N4422

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 551 OF 2010

BETWEEN:

GARRY MASO PAYA
Plaintiff

AND:

RONALD SILOVO, SECRETARY FOR THE NATIONAL JUDICIAL STAFF SERVICES
First Defendant

AND:

NATIONAL JUDICIAL STAFF SERVICES
Second Defendant

AND:

THE JUDICIAL COUNCIL
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Thompson, AJ
2011: 12 October
18 October

JUDICIAL REVIEW - Plaintiff employed under Contract and NJSS Act – sought review of third Defendant's decision to terminate- first Defendant purported to terminate when only had power to recommend termination to third Defendant -   no procedural breaches pleaded against third Defendant - decision of third Defendant not affected by any procedural breaches of first Defendant - no loss suffered by Plaintiff due to termination – review refused.

Cases Cited:

Mao Zeming v The State (2006) N2998)
Sausau v. PNG Harbours Board (2006) N3253) 
Tau Kamuta v. Sode (2006) N3067

 Counsel:

Mr. Z. Gelu, for the Plaintiff 
Mr. E. Geita, for the State
 
DECISION
18 October, 2011

1. THOMPSON AJ: On 22 August 2006 the Plaintiff entered into a Performance Based Contract of Employment with the first and second Defendants ("the Contract"). The Contract provided that it was for a period of three years subject to the termination provisions in the NJSS Act and the Contract, and was effective from 13 June 2006.

2. The Contract was made subject to the provisions of the NJSS Act & Regulations on the Terms & Conditions of Employment, and required the Plaintiff to comply with the law, the NJSS Act, the Contract, the Code of Business Ethics & Conduct of the NJSS, and the NJSS Regulations on Terms and Conditions of Employment, Rules, Regulations & Codes of Conduct issued by the Secretary from time to time. 

3. On 9 May 2007, the Plaintiff made a written request for three months leave without pay from 25 May 2007, without giving any reasons. The first and second Defendants saw some election posters circulated by the Plaintiff. On 16 May 2007, they sent a memo to the plaintiff in response, refusing his application for leave. The written memo set out the first Defendant's belief that the Plaintiff was standing for the elections, and said that if this was the case, he would be in breach of government and NJSS policy by which public servants who wish to stand for elections must resign six months before the writs are returned. The first Defendant asked the Plaintiff to confirm whether or not he was standing for election, and said that if he did not receive a response by 25 May, he would assume that the Plaintiff was standing for election, and would terminate his employment. 

4. No response was received, the Plaintiff left work, and was removed from the payroll at the end of May 2007.

5. The Plaintiff did not return to work, and he did not receive a salary. Nothing further occurred until after the elections had concluded. The Plaintiff's candidacy was unsuccessful, and on 30 July 2007 he wrote to the first and second Defendants requesting that he be reinstated to the payroll. On 3rd August 2007, the first and & second Defendants responded in writing by advising that he had failed to comply with the policies relating to public servants and the elections and that as a result, his services were terminated with immediate effect. He was asked to repay the monies which were owing to the second Defendant for earlier advances.

6. The Plaintiff asked the first and second Defendants to review their decision. On 28 August 2007 they responded by confirming that their decision remained unchanged, and again requested repayment of the outstanding monies. Nothing further occurred. 

7. On 30 March 2009 the Plaintiff gave notice to the fourth Defendant of his intention to issue legal proceedings. On 15 May 2009 the fourth Defendant responded by advising the Plaintiff that he could not proceed by way of judicial review until he had exhausted his available remedies which included an appeal to the NJSS Appeals Tribunal. 

8. On 10 June 2009 the Plaintiff lodged an appeal to the Appeals Tribunal. 

9. If he had not been terminated, the Plaintiff's employment under the contract would have then expired on 13 June 2009. 

10. On 22nd June 2010, the Plaintiff was notified by the first and second Defendants that the third Defendant had considered the Plaintiff's appeal on 21 June 2010, but had decided to confirm the Plaintiff's termination. On 23 September 2010, the fourth Defendant confirmed the decisions and accepted the minutes of the meeting of 21 June 2010. The Plaintiff then issued these proceedings on 30 September 2010.

11. The Plaintiff was given leave to proceed by way of judicial review against the third Defendant's decision of 21 June 2010 to reject his appeal and confirm his termination. Essentially, the Plaintiff submits that the third Defendant's decision was "tainted and void" because it was based on the first Defendant's decision which had been made in non-compliance with the contractual and statutory requirements.

THE LAW

12. Broadly speaking, both the Contract and the NJSS Act give the first Defendant the power to terminate an employee in accordance with various procedures. 

