Gerry Harou and Payang Ete v John Solok, Executive Manager, Customer Services, PNG Waterboard and PNG Waterboard (2009) N3929

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 08 April 2009
• Citation: (2009) N3929
• Docket Number: OS NO 260 OF 2008
• Year: 2009

Full Title: OS NO 260 OF 2008; Gerry Harou and Payang Ete v John Solok, Executive Manager, Customer Services, PNG Waterboard and PNG Waterboard (2009) N3929

National Court: Cannings J

Judgment Delivered: 8 April 2009

JUDICIAL REVIEW—disciplinary proceedings—review of decision to find officers of governmental body guilty of disciplinary offences and impose penalties of dismissal and demotion—whether charges laid under correct provisions of disciplinary code—whether the person who determined the charges had power to do so—whether officers had a separate right to be heard on penalty.

Two officers of a governmental body were charged under the body’s disciplinary code with being negligent and inefficient. They were found guilty and given notice of termination of employment. They appealed to the managing director who revoked the decisions to terminate their employment and decided instead to demote and transfer them. They sought judicial review on the grounds that (1) as to the guilty findings, (a) the charges were laid under incorrect provisions of the disciplinary code and (b) irrelevant considerations were taken into account; and (2) as to the decisions to punish them, (a) the person(s) who decided on punishment lacked power to terminate their employment and (b) they were denied natural justice as they were not given a right to be heard on the question of penalty.

Held:

(1) As to the guilty findings, two errors of law were made, in that:

(a) the charges were laid under incorrect provisions of the disciplinary code, in a manner that was confusing and misleading and intrinsically unfair; and

(b) the person(s) determining the charges took irrelevant considerations into account, viz adverse comments on the plaintiffs’ performance, which they had no prior opportunity to comment on.

(2) As to the decisions regarding punishment, one error of law was made, in that:

(a) the person(s) who terminated their employment had no power under the disciplinary code to do so; but

(b) there was no separate right to be heard on penalty and therefore no denial of natural justice in that regard.

(3) The errors of law made in connexion with the guilty findings were significant and warranted quashing those decisions.

(4) The court accordingly quashed the decisions that the plaintiffs were guilty of disciplinary offences and the decisions that they be demoted and transferred, and ordered that they be reinstated to their original positions and paid back-pay.

Cases cited

The following cases are cited in the judgment:

George Kakas v Commissioner of Police, SCM No 17 of 2005, 29.07.07; Jeffrey Afozah v The Police Commissioner (2008) N3300; Kita Sapu v The Commissioner of Police (2003) N2426; Mision Asiki v Manasupe Zurenuoc (2005) SC797; Paul Saboko v Commissioner of Police (2006) N2975

JUDICIAL REVIEW

This was an application for judicial review of the decisions to find two officers of a governmental body guilty of disciplinary offences and impose punishment on them.

8 April, 2009

1. CANNINGS J: Two officers of the Waterboard based at Madang, the plaintiffs Gerry Harou and Payang Ete, were subject to disciplinary charges. They responded to the charges. Then the first defendant, John Solok, the Executive Manager of the Customer Services Division, wrote to each of them and told them that the charges had been sustained and their services were terminated forthwith. They appealed to the Managing Director, Patrick Amini, who revoked the decisions to terminate their employment and decided instead to demote and transfer them.

2. The Waterboard is a governmental body established by the National Water Supply and Sewerage Act 1986.

3. The plaintiffs are applying for judicial review of (1) the decisions to find them guilty and (2) the decisions concerning punishment.

GROUNDS OF REVIEW

4. As to the guilty findings, they allege that two errors of law were made:

(a) the charges were laid under incorrect provisions of the disciplinary code; and

(b) irrelevant considerations were taken into account.

5. As to punishment, they argue that two errors of law were made:

(a) the person(s) who decided to terminate their employment had no power to do so;

(b) they were denied natural justice as they were not given a right to be heard on the question of penalty.

PRELIMINARY POINTS

6. Before dealing with the grounds of review there are some preliminary points raised by the defendants’ counsel, Mr Siminzi, that need to be resolved. He submitted that the application for judicial review was procedurally defective for four reasons. First, no notice was given to the Secretary for Justice under O16, r3(3) of the National Court Rules. Secondly, no notice of motion was filed under O16, r5(1). Thirdly, no...