Paul Mond & 17 Others v Honk Kiap, Chairman, Staff Appeal Tribunal and Leslie Alu, City Manager and National Capital District Commission (2013) N5356

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 September 2013
• Court: National Court
• Citation: (2013) N5356
• Docket Number: OS (JR) NO 74 OF 2012
• Year: 2013
• Judgement Number: N5356

Full Title: OS (JR) NO 74 OF 2012; Paul Mond & 17 Others v Honk Kiap, Chairman, Staff Appeal Tribunal and Leslie Alu, City Manager and National Capital District Commission (2013) N5356

National Court: Cannings J

Judgment Delivered: 19 September 2013

N5356

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 74 OF 2012

PAUL MOND & 17 OTHERS

Plaintiffs

V

HONK KIAP, CHAIRMAN, STAFF APPEAL TRIBUNAL

First Defendant

LESLIE ALU, CITY MANAGER

Second Defendant

NATIONAL CAPITAL DISTRICT COMMISSION

Third Defendant

Waigani: Cannings J

2013: 24 April, 1 May, 19 September

JUDICIAL REVIEW – review of proceedings of statutory appeal tribunal – appeal against decisions of staff disciplinary committee for a governmental body – whether appellate tribunal bound to address appellants’ grounds of appeal – whether penalty of dismissal from employment was harsh or oppressive – whether any obligation to notify appellants of time limits for appealing – whether alleged innocence of employee is a proper ground of judicial review.

The plaintiffs applied for judicial review of the decision of a statutory appeal tribunal to reject their appeals against decisions of a disciplinary committee that they were guilty of disciplinary offences and were dismissed from their employment with the National Capital District Commission. There were four grounds of review: (a) that the tribunal failed to consider the grounds of appeal and in particular the ground that the plaintiffs were denied natural justice by the disciplinary committee; (b) that the penalty of dismissal was harsh and excessive; (c) that the tribunal’s decision was unreasonable, in particular because the tribunal regarded the appeals as being filed outside the time limit of two days, despite no one telling the plaintiffs that they only had two days in which to appeal; and (d) that the plaintiffs were innocent of the charges.

Held:

(1) An appellate tribunal is a creature of the law creating it, and its duties and functions are a product of its enabling law. However by the very nature of its being established as an appellate body such a tribunal will almost invariably be obliged as a matter of law to consider and determine the grounds of appeal that have been put before it.

(2) That an administrative decision was harsh or oppressive, or that a penalty was excessive, are not proper grounds of judicial review; unless such arguments are carefully framed under Section 41 of the Constitution.

(3) Unreasonableness ‘in the Wednesbury sense’ is a proper ground of judicial review, as it entails the notion that the decision maker has exceeded its jurisdiction by making a decision that was so absurd, irrational or otherwise unreasonable that no reasonable person or body in its position could have arrived at such a decision.

(4) That a person who has been found guilty of a disciplinary offence is innocent is not a proper ground of judicial review, as it is an argument concerning the merits rather than the lawfulness of the decision under review.

(5) In the present case grounds (a) and (c) of the review were upheld as the tribunal erred in law by failing without good reason to consider and determine the grounds of appeal which had in a logical and coherent way been placed before it and by making a decision that was unreasonable in all the circumstances, especially given that the appeals were dismissed because the plaintiffs had failed to appeal within two days (despite no one telling them that they should file an appeal in such a limited time frame).

(6) Grounds (b) and (d) were dismissed for being not proper grounds of judicial review.

(7) As two grounds of judicial review were upheld it became a matter of discretion as to the relief, if any, that should be granted. Reinstatement of the plaintiffs and back-dating of entitlements was an option but that relief was so strongly opposed by the defendants as to make it inefficacious and unworkable. Damages, though not expressly sought, would be a more effective and appropriate remedy. The Court awarded K10,000.00 damages to each of the plaintiffs.