13. Clause 5(b) of Schedule 3 of the Contract provides that employment shall be terminated by the first Defendant in accordance with a decision of the third Defendant pursuant to clause 1(c) for cause, with or without three months notice or pay in lieu as determined by the first Defendant. Clause 1(c) says that subject to the provisions of the Act relating to termination by the third Defendant, the grounds on which the first Defendant may terminate the Contract include for cause as a result of breach of contract, as determined by the first Defendant. 

14. Clauses 9 and 10 of the Contract provide that, subject to the provisions of the Act governing discipline in the NJSS, then pursuant to termination under clause 1(c), the first Defendant shall invoke the disciplinary procedure set out in clauses 14-17.

15. Both the Contract and the Act provide disciplinary procedures whereby notice is to be given to the employee, he is given an opportunity to respond, the first Defendant can then make a decision to recommend termination to the third Defendant, who can accept or reject that recommendation. The employee can appeal the first Defendant's recommendation to the Appeals Tribunal, within fourteen days. The Tribunal makes its recommendation to the third Defendant, who again can accept or reject it. It is then the first Defendant who implements the third Defendant's decision to terminate. 

16. There is no doubt that the first Defendant did not exactly follow the procedures. He purported to terminate the Plaintiff at a time when he only had the power to recommend termination to the third Defendant. The Plaintiff therefore had grounds for making an appeal to the Tribunal within fourteen days.

17. The Plaintiff did not in fact exercise his right of appeal until two years later, at about the same time as the expiry of his contract. His explanation for the delay was that in October 2007 he applied for the first Defendant's job. That does not explain his failure to lodge an appeal in August 2007. 

18. The procedure prescribed by both the Contract and the Act, was that the first Defendant could recommend termination to the third Defendant. If the employee appealed to the Tribunal, then the Tribunal could also recommend termination to the third Defendant. It is the third Defendant which ultimately makes the decision on termination, whether it comes to the third Defendant through the first Defendant or the Appeals Tribunal. The third Defendant did make a decision on termination. It is not clear if the decision was made on the recommendation of the first Defendant or the Tribunal, or both. 

19. The Grounds in the Amended Statement do not specify any procedure which the third Defendant failed to follow when reaching its decision. The Grounds refer only to the procedures which the first Defendant failed to follow. The Grounds say that the third Defendant's decision to reject the Plaintiff's appeal and to terminate him was "tainted and void" because of the procedural defects in the first Defendant's decision. 

20. The Grounds do not identify any breaches of statutory procedures or of natural justice by the third Defendant. The Grounds do not plead that the third Defendant erred in law by failing to take into account relevant considerations, or that it acted ultra vires, or was unreasonable. The Grounds only plead that the third Defendant's decision was wrong because the first Defendant's decision was wrong. 

THE ISSUES

21. Neither the Contract nor the NJSS Act set out any specific procedures to be followed by the third Defendant. Whether the recommendation comes from the first Defendant or the Appeals Tribunal, the third Defendant has to consider the reports relating to the offence and charge, any reply and explanation of the employee, the recommendation of the first Defendant or the Tribunal, and then make a decision. 

22. The Plaintiff has not alleged that the third Defendant did not consider the reports, the Plaintiff's replies and explanations, or the recommendation of either the first Defendant or the Tribunal. 

23. Instead, the Plaintiff has alleged that the first Defendant is required to follow certain procedures, and did not do so. He says that the first Defendant failed to give him a written charge. Neither Section 16 of the Act nor clause 17 of Schedule 3 of the Contract prescribes any form of charge. The only requirement is that the charge is to be in writing, and the employee is to be directed to reply in writing either admitting or denying the charge and giving any explanation that he desires. Under the Act, if he does not reply within seven days, he may be deemed to have admitted the charge. On considering the charge and the reply, the first Defendant can recommend termination. 

24. There is no reason why the written memorandum from the first and second Defendants to the Plaintiff of 16 May 2007 could not be regarded as a written charge, arising out of his standing in the elections, to admit or deny the charge and give an explanation. He was given the opportunity to respond. As the Plaintiff did not reply within seven days, he could be deemed to have admitted the charge. Before making a decision in August 2007, the first Defendant also considered the Plaintiff's later correspondence of July 2007. 

25. The decision then made by the first Defendant, was to purport to terminate the Plaintiff. In fact, he did not have the power to do this, as he only had the power to make a recommendation to the third Defendant, for termination. However, what effect did this have? 

26. If the Plaintiff disagreed with the first Defendant's purported decision to terminate him, he had a right of appeal to the Tribunal. He did not exercise that right within the required time. 

