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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO 244 OF 2012
HENRY WAVIK
Plaintiff
V
MARTIN BALTHASAR, ACTING COMMISSIONER, CORRECTIONAL SERVICE
First Defendant
HON PETER O'NEIL, PRIME MINISTER, CHAIRMAN, NATIONAL EXECUTIVE COUNCIL
Second Defendant
PAPUA NEW GUINEA CORRECTIONAL SERVICE
Third Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Cannings J
2013: 20, 29 May, 22 July
JUDICIAL REVIEW – disciplinary offences and procedures – Correctional Service – whether member of Service suspended and charged in accordance with law – whether obligation to determine disciplinary charges within reasonable time – natural justice – duty to act fairly and in principle to be seen to act fairly.
The plaintiff was Deputy Commissioner of the Correctional Service, holding office under a three-year contract of employment. He was suspended by the Acting Commissioner and charged with two disciplinary offences. He responded to the charges and according to the contract the Commissioner was obliged to submit the response together with a statement of recommended action to the National Executive Council which was required to determine whether the contract should be terminated. The contract did not expressly state any time limit for submission of the matter. Four months after the plaintiff was suspended his contract expired by which time the Acting Commissioner had not submitted his recommendation. One month after the contract expired the Acting Commissioner prepared a submission for the Minister to present to the National Executive Council. It was not clear whether the submission was ever presented but at the date of trial, 17 months after the plaintiff was suspended, the charges remained un-determined and the Acting Commissioner refused to reinstate the plaintiff, taking the view that the plaintiff was no longer a member of the Correctional Service. The plaintiff applied for judicial review of the alleged failure of the Acting Commissioner to lawfully deal with the matter, on three grounds: (1) error of law in that the plaintiff was not suspended and charged in accordance with his contract; (2) error of law in that the Commissioner breached an implied term of the contract, viz that the matter should be submitted to the NEC within a reasonable time; and (3) breach of the principles of natural justice in that the Commissioner denied the plaintiff a right to be heard.
Held:
(1) Three errors of law were committed in the suspension and charging of the plaintiff (a) he was suspended under an irrelevant term of the contract; (b) he was suspended two days before being charged; (c) he was charged with committing offences that did not apply to him.
(2) It was an implied term of the contract that the Commissioner was obliged, having received the plaintiff's response, to submit the response and the Commissioner's recommendation to the National Executive Council within a reasonable time (estimated by the Court to be a period of one month). The Commissioner breached that term and erred in law by not taking any action at all until five months after the plaintiff had been suspended.
(3) A member of a State Service who faces disciplinary charges is entitled to protection of the principles of natural justice, the minimum requirements of which are to be treated fairly and in principle to be seen to be treated fairly. The Acting Commissioner treated the plaintiff unfairly and was seen to treat him unfairly by not submitting the matter to the National Executive Council within a reasonable time, waiting until after the plaintiff's contract had expired before taking any action and not taking any steps to ensure that the disciplinary charges were determined, thereby denying the plaintiff his right to be heard and causing him to be left in limbo for an indefinite period.
(4) All grounds of review having been upheld, the Court exercised its discretion in favour of the plaintiff and granted the principal relief sought, including declarations that the Acting Commissioner had acted unlawfully and breached the principles of natural justice and that the disciplinary charges were null and void and orders that no further action be taken against the plaintiff in respect of the charges, that he be reinstated as a member of the Correctional Service at the rank he held prior to his promotion to Deputy Commissioner and that he be awarded K10,000.00 damages.
