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Barereba v Elias, Secretary, Department of Industrial Relations [2001] PGNC 21; N2197 (15 February 2001)

N2197

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 400 OF 1997

BETWEEN

GIDEON BAREREBA

Plaintiff

AND

MARGARET ELIAS
SECRETARY, DEPARTMENT OF INDUSTRIAL RELATIONS

First Defendant

AND

P. S. TSIAMALILI
SECRETARY, DEPARTMENT OF PERSONNEL MANAGEMENT

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Sevua, J

2001: 17th October
&
2001: 15th February

JUDICIAL REVIEW – Dismissal from Public Service – Error of law and breach of natural justice – Judicial review lie.

MASTER AND SERVANT – Wrongful dismissal whether remedy is reinstatement or damages – Measure of damages – Open ended contract – Plaintiff not entitled to damages over the period from dismissal to trial.

DAMAGES – Discretion – Period of notice in Employment Act as guideline.

Cases cited:
Kekedo v. Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122.
Robinson v. National Airline Commission [1993] PNGLR 476.
Christopher Appa v. Peter Wama & Ors [1992] PNGLR 395.
Rooney v. Forest Industries Council & Anor [1990] PNGLR 407.
Felix T. Ramram v. National Broadcasting Commission & Ors, N1110, 16th November 1970, unreported.
Wata Potenge v. Bosky Tony & Ors, (OS37 of 1999) unnumbered & unreported, 9th June 2000.

Counsel:
A. Manu for Plaintiff
J. Palek for Defendants

15th February 2002

SEVUA, J: This is an application by the plaintiff seeking judicial review of the decision of the former Secretary for Labour and Employment, the predecessor of the first defendant, in terminating the plaintiff from the Public Service on 19th August 1987, a decision in which the first defendant and her immediate predecessor had refused to alter following recommendations from the Public Service Commission.

The plaintiff had been a public servant for twenty four years at the time of his dismissal. He joined the department of Labour and Employment on 3rd March 1963 as a Temporary Officer and on 19th June 1964, was appointed a Permanent Officer of the Public Service serving in that Department. For ten years, he occupied the position of Provincial Labour Officer (Position No. FS7). While serving in that capacity in Oro Province, he was seconded to the Ministry of Defence on 2nd September 1986. The arrangement for the secondment was confirmed in writing to then Secretary for Labour and Employment, Dame Rose Kekedo on 15th July 1986.

Whilst the plaintiff was serving the Minister for Defence in the Ministry of Defence at Murray Barracks, he was charged with ten (10) disciplinary offences pursuant to s.45 of the Public Services (Management) Act 1986. These charges were laid on 28th May 1987. Although there are suggestions that a Joe Giwar had served the charges on the plaintiff, he (plaintiff) maintained that he was not served therefore did not respond to them until his dismissal on 19th August 1987.

The plaintiff then appealed to the Public Service Commission on 1st September 1988. Following a preliminary review of the plaintiff’s case, the Public Service Commission, through the second defendant, wrote to the first defendant recommending the plaintiff’s reinstatement on the grounds that the charges were defective, and the disciplinary actions taken were invalid.

On 3rd January 1994, the first defendant rejected the second defendant’s recommendations on the basis that there was "fraud, dishonesty, negligence and conspiracy and conflict of interest." The other reasons for her rejection of the Public Service Commission’s recommendation outright was that, there was "no money to pay him as well as no position for him to fill."

The Public Service Commission thereafter commenced a full investigation and review of the plaintiff’s case. On 10th March 1997, the Chairman of Public Service Commission wrote to the first defendant recommending the reinstatement of the plaintiff to his substantive position of Provincial Labour Officer and payment of all lost salaries and other entitlements retrospective to the date of dismissal. On 17th March 1997, the plaintiff wrote to the first defendant inquiring about the recommendations of the Public Service Commission. He wrote again on 17th April 1997, as he had received no reply. He was subsequently advised that the first defendant had rejected the recommendations of the Public Service Commission in a letter dated 28th May 1997. The plaintiff consequently instituted these proceedings wherein he obtained leave on 13th October 1997.

