Pokanis v Sirereba [2022] PGSC 110; SC2307 (2 November 2022)

SC2307

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 001, 002, 003, 004 OF 2021 (IECMS)

BETWEEN:
STEPHEN POKANIS
Commissioner of the PNG Correctional Service
First Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant

AND:
LAWSON SIREREBA
First Respondent

AND:
EBO PEAI
Second Respondent

AND:
ELISON VAVAR
Third Respondent

AND:
JIMMY PELAPA
Fourth Respondent

Waigani: Gavara Nanu J, Hartshorn J, Collier J
On the papers
2022: 2^nd November

APPEAL – appellants appeal decision of primary court in reinstating dismissed officers of the correctional service- grounds of appeal include that the primary judge erred in holding that the respondents were wrongfully terminated – consideration by appeal court – s44 (1)(a) and (c) CS Act did not allow commissioner to substitute or vary penalties – SC commissioner can only vary or substitute for penalties listed under s44 (1)(b) and (d) – commissioner had no power to substitute or vary penalties imposed by the disciplinary board under s44 (1)(a and (c) – appeal dismissed – orders of primary court upheld

Cases Cited:

Lupari v Somare (2010) SC1071
Monouluk v Pala (2020) SC2031

Counsel:

Mr. H. Wangi Jnr, for the Appellants
Mr. F. Lunge, for the Respondents

REASONS FOR JUDGMENT

2^nd November, 2022

1. BY THE COURT: Before the Court are four appeals. They have been heard and determined together on the papers, being premised on similar facts and involving the same legal principles. In each matter the Papua New Guinea Correctional Services Commissioner (the first appellant) and the State of Papua New Guinea appeal against orders of the National Court of Justice made against them on or about 23 November 2020, setting aside the dismissal of each respondent (then plaintiff) and re-instating the respondents back into their respective employment in the Correctional Service. The four proceedings in the National Court were:

• O.S.(JR) 41 of 2020: Lawson Sirereba v Stephen Pokanis & Independent State of Papua New Guinea;
• O.S.(JR) 39 of 2020: Ebo Peai v Stephen Pokanis & Independent State of Papua New Guinea;
• O.S.(JR) 37 of 2020: Elison Vavar v Stephen Pokanis & Independent State of Papua New Guinea;
• O.S.(JR) 40 of 2020: Jimmy Pelepa v Stephen Pokanis & Independent State of Papua New Guinea.
  

2. In summary, in each case the primary Judge found that the termination of each respondent was made by the first appellant outside of his lawfully conferred powers, and that the first appellant had usurped his powers under the relevant law, being s 44 of the Correctional Services Act.

BACKGROUND FACTS

3. The four respondents are male adult citizens who were employed with the PNG Correctional Service until the employment of each was terminated. The respondents were terminated for different reasons on different dates. In particular, we note the following background facts.

SCM No 001 of 2021: Mr Lawson Sirereba

4. The decision to terminate the employment of Mr Sirereba was communicated in a Notice of Punishment signed by the first respondent and dated 29 January 2019. The Notice of Punishment stated as follows:

NOTICE OF PUNISHMENT – CW 4475 LAWSON SIREREBA
TAKE NOTICE that the two (2) charges within the meaning of Section 39 Subsection (b) Namely: Absent yourself from duty other than is provided for under this Act;
1. Charge No: 24/2017 - for absenteeism
2. Charge No: 25/2017 - for absenteeism

FACTS

You were reported absent from performing active duties in three (3) consecutive Shift Duty rosters. You were rostered in Shift B, C and D at Bomana Correctional Institution respectively. You did not turn up for your rostered hours of duty for approximately thirty eight (38) days. Therefore, you were being charged on two (2) separate charge case namely; Charge No. 24/2017 and Charge No. 25/2017; all related to different periods of your long absence from official work.

I have considered all facts provided by yourself and all other parties concern related to the two (2) charges. I concluded that the charge has been sustained and merit a severe penalty.

CONSIDERATIONS

1. Your long absence from work without good reasons implies that you are no longer interested in your career with Correctional Service;
2. You have not adhered to a number of written warnings issued to you by the former Commissioner on your poor attitude to work;
3. You were absent without formal authorisation by Commanding Officer or his delegate;
4. The procedures and processes used by the Bomana Disciplinary Board are in order;
5. I sustain the Disciplinary Board’s Recommendation to dismiss you from the Service.

DECISION

By virtue of the powers conferred upon me under Section 44(d) of the Correctional Service Act 1995, I impose the penalty of:

DISMISSAL FROM CORRECTIONAL SERVICE to be effective on 29^th January 2019.
AND TAKE FURTHER NOTICE that this decision is final and effective on this even date.