Cases cited
The following cases are cited in the judgment:
Andy Sisipa v Richard Sikani (2012) N4825
Anthony John Polling v MVIT [1986] PNGLR 228
Bau Waulas v Veronica Jigede (2009) N3781
Dale Christopher Smith v Minister for Lands (2009) SC973
David Nelson v Patrick Pruaitch (2004) N2536
Eddie Gabir v Richard Koronai [1988-89] PNGLR 406
Himsa & Namane v Sikani (2002) N2307
Jomino Holee v Sem Vegeo (2013) N5101
Kopil v Culligan (1995) N1333
Lawrence Sausau v Joseph Kumgal (2006) N3253
Mathew Jaran v Pious Kerepia [1987] PNGLR 16
Michael Mondia v Richard Sikani (2007) N3256
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Niugini Mining Limited v Joe Bumbandy (2005) SC804
Paul Asakusa v Andrew Kumbakor (2009) N3303
Philip Kamo v Commissioner of Police (2001) N2084
Counsel
E Hampalekie, for the plaintiff
N Mosoro, for the defendants
22 July, 2013
1. CANNINGS J: The plaintiff Henry Wavik applies for judicial review of the decision of the Acting Commissioner of the Correctional Service, Martin Balthasar (first defendant), to suspend him as Deputy Commissioner of the Correctional Service and charge him with two disciplinary offences and the failure of Mr Balthasar to ensure that the charges were determined in a reasonable time.
2. The plaintiff became a member of the Correctional Service on 18 March 1974. On 7 April 2009 he was promoted from the rank of Chief Superintendent to the rank of Deputy Commissioner. On 5 April 2011 he executed a three-year written contract of employment, deemed to be effective from 7 April 2009. On 5 December 2011 Mr Balthasar suspended him from duty and put him on notice that he was preparing to lay disciplinary charges against him based on a National Security Advisory Committee Report on investigations into the Bomana Prison escape of William Nanua Kapris and 11 others on 12 January 2010. On 7 December 2011 Mr Balthasar laid two disciplinary charges against him. On 12 December 2011 he responded to the charges.
3. According to the contract the Commissioner was obliged to submit the disciplinary charges, the plaintiff's response and any other relevant evidence together with his recommendation to the National Executive Council, which was required to determine whether the contract should be terminated. The contract did not expressly state any time limit for submission of the matter.
4. On 7 April 2012 the plaintiff's contract expired, by which time Mr Balthasar had not submitted anything to the National Executive Council. On 11 May 2012 Mr Balthasar compiled the material referred to in the contract and forwarded it together with a draft statutory business paper to the then Minister for the Correctional Service Hon Sai Beseo. The business paper contained recommendations that the plaintiff be found guilty and that his employment with the Correctional Service be terminated. It is not clear whether the statutory business paper was ever presented to the National Executive Council. After preparing it, Mr Balthasar took no further steps to pursue the matter with the Minister or the National Executive Council. On 11 July 2012 he asked the Acting Assistant Commissioner, Personnel, Finance and Administration, to terminate the plaintiff from the payroll and process his final entitlements and have him paid out. By the time of the trial in May 2013 the plaintiff's matter had still not been determined by the National Executive Council. Mr Balthasar has refused to reinstate the plaintiff, taking the view that he is no longer a member of the Correctional Service.
5. The plaintiff by notice of motion filed on 29 October 2012 seeks various relief including declarations that he has been denied natural justice and that the disciplinary charges are null and void and orders that he be reinstated without loss of entitlements. He relies on three grounds of review:
(1) error of law in that he was not suspended and charged in accordance with his contract;
(2) error of law in that the Commissioner breached an implied term of the contract, viz that the matter should be submitted to the National Executive Council within a reasonable time;
(3) breach of the principles of natural justice in that the Commissioner denied him a right to be heard.
PRELIMINARY POINT
6. Before addressing the grounds of review there is a preliminary point raised by Mr Mosoro for the defendants to be resolved. There is a line of National Court authority suggesting that where the terms and conditions of a public official's employment are the subject of a written contract of employment and he wishes to seek redress from the Court for a breach of contract or denial of natural justice or error of law on the part of the employer, the proper mode of commencement of proceedings is by writ of summons under Order 4 of the National Court Rules, not by judicial review under Order 16. Mr Mosoro cited the decisions of Woods J in Kopil v Culligan (1995) N1333 and Kandakasi J in Himsa & Namane v Sikani (2002) N2307 in support of the proposition that the plaintiff should have commenced these proceedings by writ of summons and that the Court lacks jurisdiction to grant judicial review remedies to the plaintiff.
