N1152

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 277 OF 1991

KANDU BUSU
Plaintiff

-v-

POST & TELECOMMUNICATION CORPORATION
Defendant

Waigani: Brown J.
1993: 3 March

Order in the nature of Perogative writs - Certiorari - Termination of plaintiffs employment by proper officer of the Corporation - Whether action in terminating revivable.

Rules and Regulations - By-laws of Corporation providing for conduct and discipline of employees - breach of rules - disciplinary proceedings to be conducted according to the rules "of natural justice" - Whether by-laws affect the common law incidents of employment to give the aggrieved employee a right to review by way of certiorari.
PTC Staff By-laws Ss 24(2) (3) & (4).

The facts were that the plaintiff was dismissed for absenteeism. He sought orders in the nature of certiorari to review his dismissal alleging that the proper officer had not afforded him a right to be heard, and exhibited bias.

Originating Summons

Held: 

(i) 	The employment of the plaintiff by the Corporation is a simple one of employer/employee relations but affected by Statutory By-laws under the Corporations Act. The By-laws expressly provide for disciplinary proceedings to be held in accordance with the rules "of natural justice" and consequently the Court may, by this administrative law remedy review the actions of the appropriate authority of the Corporation terminating the plaintiff where he alleges that no right to be heard had been afforded him.

(ii) 	In the circumstances no grounds had been made out to interfere with the lawful dismissal.

(iii) 	the allegations of bias had no basis in fact.

Cases cited:

R v British Broadcasting Corp. ex parte Lavell (1983) All E.R. 250
P.N.G. v Kapal [1987] PNGLR 417
Iambakey Okuk v Fallscheer [1980] PNGLR 274
Ridge v Baldwin A.C. 40
Malloch v Aberdeen Corporation (1971) 2 All E.R. 1278 at p.1282-1283
Fallscheer v Iambakey Okuk [1980] PNGLR 101
Alloysius Eviaisa v Emmanuel Hela, Police Association of Papua New Guinea
Vidyodaya University of Ceylon v Sieva (1964) 3 All E.R. 865
Associated Picture Houses Limited v Wednesbury Corporation (1984) 1 K.B. 223
Nollinghamshire G.C. v Secretary of State for the Environment (1986) A.C. 240 @ 248

Mr S. Injia, appeared for the Plaintiff
Mr N. Mugarenang, appeared for the defendant Corporation

BROWN J.: This originating summons filed on the 4 December 1991 seeks an order in the nature of certiorari to quash the decision of the defendant Corporation terminating the plaintiffs services for disciplinary reasons. Leave was later given for review. The plaintiff also sought general and special damages for dismissal. Such a claim cannot stand with the originating summons as filed and on the 17 June last year I directed the plaintiff to proceed by way of statement of claim in the event of an apparent allegation of an unlawful dismissal and hence, claim for damages for breach of employment contract. The plaintiff has not seen fit to comply with that direction so that, although he handed up at the outset of the hearing today, a document headed Statement of Claim, it has been neither filed nor served.

I must disregard it and propose to deal with the originating summons as originally filed for that is the cause which the defendant Corporation has come to answer.

The defendant Corporation has argued that the relief sought by the plaintiff is not available for the disciplinary course adopted by the Corporation may be categorised as acts of a private or domestic tribunal. In those circumstances the act of dismissal is outside the scope of certiorari for the Corporation's authority is derived solely from the employment contract, and the remedy is inappropriate for breaches of the employment contract. Mr Mugarenang relied upon the authority of R -v- British Broadcasting Corp, ex parte Lavell (1983) 1 All E.R. 250, a decision of a single judge of the Queens Bench Division. That decision is not binding, of course on this court but its persuasive value may assist the Corporation if the ratio desidendi follows the underlying law at Independence as affected by decisions since.

I should say at the outset, I am satisfied that the plaintiff has pursued the available appeal provisions of the PTC Staff By-laws so that the question posed and answered in P.N.G. -v- Kapal [1987] PNGLR 417 does not arise. The appeal procedure has been utilised, and leave for judicial review granted.

Again the plaintiff takes no issue with the power in the Executive Manager Security and Investigation to issue validly terminate notices of the type used in his case, relying as he did on breaches of discipline detailed in PTC Staff By laws Sections 19(a)(c)(h) & (m). That notice was dated 2 April 1990 and was the basis for his application for review to the Reconsideration Committee.

