Lelesi Aiyango v Honk Kiap—The Chairman National Capital, District Commission, Staff Appeals Tribunal and Leslie Alu, The Manager, National Capital District Commission and National Capital District Commission and The Independent State of Papua New Guinea (2012) N4651

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 30 March 2012
• Court: National Court
• Citation: (2012) N4651
• Docket Number: OS No. 893 of 2010
• Year: 2012
• Judgement Number: N4651

Full Title: OS No. 893 of 2010; Lelesi Aiyango v Honk Kiap—The Chairman National Capital, District Commission, Staff Appeals Tribunal and Leslie Alu, The Manager, National Capital District Commission and National Capital District Commission and The Independent State of Papua New Guinea (2012) N4651

National Court: Gavara-Nanu J

Judgment Delivered: 30 March 2012

N4651

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No. 893 of 2010

BETWEEN:

LELESI AIYANGO

Plaintiff

AND:

HONK KIAP – THE CHAIRMAN

NATIONAL CAPITAL DISTRICT COMMISSION

STAFF APPEALS TRIBUNAL

First Defendant

AND:

LESLIE ALU, THE MANAGER,

NATIONAL CAPITAL DISTRICT COMMISSION

Second Defendant

AND:

NATIONAL CAPITAL DISTRICT COMMISSION

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Gavara-Nanu J.

2011: 19& 21 October

2012: 30 March

JUDICIAL REVIEW – Plaintiff not charged with any disciplinary offence – No formal termination – Purported termination unlawful – Plaintiff’s appeal against purported termination not heard for over nine years – Plaintiff’s appeal dismissed on irrelevant grounds – Plaintiff out of employment for over twelve years. Plaintiff not given an opportunity to be heard on her appeal.

JUDICIAL REVIEW – Plaintiff to be reinstated to her former substantive position or to an equivalent position – Issues of good administration within the employer considered – National Court Rules, Order 16 r 4 (1) and (2) – Plaintiff’s lost salaries and entitlements to be reimbursed – Such reimbursements to be for period equal to seven years.

PRACTICE & PROCEDURE – Costs – Employer dragging the plaintiff to Court – Plaintiff incurring unnecessary costs – All of employer’s defences are a sham – Plaintiff’s costs to be paid on a Solicitor and Client basis.

Cases cited:

Benny Daniel v. Walter Kapty (2011) N4361

Comcord Pacific Ltd v. Thomas New [2000] PNGLR 47.

Don Pomb Pulie Poyle v. Jimson Sauk Papaki [2000] PNGLR 166

Gideon Barereba v. Margeret Elias (2002) N2197

Gulf Provincial Government v. Baimuru Trading Pty Ltd [1998] PNGLR 311

Jeffrey Afojah v. The Police Commissioner (2008) N3300

John Magaidimo v. Commissioner of Police (2004) N2752

Mission Asiki v. Manasupe Zurenuoc (2005) SC797

Paul Saboko v. Commission of Police (2006 N2975

Peter Bon v. Mark Nakgai and Others – N3023

Tau Gumu v. PNGBC (2002) N2251

Salvation Army (PNG) Property Trust v. Jorgen and Rex Vagi N1644

Counsel:

K. Kepo, for the plaintiff

L. Kila, for the defendants

30 March, 2012

1. GAVARA-NANU J: This is an application by the plaintiff for the review of the decision made by the first defendant on 18 March, 2010, to uphold the decision purportedly made by the second defendant to terminate the plaintiff from her permanent position as Administration Clerk Grade 4 within the third defendant in early 2001.

2. According to the Agreed and Disputed Facts, following facts are not in dispute and the Court accepts them as common grounds:-

(i) The plaintiff was made permanent to the above mentioned position by a letter of appointment dated 18 August, 2000, and the appointment was made effective from 2 February, 2000. The plaintiff’s position was No. 055662.

(ii) The plaintiff appealed against her purported termination to the City Manager by a letter dated 21 May, 2001. Her main ground of appeal was that, her termination was unlawful.

(iii) On 23 April, 2008, the plaintiff filed claims for damages against the defendants in WS proceedings 428 of 2008. That proceeding was struck out by the Court for the failure by the plaintiff to give notice to the State of her claims as required under s. 5 of the Claims By and Against State Act, 1996 (CBAS Act).

