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

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

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

N3929

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 260 OF 2008

GERRY HAROU AND PAYANG ETE

Plaintiffs

V

JOHN SOLOK, EXECUTIVE MANAGER, CUSTOMER SERVICES,

PNG WATERBOARD

First Defendant

PNG WATERBOARD

Second Defendant

Madang: Cannings J

2008: 12 September, 24 October;

2009: 8 April

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 Commissioner of Police (2008) N3300

Kita Sapu v Commissioner of Police (2003) N2426

Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (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.

Counsel

B Tabai, for the plaintiffs

A Walne & P P Siminzi, for the defendants

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 Order 16, Rule 3(3) of the National Court Rules. Secondly, no notice of motion was filed under Order 16, Rule 5(1). Thirdly, no supporting affidavit was filed under Order 16, Rule 3(2)(b). Fourthly, there is no order on the court’s file showing that leave was granted.

7. These points may have had merit if they had been raised earlier. But they have been overtaken by events in 2008. Leave was granted by Salika J on 18 July. There is an endorsement on the court file to that effect. I set the matter down for trial at the callover on 1 September. The trial commenced on 12 September when the plaintiffs’ evidence was admitted. Mr Walne represented the defendants then, and the preliminary points were not raised. The second day of the trial was 24 October. That was when the preliminary points were first raised. That was far too late. They are procedural issues only. The defendants have not been prejudiced by any non-adherence to the Rules. For the avoidance of doubt, I exercise the discretion of the court under Order 1, Rule 7 of the National Court Rules to dispense with compliance with the requirements of the Rules referred to. To do otherwise would be unjust.

(1) THE GUILTY FINDINGS

(a) Were the charges laid under incorrect provisions of the disciplinary code?

8. The Waterboard disciplinary code prescribes different procedures according to whether the person being charged is a casual employee, a temporary employee, a permanent officer or a contract officer and whether the charge alleges a minor or a serious offence.

9. The plaintiffs were permanent officers. Minor offences by permanent officers are to be charged using a form 5 notice of charge and a form 6 notice of punishment. The punishment is a caution, reprimand or fine not exceeding K50.00. Serious offences by permanent officers are to be charged using a form 7 notice of charge and a form 8 notice of punishment. Serious offences attract a wider range of punishments, including a caution, reprimand, fine not exceeding K100.00, reduction in pay, demotion, transfer, suspension with or without pay and recommendation to the Managing Director for dismissal.

10. The plaintiffs were each served with a ‘Notice of Charge under Section 5.2.3 PNG Waterboard Rule No 2.5.6’, which also stated ‘Permanent Officers Form 5 Minor Offence’. It was the wrong form. Mr Siminzi, for the defendants, concedes that but submits that it was an oversight, a minor typographical error that should not render the entire disciplinary proceedings void.

11. I can accept that this was an oversight but to label it a minor typographical error is not warranted. It was confusing and misleading and intrinsically unfair. An officer receiving such a charge would reasonably believe that he was facing only a minor charge and that if found guilty, the maximum punishment would be a caution, a reprimand or a K50.00 fine. It was an error of law.

(b) Were irrelevant considerations taken into account?

12. Mr Tabai, for the plaintiffs, pointed out that in letters Mr Solok wrote to each plaintiff notifying that the charges were sustained and that their services were terminated, he took irrelevant considerations into account: factors that were not part of the charges, which the plaintiffs had no opportunity to respond to.

13. Mr Harou, the Branch Administration Officer, was found guilty of three charges. He committed a breach of ‘the Act’ (which was unspecified), was negligent and inefficient, in that he:

· failed to administer and organise purchase of materials to complete baffles;

· failed to administer and organise purchase of chemicals urgently required for water treatment resulting in lack of treated water in some areas of Madang, putting lives of customers at risk and affecting sales;

· failed to administer and effect registration of motor vehicles at Madang branch.

14. In his letter to Mr Harou advising that ‘Management has assessed your response to the...