Cases cited

The following cases are cited in the judgment:

Anthony John Polling v MVIT [1986] PNGLR 228

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

Bau Waulas v Veronica Jigede (2009) N3781

Dale Christopher Smith v Minister for Lands (2009) SC973

Dopsie v Tetaga & Apeng (2009) N3722

Hanjung Power Ltd v Dr Allan Marat, Attorney-General (2009) N3751

Henry Wavik v Martin Balthasar (2013) N5272

Jomino Holee v Sem Vegeo (2013) N5101

Kely Kerua v Council Appeal Committee (2004) N2534

Lawrence Sausau v Joseph Kumgal (2006) N3253

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Niugini Mining Limited v Joe Bumbandy (2005) SC804

Ombudsman Commission v Peter Yama (2004) SC747

Paul Saboko v Commissioner of Police (2006) N2975

Peter Kama v Council Appeal Committee (2010) N3829

JUDICIAL REVIEW

This was a review of the decision of a statutory appeal tribunal to reject the appeals of former employees of a governmental body against the decision to terminate their employment for disciplinary reasons.

Counsel

G Anis, for the plaintiffs

N Kopunye, for the defendants

19th September, 2013

1. CANNINGS J: The plaintiffs, Paul Mond and 17 others, are former employees of the National Capital District Commission (NCDC). They were security personnel in the NCDC’s “Hotine” Security Division. They were dismissed from employment en masse in early 2010 after being found guilty by the NCDC Staff Disciplinary Committee of disciplinary offences committed by reason of their involvement in a series of incidents outside City Hall in November 2009. The Committee found that they were part of an unruly mob of 40 Hotline personnel who, being aggrieved about unpaid shift allowances, engaged in civil unrest including threats of violence against senior NCDC officers. They appealed to the NCDC Staff Appeal Tribunal against the decisions of the Disciplinary Committee but their appeals were rejected.

2. They were granted leave by the National Court to review the decisions of the Appeal Tribunal. A trial has been conducted and this is the Court’s ruling on the application for judicial review of the decisions of the Appeal Tribunal. The plaintiffs argue four grounds of review:

(a) that the Tribunal failed to consider the grounds of appeal and in particular the ground that they were denied natural justice by the Disciplinary Committee;

(b) that the penalty of dismissal was harsh and excessive;

(c) that the Tribunal’s decision was unreasonable, in particular because the tribunal regarded the appeals as being filed outside the time limit of two days, despite no one telling them that they only had two days in which to appeal; and

(d) that they were innocent of the charges.

GROUND (a): TRIBUNAL FAILED TO CONSIDER GROUNDS OF APPEAL

3. The plaintiffs argue that the Tribunal failed to consider the grounds of appeal and in particular the ground that they were denied natural justice by the Disciplinary Committee. For the purposes of determination of this ground of review I make the following findings of fact:

· The incidents outside City Hall that led to the plaintiffs being suspended and charged occurred in November 2009.

· The plaintiffs were suspended and charged on two occasions, first on 18 November 2009 by the NCD Governor, Hon Powes Parkop MP, secondly on 30 November 2009 by the City Manager, Mr Bernard Alu.

· The plaintiffs responded to the charges on 3 December 2009. They claimed that they were not involved in the incidents. Some said that they were not even present.

· The Disciplinary Committee deliberated on most of the plaintiffs’ cases at a meeting on 13 February 2010 and the remaining cases at a meeting on 24 May 2010. Both were closed meetings: the plaintiffs were not invited to attend. The Disciplinary Committee relevantly decided that:

After much deliberation on the matter, Chairman reiterates that almost every Hotline personnel was involved one way or another because this issue relates directly to their shift allowance and that they would do anything and everything under the sun to get what they want as it was publicly demonstrated on that Tuesday morning, 10 November 2009. The Committee also noted that the response made was not directly related to the charges that was being laid against him under the NCDC Staff Disciplinary Code. Therefore on the grounds of non-reply to the charges he is deemed to have admitted the truth to the charges …

Resolution …:

That [the plaintiff] has not directly replied to the four (4) charges as per the Staff Disciplinary Code instead has photocopied and attached the response made to the Governor’s notice of suspension which is not consistent with the charges as laid against him by the City Manager.

That [the plaintiff] be terminated from employment due to non-response within the seven (7)...