Leo Nuia v The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 29 August 2000
• Citation: (2000) N1986
• Court: National Court
• Year: 2000
• Judgement Number: N1986

National Court: Sevua J

Judgment Delivered: 29 August 2000

N1986

PAPUA NEW GUINEA

[National Court of Justice]

WS 1087 of 1997

BETWEEN

LEO NUIA

Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Waigani: Sevua, J

2000: 3rd July & 29th August

Damages – Claim for unlawful dismissal – Contract of Employment – Commander of Defence Force – Termination of Contract – Disciplinary procedures in contract not followed – Whether termination lawful.

Held:

1. Where a contract of employment of a Departmental Head in the State Service provides for disciplinary procedures and termination, but the State fails to follow such procedures in terminating the Departmental Head, that termination is unlawful. The plaintiff’s termination in this case is unlawful.

2. Where terms and conditions of the contract of employment of a Departmental Head, provides for disciplinary procedures and termination, the Departmental Head can only be terminated lawfully in accordance with the terms and conditions. The terms and conditions of the contract of employment remove the procedures from the public law provisions in the Public Service Management Act, and General Orders unless the procedures in those legislations are incorporated in the contract.

3. Where a plaintiff is dismissed for disciplinary reasons, there must be proof of allegations of disciplinary offence or misconduct, leading to termination. (National Airline Commission v. Valerian Lysenko [1986] PNGLR 323 applied)

Cases cited:

George Newham v. John Dresok & Ors, unnumbered & unreported Supreme Court Judgment, 18th December, 1996 (SCA 29 of 1996)

National Airline Commission v. Valerian Lysenko [1986]

PNGLR 323

Bensen Gegeyo & Ors v. Minister for Lands [1987] PNGLR 331.

C. Coady for the Plaintiff

J. Sirigoi for the Defendent

29th August, 2000

SEVUA, J : The plaintiff’s claim in his writ of summons is for damages for unlawful dismissal. He was appointed Commander of the Papua New Guinea Defence Force with the rank of Brigadier General on 3rd July, 1997, effective from 3rd June 1997. He signed a contract of employment for a period of 3 years to 3rd June, 2000. On 14th October, 1998, he was terminated and his appointment as Commander revoked.

The plaintiffs evidence both oral and documentary is this: On 3rd July 1997, he was re-enlisted in the Papua New Guinea Defence Force; promoted from Colonel to Brigadier General, and appointed Commander of the Defence Force, with effect from 3rd June, 1997. That appointment was gazetted in National Gazette No. G.53 on Thursday 3rd July, 1997 (Exhibit “A”).

Subsequently, the plaintiff signed a contract of employment (Exhibit “B”) on 20th October 1997, but with retrospective effect to 3rd June 1997. The contract was signed by the then Governor General, Sir Wiwa Korowi, on behalf of the defendant on the same date. It is in several parts. The first part is entitled, “The Employment Agreement for The Commander of the Defence Force.” The second part is, “The Terms and Conditions of Employment of the Commander of the Defence Force.” The third part is, “Standard Terms and Conditions for the Employment of Heads of National Departments in the National Public Service (1993)”. And the final part is a letter from the State Solicitor dated 1st July 1997, advising the plaintiff of the duration of the contract under clause 4, which stipulated a term of four years, whereas it should have been three years.

Clause 5 of the agreement provides the plaintiff’s annual salary at K40,073.00, or such amount as varied from time to time by the National Executive Council. Clause 7 of the Terms and Conditions of Employment of the Commander of the Defence Force provides that, the plaintiff is entitled to the sum of K350.00 per fortnight in housing allowance. Clause 8 of the same Terms and Conditions, provides for a service allowance of 8% of the base salary; domestic allowance of K3,000.00 per annum; telephone allowance of K 900.00 per annum, and entertainment allowance of K 2,400.00 per annum. Clause 3 of the Standard Terms and Conditions for the Employment of Heads of National Departments provide a gratuity of 25% of the base line salary of a Departmental Head. Clause 4.1 of the Standard Terms and Conditions, provides for six weeks annual leave. Clauses 4.3 and 4.4 provide for long service leave. Clause 6 provides for airfares, and Clause 8 provides for motor vehicle allowance of K15,000.00 per annum.