5. Mr Sirereba gave evidence in the primary proceedings in his affidavit dated 11 May 2020 that:

• At the end of 2019 he had been employed by the Correctional Service for almost 13 years;
• He was verbally charged with a disciplinary offence in March 2017, and suspended with half pay in December 2017;
• the Disciplinary Board heard his case on 15 December 2017;
• he was absent, and the Disciplinary Board did not give him an opportunity to be heard;
• he was told that he was fined K1000.00;
• payment of his fine was made by deduction of K250.00 for 4 fortnights;
• after payment of the fines his suspension was uplifted and his full payment was restored;
• he was shocked when his Acting Commander gave him a Notice of Punishment dated 29 January 2019 which informed him that he was terminated from the PNG Correctional Service.

SCM No 002 of 2021: Mr Jimmy Pelepa

6. The decision to terminate the employment of Mr Pelepa was communicated in a Notice of Punishment signed by the first respondent and dated 12 August 2019. The Notice of Punishment stated as follows:

NOTICE OF PUNISHMENT CHARGES NO: 08/2015 – CORRECTIONAL WARDER 4316 JIMMY PELEPA
TAKE NOTICE that you were charge within the meaning of Section 39 subsection (b) of the PNG Correctional Service Act 1995 for committing an offence that form 08^th January – 21^st January 2015 in that you were rostered to perform you shift “C” duties at the Rear compound as arm post but you absent yourself from performing your duty as rostered for that period of time.

FACTS

The fact is that on 08^th January to 21^st January 2015 in that you were rostered to perform your shift “C” duties at the Rear compound at arm post but you absent yourself from performing your duty as rostered for that period of time.
Many of your past disciplinary cases are from lengthy absenteeism and non-performance of duty.

CONSIDERATION

1. I have considered all mitigating factors provided by yourself and other parties concerned relating to the charges laid against you.
2. I have considered your admittance of guilt to the offence you have committed.
3. I have considered the due process followed by the Bomana Correctional Institution Disciplinary Board.
4. I have also noted that you are a serial absenteeism Officer who does not care at all on whether you come to work or not.
5. You will not change from your bad behaviour and thus keeping you in Correctional Service will only be a liability to the department, and the Government.

DECISION BY BOMANA CORRECTIONAL INSTITUTION DISCIPLINE BOARD

By virtues of the power conferred upon me under Section 44 (1), (d) of the PNG Correctional Service Act 1995 and noting the recommendation by the Bomana Correctional Institution Disciplinary Board for the monetary fine of K500, I now revoke the recommendation from the Bomana Correctional Institution disciplinary Board.

COMMISSIONER’S FINAL DECISION
DISMISSAL FROM CORRECTIONAL SERVICE UNDER SECTION 44 (1), (d) of PNGCS Act 1995.

AND TAKE FURTHER NOTICE that the decision is final and effective on this even date...

7. Mr Pelepa gave evidence in the primary proceedings in his affidavit dated 11 March 2020 that:

• At the end of 2019 he had been employed by the Correctional Service for almost 25 years;
• He was charged with a disciplinary offence in March 2015, relating to his absence from duties from 8 January 2015 to 21 January 2015;
• He was suspended without pay from 3 January 2016 until the end of July 2016, prior to his charges being heard and determined by the Disciplinary Board;
• He complained to the Human Resources division of the Correctional Services, resulting in him being put back on to the payroll;
• The Disciplinary Board convened and heard his disciplinary charges in mid-2018, at which time he was asked to give an oral explanation for his absence (which he did)
• After the hearing the Disciplinary Board imposed a monetary fine of K500.00 as penalty for charges, which was deducted in increments fortnightly from his salary;
• He was surprised in early 2019 when the Commanding Officer of the Bomana Correctional Institution called him into the office and gave him a copy of a letter dated 5 September 2019 and a Notice of Punishment dated 12 August 2019, signed by the first respondent;
• He denied that he was a serial absentee.
  

SCM No 003 of 2021: Mr Ebo Peai

8. The decision to terminate the employment of Mr Peai was communicated in a Notice of Punishment signed by the first respondent and dated 9 March 2020. The Notice of Punishment stated as follows:

NOTICE OF PUNISHMENT CHARGES NO: 12/2016 – CORRECTIONAL WARDER 3837 EBO PEAI

TAKE NOTICE; that you were charged within the meaning of Section 39 subsection (i) of the Correctional Service Act 1995, for committing an offence that on 3^rd October 2016, at Port Moresby General Hospital without due care and security alertness, you permitted detainee Ben Simbu Simakot to escape at 11.30am during that particular day by contravening the said provisions of the Act.

