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Waninga v Sukwianomb [2020] PGNC 136; N8371 (16 June 2020)

N8371

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 129 OF 2020

DR TENG WANINGA
Plaintiff

V

JOSEPH SUKWIANOMB, CHAIRMAN, INTERIM COUNCIL & CHANCELLOR, UNIVERSITY OF GOROKA
First Defendant

PROFESSOR MUSAWE SINEBARE, VICE-CHANCELLOR,
UNIVERSITY OF GOROKA
Second Defendant

INTERIM COUNCIL, UNIVERSITY OF GOROKA
Third Defendant

THE UNIVERSITY OF GOROKA
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Cannings J
2020: 1^st, 22^nd May, 16^th June

JUDICIAL REVIEW – review of decision of university council to find senior academic guilty of disciplinary offences and to terminate employment – whether breach of university staff discipline statute – whether errors of law made in disciplinary process – whether breach of principles of natural justice.

The plaintiff was a pro vice-chancellor at a university. His employment was terminated by the university council on various grounds, after a disciplinary process in which the staff discipline committee found him guilty of disciplinary offences and recommended that he be demoted, while an appeals committee found no error in that decision and confirmed it as correct. The council, however, having reviewed the decision of the appeal committee and acting on additional instances of misconduct which it found had been committed by the plaintiff, decided that his employment be terminated. The plaintiff, having been granted leave by the court, applied for judicial review of the decision of the council. The plaintiff relied on two main grounds of review: (1) illegality and ultra vires in that the council’s decision was made in breach of the staff discipline statute; and (2) breach of the principles of natural justice.

Held:

(1) Ground 1 was upheld as errors of law were committed at each stage of the disciplinary process in that: (a) the staff discipline committee, having found the plaintiff guilty of 11 disciplinary offences,recommended penalties, in particular demotion,that were beyond its powers; (b) the appeals committee was unlawfully constituted and failed to conduct a fair hearing; (c) the council had no power to review the decision of the appeals committee (the decision of which was final) and, to the extent that it based its decision to terminate the plaintiff’s employment on new alleged breaches of the disciplinary code, failed to adhere to the procedure in the staff discipline statute.

(2) Ground 2 was upheld as the principles of natural justice were not adhered to by the appeals committee or the council.

(3) The Court declared that the decision of the council to terminate the plaintiff’s employment was unlawful and ordered that the council’s decision is quashed and declared null and void and ordered the council to reinstate the plaintiff to his previous position within 14 days and pay him back-pay and awarded costs of the proceedings to the plaintiff.

Cases Cited

The following cases are cited in the judgment:

Dale Christopher Smith v Minister for Lands (2009) SC973
Graham Keri v Teaching Services Commission Disciplinary Committee (1997) N1555
Isaac Lupari v Sir Michael Somare (2008) N3476
Jeffrey Afozah v Police Commissioner (2008) N3300
Kumbu v Mann & UPNG (2012) N4746
Waipo v Simitab (2016) N6266

JUDICIAL REVIEW

This was an application for judicial review of the decision of a university council to terminate employment of a pro vice-chancellor.

Counsel

C Joseph, for the Plaintiff
H B Wally, for the First and Third Defendants
T C Waisi, for the Second and Fourth Defendants

16^th June, 2020

1. CANNINGS J: The plaintiff, Dr Teng Waninga, was Pro Vice-Chancellor (Academic, Research and Innovation) at the University of Goroka. The Council of the University (the third defendant) decided on 26 March 2020 to terminate his employment on various grounds, after a disciplinary process in which a Special Staff Discipline Committee had found him guilty of disciplinary offences and recommended that he be demoted, while a Special Appeals Committee found no error in that decision and confirmed it as correct. The Council, however, having reviewed the decision of the Appeals Committee and acting on additional instances of misconduct which it found had been committed by the plaintiff, decided that his employment be terminated.

2. The plaintiff, having been granted leave by the court, applied for judicial review of the decision of the Council. He relies on two main grounds of review: (1) illegality and ultra vires in that the Council’s decision was made in breach of the Staff Discipline Statute; and (2) breach of the principles of natural justice.