(iv) On 19 March, 2010, the National Capital District Commission (NCDC) appeals tribunal dismissed the plaintiff’s appeal on the basis that the plaintiff’s claim for damages against the defendants in WS 428 of 2008, had been struck out by the Court for failure by the plaintiff to comply with s. 5 of CBAS Act. In other words, the dismissal of plaintiff’s appeal was made purely on the grounds that the plaintiff failed to give s. 5 of CBAS Act, notice to the State in WS 428 of 2008, and that those proceedings had been struck out. The effect of this is that the parties have agreed that the plaintiff’s appeal against her termination was not dismissed on its merits.

3. The plaintiff is seeking orders in the nature of certiorari to quash the decision of the first defendant to uphold her purported termination by the second defendant. She is also seeking orders in the nature of mandamus to order the defendants to pay her lost salaries and entitlements from the date she was taken off the NCDC payroll to the date of the judgment and that, she be reinstated to her substantive position.

4. The parties have tendered affidavits at the hearing, two by the plaintiff and one by the defendants. These affidavits are marked as Exhibits A, B and C. These affidavits are same as those already included in the Review Book.

5. There is evidence that the permanent appointment of the plaintiff to the position of Administration Clerk Grade 4 within the NCDC staff structure was made after a full performance appraisal of the plaintiff by the relevant authorities in the NCDC. The plaintiff’s performance appraisal is Annexure ‘A’ to plaintiff’s affidavit in reply sworn on 9 May, 2011. According to this appraisal, the plaintiff’s ratings were either ‘A’ or ‘B’ which equaled ‘outstanding’ or ‘very good’.

6. There is no evidence from the defendants either disputing or denying that no disciplinary charges were laid against the plaintiff before her purported termination. In other words, there is no dispute that the plaintiff was not charged with any disciplinary offence or offences before her purported termination. The plaintiff still does not know why she was terminated, and she was not heard at all by the NCDC staff appeals tribunal on her appeal.

7. In regard to her purported termination, it is noted that the plaintiff was verbally informed by her work colleagues that she had been terminated from her work, this happened after she returned from her approved recreational leave. When she inquired about the reasons for her termination and asked for copies of any disciplinary charges that had been laid against her, there were no responses by the defendants. She inquired with the City Manager in writing about the reasons for her purported termination but she did not receive any response to her letter from the City Manager. According to plaintiff’s evidence, when she inquired with the Legal Division of the NCDC about the reasons of her termination, she was told that her termination was illegal. This evidence has not been disputed or denied by the defendants.

8. It is noted that, in an inter-office memo to the Senior Employee Relations Officer of the NCDC dated 27 August, 2001, the Career Planning Development Officer with the NCDC, Mr Myron Mulungu, recommended that the plaintiff be reinstated because her termination was illegal. Mr Mulungu also pointed out in the memo that the plaintiff was a good worker and proper procedures were not followed by the defendants before her purported termination. That inter-memo was apparently written after Mr Mulungu had discussed plaintiff’s termination with the Senior Employee Relations Officer of NCDC and after the latter had asked Mulungu for a detail briefing on plaintiff’s purported termination. There was no response to that memo by the defendants.

9. According to plaintiff’s affidavit evidence, the NCDC appeals tribunal was supposed to have heard her appeal on 22 February, 2002, but after convening to hear the plaintiff’s appeal, the tribunal was not able to hear the plaintiff’s appeal because the documents needed for the hearing which included plaintiff’s employment status, charges laid against her if any, and termination notice if any, were not made available to the tribunal. The tribunal did not reconvene any time after that to hear the plaintiff’s appeal. As a result, the plaintiff sought assistance from the Public Employees Association Legal Division.

10. The defendants have affirmed through the affidavit of Mrs Lari Kila of counsel for the defendants sworn on 2 May, 2011, that the plaintiff’s appeal was not heard on its merits, it was dismissed on the basis that the plaintiff’s claim for damages against the defendants in WS 428 of 2008 proceedings were struck out for the failure by the plaintiff to give the relevant notice to the State under s. 5 of the CBAS Act.

11. At the hearing, the plaintiff gave evidence, her evidence was consistent with her affidavit evidence.

12. The defence called one witness; namely Paul Wiwi, this witness’s evidence did not in any way contradict the plaintiff’s evidence, he in fact corroborated the plaintiff’s evidence, including the evidence that although the NCDC appeals tribunal convened on 22 February, 2002, to hear her appeal, the tribunal did not hear the appeal because the relevant documents for the tribunal to hear the appeal were not made available to the tribunal. The only communication from the NCDC to...