7. I reject that submission by first noting that I am not bound by other decisions of the National Court and there does not appear to be a Supreme Court authority on point. There is another line of National Court authority, led by the decision of Injia DCJ as he then was in David Nelson v Patrick Pruaitch (2004) N2536, who stated:
In my view, when a statute or Contract of Employment entered into under a statute, prescribes disciplinary procedures designed to ensure fair play or fairness or to put it in another term, to ensure compliance with principles of natural justice, then any exercise of disciplinary power, as provided under the Contract of Employment, is a proper matter for judicial review. Such a Contract of Employment is a public Contract of Employment for service. I use the term "public Contract of Employment" to connote the exercise of statutory power on the part of an authority of the State, to enter into a contract of employment for service with a person, for that person to discharge public functions prescribed under Statute. Upon his engagement under the Contract, he becomes a public official.
The Plaintiff in this case fits into that definition of a public official. He should not be precluded from seeking judicial review by the mere existence of what may be inaccurately described as "private" Contract of Employment when that very Contract of Employment is a public contract and it incorporates principles of natural justice through it disciplinary procedures.
8. I prefer the approach taken in Nelson. Here the plaintiff was appointed to a very senior position, second only to the Commissioner, in a State Service, and was appointed by the Governor-General acting on the advice of the National Executive Council under Section 17(3) (recruitments) of the Correctional Service Act. He held a public office subject not only to the terms and conditions of his contract of employment but also to the provisions of the Correctional Service Act. The decisions which he is aggrieved by were made by the Acting Commissioner of the Correctional Service, who is a public official on whom an array of powers, functions, duties and responsibilities is conferred by the Correctional Service Act and other statutes. The nature of the office held by the plaintiff and the nature of the decisions he challenges have a very public law character. He should not be denied a remedy or the opportunity of ventilating his grievances in these proceedings by what would be in my view an arbitrary and incorrect categorisation of this as a private law rather than public law case.
9. The National Court has already determined this issue by its decision to grant leave for judicial review as it was satisfied that the decision sought to be reviewed was that of a public official and amenable to judicial review. It would be unfair, except perhaps in the most obvious of cases where the Court had clearly erred in granting leave, to refuse to hear a plaintiff who has been granted leave simply on the ground that the Court was taking a different view of this issue. The preliminary point is rejected and I confirm that the decisions and actions of the Acting Commissioner are properly the subject of an application for judicial review.
GROUND 1: NOT SUSPENDED AND CHARGED IN ACCORDANCE WITH CONTRACT
10. Section 25 of the plaintiff's contract was on the subject of "Disciplinary Procedures". It is poorly drafted and I quote it verbatim:
25.1 Serious disciplinary matters pursuant to Section 20 hereunder, allegedly involving the Incumbent shall be resolved through the following procedure:
(a) Where the Incumbent is alleged to have committed a serious offence under Section 20, the Departmental Head shall the senior Incumbent on full pay, and the Departmental Head shall formerly charge the Incumbent in writing with the offence allegedly committed and enable the Incumbent to reply to such charges prior to submitting a report to the Departmental Head.
(b) The Incumbent shall formally respond to the charge in writing to the Departmental Head within 7 days of the charge being laid.
(c) The Departmental Head shall submit a copy of the charge. The Incumbents formal response, any other relevant evidence, together with recommended action to the NEC who shall having obtained a legal opinion determined whether or not the Contract should be terminated.
(d) The decision of the NEC shall be final, and the terminated Incumbent may seek redress through the Papua New Guinea Courts of Law if the Incumbent believes termination was made unfairly. [sic]
11. The notice dated 5 December 2011 stated that the plaintiff was being suspended pursuant to clause 8 of his contract. The disciplinary charges dated 7 December 2011 stated that the plaintiff was being charged under Sections 50(f) and (i) of the Public Services (Management) Act.