FACTS

The fact that on 3^rd October 2016 at Port Moresby General Hospital without due care and security alertness permitted detainee Ben Simbu Simakot to escape at 11.30am during that particular day. You were not supposed to escort the detainee as you were rostered duty at CSTC Medical Centre, and you were advised to take LOA for detainee Heni Eli to Security Officer at Bomana CI and returned to Medical Centre but you did not.
You, without the knowledge of your Supervisor, went with the other officers as hospital escort to Port Moresby General Hospital where you escorted detainee Ben Simbu Simakot which eventually led to the detainee’s escape.
You know very well that this particular detainee is a life year person and that all security measures must be taken at all times to prevent any escape of a life-year detainee.

CONSIDERATION

1. I have considered all mitigating factors provided by yourself and other parties concerned relating to the charges laid against you;
2. I have considered your admittance and guilt to the offence you have committed;
3. I have considered the due process followed by the Bomana Correctional Institution Disciplinary Board;
4. The fact remains that you did know that this is a high risk detainee sentenced to life you were escorting;
5. You did not take necessary security measures to escort the detainee to the hospital and bring him safely and securely back to the Institution.
6. I note also that you were not the duty officer authorised to take the detainee out to the Hospital;
7. Considering everything here on, I conclude that the offence you have committee warrants automatic dismissal from Correctional Service.

DECISION BY BOMANA CORRECTIONAL INSTITUTION DISCIPLINARY BOARD

1. I noted the recommendation from the Bomana Correctional Institution Disciplinary Board under Section 44 (1), (a) of the Correctional Service Act 2010 (as amended); recommending the fine of K1000;
2. I am now varying the recommendation from the Bomana Correctional Institution for K1000 to Dismissal from Correctional Service under Section 44 (3)(b) of the Correctional Service Act 1995; and
3. Your K1000 fine will be reimbursed to you (Note: Deductions yet to commence).

PENALTY

1. Fine of K1000 as recommended by the Bomana Correctional Institution is varied to read:
2. DISMISSAL FROM CORRECTIONAL SERVICE under Section 44 (1), (d) Correctional Service Act 1995.

AND TAKE FURTHER NOTICE that the decision is final and effective on this even date...

9. Mr Peai gave evidence in the primary proceedings in his affidavit dated 18 June 2020 that:

• By 9 March 2020 he had been employed by PNG Correctional Service for almost 28 years. On that date he was charged with “committing an offence on 03^rd October 2016 at Port Moresby General Hospital without due care and security alertness, you permitted detainee Ben Simbu Simakot to escape ... at 11.30am during that particular day”;
• He was suspended from duties on 4 October 2016. Due to a shortage of manpower he was recalled to duties and his suspension uplifted on 5 January 2017;
• The charges were heard by the Disciplinary Board on 27 November 2017. The Disciplinary Board determined his penalty, and he was fined K1000.
• He was shocked when he was called into the office of the Bomana CIS Commander and handed a memorandum from the first respondent dated 9 March 2020.
  

SCM No 004 of 2021: Mr Elison Vavar

10. The decision to terminate the employment of Mr Vavar was communicated in a Notice of Punishment signed by the first respondent and dated 9 March 2020. The Notice of Punishment stated as follows:

NOTICE OF PUNISHMENT CHARGES NO: 07/2019 – CORRECTIONAL WARDER 4193 ELISON VAVAR

TAKE NOTICE that you were charge within the meaning of Section 39 Subsection (g) of the Correctional Service Act 1995; for disgraceful or improper conduct. You were alleged to have committed an offence that on the 10^th of January 2019 for “throwing a large plastic bag over the perimeter fence of the high security compound, just outside the “E” Division to the waiting prisoner”.

FACTS

You were rostered to perform your duties at the Rear Arm Post from 15:00 hours to 23:00 hours on Thursday, 10^th of January 2019.
You were seen by Corporal Kutne Kama, Correctional Warder Herman Waru and Correctional Officer Tab Bangan throwing a large plastic bag over the perimeter fence outside the “E” Division to a waiting prisoner inside the compound.