Perhaps at this juncture, I should allude to the defendant’s failure in filing affidavit evidence. Despite the Court’s direction that parties file and serve affidavits by 24th October 2001, the defendants did not comply. There is therefore no evidence at all by the defendants showing the basis for the plaintiff’s dismissal. In any event, the first defendant’s letter of 28th May 1997 to the Public Service Commission, which is annexure "K" to the affidavit of the plaintiff sworn on 19th September 1997, clearly shows that the Department did not have any evidence. The first defendant said in numbered paragraph 4 of her letter, "That the Department feels that Mr Barereba was fairly dismissed despite the absence of the Department evidences" (sic).

There is also annexure "L" to the plaintiff’s application, which is a statutory declaration declared at Popondetta on 11th March 1991, by one Bradley Aiga, who admitted he was the Labour Officer responsible for payment of workers compensation to clients, which payments formed the basis of the charges against the plaintiff. The Statutory Declaration states the following:

"....this is the second time for me to make this declaration on the same matter.

I therefore do declare and admit that it was my failure in not forwarding the receipts of Workers Compensation payments to Labour Headquarters for which MR GIDEON BAREREBA was charged and punished for. I did not understand why the matter was not referred to me as I knew all the twelve (12) clients concerned and infact I was the one who did the payment.

I then wrote to MR BAREREBA and gave him my sincere apologie, (sic) a copy of which to my knowledge MR BAREREBA did forward to Labour Headquarters."

The declaration was signed and made at Popondetta on 11th March 1991.

Despite the defendants having been given the opportunity to file affidavits in response to those of the plaintiff, they failed to avail themselves of that opportunity. Perhaps because, as Ms Elias said, "absence of the Department evidences". If there was no evidence against the plaintiff, why was he dismissed in the first place? I consider that from the facts and evidence before me, I am entitled to conclude that the dismissal was wrongful, and that there was no basis for it in law.

But more so, the Court is concerned with the apparent breach of natural justice that has occurred in this case. The plaintiff said in his affidavit sworn on 19th September 1987 that he was not served with the charges, he did not see them and he had no opportunity to reply to the charges until he was served with the notice of punishment on 19th August 1987. The punishment was dismissal from the Public Service.

The defendants had had more than ample time to respond to the plaintiff’s evidence. They chose not to respond, even when given a second opportunity on 17th October 2001, the defendants failed again. As a result of that failure, I am entitled to conclude that the defendant had no evidence to refute or dispute the plaintiff’s evidence that he was not served with the ten charges. I therefore conclude that the charges were not served on the defendant as required by law.

Section 47 of the Public Service (Management) Act 1986 sets out the requirements to serve a charge and for a reply to be made to the charge. The fact that a charge is to be served is to ensure that a person affected by the charge is given an opportunity to be heard. In my view, these requirements are to ensure that the principles of natural justice are observed. I consider that the requirements mean that the rules of natural justice apply to the disciplinary process in the Public Service.

It is trite law that error on the face of the record, and failure to comply with the rules of natural justice are two of the grounds which judicial review will lie.

I accept the evidence of the plaintiff that he was not served with the ten charges therefore he did not have the opportunity to reply. Service of the charge, which is a mandatory requirement, and the opportunity to reply are requirements of s.47 (4) of the Act. On the basis of the finding that the plaintiff was not served and not given an opportunity to reply, I find that there was error of law.

The fact that he was not served, and did not get an opportunity to be heard, but was dismissed, amounted to a breach of the rules of natural justice.

The relevant principles of judicial review were established in Kekedo v. Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122. As I have found that the first defendant committed an error of law and committed a breach of natural justice, the procedures involved in terminating the plaintiff was therefore irregular and wrongful.

The plaintiff’s counsel submitted that the plaintiff should be reinstated, however, that is contrary to established principles of law. I consider that the plaintiff’s remedy is in damages. And as I have found that he was unlawfully terminated, he is entitled to damages for pecuniary losses. The plaintiff could not be reinstated and I adopt Andrew, J’s statement in Robinson v. National Airline Commission [1993] PNGLR 476 at 478:

"It is true that the rights of the plaintiff lie at law by way of an action for wrongful dismissal, assuming the dismissal to be unlawful. In a suit between master and servant in which the servant seeks to prevent the master suspending or dismissing him, the court will not interfere. If it is a suit for a declaration that the service continues, again in the case of an ordinary relationship of master and servant, the court will not interfere. Equity will not compel either master or servant to continue a personal relationship which has become noxious to either one of them: See Howes v. Gosford Shire Council [1962] NSWR 58."