12. I uphold the submission of Mr Hampalekie for the plaintiff that the charges were defective and the disciplinary process flawed from the outset as the suspension notice was based on an irrelevant term. Section 8 of the contract was about sick leave entitlements. It had nothing to do with suspension. There was no term in the contract authorising the plaintiff's suspension other than arguably Section 25.1(a) which, remarkably, omits the word "suspend" between the words "the Departmental Head shall" and the words "the senior Incumbent on full pay". I am presuming that "suspend" is the missing word, and if it is, I am only able to read Section 25 as authorising the plaintiff's suspension upon his being charged, which creates another problem as the plaintiff was suspended two days before he was charged.
13. The charges, which allege that the plaintiff committed disciplinary offences under Sections 50(f) and (i) of the Public Services (Management) Act, are also problematic as nowhere in the plaintiff's contract does it say that he is subject to those laws. Clause 3 of the contract provides for application of the General Orders made under the Public Services (Management) Act in an area on which the contract is silent, but the contract is not silent on disciplinary offences and procedures. Section 25 of the contract refers to Section 20 (termination for cause) of the contract, which prescribes the circumstances in which the plaintiff will be guilty of a "serious disciplinary offence". He should have been charged under Section 20 of the contract, not under the Public Services (Management) Act.
14. The plaintiff was not an officer of the National Public Service, he was a member of the Correctional Service, which has been under Sections 4 (establishment of Correctional Service) and 5 (status of Correctional Service) of the Correctional Service Act 1995 established as a separate State Service for the purposes of Section 188 (establishment of the State Services) of the Constitution. It cannot be presumed that the terms and conditions of employment of officers in the National Public Service apply to members of the Correctional Service (Andy Sisipa v Richard Sikani (2012) N4825).
15. Thus three errors of law were committed in the suspension and charging of the plaintiff:
(a) he was suspended under an irrelevant term of the contract;
(b) he was suspended two days before he was charged;
(c) he was charged with committing offences that did not apply to him.
Ground 1 of the judicial review is upheld.
GROUND 2: BREACH OF IMPLIED TERM OF CONTRACT
16. I uphold Mr Hampalekie's submission that Mr Balthasar erred in law by not submitting the disciplinary charges, the plaintiff's response and other relevant evidence together with his recommendation to the National Executive Council within a reasonable time after receipt on 12 December 2011 of the plaintiff's response.
17. It does not defeat the submission to say that the contract did not impose any time limit. Is it seriously suggested that a public official could be charged and suspended indefinitely without the charging officer or some person in a position of authority being subject to an obligation to determine the charges? Every person in Papua New Guinea has the right to the full protection of the law under Section 37(1) of the Constitution and to be protected under Section 41 of the Constitution against harsh and oppressive conduct. I call on those constitutional safeguards when interpreting Section 25 of the contract. True, there is no express time limit but I have no difficulty finding that there was an implied obligation on the Acting Commissioner to within a reasonable time either form the view that he was satisfied with the plaintiff's response or submit the matter to the National Executive Council.
18. What was a reasonable time? As the plaintiff was given only seven days to make his response (and he responded within five days) I consider that a reasonable time was in the circumstances of this case one month. Mr Balthasar should have submitted the matter to the National Executive Council by 12 January 2012. He did not do anything tangible until almost four months later, on 11 May 2012, by preparing a draft statutory business paper for the Minister's consideration. That, however, did not amount to compliance with his obligation under Section 25(a) as "the Departmental Head" to submit the matter to the National Executive Council. It was his, not the Minister's, recommendation that was required to go before the National Executive Council. Besides that there is no evidence that any submission, by Mr Balthasar or the Minister, ever went to the National Executive Council.
19. Mr Balthasar breached the implied term requiring him to make his submission to the National Executive Council within a reasonable time and therefore erred in law by not taking any action at all until five months after the plaintiff had been suspended; and even then he did not comply with his obligations under the contract. Ground 2 is upheld.
