Kandu Busu v Post and Telecommunication Corporation

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 03 March 1993
• Citation: [1993] PNGLR 321
• Court: National Court
• Year: 1993
• Judgement Number: N1152

National Court: Brown J

Judgment Delivered: 3 March 1993

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KANDU BUSU

V

POST & TELECOMMUNICATION CORPORATION

Waigani

Brown J

3 March 1993

ADMINISTRATIVE LAW — Judicial review — Whether the decision to terminate plaintiff's employment was reviewable.

ADMINISTRATIVE LAW — Natural justice — Whether the Reconsideration Committee of PTC was required under PTC Staff By-laws to apply the rules of natural justice before confirming the termination of plaintiff — PTC Staff By-laws, ss 24 (2) (3) (4) and 25.

ADMINISTRATIVE LAW — Remedies — Certiorari — Whether appropriate plea for breach of employment contract — Whether plaintiff's employment has incidence of some public character or whether it was a relation of master and servant.

PRACTICE AND PROCEDURE — Claim for general and special damages — Whether claim can stand with the originating summons — Claim for damages for breach of employment contract — Statement of claim not filed in originating summons nor served — Whether claim can be considered.

Facts

The plaintiff employee of Post & Telecommunication Corporation was dismissed by the management for absenteeism. He sought orders in the nature of certiorari to review the decision of the Reconsideration Committee, which confirmed the dismissal, on the grounds that the committee had not accorded him his right to be heard. The plaintiff further alleged that the decision to terminate him was motivated by malice, jealousy, and bias.

Held

1. The employment of the plaintiff by the corporation is a simple one of employer/employee relation but affected by statutory by-laws. The by-laws expressly provide for disciplinary proceedings to be held in accordance with the rules "of natural justice". Consequently, the Court may, by this administrative law remedy, review the actions of the appropriate authority of the corporation terminating the plaintiff where he alleges that no right of hearing had been accorded him.

2. In the circumstances, the plaintiff had been accorded the opportunity to be heard and had actually exercised this right before the decision to terminate him was made.

3. The allegations of malice, jealousy, and bias had no basis in fact.

Cases Cited

Papua New Guinea cases cited

Eviaisa v Hela (1992) unnumbered, unreported NC.

Fallscheer v Okuk [1980] PNGLR 101.

Okuk v Fallscheer [1980] PNGLR 274.

PNG v Kapal [1987] PNGLR 417.

Other cases cited

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.

Malloch v Aberdeen Corporation [1971] 2 All ER 1278.

R v British Broadcasting Corp. exparte Lavelle [1983] 1 All ER 241.

Ridge v Baldwin [1964] AC 40.

Vidyodaya University of Ceylon v Silva [1964] 3 All ER 865.

Counsel

S Injia, for the plaintiff.

M Mugarenang, for the defendant.

3 March 1993

BROWN J: This originating summons, filed on the 4 December 1991, seeks an order in the nature of certiorari to quash the decision of the defendant corporation terminating the plaintiff's services for disciplinary reasons. Leave was later given for review. The plaintiff also sought general and special damages for dismissal. Such a claim cannot stand with the originating summons as filed. On 17 June last year, I directed the plaintiff to proceed by way of statement of claim in the event of an apparent allegation of an unlawful dismissal and, hence, claim for damages for breach of employment contract. The plaintiff has not seen fit to comply with that direction. Although he handed up at the outset of the hearing today a document headed Statement of Claim, it has been neither filed nor served.

I must disregard it and propose to deal with the originating summons as originally filed, for that is the cause which the defendant corporation has come to answer.

The defendant corporation has argued that the relief sought by the plaintiff is not available for the disciplinary course adopted by the corporation, whose acts may be categorised as acts of a private or domestic tribunal. In those circumstances, the act of dismissal is outside the scope of certiorari, for the corporation's authority is derived solely from the employment contract, and the remedy is inappropriate for breaches of the employment contract. Mr Mugarenang relied upon the authority of R v British Broadcasting Corp, ex parte Lavelle [1983] 1 All ER 241, a decision of a single judge of the Queens Bench Division. That decision is not binding on this court, of course, but its persuasive value may assist the corporation if the ratio decidendi follows the underlying law at Independence as affected by decisions since.

I should say at the outset, I am satisfied that the plaintiff has pursued the available appeal provisions of the PTC Staff By-laws, so the question posed and answered in PNG v Kapal [1987] PNGLR 417 does not arise. The appeal procedure has been utilised, and leave for judicial review granted.

Again, the plaintiff takes no issue with the power in the Executive Manager Security and Investigation to issue valid termination notices of the type used in his case, relying as he did on breaches of discipline detailed in PTC Staff By-laws 19 (a) (c) (h) and (m). That notice was dated 2 April 1990 and was the basis for his application for review to the Reconsideration Committee.

The plaintiff's argument, however, is that he was denied natural justice in the event of his dismissal. His originating summons seeks a review of the PTC Reconsideration Committee's confirmation, dated 18 May, 1990, of the dismissal notice of 2 April 1990. That committee had been convened pursuant to s 24 (2) of the by-laws. Its powers are set forth in subsections (3) and (4).

" (3) The committee so appointed shall meet as soon as reasonably possible to consider the request for review and shall have the power to interview any persons, inspect any written material, and to do any other act, deed, matter or thing which it considers to be necessary or desirable in order to ensure that the principles of natural justice have been complied with in relation to the suspect.

(4) The committee may either confirm, reject or modify the decision under review but shall not increase the penalty imposed, and the decision of the committee shall be final".

In all proceedings, the principles of natural justice are to apply by virtue of s 25. Before I deal with the substance of the application, I must first be satisfied the plaintiff is entitled to the relief sought, which is to have the review quashed with, presumably, a direction by this Court to reconsider the dismissal, taking particular notice of any failings in the committee, which failings have given rise to an order of certiorari.

Should this Court review this PTC Review Committee's decision, a decision quite within its powers? Mr Mugarenang's submission has merit, for the BBC case on which he relies follows a line of authorities including some which have been applied with approval in the Supreme Court.

In Okuk v Fallscheer [1980] PNGLR 274 the Supreme Court applied Ridge v Baldwin [1964] AC 40 and Malloch v Aberdeen Corporation [1971] 2 All ER 1278 at 1282 and approved the National Court decision in Fallscheer v Okuk [1980] PNGLR 101.

In that last mentioned case, Greville-Smith J in the National Court considered the rights of the General Manager of the National Airlines Commission to be heard in the event of his dismissal by the Minister on stated grounds of inefficiency. Fallscheer to fall within boundaries delineated by Lord Reid in the "third" category of dismissal cases, namely dismissal from "an office" where there must be something against a man to warrant his dismissal. Lord Reid's "third" category is found in the House of Lords decision, Ridge v Baldwin [1964] AC 40 at 65, where His Lordship said:

"So I shall deal first with cases of dismissal. These appear to fall into...