The plaintiff was terminated on 14th October 1998, following receipt of a letter by the then Prime Minister, Mr Bill Skate, dated the same day (Exhibit “C”). In that letter, Mr Skate referred to the deliberation of the National Executive Council and alluded to serious allegations against the plaintiff. He specifically referred to….“a number of serious allegations against your action and conduct as the Commander.” It was the plaintiff’s undisputed evidence that he was surprised at his termination. He was humiliated, and felt cheated, because at no time during his command, was he told that his conduct as Commander was not as what was expected from the Government at that time. The then Prime Minister subsequently held a press conference in which he announced the termination of the plaintiff and the reappointment of Mr Singirok, which press conference was widely publicised. I think that was the basis for the plaintiff’s humiliation. The plaintiff’s termination, and the subsequent reappointment of Mr Singirok, was effected by a notice published in the National Gazette No. G118 on Wednesday, 14th October, 1998 (Exhibit “G”).

The particulars of the plaintiff’s entitlements are contained in the contract of employment, which was tendered into evidence with the consent of the defendant. The defendant has not adduced any evidence, and all the documents tendered by the plaintiff in his examination in chief were with the consent of the defendant.

I accept the plaintiff’s evidence, both oral and documentary. I am satisfied that the facts are not in dispute.

The principal issue for this Court’s determination is whether the plaintiff’s termination was lawful. The question of damages will then follow if the plaintiff is found to have been unlawfully terminated. However, there is a collateral issue which was raised at the beginning of the trial, and that can be disposed of quite briefly and quickly.

The defendant has raised the issue of non-compliance with s.5 of the Claims By and Against the State Act, 1996. In paragraph 2 of its defence, the defendant did not admit that the plaintiff had given notice of his claim to the State in pursuance of s.5 of that Act. However, the plaintiff in the trial referred to the affidavit of one Leslie Sibona, sworn on 29th June 2000. Mr Sibona deposed to serving a notice on the defendant through the Solicitor General on 30th October, 1998 at 9.50am. No evidence to the contrary has been adduced by the defendant. I am therefore satisfied that a notice of claim dated 30th October, 1998 was served on the State through the Office of the Solicitor General. Accordingly, I find that service on the Solicitor General was effected in accordance with s.5 (1) (b) of the Claims By and Against the State Act, 1996, therefore service was lawfully effected.

Returning to the principal issue, I wish to refer to certain provisions of the contract of employment. Clause 17 of the Terms and Conditions for the Employment of Departmental Heads of National Departments in the National Public Service, which forms part of the plaintiff’s contract of employment, deals with termination of employment. It provides the grounds for which the Head of State may terminate contracts of Departmental Heads. Clause 18 deals with termination for cause, and that provision sets out the more serious offences which would give cause for termination.

There are disciplinary procedures contained in Clause 27. Sub-clause (1) provides:-

“Serious disciplinary matters pursuant to

Section 18, hereunder, allegedly involving

the Departmental Head shall be resolved

through the following procedure:” (my emphasis)

Then sub-clause (1)(a) mandatorily requires the Minister to charge the Departmental Head, suspend him and invite a response prior to submitting a report to the National Executive Council. Sub-clause (1)(b) requires the Departmental Head to reply within 7 days. Sub-clause (1)(c) requires the Minister to submit the charge, the reply, any evidence relating to the case, and a recommendation to the National Executive Council. The National Executive Council is required to obtain a legal opinion, prior to deciding whether or not the contract should be terminated. Sub-clause (1)(d) provides that the National Executive Council’s decision is final, however, the Departmental Head could exercise his right to seek redress in Court.

I have alluded to this provision because, I am of the opinion that it is relevant to the issue of the plaintiff’s termination and, whether such termination was lawful. To my mind, and I think there can never be any doubt in any one’s mind, the procedures for disciplinary action established by this provision governs the...