3. The defendants argued that, despite the granting of leave, the proceedings ought to be dismissed as the University of Goroka is not a public body, the decisions of which are amenable to judicial review. I am not persuaded by those arguments, as those issues were adequately addressed when leave for judicial review was granted.

I will determine the grounds of review on their merits, after setting out the train of events that led to the Council’s decision of 26 March 2020.

EVENTS

4. The plaintiff had been employed in various capacities at the University of Goroka for intermittent periods (as he was granted study leave for some periods) since 2005. On 15 December 2017 he was appointed Pro Vice-Chancellor (Academic, Research and Innovation), an office created under the University of Goroka Act, for three years.

5. On 23 December 2019 he was served with a notice of 17 disciplinary charges, signed by Vice-Chancellor, Professor Musawe Sinebare (the second defendant).

6. The plaintiff wrote a letter to the Vice-Chancellor dated 6 January 2020, responding to the charges.

7. On 7 January 2020 the plaintiff was served another notice, containing two additional charges.

8. On various dates in January and February 2020 the Special Staff Disciplinary Committee convened to deliberate on the 19 charges. Its deliberations were outlined in a 14-page statement of reasons for its recommendations, dated 14 February 2020. The plaintiff was found guilty of 11 out of 19 charges. As to penalty, it was recommended that he be:

• severely reprimanded;
• demoted and banned from holding any management or administration position;
• banned from attending or taking part in any meetings with students or landowners regarding university matters; and
• placed on a good behaviour bond, not to act in breach of the Act or Statutes for the duration of his employment.
  

9. On 25 February 2020 the plaintiff wrote to the Chancellor, Mr Joseph Sukwianomb (the first defendant), expressing his concern that he had not been informed of the Special Staff Disciplinary Committee’s meetings, and appealing to him to rescind its decision so that his responses to the charges could be considered.

10. On 2 March 2020 the Chancellor wrote to the plaintiff, acknowledging his letter of 25 February 2020, which was regarded as an appeal against the decision of the Special Staff Disciplinary Committee,and notifying him that he had decided to constitute a Council Appeals Committee, which would convene on 9 March 2020, and indicating that the Council would be deliberating on his matter on 27 March 2020.

11. On 9 March 2020 the Appeals Committee convened to hear the appeal. The Appeals Committee was constituted by Mr Cosmas Bidar (Senior Magistrate, Waigani District Court), Chairman; Professor John Luluaki (UPNG School of Law); Dr Alfred Tivinarlik (senior Council member); and Dr Jane Awi (University of Goroka Executive Director, Somare Research Institute). It declined to hear the plaintiff in person and proceeded to dismiss his appeal. In its three-page statement of reasons for its decision, it concluded:

The Appeals Committee noted that:

1. It was difficult to process and to look at the substance of the matter as there were no written responses from the officer to the charges laid against him by the Staff Discipline Committee.
   
2. Despite the officer’s phone conversation with the Registrar on the evening of 8 March 2020 of his availability to speak with the Committee, it saw no need for the Committee to speak with the officer. The officer’s opportunity to speak with the Appeals Committee was lost at the Staff Discipline Committee process. The Committee rejected his proposal because he should have responded in the first place to the charges laid against him when the Staff Discipline Committee met.
   

100. The Committee, after reviewing the decisions of the Staff Discipline Committee, noted that of the 11 charges the officer was found guilty, there were a number of discipline breaches that were in view of his position as the Pro Vice-Chancellor – Academic, Research and Innovation, of a serious nature.
     

Conclusion

In view of the interest of the need to do justice to the institution, its processes, the uses of the processes and in all the circumstances, the Special Appeals Committee unanimously concludes that there is no reason to overturn the decisions and recommendations of the Staff Discipline Committee.

12. On 26 March 2020 a special meeting of the University Council was held, and it was decided that the plaintiff’s employment be terminated with immediate effect. The Vice-Chancellor conveyed the Council’s decision to the plaintiff in a letter dated 31 March 2020, in the following terms:

Dear Teng Waninga Esquire,

0. TERMINATION FROM UNIVERSITY OF GOROKA AS PRO VICE CHANCELLOR (ACADEMIC, RESEARCH AND INNOVATION)
   

The special UOG council meeting held via Skype between members based in Port Moresby (at Citti Boutique) and members in Goroka at UOG was convened on Thursday 26 March 2020. This mode of electronic conferencing was necessitated by the ‘Lockdown’ of business and operations of all government departments and agencies approved for implementation by Public Service (see circular instruction No 9 of 2020). The Skype conference was held between 12:50 noon and 14:30pm.