CONSIDERATION

1. I have considered all mitigating factors provided by yourself and other parties concerned relating to the charges laid against you;
2. You denied the offence you committed even though the three (3) Officers did see you and shouted at you;
3. Your NCO in-charge yelled at you but you did not take heed of his warning. He even called you but you ignored him by walking past him;
4. You did admit in your statement before the Disciplinary Board that you did receive K50 from your life year detainee – James Pari; the same person that you threw the plastic bag to inside the compound;
5. Your denial against the offence you had committed showed clearly that being in the Service for 24 years has not made you a better correctional officer, but instead, you continue to trade with detainees and thus your improper conduct is very disgraceful to your fellow officers and to Correctional Service; and
6. Correctional Service has no place for Officers who trade with detainees in their capacity as Correctional Officers.

DECISION

By virtue of the power conferred upon me under Section 44 (1), (d) of the Correctional Service Act 2010 (as amended) I revoke the recommendation by the Bomana Correctional Institution Disciplinary Board for fine of K500 under Section 44 (1)(a) and impose the decision to:

DISMISSAL FROM CORRECTIONAL SERVICE UNDER SECTION under Section 44 (1)(d) of the Correctional Service Act 2010 (as amended)

AND TAKE FURTER NOTICE that the decision is final and effective on this even date...

11. Mr Vavar gave evidence in the primary proceedings in his affidavit dated 18 May 2020 that:

• He had served as a warder with the PNG Correctional Service for more than 25 years when he was suspended without pay on 15 January 2019;
• He denied the charge of throwing a plastic bag to a prisoner on 10 January 2019;
• No witnesses were called to give evidence at the hearing of his charges by the Disciplinary Board. The Disciplinary Board only called in the complainant;
• He was fined K500 and informed verbally of the fine;
• His suspension was uplifted through notice dated 16 April 2019;
• He was shocked when handed the Notice of Punishment by the Commanding Officer on 20 March 2020.
  

PROCEEDINGS BEFORE THE PRIMARY JUDGE

12. It does not appear to be in dispute that directions were made by the National Court for the appellants to file affidavits in all four matters, however they did not do so. The matter returned to the National Court on 3 November 2020 and was then adjourned to 23 November 2020. There was no appearance by the State at the hearing on 23 November 2020. It does not appear to be in dispute that the appellants were aware of the hearing of 23 November 2020.

13. At the hearing of 23 November 2020, Counsel for the plaintiffs submitted that all matters had the same background, and that the same legislation applied. In summary, Counsel submitted:

• Section 44 of the Correctional Services Act 1995 provides for the penalties that can be imposed by the Bomana Correctional Services Disciplinary Board. These penalties are:
  • impose a fine;
  • make a recommendation for the demotion of the relevant officer;
  • a caution under s43 (a);
  • recommendation for a dismissal from the service.
• The Commissioner becomes involved for recommendations for a demotion or a dismissal.
• In all four matters, fines were imposed on the officers for various disciplinary reasons. That was the end of the matter, because the Board has powers to make those decisions and that is final.
• There is no provision in the Correctional Services Act that allows the Commissioner to substitute that fine with a dismissal. For the Commissioner to do so constituted an exercise by the Commissioner of powers that he did not have.
• Further, the decision by the Commissioner to revisit the decision of the Board breached the rules of natural justice
• The plaintiffs sought the quashing of the decision of the Commissioner, reinstatement, salaries paid and backdated to the date of termination, and costs.
• In relation to reinstatement the decision of the Supreme Court in Lupari v Somare [2010] SC1071 was distinguishable, involving a contract of employment where it was easy to calculate damages. In the case of the plaintiffs, being ordinary members of the force rather than on contract, calculation of damages would be difficult.
  