The plaintiff's argument however is that he was denied natural justice in the event of his dismissal. His originating summons seeks a review of that Reconsideration Committees confirmation dated 18 May of the dismissal notice of the 2 April 1990. That Committee had been convened pursuant to s 24(2) of the By-laws. Its powers are set forth in subsections (3) & (4).

"(3) The committee so appointed shall met as soon as reasonably possible to consider the request for review and shall have the power to interview any persons, inspect any written material, and to do any other act, deed, matter or thing which it considers to be necessary or desirable in order to ensure that the principles of natural justice have been complied with in relation to the suspect.

(4) The committee may either confirm, reject or modify the decision under review but shall not increase the penalty imposed, and the decision of the committee shall be final".

In all proceedings the principles of natural justice are to apply by virtue of s 25. Before I deal with the substance of the application, I must first be satisfied the plaintiff is entitled to the relief sought, to have the review quashed with presumably a direction by this Court to reconsider the dismissal, taking particular notice of any failings in the Committee which failings have given rise to an order of certiorari.

Should this Court review this P.T.C. Review Committee's decision, a decision quite within its powers? Mr Mugarenang's submission has merit for the BBC case on which he relies follows a line of authorities including some which have been applied with approval in the Supreme Court.

In Iambakey Okuk -v- Fallscheer [1980] PNGLR 274 the Supreme Court applied Ridge -v- Baldwin (1964) A.C. 40 and Malloch -v- Aberdeen Corporation (1971) 2 All ER 1278 at p. 1282-1283 and approved the National Court decision in Fallscheer -v- Iambakey Okuk [1980] PNGLR 101.

In that last mentioned case Greville-Smith J in the Nation Court considered the rights of the General Manager of the National Airlines Commission to be heard in the event of his dismissal by the Minister on stated grounds of inefficiency. In that case Fallscheer was found by the trial judge to fall within boundaries delineated by Lord Reid in the "third" category of dismissal cases, namely dismissal from "an office" where there must be something against a man to warrant his dismissal. Lord Reid's "third" category was to be found in the House of Lords decision, Ridge -v- Baldwin (1964) A.C. 40 @ 65 where His Lordship said -

"So I shall deal first with cases of dismissal. These appear to fall into three classes, dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal. The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract."

In this case, however the plaintiff was employed as a security, and cannot be classified, as it were, in the "third category" but rather in the first, relating to "master and servant" qualified however by any particular incidents of employment to be found in the PTC By-laws. The By-laws do provide for a scheme of administration of disciplinary charges and give the servant or employee a right to natural justice in the course of that administration. Great case must be exercised by the Courts to identify in the terms of employment, a sufficient public character, or one in the nature of a "public office", where the ordinary incidents of master/servant relationship apply, for without that clear public character or office, the Courts should not interfere with the management of staff by way of an administrative law remedy. Firstly the distinction between an administrative law remedy, here certiorari, and damages in common law for breach of contract, must be appreciated.

Lord Reid, in Malloch -v- Alberdeen Corp. (1971) 2 All. E.R. 1278, (applied and approved by the Supreme Court in Falsheers case) expresses it thus @ 1282 -

"The first depends on submission that the status of teachers in Scotland is simply that of an ordinary servant. At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract."

Secondly has the incidents of this plaintiff's employment some public character which attracts the right to seek an administrative remedy.

On a first glance, a security-man for P.T.C. C. would not seem to be a position sufficiently outside the ordinary employer/employee categories, to attract such a remedy as certiorari. In other words, the plaintiff must rely on his common law right to sue for damages for the alleged breach of contract.

In OS 247/92 Aloysius Eviaisa -v- Emmanuel Hela, Police Association of Papua New Guinea, the plaintiff sought a declaration preventing the 1st respondent and the Police Association from terminating his appointment as President of the Association. In that case the Court refused the declaration, it was not satisfied that the controversy was subject to the Courts jurisdiction generally and also within the jurisdiction of the Court so far as private rules of the Association allowed. The principle relied upon was that a Court should not interfere with a Private Association or its activities or management unless a proprietary right is shown to be involved. No proprietary right was shown and consequently there was no basis for interference by declaratory order.

