Joe Ponau v Teaching Service Commission Disciplinary Committee And The Independent State Of Papua New Guinea (2006) N3059

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 26 May 2006
• Citation: (2006) N3059
• Judgment Number: N3059
• Year: 2006
• Docket Number: OS NO 480 OF 2002

Full Title: OS NO 480 OF 2002; Joe Ponau v Teaching Service Commission Disciplinary Committee And The Independent State Of Papua New Guinea (2006) N3059

National Court: Cannings J

Judgment Delivered: 26 May 2006

N3059

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 480 OF 2002

JOE PONAU

Plaintiff

V

TEACHING SERVICE COMMISSION

DISCIPLINARY COMMITTEE

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Lae: Cannings J

2006: 8, 26 MAY

JUDGMENT

ADMINISTRATIVE LAW – judicial review of decision of Teaching Service Commission Disciplinary Committee to terminate employment of a teacher.

ADMINISTRATIVE LAW – need to follow statutory procedures when laying disciplinary charges – person laying charge and suspending an officer must be authorised by law to do so – duty to give relevant documents to decision-maker – Teaching Service Act 1988, Part VII (discipline).

ADMINISTRATIVE LAW– natural justice – duty to give reasons for administrative decisions – decisions made under disciplinary code affecting reputation and livelihood of a person.

JUDICIAL REVIEW – remedies – declaration of illegality – reinstatement – back-pay – damages.

The plaintiff was a teacher at Lae Technical College. He was a member of the Teaching Service. The Chairman of the Board of Directors of the College laid a disciplinary charge against him and suspended him. The plaintiff responded and his matter was subsequently dealt with by the National Education Board Disciplinary Committee, the National Education Board and the Teaching Service Commission Disciplinary Committee. He was found guilty of the charge, dismissed from the Teaching Service and deregistered as a teacher. He applied for judicial review on grounds that: the Chairman was not authorised by law to charge or suspend him and had failed to give relevant documents to the National Education Board Disciplinary Committee and other bodies failed to give reasons for their decisions; and the penalty of dismissal and deregistration was unreasonable.

Held:

(1) The Chairman was not authorised to charge or suspend a teacher and, having assumed the role of charging officer, failed to give the necessary documents to the National Education Board Disciplinary Committee. The first ground of review was upheld.

(2) Three (3) of the decision-makers involved in the plaintiff’s dismissal and deregistration failed to discharge their duty to give reasons for their decisions: the National Education Board Disciplinary Committee, the National Education Board and the Teaching Service Commission Disciplinary Committee. Thus they had no good reasons and their decisions were made in excess of jurisdiction and bad in law. (Mision Asiki v Manasupe Zurenuoc (2005) SC797 applied.) The second ground of review was upheld.

(3) On the presumption that the plaintiff had properly been found guilty, as charged, the penalty of dismissal and deregistration was not unreasonable in the Wednesbury sense. The third ground of review was dismissed.

(4) As two (2) grounds of review were upheld the matter was ripe for judicial review.

(5) Remedies in judicial review proceedings are at the discretion of the court and in the circumstances the court:

(a) declared that the decisions of the National Education Board Disciplinary Committee, the National Education Board and the Teaching Service Commission Disciplinary Committee finding the plaintiff guilty of a disciplinary offence and recommending or imposing his dismissal and deregistration are unlawful;

(b) ordered the plaintiff’s reinstatement and re-registration; and

(c) ordered that the plaintiff be paid back-pay to the date he was taken off the payroll.

Cases cited

The following cases are cited in the judgment:

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

Clement Kilepak v Ellison Kaivovo (2003) N2402

Gideon Barereba v Margaret Elias (2002) N2197

Graham Kevi v Teaching Service Commission Disciplinary Committee [1997] PNGLR 659

John Magaidimo v Commissioner of Police (2004) N2752

Michael Anis Winmarang v David Ericho and The State (2006) N3040

Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797

Morobe Provincial Government v Minister for Village Services (1994) N1215

Niggints v Tokam [1993] PNGLR 66

Ombudsman Commission v Peter Yama (2004) SC747

Paul Pora v Commissioner of Police (1997) N1569

Paul Saboko v Commissioner of Police and The State (2006) N2975

Peter Luga v Richard Sikani (2002) N2285

Abbreviations

The following abbreviations appear in the judgment:

CJ – Chief Justice

DCJ – Deputy Chief Justice

J – Justice

No – number

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

OS – originating summons

SC – Supreme Court references

JUDICIAL REVIEW

This was an action in which the plaintiff sought judicial review of his dismissal as a member of the Teaching Service.