14. The primary Judge delivered judgment on 23 November 2020, as follows:

HIS HONOUR: Okay, thank you. For the purpose of the record, these are proceedings in which the court as granted leave for judicial review of the decision by the first respondent in each of the cases. At the relevant time the court was satisfied that section 44 of the Correction Service Act [1995] sets out the disciplinary process. There are two kinds of offences and then there is a way in which the offences are dealt with, serious has a different approach, minor ones have a minor approach or different approach.
And at that time of grant of leave, the court directed the parties to have the matter resolved based on the clear legislative provision. So far to-date, the first respondent has not been attending court. The affidavits of each of the plaintiffs which for as I say record purposes, they have all been admitted and they are relied upon in support of their respective cases in the light of no objections and no participation by the defendants otherwise respondents despite service being effected there should be no reason not to have those affidavits admitted so they become evidence for the plaintiffs and counsel has proceeded on that basis to make submissions.
And each of these plaintiffs have filed an affidavit each. For example, in Jimmy Pelapi, document number 17, in Lawson Sirereba is document 18, in Abel Peai’s case is document 18 also and finally in the matter of Elison Vavar, document 16. Each of these affidavits depose to their attempts to meet with the first respondent, discuss the reliefs they are seeking especially reinstatement but they have been constantly informed that he is not around, not available, standard response it seems. It is not a case of him not being aware of these proceedings being filed; leave being granted and him being required to have these proceedings resolved given the clear legislative provisions.
So I am minded to proceed as I have today and heard all four matters briefly. The plaintiffs are former officers of the CS. They have been caught with some disciplinary offences and the process that comes into play has played its part. The disciplinary process is vested in the hands of the CS disciplinary committee or disciplinary members, it is provided for from section 38 onwards. That is the process. It defines procedure to deal with offences, investigations etcetera. Section 41 deals with minor offences, section 42, serious offences and then section 43, penalties for minor offences and section 44 which has been relied upon in each of these cases concerns serious matters or penalty for serious matters. It will be noteworthy to read from that section. One of the following penalties may be imposed under this section in respect of a serious offence, (a) a fine not exceeding K1000; or (b) a recommendation to the commissioner that a member be reduced to a rank having a lower classification and to a salary within that classification; or (c) a penalty referred to in section 43(a) or (b). And 43(a) or (b) if I may interpose – (a) or (b) – sorry, section 43 (a) or (b). (a) talks about a caution and (b) talks about a reprimand or reprimand. Then it also goes: “A recommendation to the commissioner that a member be dismissed.” So, in two instances only, the committee can make a recommendation to the commissioner. That is the disciplinary board. It can make a recommendation to the commissioner.
There is no indication as to when the commissioner comes into play other than following on from a decision recommending the kind of penalties that should be dealt with or given to an offending officer. There is no one provision in the legislation that gives an independent oversight or appellate oversight to the commissioner. He only receives and acts on recommendations communicated to him. That language is very clear from subsection (3) of section 44 which reads: “Where the disciplinary board makes a recommendation to the commissioner under subsection (1)(b) or (d), the commissioner may accept or vary that recommendation.”
But then subsection (4) also provides: “Before imposing the penalty recommended by the disciplinary board or varied by the commissioner, the commissioner shall consider the reports relating to the offence of the charge; the reply and explanation of the member charged and the evidence given before the disciplinary board.”
And then subsection (5) talks about the commissioner may institute a monitoring process to ensure that there is consistency in the penalties imposed under subsection (1) by commanding officers and disciplinary Boards throughout the country.
In this instance the disciplinary board came to a decision for each of these plaintiffs or applicants. They decided to impose a penalty. Then that as Mr Yansion submits should have been the end of the matter because that is the power vested in the board. The board has the power to either issue a caution or reprimand or impose a fine or in the two situations make a recommendation to the commissioner. No decision was reached in each of these plaintiffs’ cases for a referral to the commissioner or recommendation to the commissioner. There has been a number of years since the disciplinary board came to a decision on each of these plaintiffs. They paid the penalty. Case considered close then suddenly, the commissioner comes and come through his respective decisions as outlined by counsel in the submissions, 9 March for two matters; Elison Peai, 9 March 2020 and for the other two, 31^st in 2009 – sorry, 2-0-0-9 and 5 September 2-0-1-9. And before coming to that decision which was a decision to terminate, there had to be a recommendation from the disciplinary board. There was no such recommendation.
Also as counsel for the plaintiffs submits, the defendants – sorry, the plaintiffs were entitled to be heard more so when this serious penalty was to be imposed on the applicants and more so when they paid their fines or completed the penalty that was imposed by the disciplinary board and they had come to a point of thinking that that is the end. And as I say, all of a sudden, the first respondent comes and chooses to dismiss them which is completely outside the process provided for in the relevant legislation as I have briefly gone through.
That is why as I said straight after grant of leave, directions were issued for the respondent to be proactive around resolving this matter. For reasons only known to him, attempts by the plaintiffs to sit down with him as is borne out by the affidavits I have just alluded to earlier where each of the plaintiffs he has been making it difficult to be reached, difficult to be contacted and so he is now not appearing in court. And the plaintiffs’ submission is that the decision that the first respondent has come to which is the subject of each of these applications be quashed and they be reinstated to the former positions with pay backdated to the date when they were terminated and removed from the payroll.
I did raise with counsel given some of the period that has elapsed since the decision by the first respondent whether reinstatement is a remedy that the courts could grant. And the answer to that is a letter dated 18 November 2020 by the operations manager which highlights each of these persons are needed for service to the nation through the correctional services and there is manpower down and them being reinstated will give the CS the opportunity to at least in part fill the shortage in manpower. So reinstatement seem not to be an issue.
I also take note, the Isaac Lupari case and the Somare case, that counsel for the plaintiff refers to is a case of more of a intimate relationship between Mr Isaac who was then Chief Secretary to the then Prime Minister. And when their relationship got to a sour note, it was impossible to get them to work in the same place and office. That is to be contrasted in this case where these officers, they can be deployed anywhere and it is not a case of being restricted to just one location. There is a need for manpower there. There is an outline of where each of these officers could be posted to and that it also seems it is going to be way out of the commissioner’s office itself. So, there is reason to – there is further reason for the officers to be reinstated.
I am minded therefore on those brief reasons and on the basis of the case law as to denial of natural justice and as to usurping a power or the commissioner going out – exercising a power he did not have which is ultra vires and usurping therefore the powers of the disciplinary board, I grant each of the plaintiffs’ application, (1) for bringing up and quashing the decision of the commissioner, first respondent, that is, in each of their cases. And I would order each of them be reinstated to their former positions as at the time of termination with backdated pay. The specific minutes of the orders will speak of the date of their termination and the relevant decision.