GROUND 3: BREACH OF PRINCIPLES OF NATURAL JUSTICE
20. It is axiomatic that a member of a State Service who faces disciplinary charges is entitled to protection of the principles of natural justice, the minimum requirements of which are under Section 59(2) (principles of natural justice) of the Constitution the duty to act fairly and in principle to be seen to act fairly. Or to put it another way: the person facing charges must be treated fairly and be seen to have been treated fairly (Mathew Jaran v Pious Kerepia [1987] PNGLR 16, Eddie Gabir v Richard Koronai [1988-89] PNGLR 406, Philip Kamo v Commissioner of Police (2001) N2084, Michael Mondia v Richard Sikani (2007) N3256, Paul Asakusa v Andrew Kumbakor (2009) N3303).
21. The fact that a member of a State Service holds office under a contract of employment will not remove or affect the natural justice obligations of those who charge or propose to take any step adverse to the interests of the member unless the contract makes express provision for it. Here the plaintiff's contract prescribes the procedure by which the plaintiff can be subject to disciplinary charges and his contract terminated but these provisions do not remove the overriding obligation of those in a position to make decisions affecting the plaintiff (the Commissioner and the National Executive Council) to act fairly and be seen to act fairly.
22. I have no hesitation in upholding Mr Hampalekie's submission that Mr Balthasar breached the principles of natural justice by treating the plaintiff unfairly. This is a case where the facts speak for themselves:
23. Fundamental to natural justice and the right to be treated fairly is the right of any person accused of doing wrong to be heard. The plaintiff has to some extent been heard but only in a disingenuous and illusory manner as Mr Balthasar failed to act promptly and failed to pass on the plaintiff's response to the authority which had the power to decide on his fate – the National Executive Council – until after the contract had expired. A similar scenario was held in Lawrence Sausau v Joseph Kumgal (2006) N3253 to be a denial of natural justice. Injia DCJ (as he then was) explained why:
In my opinion, in a case where a public employee is charged with a disciplinary offence to which he or she has replied, principles of natural justice demand that the charge be determined within a reasonable time and the result communicated to the employee immediately, during his or her term of employment. The employee has a right to a fair hearing and determination of the disciplinary offence to which he has replied within a reasonable time. As to what is a reasonable time depends on the circumstances, one of which is the duration of contract of employment. If as in this case, the charge was laid in the last 3 months of the plaintiff's contract, it is reasonable to expect the Board to commence the disciplinary process promptly to ensure that the charge is determined in good time before the expiry of the contract. It is a denial of natural justice for the Board to sit on the disciplinary process and allow the contract to expire and decide not to renew the contract, with the disciplinary charge still hanging over the employee's head. The employee has a right to know if his employment is terminated on disciplinary grounds before the contract expires. It must also dispel any suspicion that the Board's decision not to renew the contract and not to retain him on another position or as a redundant officer is motivated by the pending disciplinary offence. In my view, the circumstances of the present case amounted to a denial of natural justice. The application should be granted for this reason alone.
24. I follow Sausau and conclude that Mr Balthasar's failure to pursue the matter with the National Executive Council has had the effect of leaving the plaintiff in limbo for an indefinite period. Any reasonable person when told of how Mr Balthasar has handled this matter would reach the inevitable conclusion that Mr Balthasar treated the plaintiff unfairly and was seen to treat him unfairly. Ground 3 is upheld.
WHAT ORDERS SHOULD THE COURT MAKE?
25. An application for judicial review proceeds in two stages. First the plaintiff must establish good grounds for judicial review. Secondly if one or more grounds are established the plaintiff must make a case for a remedy, which is a matter of discretion (Mision Asiki v Manasupe Zurenuoc (2005) SC797, Dale Christopher Smith v Minister for Lands (2009) SC973). Here the plaintiff has established three grounds of review so the case is ripe for consideration of appropriate relief. The plaintiff's notice of motion seeks nine remedies:
26. Number 2 conflicts with No 5 and will be refused. There is no point in compelling the defendants to complete the disciplinary process. The defendants, in particular Mr Balthasar, have had the opportunity to do that but have wasted it and ought not be given another opportunity.