Woods, J adopted those principles in Christopher Appa v. Peter Wama & Ors [1992] PNGLR 395. I have no reason to depart from those principles, and I will apply them in this case. Therefore, on the claim for reinstatement, the plaintiff cannot be reinstated to his former position. His remedy is in damages for wrongful dismissal.

Both counsel have submitted two opposing views on the question of damages. And since the plaintiff claims damages in his originating summons, I consider that his damages should be assessed as both counsel have addressed the issue.

The plaintiff is not entitled to damages for fourteen years as submitted by his counsel. This is an open ended contract, not a fixed term contract so that he could be entitled to salary and other benefits for the balance of his contract. The relevant principles are discussed in Rooney v. Forest Industries Council & Anor [1990] PNGLR 407; and Felix T. Ramram v. National Broadcasting Commission & Ors, N1110, unreported, 16th November 1970. These cases are different and represent opposing views on damages for wrongful dismissal. In Rooney, one is entitled to damages and other benefits for the balance of the contract where the contract is for a fixed term. In the latter case, Doherty, J held that –

"There is no automatic right to continuous employment or damages for early termination in contracts of employment that are not for a fixed term."

I agree with that view. I do not agree with the plaintiff’s counsel’s view that the plaintiff is entitled to damages from the date of his dismissal to December 2001. If I were to permit that, I would be sanctioning a meal ticket for life and a free ride for life for the plaintiff, and for other litigants in the same boat:

I consider that the proper approach to assessing damages in this case is that taken by Doherty, J in Ramram’s case. There, the Court adopted the statutory guide of four weeks notice in the Employment Act, Chapter 379, as a guideline to assess damages. Her Honour considered that period of notice together with a claim for damages for eight years and used her discretion to assess the equivalent of three months wages at the value payable to the plaintiff at the time of his dismissal, and Her Honour concluded that to be reasonable, given the plaintiff’s period of employment. I am of the view that that is a sensible and fair approach especially in the Public Service type open-ended contract.

Los, J in Wata Potenge v. Bosky Tony & Ors, (OS307 of 1999) unnumbered and unreported, 9th June 2000, considered that the plaintiff’s damages should run for a period of one year from the date of dismissal. The defendant’s counsel in the present case has submitted that I should follow that decision. Having read that judgment, I agree with some of the views expressed by His Honour, however, I do not necessarily agree that the period for claiming damages should be limited to twelve months as he held.

I agree that the claim for damages in a dismissal case from the date of dismissal to trial depends on many factors as Los, J has adverted to. However, I do not agree that a hard and fast rule on a cut off period for claiming damages should be judicially pronounced. Each case is different and the Court should be at liberty to exercise its discretion in determining what period is appropriate and should be the limit in awarding damages for unlawful dismissal.

In that case, His Honour decided that twelve months should be the limit. In Felix Ramram, Doherty, J, using the four weeks notice under the Employment Act as a guide, decided that the plaintiff was entitled to three months wages. I prefer Her Honour’s approach. I am of the view that the total period of employment prior to termination is a relevant factor in assessing damages. In that case, Doherty, J, concluded that the plaintiff had been employed for eleven years prior to dismissal, but had claimed eight years salary’s in damages.

In the present case, the plaintiff had been employed for twenty four years. He claims loss of salary for fourteen years. He was dismissed on 7th September 1987. His appeal process through the Public Service Commission machinery took almost ten years before the final reply from the defendants. Initially, the plaintiff took almost a year before he appealed. It seems obvious that the delay in finalizing this matter was caused by the Public Service Commission and the first defendant.

In considering whether a three months wages or a twelve months salary should be accepted, I think I will look at the period of employment which is twenty four years, and in my view, a period of three months or twelve months would be quite unreasonable as the plaintiff had served for twenty four years before being dismissed wrongfully.

Applying the approach taken by Doherty, J in Ramram, I am of the view that a reasonable period in which the plaintiff ought to be compensated for his wrongful dismissal should be more than twelve months. I therefore determine that the plaintiffs damages should be assessed on the equivalent of five years, from the date of dismissal.

I order that the plaintiff files a statement of claim, affidavit evidence, and written submissions in respect of damages on the basis of my determination within 7 days. The plaintiff should also provide evidence of other benefits he claims in his pleadings. The defendants will then respond and the matter will be fixed for assessment of damages.

I therefore enter judgment for the plaintiff on liability with damages to be assessed.
_______________________________________________________________________
Lawyer for Plaintiff : Manu & Associates
Lawyer for Defendants : Solicitor General