Counsel

J Kais, for the plaintiff

No appearance for the defendants

INTRODUCTION

1. CANNINGS J: This is a judgment on an application for judicial review. The plaintiff was found guilty of sexually harassing female students at Lae Technical College, where he was a teacher. He was dismissed and deregistered. He claims that incorrect disciplinary procedures were followed and that the decisions to find him guilty and to dismiss and deregister him were unlawful. The main issue is whether the correct procedures were used. If they were not, what are the consequences? If mistakes were made, should the plaintiff be reinstated?

DEFENDANTS

2. The court documents describe the first defendant as “Teaching Services Commission Disciplinary Board”. That is clearly a mistake as there is no body of that name. The correct name is “Teaching Service Commission Disciplinary Committee”. That is the body that finally dismissed the plaintiff as a member of the Teaching Service. The judgment should bear the correct name. I am satisfied that the name of the first defendant can be changed without prejudice to anybody. I have therefore ordered the removal of the former and the addition of the latter under Order 5, Rules 8 and 9 of the National Court Rules.

BACKGROUND

3. The plaintiff, Joe Ponau, commenced his teaching career in 1983. He specialised in the field of metal fabrication and welding. He taught at Madang, Port Moresby, Mt Hagen and Arawa until 1997 when he was appointed Section Head, Metal Fabrication and Welding, at Lae Technical College. He held that position until his dismissal in 2002.

4. His dismissal related to three (3) sexual harassment incidents in late 2000 and early 2001. Complaints were made to the Secretary of the National Department of Education who dispatched two (2) officers from Port Moresby to investigate the complaints. Disciplinary charges were laid against the plaintiff. He responded. He was found guilty and recommended for dismissal. He appealed but his appeal was turned down and his dismissal was confirmed. All of those things happened in the period from May 2001 to April 2002. It is important to set out the train of events in that period in detail.

5. On 10 May 2001, the then Secretary for Education, Peter Baki, wrote to the Principal of Lae Technical College. He said he had received a complaint from a parent of a female student about the plaintiff’s conduct and he was sending an investigation team to inquire into the matter. The team had terms of reference which were, amongst other things, to ascertain whether the plaintiff had made sexual advances to the complainant or any other female students.

6. The investigation team came to the College in mid-May 2001 and interviewed the plaintiff and the complainant and other female students.

7. On 22 June 2001, the Chairman of the Board of Governors of Lae Technical College, Elliott Harding, charged the plaintiff with a serious disciplinary offence, alleging that he had sexually harassed three (3) female students. The charge stated:

“TAKE NOTICE that you are hereby charged for committing an offence within the meaning of Section 83(g) of the Teaching Service Act, namely that:

Charge:

Your conduct is disgraceful and improper in your official capacity or otherwise, so as to reflect on the teaching profession.

Facts:

1 That on Friday 4 May 2001, at Lae Technical College, you requested [Student No 1], a female 2nd Year Business Studies student, to see you in your office. Once she entered your office, you locked the door and showed her assessment marks to her. After that you requested her to give you a hug. She knew you were a close friend of her family and therefore she decided to give you a friendly hug. You in turn hugged her and held her tightly and on the third time you hugged her you kissed her. On the fourth hug, you tried to kiss her again but she managed to push you away form herself. You finally released her and unlocked the door for her and she left. Your unwelcome action amounts to sexual harassment of a female student and an abuse of trust placed on you as a teacher and thereby reflects on the teaching profession.

2 That in January 2001 at Lae Technical College, you met [Student No 2], a female 2nd Year Business Studies student at the college campus and requested her to talk to you in your office. Once she entered your office, you then locked the door and proceeded to talk to her about her assessments. You then requested her to hug you and when she did, you held on her tightly and you kissed her on her face and cheeks. She struggled to free herself and finally...