27. Number 4 – an order extending the plaintiff's contract – will also be refused. The plaintiff was promoted and appointed as Deputy Commissioner (Operations) under contract for three years. He has no right to continue in that position without a fresh decision being made on the matter. By virtue of an amendment to Section 17(3) of the Correctional Service Act in 2010 appointments to the rank of Deputy Commissioner and Assistant Commissioner are now made using the procedures under Section 5 (procedures for promotion) of the Correctional Service Regulation. Applications for promotion are made to the Correctional Service Promotions Selection (Commissioned Ranks) Board which considers all applications and makes recommendations to the Commissioner.
28. Numbers 1 and 3 – declarations as to errors of law – follow as a matter of course from the Court's findings on the three grounds of review. This relief will in principle be granted and will be restated in more direct language than that in the notice of motion.
29. Numbers 5, 6 and 7 – orders as to the status of the charges and the plaintiff – will also be granted in principle and restated in more direct language. At this juncture it is useful to refocus on the Court's duty to dispense justice, which is reinforced by Section 155(4) (the national judicial system) of the Constitution:
Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
30. I consider that it is necessary in the circumstances of this case to declare that the two disciplinary charges are null and void. They are now 19 months old, they have not been determined and they have passed their use by date. They should not be left hanging in the air (Bau Waulas v Veronica Jigede (2009) N3781). It would be unjust to expect the plaintiff to continue waiting, as he has done for the last 19 months, for the charges to be determined.
31. It would be unjust to allow the charges to be resurrected in another form and laid against the plaintiff. It is necessary to order that no further disciplinary action be taken against the plaintiff in respect of the allegations the subject of the two disciplinary charges without the leave of the National Court.
32. It is also necessary to order the reinstatement of the plaintiff. He is entitled to be reinstated to the substantive position of Chief Superintendent that he held prior to his three-year appointment as Deputy Commissioner (Operations), for two reasons. First the contract of employment provides in Section 1.7 for continuation of his membership of the Correctional Service upon completion of the contract:
Upon completion of the contract, a new contract may be offered in accordance with these terms and conditions provided that where a new contract is not offered, employment in the Correctional Service shall continue there under.
33. Secondly the plaintiff was appointed as a member of the Correctional Service in 1974. He can only lose his status as a member by lawful means such as a decision that he be dismissed from the Service for disciplinary reasons or upon reaching the retirement age or because of mental or physical infirmity. Completion of a contract of employment is not one of those lawful means.
34. To avoid any confusion as to how these conclusions of law are to be given practical effect, and to allow time for the defendants to digest the court's orders, I will order that the plaintiff's suspension be quashed and that he be reinstated without loss of salary, entitlements and other emoluments with effect from a specific date and time: 25 July 2013 at 10.00 am. Any salary, entitlements or other emoluments lost as a result of his suspension shall be paid to him by 22 August 2013.
As to No 8 costs will follow the event.
35. By No 9 the plaintiff seeks any other order the Court deems fit and just. A remedy that springs to mind as being fit and just is damages. It is surprising that such a remedy has not been expressly claimed. However that does not mean that the Court cannot award damages as it has an overarching responsibility under Section 155(4) of the Constitution to make such orders as are necessary to do justice in the circumstances of a particular case. I think it is necessary to award damages in this case and to invoke Order 16, Rule 7 of the National Court Rules, which provides for an award of damages in judicial review proceedings.