15. His Honour also ordered that the plaintiffs be paid their costs, to be taxed if not otherwise agreed.

GROUNDS OF APPEAL

16. The appellants have abandoned a number of grounds of appeal in each case. The four remaining grounds of appeal pressed by the appellants in each of the four matters are substantially identical. They are:

(1) The learned trial judge erred in law and in fact in finding that the First Appellant wrongfully terminated the Respondent when:

1. The correct process under Part V (Discipline of Members) of the Correctional Services Act was followed to terminate the Respondent; and
2. The First Appellant had correctly exercised his powers under the Correctional Services Act to issue the penalty of dismissal.

(2) The learned trial judge erred in law and in fact in finding that the disciplinary process under Correctional Services Act was not followed in terminating the Respondent;
(3) The learned trial judge erred in law and in fact in finding that the First Appellant acted ultra vires of his powers under the Section 44 (3) of the Correctional Services Act 1995 (as amended 2010) in varying the recommendations of the disciplinary board when the First Appellant had such powers under that provision to vary or confirm the recommendations of the disciplinary board;

.......

(6) The learned trial judge, without representation erred when he ordered for the reinstatement being that the issue of employee/employer relationship was not properly deliberated before the issuing of the orders.

17. (The numbering of these grounds is for convenience only and does not appear to directly correlate to the numbering in the relevant notices of motion of the appellants. We note that these grounds of appeal are described by the appellants as grounds 1, 2, 3 and 6, with grounds 4, 5 and 7 no longer being pressed.)

18. In relation to these grounds of appeal, the appellants in summary submit as follows:

• In relation to grounds of appeal 1, 2 and 3:
• The correct process under Part V (Discipline of Members) of the Correctional Services Act was complied with;
• Sections 42 and 44 of the Act provide that a charge for serious offence shall be heard by the Disciplinary Board which can exercise the power to impose certain punishments, and that the Commissioner reserves the right to vary recommendations of punishments against an officer;
• Section 44 (3) provides that where the Disciplinary Board makes a recommendation to the Commissioner under s 44 (1)(b) or (d), the Commissioner may accept or vary that recommendation;
• The primary Judge erred in finding that the Disciplinary Board’s discretion to exercise and impose penalties lies exclusively with the Disciplinary Board and does not include room for the commissioner to vary recommendations or exercise independent oversight.
• In relation to ground 6:
• The primary Judge did not properly consider the issue of the employment relationship before ordering reinstatement;
• The primary Judge did not properly analyse principles emerging from the decision of the Supreme Court in Lupari v Somare, in particular the judgment of Gabi J;
• The primary Judge wrongly accepted submissions of the respondents that the Correctional Services was in need of manpower when there was no evidence from the Commissioner on file to that effect.

19. The respondents submitted, in summary:

• In relation to grounds 1, 2 and 3, the power of the Commissioner to accept and/or vary recommendations is limited to those recommendations made under s 44 (1)(b) and/or (d) of the Correctional Services Act;
• In relation to ground 6, it is important to distinguish the intimacy of the relationship between the parties in Lupari, compared with the employment relationship in the case of the four respondents.
  

CONSIDERATION

20. Section 44 of the Correctional Services Act relevantly provides:

PENALTIES FOR SERIOUS OFFENCES

(1) One of the following penalties may be imposed under this section in respect of a serious offence:-

(a) a fine not exceeding K1000.00;
(b) a recommendation to the Commissioner that the member be reduced to a rank having a lower classification, and to a salary within that classification;
(c) a penalty referred to in Section 43 (a) or (b);
(d) a recommendation to the commissioner that the member be dismissed from the Service.

