Gideon Barereba v Margaret Elias, Secretary, Department of Industrial Relations, PS Tsiamalili, Secretary, Department of Personnel Management and The Independent State of Papua New Guinea (2002) N2197

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 15 February 2002
• Court: National Court
• Citation: (2002) N2197
• Year: 2002
• Judgement Number: N2197

Full Title: Gideon Barereba v Margaret Elias, Secretary, Department of Industrial Relations, PS Tsiamalili, Secretary, Department of Personnel Management and The Independent State of Papua New Guinea (2002) N2197

National Court: Sevua J

Judgment Delivered: 15 February 2002

N2197

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 400 OF 1997

BEWTEEN

GIDEON BAREREBA

Plaintiff

AND

MARGARET ELIAS

SECRETARY, DEPARTMENT OF INDUSTRIAL RELATIONS

First Defendant

AND

P. S. TSIAMALILI

SECRETARY, DEPARTMENT OF PERSONNEL MANAGEMENT

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani : Sevua, J

2001 : 17th October

&

2001 : 15th February

Judicial Review – Dismissal from Public Service – Error of law and breach of natural justice – Judicial review lie.

Master and Servant – Wrongful dismissal whether remedy is reinstatement or damages – Measure of damages – Open ended contract – Plaintiff not entitled to damages over the period from dismissal to trial.

Damages – Discretion – Period of notice in Employment Act as guideline.

Cases cited:

Kekedo v. Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122.

Robinson v. National Airline Commission [1993] PNGLR 476.

Christopher Appa v. Peter Wama & Ors [1992] PNGLR 395.

Rooney v. Forest Industries Council & Anor [1990] PNGLR 407.

Felix T. Ramram v. National Broadcasting Commission & Ors, N.1110, 16th November 1970, unreported.

Wata Potenge v. Bosky Tony & Ors, (OS37 of 1999) unnumbered & unreported, 9th June 2000.

A. Manu for Plaintiff

J. Palek for Defendants

15th February 2002

SEVUA, J: This is an application by the plaintiff seeking judicial review of the decision of the former Secretary for Labor and Employment, the predecessor of the first defendant, in terminating the plaintiff from the Public Service on 19th August 1987, a decision in which the first defendant and her immediate predecessor had refused to alter following recommendations from the Public Service Commission.

The plaintiff had been a public servant for twenty four years at the time of his dismissal. He joined the department of Labor and Employment on 3rd March 1963 as a Temporary Officer and on 19th June 1964, was appointed a Permanent Officer of the Public Service serving in that Department. For ten years, he occupied the position of Provincial Labor Officer (Position No. FS7). While serving in that capacity in Oro Province, he was seconded to the Ministry of Defence on 2nd September 1986. The arrangement for the secondment was confirmed in writing to then Secretary for Labor and Employment, Dame Rose Kekedo on 15th July 1986.

Whilst the plaintiff was serving the Minister for Defence in the Ministry of Defence at Murray Barracks, he was charged with ten (10) disciplinary offences pursuant to s.45 of the Public Services (Management) Act 1986. These charges were laid on 28th May 1987. Although there are suggestions that a Joe Giwar had served the charges on the plaintiff, he (plaintiff) maintained that he was not served therefore did not respond to them until his dismissal on 19th August 1987.

The plaintiff then appealed to the Public Service Commission on 1st September 1988. Following a preliminary review of the plaintiff’s case, the Public Service Commission, through the second defendant, wrote to the first defendant recommending the plaintiff’s reinstatement on the grounds that the charges were defective, and the disciplinary actions taken were invalid.

On 3rd January 1994, the first defendant rejected the second defendant’s recommendations on the basis that there was “fraud, dishonesty, negligence and conspiracy and conflict of interest.” The other reasons for her rejection of the Public Service Commission’s recommendation outright was that, there was “no money to pay him as well as no position for him to fill.”

The Public Service Commission thereafter commenced a full investigation and review of the plaintiff’s case. On 10th March 1997, the Chairman of Public Service Commission wrote to the first defendant recommending the reinstatement of the plaintiff to his substantive position of Provincial Labour Officer and payment of all lost salaries and other entitlements retrospective to the date of dismissal. On 17th March 1997, the plaintiff wrote to the first defendant inquiring about the recommendations of the Public Service Commission. He wrote again on 17th April 1997, as he had received no reply. He was subsequently advised that the first defendant had rejected the recommendations of the Public Service Commission in a letter dated 28th May 1997. The plaintiff consequently instituted these proceedings wherein he obtained leave on 13th October 1997.

Perhaps at this juncture, I should allude to the defendant’s failure in filing affidavit evidence. Despite the Court’s direction that parties file and serve affidavits by 24th October 2001, the defendants did not comply. There is therefore no evidence at all by the defendants showing the basis for the plaintiff’s dismissal. In any event, the first defendant’s letter of 28th May 1997 to the Public Service Commission, which is annexure “K” to the affidavit of the plaintiff sworn on 19th September 1997, clearly shows that the Department did not have any evidence. The first defendant said in numbered paragraph 4 of her letter, “That the Department feels that Mr Barereba was fairly dismissed despite the absence of the Department evidences” (sic).

There is also annexure “L” to the plaintiff’s application, which is a statutory declaration declared at Popondetta on 11th March 1991, by one Bradley Aiga, who admitted he was the Labour Officer responsible for payment of workers compensation to clients, which payments formed the basis of the charges against the plaintiff. The Statutory Declaration states the following:

“….this is the second time for me to make this declaration on the same matter.

I therefore do declare and admit that it was my failure in not forwarding the receipts of Workers Compensation payments to Labour Headquarters for which MR GIDEON BAREREBA was charged and punished for. I did not understand why the matter was not referred to me as I knew all the twelve (12) clients concerned and infact I was the one who did the payment.

I then wrote to MR BAREREBA and gave him my sincere apologie, (sic) a copy of which to my knowledge MR BAREREBA did forward to Labour Headquarters.”

The declaration was signed and made at Popondetta on 11th March 1991.

Despite the defendants having been given the opportunity to file affidavits in response to those of the plaintiff, they failed to avail themselves of that opportunity. Perhaps because, as Ms Elias said, “absence of the Department evidences”. If there was no evidence against the plaintiff, why was he dismissed in the first place? I consider that from the facts and evidence before me, I am entitled to conclude that the dismissal was wrongful, and that there was no basis for it in law.

But moreso, the Court is concerned with the apparent breach of natural justice that has occurred in this case. The plaintiff said in his affidavit sworn on 19th September 1987 that he was not served with the charges, he did not see them and he had no opportunity to reply...