36. As I recently held in Jomino Holee v Sem Vegeo (2013) N5101 normally the court would insist on a statement of claim and particulars before considering awarding damages. However, as I did in Holee, I dispense with those requirements under Order 1, Rule 7 of the National Court Rules. I consider that the interests of justice require that the severity of the Rules be relaxed. There is good justification for non-compliance with the Rules. Little prejudice is done to the defendants and I have had regard to the leading cases on dispensation, including Anthony John Polling v MVIT [1986] PNGLR 228 and Niugini Mining Limited v Joe Bumbandy (2005) SC804.
37. This is not a normal case. The court is faced with an extraordinary case. A man who had at the time of being charged served more than 37 years in the Correctional Service and reached the very senior rank of Deputy Commissioner has been treated shabbily and disrespectfully by the Acting Commissioner. Mr Balthasar sat on the plaintiff's response to the charges for four months and let his contract expire and then waited another month before taking an ineffective step to progress the matter. The Acting Commissioner did nothing further except to decide without lawful justification that the plaintiff was no longer a member of the Correctional Service. The plaintiff deserves to be compensated for the suffering he has had to endure over the last 19 months while he has waited in vain for the disciplinary charges to be resolved. I have considered the cases of Lawrence Sausau v Joseph Kumgal (2006) N3253 and Bau Waulas v Veronica Jigede (2009) N3781, where successful judicial review applicants who established that they had been unlawfully dismissed from public employment were awarded damages of K3,000.00 and K5,000.00 respectively. I consider that the suffering and inconvenience of the plaintiff is greater than that in those cases. I will award damages of K10,000.00.
ORDER
(1) The application for judicial review is substantially granted.
(2) The relief sought in paragraphs 2 and 4 of the plaintiff's notice of motion filed on 29 October 2012 is refused.
(3) The relief sought in paragraphs 1 and 3 of the notice of motion filed on 29 October 2012 is in principle granted and for the avoidance of doubt it is declared that the first defendant erred in law by:
- (a) suspending the plaintiff on 5 December 2011 contrary to the terms of the plaintiff's contract of employment;
- (b) breaching an implied term of the contract of employment, viz that the first defendant was obliged to submit the disciplinary charges against the plaintiff, the plaintiff's response and any other relevant evidence together with his recommendation within a reasonable time to the National Executive Council, by not taking any action until five months after the plaintiff responded to the charges;
- (c) breaching the principles of natural justice by treating the plaintiff unfairly and being seen to treat him unfairly, in that he did not submit the matter to the National Executive Council within a reasonable time, waited until after the plaintiff's contract had expired before taking any action and did not take any steps to ensure that the disciplinary charges were determined, thereby denying the plaintiff his right to be heard and causing him to be left in limbo for an indefinite period.
(4) The relief sought in paragraphs 5, 6, and 7 of the notice of motion filed on 29 October 2012 is in principle granted and for the avoidance of doubt it is declared and ordered that:
- (a) the disciplinary charges against the plaintiff dated 7 December 2011 are null and void and are quashed;
- (b) no further disciplinary action shall be taken against the plaintiff in respect of the allegations the subject of the disciplinary charges dated 5 December 2011 without the leave of the National Court;
- (c) at 10.00 am on 25 July 2013 the suspension of the plaintiff ordered by the first defendant on 5 December 2011 shall be dissolved and the plaintiff shall be reinstated as an officer of the Correctional Service to the same rank he held immediately prior to his appointment as Deputy Commissioner;
- (d) the first defendant shall ensure that any salary, entitlements or other emoluments lost by the plaintiff as a result of his suspension shall be paid to him by 22 August 2013.
(5) The relief sought in paragraph 8 of the notice of motion filed on 29 October 2012 is in principle granted and for the avoidance of doubt it is ordered that the defendants pay the costs of these proceedings to the plaintiff on a party-party basis, which shall if not agreed be taxed.
(6) The relief sought in paragraph 9 of the notice of motion filed on 29 October 2012 is in principle granted and for the avoidance of doubt it is ordered that the plaintiff shall be paid by the defendants damages of K10,000.00, which shall be paid within a reasonable time after entry of this order.
(7) Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.
Judgment accordingly.
___________________________________________
M S Wagambie Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendants
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