Vidyodaya University of Ceylon -v- Sieva (1964) 3 All E.R. 865 was an appeal from an order of the Supreme Court of Ceylon quashing, (on the respondent professors' petition for a writ of certiorari) an order made by the appellants, the Council of the Vidyodaya University of Ceylon terminating the respondent's appointment as professor and head of department. The appellants contended that in making the order they were acting in an administrative and not a judicial or quasi-judicial capacity, and therefore, that the remedy of certiorari was not open to the respondent professor, and that the appropriate remedy, if any, was an action for damages for wrongful dismissal, or alternatively proceedings before a labour tribunal. The Privy Counsel set aside the Supreme Courts order for certiorari on the ground that the relation was that of master and servant to which the remedy of certiorari had no application.

Sieva's case is difficult to reconcile with other decisions in England for it involves a denial of an administrative law remedy in a situation analogous to Malloch's case, for instance. In Malloch's case, Lord Reid was careful to categorise the teacher (hile an employee) as holding some kind of office sufficient to call into play the entitlement to the writ, or administrative remedy. Lord Wilberforce said @ 1294-1295 -

"The argument that, once it is shown that the relevant relationship is that of master and servant, this is sufficient to exclude the requirements of natural justice is often found, in one form or another, in reported cases. These are two reasons behind it. The first is that, in master and servant cases, one is normally in the field of the common law of contract inter partes, so that principles of administrative law, including those of natural justice, have no part to play. The second relates to the remedy: it is that in pure master and servant cases, the most that can be obtained is damages, if the dismissal is wrongful: no order for reinstatement can be made, so no room exits for such remedies as administrative law may grant, such as a declaration that the dismissal is void. I think there is validity in both of these arguments, but they, particularly the first, must be carefully used. It involves the risk of a compartmental approach which, although convenient as a solvent, may lead to narrower distinctions that are appropriate to the broader issues of administrative law. a comparative list of situations in which persons have been held entitled or not entitled to a hearing, or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizarre. A specialist surgeon is denied protection which is given to a hospital doctor; a university professor, as a servant, has been denied the right to be heard, a dock labourer and an undergraduate have been granted it; examples can be multiplied. [The Lord Wilberforce cited a number of cases] One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), these must be confined to what have been called "pure master and servant cases", which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter partes aspects the relationship may be called that of master and servant, there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void".

The plaintiff in the present case does have a number of regulations which affect his employment. He had been made a "permanent officer" of the Corporation. He was subject to the Corporation's By-laws, especially in relation to discipline, so relevant here. By s 25 of the principles of natural justice are to apply to disciplinary proceedings, so that here, the plaintiff, in spite of his relatively minor position, has the right to seek the order in nature of certiorari, a right impliedly recognised by the P.T.C. legislative rules.

Facts

He was in fact charged in writing on the 5 March 1990 with the breach of various particular By-laws, asked to provide written explanation and invited to attend an interview by the Manager, Security Operations on a nominated date. He was also advised of his right to have a union delegate (or other party approved by the M.S.O) present at the interview when representations and submissions may have been made on his behalf. The seriousness of the charges were illustrated by the warning contained in his notice of charge that the penalties provided for if the allegations were proven, included one of dismissal. This notice of charge followed a meeting organised by David Kowo, the P.T.C. manager, Security Investigation Branch, and Acting Manager, Security Operations. That meeting included two other security supervisors Michael Ove and Joseph Ombe. The plaintiff described that meeting. 

He said -

"when they saw me coming they stopped talking and look at me with a guilty look on their face. I asked them what they were talking about and David Kowo told me "You did not work so we are making a report on you". You do not know a thing. I am the father of Government". When he said his face swelled with arrogance and bids (sic). I departed feeling very depressed. I regarded him as a "big boss" who was capable of firing a security guard like me had (sic) already taken a bias approach towards me".

In his affidavit David Kowo said, of the meeting -

"Both Joseph Omba and Michael Ove turned up early for the meeting. While waiting for the complainant to turn up we had general discussions. When the complainant in the presence of all of us present at that time. It was never resolved as the complainant (Kandu Basu) was shouting and yelling at the top of his voice trying to justify his poor performance. I deny having made the statements that "you did not work so we are making a statement on you". You do not know a thing. I am the father of the Government." 

The complainant was well aware that there was this meeting and he never asked what this meeting was about when he came into my office on 1 March 1990. Because of the complainants behaviour during the meeting, the differences between them was not resolved at all. The meeting was cancelled and I arranged to see them individually later which I did".