(2) Apart from any penalty imposed under subsection (1), a member may also be required to make restitution for loss or damage by way of payment or compensation to an injured party including were applicable, the State.
(3) Where the Disciplinary Board makes a recommendation to the Commissioner under subsection 1 (b) or (d), the Commissioner may accept or vary that recommendation.
(4) Before imposing the punishment recommended by the Disciplinary Board or varied by the Commissioner, the Commissioner shall consider –

(a) the reports relating to the offence and the charge; and
(b) the reply and explanation of the member charged; and
(c) the evidence given before the Disciplinary board.

(5) The Commissioner shall institute a monitoring process to ensure that there is consistency in the penalties imposed under subsection (1) by commanding Officers and Disciplinary Boards throughout the country.

21. Section 44 is found in Part V of the Correctional Service Act, which Part is headed “Discipline of Members”. Section 39 of the Act provides that a member of the Correctional Service who conducts himself or herself in a manner defined in s 39 (a)-(k) is guilty of a disciplinary offence and is liable to be dealt with and punished under the Act. The procedure for dealing with offences is set out in s40, with Serious Offences specifically dealt with under s 42. Section 42 provides:

(1) A charge for a serious offence shall be heard by the Disciplinary Board.
(2) The Commissioner shall appoint for each correctional institution a Disciplinary Board which shall be comprised of the Commanding Officer of that correctional institution, the Deputy Commanding Officer of that correctional institution and another senior correctional officer or member of that correctional institution.
(3) A member of a Disciplinary Board may disqualify himself or herself and the Commissioner shall appoint another member of the same or senior rank to the disqualifying member.
(4) In hearing the offence a Disciplinary Board shall–

(a) if not satisfied on the evidence, dismiss the matter; or
(b) if satisfied on the evidence, find the charge proven and apply one of the penalties prescribed under this Act.

(5) A Disciplinary Board shall not be bound by the rules of evidence in the conduct of a hearing under this section, but shall conduct the hearing in accordance with the rules of natural justice and the procedures prescribed.

22. Turning now to the proceedings currently before the Court, we are satisfied that grounds of appeal 1, 2 and 3 have no merit. Fundamentally, as the respondents correctly submit, under s 44 of the Act:

• It is not in dispute that the offences with which the respondents were charged under the Correctional Service Act were serious offences within the meaning of s 39 and 44;
• Penalties which may be imposed in respect of serious offences are set out in s 44 (1);
• The penalties set out in s 44 (1)(b) and (d) are recommended by the Disciplinary Board to the Commissioner. Pursuant to s 44 (3), the Commissioner may accept or vary those recommended penalties;
• The penalties set out in s 44 (1)(a) and (c) are imposed by the Disciplinary Board. There is no scope in the legislation for variation of those penalties by the Commissioner. The acceptance or otherwise of such penalties by the Commissioner appears to be irrelevant;
• The penalties imposed on each of the four respondents were fines not exceeding K1000.00, as set out in s 44 (1)(a) of the Act. There was no scope for acceptance, variation or any other action of the Commissioner in respect of those penalties.
  

23. It plainly follows that the primary Judge was correct to find that the Commissioner usurped a power he did not have in purporting to rescind the penalties already imposed on the four respondents by the Disciplinary Board.

24. We reject the appellants’ submission to the effect that the wording of s 44 of the Act clearly contemplates that, where penalties for serious offences are concerned, there is a blanket authority given to the Commissioner to vary recommendations by the Disciplinary Board. Section 44 of the Correctional Service Act gives the primary responsibility for determining an appropriate penalty in cases of serious offences to the Disciplinary Board. The Commissioner only becomes involved in the determination of an appropriate penalty following a recommendation by the Disciplinary Board to the Commissioner, and then only in relation to penalties set out in s 44 (1)(b) and (d) (as is further clear from the language of s 44 (3)). None of these criteria applied in relation to the penalties imposed on the four respondents.

25. In relation to ground of appeal 6, the grant of a mandatory injunction or reinstatement is discretionary, and will only be overturned by an appellate Court if there was an error in the nature of reliance by the primary Judge on a wrong principle, or having regard to extraneous or irrelevant matters, or failure to take into account some material consideration : Lupari v Somare (2010) SC1071 at [28], Monouluk v Pala (2020) SC2031 at [11]. In Lupari, the Supreme Court approved principles relevant to orders for reinstatement, including:

• Whether the relationship between the employer and the employee prior to and subsequent to the dismissal had completely or seriously broken down to such an extent that the mutual trust required of each other no longer existed;
• In the cases of a contract of employment: whether damages was the appropriate remedy rather than specific performance;
• That reinstatement or mandatory injunction is an equitable relief, and its grant must be consistent with or in furtherance of principles of equity;
• Issues of public interest, particularly in relation to dismissal and applications for reinstatement of public officials; and
• Whether the position formerly occupied by the employee was available or vacant at the time of trial.
  