The main agenda was to consider your 19 disciplinary charges which was considered and deliberated by the Special Staff Disciplinary Committee (SSDC) established by the Council. The SSDC determinations were communicated to you earlier. The Chancellor established a Special Staff Appeals Committee (SSAC) comprising of prominent PNG citizens who received the SSDC Determinations and considered the Decisions and your ‘Appeal’.

The Council on 25.03.20 received the SSDC Determinations/Recommendations and the Report from the SSAC. The Council also is privy to additional information available to the members. The additional information available to the Council members include:

1. Cases of blatant insubordination when you failed to:
   
   • Respond to lawful instructions from Council given to you through the 19 charges
   • Return the keys to the official vehicle and office
   • Return the official vehicle to the Admin car park
   • Submit copy of your Thesis, Degree Testamur, and
   • Submit Financial Report requested by Chancellor
     
2. Disrespect the internal University disciplinary processes when you:
   
   • Wrote to the Minister on 27/01/10 to establish an ‘Independent Arbitration Team’ where existing statute is silent,
   • Wrote directly to the HERST minister without allowing the existing processes to conclude,
   • Ill-advised the management that you sought the Minister’s approval to retain the vehicle when administrative processes cannot be thwarted by ‘political’ directions outside of the legal mechanisms, and
   • Dictated a Terms of Reference for investigations against the University through the Minister for HERST which could be interpreted as ‘political interference’ into administrative issues.
     

100. Subject to clause 3.4 of your Employment Contract all the matters referred to in paragraphs (a) and (b) above amount to serious misconduct in the performance of your duties as a Pro Vice Chancellor (Academic, Research and Innovation).
     

4. Further to paragraph c on the determinations of SSDC Decision, the SSAC Decision and Council collectively found you guilty of serious misconduct in the office of the Pro Vice Chancellor (ARI).
   

DECISION/RESOLUTION

The University Council considered the SSDC Determinations, SSAC Decision not to reverse SSDC Decisions and the additional information available (Serious Misconduct in Office), resolved that the SSDC determination to demote you be varied to Termination from the University of Goroka as Pro Vice Chancellor (Academic, Research and Innovation) with immediate effect (26.03.20) to reflect the serious misconduct enumerated above.

By a copy of this letter to the Manager, HR Division your final terminal benefits will be calculated and released to you subject to your clearance procedures signed off. The Clearance Procedures include: Return of motor vehicle (ZSU 889) Toyota LC/Five door, return of office keys, Return/vacation of your current UOG provided House, walkie-talkie, laptop procured for the office of PVC (ARI) and refund any cash advances made out to you during your contract period. The Bursar will identify the acquittable cash advances yet to be acquitted.

You are given 14 days from the date when you receive this letter to complete your clearance before you exit from the University.

Yours sincerely

[signed]

Professor Musawe Sinebare [PhD]

GROUND OF REVIEW 1: ILLEGALITY AND ULTRA VIRES

13. Having considered the extensive evidence before the court and submissions from counsel for both sides, I am satisfied that the plaintiff has proven that errors of law were committed at each stage of the decision-making process, culminating in the Council’s decision of 26 March 2020 to terminate his employment.

(a) The Special Staff Discipline Committee

14. I find no error in the Vice-Chancellor’s decision to constitute this Committee, or in this Committee’s decision to find the plaintiff guilty of 11 disciplinary offences. However, the Committee proceeded to recommend penalties that were beyond its powers. Section 6(1) of the Staff Discipline Statute, made pursuant to the University of Goroka Act, provides:

A Disciplinary Committee may impose one or more of the following penalties:

(a) any of the penalties referred to under Section 3 [suspension, reprimand, make good any damage caused to University property, a fine]; or
(b) exclude the member of the staff from the University or part of the University:

• (i) permanently; or
• (ii) for a lesser period; or
• (iii) until he/she fulfills such conditions for a fixed period on the member of the staff’s enjoyment of any of the privileges provided by the University.
  