Neither deponent was called before this Court, but on their affidavits, it is clear the meeting was acrimonious. It is also clear that it was called in relation to problems which had arisen over Kandu Busu's alleged absenteeism, and cross accusations made by Kandu Busu against his immediate supervisors concerning misuse of Corporations vehicles. In any event the alleged absenteeism formed the basis of the written notice of charge, dated 5 March 1990 setting out the date and times when the plaintiff was absent contrary to Clause 1 9(e) of the P.T.C. By-laws, together with other charges which were not particularised. The interview took place, according to the written record on the 13 March 1990 and commenced at 2.55pm. It was recorded in pidgin. Needless to say the plaintiff was present and was afforded opportunity to answer the charges and put submissions on his own behalf. The meeting was recorded and affords ample evidence of the exercise by the plaintiff of his right to be heard. I reproduce the introductory part of that record -

"(1) Kandu, do you know the reasons why you are brought to this office?

Ans: Its in regard to green forms, which has records of attendance and absentees to work.

(2) Kandu, like you stated. I have asked you to come here because of a letter I have here, contain the main reason which I sent to you on 5th day of this month. Are you clear?

Ans: Yes.

3. As to you reply in return, you stated that you have been asked a Representative from the union to come, but no one came. Is it true that I rang the union's office and also did Mr Karagu?

Ans: Yes.

4. Can I ask you questions, before one of them arrival, will that be ok?
Ans: Yes, its O.K."

That record formed part of the material considered by Mr David Kowo the Manager, Security Investigations Department who recommend the plaintiff's termination on the basis of the material in his disciplinary report of the 20 March 1990. The recommendations relate to the finding of absenteeism on the dates and times particularised in the notice of charge. I am satisfied on the evidence before the Manager, Security Investigations Department, that the finding of absenteeism was available to him. It is not a finding so irrational or unjustifiable as to warrant reconsideration.

I am further satisfied that the material considered by Mr L.J. Hollan, the Executive Manger on termination was material known and addressed by the plaintiff in his interview of the 13 March.

The plaintiff asserted that Mssrs Joseph Ombo Gigive and Michael Ove were motivated by malice and jealousy. There is no evidence of this, allegation rather the evidence is of numerous warnings given the plaintiff to improve his work record.

The assertion that Mr David Kowo exhibited bias towards the plaintiff relies on his supposed assertion that he was "cleaning up the Security Section". Further the plaintiff asserts that his repeated warnings to the plaintiff is evidence of Mr Kowo's intention to dismiss. I find that Mr Kowo's attitude may evince a wish to improve the efficiency of the section (by clamping down on absenteeism) but it does not show particular bias against this plaintiff nor in any way reflect on the right to be heard afforded this plaintiff in relation to his discipllinary charges. It was Mr Kowo's duty to administer the procedures laid down for disciplinary offences and in the light of all the reports, the interviews and documentary time sheets (using the terminology loosely) referred to by the various deponents, I am satisfied the administration has been carried out in accordance with his duty. No bad faith, mistake in construing the limits of his powers, procedural irregularity or unreasonableness in the Wednesbury sense has been shown (Associated Picture Houses Limited -v- Wednesbury Corporation (1948) 1 K.B. 223.

Lord Scarman put it thus in Nollinghamshire G.C. -v- Secretary of State for the Environment (1986) A.C. 240 @ 248 -

"My Lords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the 1977 Act. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, of if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action of inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review ... [It] is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case".

As I have shown there was a right to be heard given the plaintiff, he exercised that right. There is nothing exceptional in the administrative or procedural steps which would cause me to exercise my discretion to judicially review the decision to terminate.

Had there been no By-laws specifically dealing with disciplinary aspects and giving an aggrieved party the right to plead an alleged breach of natural justice, I am of the view the conditions of employment of an employee of this type even if governed by statutory rules as more of a matter for private, not public law and consequently not susceptible to this type of application.

I had previously directed that the proceedings proceed by way of statement of claim but that was not done. The evidence however does not support a claim for damages on dismissal for breach of the employment contract. Whilst these comments are obita, they are relevant, I feel, to avoid unnecessary litigation. I refuse the application for the order in the nature of certiorari for the reasons I have given. I dismiss the remainder of the plaintiff's application.

The defendant shall have its costs.

________________________________________

Lawyer for the Plaintiff: Shepherd Lawyers
Lawyer for the Defendant: Mugarenang