27. It is the third Defendant which makes the decision to terminate. This is not a case where the Plaintiff's employment was simply purported to be terminated by the first Defendant. It is a case where the first Defendant's purported decision was considered by the third Defendant, which then made its own decision. The third Defendant appears to have treated the first Defendant's decision to terminate as a recommendation to terminate, and after consideration, the third Defendant made the decision to terminate the Plaintiff. 

28. The Grounds do not contain any pleading of procedural defects by the third Defendant. There is no evidence to suggest that any procedural defects made by the first Defendant, affected the validity of the third Defendant's decision. If the first Defendant's purported decision to terminate had not been considered by the third Defendant, then the Plaintiff would have been entitled to challenge the first Defendant's decision. However, the whole purpose of the disciplinary provisions in both the Contract and the Act is to ensure that a decision to terminate is made by the third Defendant. The only real defect in the procedures followed by the first Defendant, was his conclusion that he had the power to terminate, instead of merely recommending termination. That however had no effect, as the decision to terminate was subsequently correctly made by the third Defendant. 

29. The only question arising out of this, is the status of the Plaintiff's employment between the purported termination in August 2007 and the third Defendant's decision in June 2010. He had been put off the payroll in May 2007, when he ceased attending work. His subsequent conduct in being continually absent from work without permission was clearly in breach of clause 9(j) of Schedule 3 of the Contract, as well as in breach of numerous other contractual and statutory provisions including Order 20 of the Public Service General Orders requiring him to resign six months before standing for elections. The Plaintiff should have resigned by December 2006/January 2007 at the latest, to stand for the elections. He had no entitlement to be re-employed after his resignation.

30. The Plaintiff has conceded that he is not entitled to reinstatement. Instead, he submits that he is entitled to damages, which have not been particularized. Particulars of damages are not required to be pleaded (see Sausau v. PNG Harbours Board (2006) N3253). The Plaintiff requested that the question of damages be assessed at a later date.

31. Judicial Review is a discretionary remedy (see Tau Kamuta v. Sode (2006) N3067 and Mao Zeming v. The State (2006) N2998). As Injia DCJ said in Kamuta's case,

"The exercise of this discretion … is guided by principles of equity adopted under Schedule 2.2 of the Constitution. … Equity follows the law, and he who seeks equity must come with clean hands; see Mainland Holdings v. Paul Stobbs & Ors (2003) N2522. … Judicial Review … is concerned with the decision-making process: Burns Philip v. Rose Kekedo (1988-89) PNGLR 122. The decision is largely an administrative one, and the administrative decision-maker is in a good position to form a judgment on matters of administrative nature. … These principles underpin the fundamental principle of public administration that the Court should not interfere in the day to day running of a public body unless it is clearly wrong and the decision for the reasons given should not be allowed to stand in the public interest in good administration and in the interest of justice."

32. The true position is that if the Plaintiff had complied with his contractual and statutory obligations, he would have resigned his employment by January 2007 at the latest, and would have had no right to be re-employed. In breach of his obligations, he remained in his employment until May 2007. In further breach of his contractual and statutory obligations, he then left his employment without permission, and did not return. Whether he was purportedly terminated in August 2007 or actually terminated in June 2010, does not affect the fact that he should have left his employment by January 2007 and had in fact left his employment in May 2007. His later termination did not make any difference, as he had already by his own conduct left his employment and lost his entitlement to a salary. A Plaintiff who left his employment in breach of his legal obligations, can not expect to come to equity for relief in relation to a subsequent termination.

CONCLUSION

33. I find that the Plaintiff has not demonstrated any breach of natural justice or unreasonableness or any significant procedural deficiencies in the decision of the first Defendant, but that even if there were such breaches and deficiencies, they were not relevant to the decision-making process followed by the third Defendant.

34. I find that the Plaintiff has not pleaded or proven any breach of contract or statutory procedures or natural justice by the third Defendant, when making its decision of 21 June 2010.

35. Finally, even if there were procedural deficiencies in the first Defendant's procedures which were relevant to the decision-making process of the third Defendant, the Plaintiff has not demonstrated that he has suffered any loss as a result of the decision. This is because even if neither the first nor third Defendant had made any decision, the Plaintiff had already voluntarily left his employment and ceased to be entitled to any salary. That position could not be improved by any deficiencies in a subsequent decision to terminate him.

36. For these reasons, the Plaintiff's application for judicial review of the third Defendant's decision made on 21 June 2010 for the termination of the Plaintiff, is refused.
Each party is to pay its own costs.
_________________________________
Mr. Z. Gelu: Lawyer for the Plaintiff 
Mr. E. Geita: Lawyer for the State