Jimmy Gwaitep v Harbours Board and Michael Tomutnaram (1994) N1309

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 22 July 1994
• Court: National Court
• Citation: (1994) N1309
• Docket Number: In the Matter of The Harbours Board Disciplinary Appeals Tribunal
• Year: 1994
• Judgement Number: N1309

Full Title: In the Matter of The Harbours Board Disciplinary Appeals Tribunal; Jimmy Gwaitep v Harbours Board and Michael Tomutnaram (1994) N1309

National Court: Doherty J

Judgment Delivered: 22 July 1994

N1309

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 50/94

IN THE MATTER OF THE HARBOURS BOARD DISCIPLINARY APPEALS TRIBUNAL

AND

JIMMY GWAITEP — PLAINTIFF

AND

HARBOURS BOARD — 1ST RESPONDENT

AND

MICHAEL TOMUTNARAM — 2ND RESPONDENT

Kavieng

Doherty J

22 July 1994

12 September 1994

CERTIORARI — principles to be applied to Disciplinary Boards.

The Plaintiff sought order quashing the decision of the Respondent corporation reducing him in rank and transferring him after finding him guilty of disciplinary offences.

Held

(1) The 1st Respondent had a discretion under that part of its regulations to charge its employees.

(2) The ruling in Niggints v Henry Tokam & Others Unreported N1158 applied in principle to the Respondent but as it had not been handed down at the time of the hearing in the instant case there was not error if it was not followed.

(3) Principles of sentencing in criminal law do not apply to civil disciplinary cases but a disciplinary Board such as the 1st respondent is obliged to consider all facts concerning the individual and the case before it.

Cases Cited

Godfrey Niggints v Henry Tokam Paul Songo & The State Unreported N1158

Counsel

Mr Ousi for the Plaintiff

Mr Emilio for the Respondent

12 September 1994

DOHERTY J: The Plaintiff sues the Respondent Corporation pursuant to Order 16 of the National Court Rules for an order that the decision of the Harbours Board Appeals Tribunal made in June 1993 be quashed, a declaration that the penalty imposed by the Chairman was excessive and an order that the Plaintiff be reinstated to his original position with all entitlements as to pay etc.

The application arises out of a decision by the Harbours Board Appeals Tribunal following disciplinary action against the Plaintiff Jimmy Gwaitep.

The Plaintiff did not adduce evidence other than that stated in his supporting statement and it would appear that the facts and events leading up to this hearing are not disputed.

The Plaintiff was employed by the Harbours Board, a statutory corporation under the Harbours Board Act Chapter 264.

The Harbours Board has a Conditions of Employment Determination which sets out the powers of the Board to hire employees and provides for disciplinary action against employees who do not perform to the standards of employment set down by the Act.

The disciplinary powers include, at Clauses 123 and 124 and 125, provisions for minor and serious offences. The offences include use of intoxicating liquors to excess viz Clause 123.

"123. An officer who:

(a) ...

(b) wilfully disobeys or disregards a lawful order made or given by any person having authority to make or give it;

(c) is negligent or careless in the discharge of his duties;

(d) is inefficient or incompetent from causes within his own control;

(e) uses intoxicating liquors or drugs to excess;

(f) solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his official duties (other than his official remuneration);

(g) is guilty of any disgraceful or improper conduct either of his official capacity or otherwise; or

(h) having made or subscribed an oath or affirmation in the form of the Schedule to the Ordinance, does or says anything in violation of that oath or affirmation,

is guilty of an offence and is liable to be dealt with and punished under this Part."

The Plaintiff was, and still is, employed by the Harbours Board and on the 15th of September 1992, he was employed at Rabaul Harbour as Assistant Port Manager. The Port Manager was scheduled to go overseas and it was the Plaintiff's understanding that he had been recommended and was likely to be the acting Port Manager. However, this did not eventuate and another employee, lower in rank to the Plaintiff, was appointed as acting Manager.

From the Legislation and the facts before me, I am satisfied that the Respondent Corporation has a discretion to make appointments in acting positions as it thinks fit and proper for the official running of its operations.

The Plaintiff was clearly aggrieved at the decision and seems to have taken it as a personal insult. He reacted in a way that seems quite immature to me and possibly only served to confirm the Respondent Corporation's assessment of him. On Tuesday the 15th of September, the Plaintiff was drunk and came to the office between 11.30 and 16.21 under the influence of liquor, he then phoned the Port Manager's home and used language (the exact words are unknown) which was considered abusive and obscene to the Port Manager's wife. He also was alleged to have been offensive to the cashier clerk in the office on that same day. On the 17th of September (which I note is the day after Independence Day which was a Public Holiday) he also came to the office at 10.00am under the influence of liquor and insulted the newly appointed Acting Manager. The following day, the 18th of September, he again was under the influence of liquor during working hours at the office. The following week on Thursday the 1st of October, he gain came to the office in the afternoon between 1pm and 4.30 under the influence of liquor and again on the following day, 2nd of October 1992, he was again under the influence of alcohol and acted in a disorderly manner in front of staff and clients of the Harbours Board.

Seven disciplinary charges, one in relation to each of the foregoing incidents, was laid against him on the 26th of October 1992, that is approximately 3 weeks from the last incident and one month from the 1st. It is not suggested that the defendant delayed in taking action against the Plaintiff.

The Plaintiff immediately replied to the Board stating, inter-alia:

"in his (Regional Port Manager — Rabaul) letter to head office recommended me to be acting in his office during the period of absence. To my surprise on the 15th of September 1992 (his last day in office) he told me that another Officer would be acting in his office for the period and not me.

Being next in salary grade and also the next in line under him in this Port, you can assure how I felt and the situation I was in that...