26. In the present case we note that:

• The appellants complained that the primary Judge ordered reinstatement “without representation by the First Appellant” however the absence of representation by the appellants at the hearing was entirely within the control of, and presumably the choice of, the appellants. Further, we do not accept the submission of the appellants that they did not have sufficient time to prepare affidavits to support their respective cases.
• Ultimately, there was no evidence from the appellants to which the primary Judge could have regard.
• The primary Judge sought submissions from the respondents who attended the hearing in relation to the issue of reinstatement of the respondents into their former positions
• The primary Judge had regard to relevant correspondence, in particular a memorandum dated 18 November 2020 supporting reinstatement of the respondents, from Mr Joe Yamason, Inspector of Operations at Bomana Correctional Service, which memorandum materially provided:

SUBJECT: RECALL OF CORRECTIONAL SERVICE OFFICERS FOR EMPLOYMENT IN TO THE SERVICE

The subject matter refers; in regard to the above. I am stating for the following request:

1. That: due to the large number of Correctional Officers exiting the Organisation on retirement exercise, therefore the organisation is currently facing massive shortage of manpower to effectively provide Safe, Secure and Human Containment Service and to efficiently deliver relevant rehabilitation programs to offenders under the Correctional Service Custody implementing the orders by the Court under the various laws in force in Papua New Guinea.
   
2. That; The following are the members brief history to whom have presented their case before the Honourable Court of Justice for proper determination;
   

2.1 EBO PEAI – of Daru, Western Province, 27 years of Service and has three (3) dependants.

2.2 ELISON VAVAR – of Rabaul, East New Britain, 25 years of Service and has four (4) dependants.

2.3 JIMMY PELAPA – of Tari, Hela Province, 25 years of Service and has Six (6) dependants.

2.4 LAWSON SIREREBA – of Popondetta, Fourteen (14) years of Service and has three (3) dependants.
Your honourable time and consideration to this request is highly honoured.

• Such evidence as was before his Honour – including Mr Yamason’s memorandum – supported his Honour’s findings that the respondents could be easily and swiftly reinstated into their previous positions, that the employment relationship had not irretrievably broken down such that the respondents could not function in their former positions, and further that there was a public interest in the reinstatement of the respondents. No evidence was filed by the appellants on which his Honour could rely to form a contrary view.
  

27. In our view there was no miscarriage of his Honour’s discretion in ordering reinstatement of the respondents to their previous employment. Ground of appeal 6 similarly has no merit.

CONCLUSION

28. Each of the appeals should be dismissed.

29. We understand from the submissions of the respondents that the appellants may have been slow to comply with the orders of the primary Judge. For the avoidance of doubt, we also order that the Orders of the National Court of 23 November 2020 be upheld and effected, and that the reinstatement of each respondent be backdated to the dates of the purported termination of their respective employment.

30. Finally, it is appropriate that the appellants pay the costs of the respondents, such costs to be taxed if not otherwise agreed.

IN EACH OF SCM NO. 001 OF 2021 (IECMS), SCM NO. 002 OF 2021 (IECMS), SCM NO. 003 OF 2021 (IECMS) & SCM NO. 004 OF 2021 (IECMS), THE COURT ORDERS THAT:

(1) The appeal is dismissed.
(2) The appellants shall pay the costs of the respondents, such costs to be taxed if not otherwise agreed

AND THE COURT FURTHER ORDERS THAT:

(3) The Orders of the National Court of 23 November 2020 in O.S.(JR) 41 of 2020 : Lawson Sirereba v Stephen Pokanis & Independent State of Papua New Guinea; O.S.(JR) 39 of 2020 : Ebo Peai v Stephen Pokanis & Independent State of Papua New Guinea; O.S.(JR) 37 of 2020 : Elison Vavar v Stephen Pokanis & Independent State of Papua New Guinea; and O.S.(JR) 40 of 2020 : Jimmy Pelepa v Stephen Pokanis & Independent State of Papua New Guinea be upheld and effected, and that the reinstatement of each respondent be backdated to the dates of the purported termination of their employment.
________________________________________________________________
Solicitor General: Lawyer for the Appellants
Ninerah Lawyers: Lawyers for the Respondents