaruso.
     

4. Mr. Kapera contends that the appeal should be allowed as amongst others:
   
   1. the primary judge erred in misconstruing the scheme of the current legislation that affects the NBC and the roles and powers of the Managing Director and the Chairman, and in finding that the Managing Director does not have the power of termination;
      
   2. the decision of the primary judge effectively renders the role and duty of the Managing Director useless. Further, the NBC Board and Chairman are now required to perform management functions by the primary judge’s decision. No provision is made in the current statute that affects the NBC for the Chairman and the Board to perform management functions.
      

5. Ms. Yaruso contends that the appeal should be refused as amongst others:

1. the primary judge did not err in referring to the Determination as being the relevant law;
   

b) the offices of Managing Director and Chairman are separate offices;

c) the primary judge did not err in making the orders that he did.

Consideration

6. It is not disputed that what was relied upon by Mr. Kapera to suspend and charge Ms. Yaruso and then to purportedly terminate her employment was the Determination, the National Broadcasting Commission (National Officers and Employees) Determination No. 1 of 1975. It is also not disputed that under clause 155 (d) (v) of the Determination, it is the Chairman who may, “recommend to the Board that the officer be dismissed from the Service.”

7. That the Determination has not been repealed or amended but should have been, and so clauses 153 and 155 of the Determination but with “slight modification” are continued to be used, is Mr. Kapera’s submission as to why he was entitled to terminate Ms. Yaruso’s employment under clause 155 (d) (v) even though he is not the Chairman of NBC. This submission is without merit. No submission was made as to the particular right under which Mr. Kapera “slightly modified” the Determination. We are not satisfied that he has such a right.

8. If there was evidence that Ms. Yaruso had agreed to an amendment to the Determination then such an agreement could be considered as an amendment to her terms of employment. There is no such evidence. Consequently Ms. Yaruso is entitled to rely upon the provisions of the Determination without any “slight modification” as she did, as the Determination as it is can be considered to be part of her terms of employment.

9. That Mr. Kapera should have been the Chairman but was not, that the Determination is inconsistent with the Broadcasting Corporation Act 1973 as amended, that the primary judge’s decision renders the role of the Managing Director useless and that the Chairman and the NBC Board are now required to perform management functions, all such submissions it is not necessary to consider, does not resile from the fact that Ms. Yaruso was entitled to rely upon the Determination.

10. It is our view that in essence, Mr. Kapera is estopped from denying Ms. Yaruso from relying on the wording of clause 155 of the Determination, the very wording he attempted to rely upon.

11. Consequently, we are of the view that the primary judge did not fall into error. Further, it was open to the primary judge to make the other orders that he did and we are not satisfied that it has been demonstrated that the primary judge erred, such that those orders should be disturbed. Given this it is not necessary to consider the other submissions of counsel

Orders

12.

1. This appeal is dismissed;
   
2. The appellant shall pay the first respondent’s costs of and incidental to the said appeal on a party party basis to be taxed if not agreed.
   

_____________________________________________________________
Ninai Lawyers : Lawyers for the Appellant
Office of the Public Solicitor: Lawyers for the First Respondent