15. The Committee made substantial recommendations that the plaintiff, who held a very senior position in the University administration, be demoted and banned from holding any management or administration position and banned from attending or taking part in any meetings with students or landowners regarding university matters. There was nothing in the Staff Discipline Statute that authorised the Special Staff Discipline Committee to make such decisions or recommendations. This was an error of law.

(b) Special Appeals Committee

16. I find no error in the Chancellor’s decision to treat the plaintiff’s letter of 6 January 2020 as an appeal against the decision of the Special Staff Discipline Committee. However, I find that the Chancellor had no power to go outside the terms of the Staff Discipline Statute, s 8(3) of which provided for composition of the Appeals Committee in the following terms:

On receiving the notice of appeal lodged under Subsection (1), in respect of a penalty imposed, the Appeal Committee shall immediately constitute to hear the appeal and which committee shall consist of five members of Council (of whom at least one shall be a female staff member).

17. In this case the Appeals Committee consisted of four members, only one of whom (Dr Tivinarlik) was a Council member. I find that the Appeals Committee was unlawfully constituted. That was an error of law (Kumbu v Mann & UPNG (2012) N4746).

18. It is apparent from its reasons for decision that the plaintiff made approaches to the University Registrar on the evening before the Appeals Committee convened on the morning of 9 March 2020 to hear the appeal. The Appeals Committee refused to allow the plaintiff to appear before it. I find that that decision was contrary to s 12 of the Staff Discipline Statute, which provides:

(1) In any appeal proceedings, the Committee may, in its absolute discretion, allow a staff to have legal or other representation when appearing before it.

(2) All documents presented to a Committee in respect of an appeal shall be made available to the staff concerned or his/her legal representative, except where the Committee believes that the safety of the complainant or witness may be put at risk by doing so.

(3) In any proceedings under this section, the Committee shall make a thorough investigation without having regard to technical or legal rules of evidence and may inform itself on any matter in such a manner as it thinks proper.

19. The effect of s 12 was to confer on the plaintiff a right to appear before the Appeals Committee and a right (subject to the exception where a complainant or witness would be put at risk – but there was no evidence of that here) to have all documents presented to the Committee made available to him before the hearing. These are normal requirements of natural justice which would apply even if the Staff Discipline Statute made no provision for them (Graham Keri v Teaching Services Commission Disciplinary Committee (1997) N1555, Jeffrey Afozah v Police Commissioner (2008) N3300). I find that the Committee, or at least the Registrar acting on behalf of the University, was subject to an obligation to ensure that those rights were afforded to the plaintiff.

20. Those rights were not afforded to him. He was denied the right to appear before the Appeals Committee and (according to his evidence, which was not countered by the defendants, which I accept) he was not provided with the documents presented to the Appeals Committee. These were errors of law on the part of the Appeals Committee and therefore on the part of the University (the fourth defendant).

(c) Council of the University

21. I find that the Council erred in law in two respects. First, it reviewed the decision of the Appeals Committee, which was to dismiss the plaintiff’s appeal and to confirm the penalties recommended by the Special Staff Discipline Committee (reprimand, demotion, banning the plaintiff from various activities and good behaviour bond), and proceeded to impose a harsher penalty (termination of employment), which it was not authorised to do. The Staff Discipline Statute does not provide for a review of the Appeals Committee’s decision by any person or body, including the Council, and does not allow the Council to substitute a penalty for the penalty imposed as a result of the Appeals Committee’s deliberations. The power of the Appeals Committee and the effect of its decision as to penalties, are prescribed by ss 8(7) and (8) of the Staff Discipline Statute, which provide:

(7) An Appeal Committee may vary or set aside any decision or penalty previously made or imposed against the appellant and may substitute any other penalty it thinks appropriate.

(8) A decision of the Appeal Committee shall be final.

22. That means the Appeals Committee’s decision was final. The only role for the Council was to note or acknowledge the decision or endorse or ratify it and ensure that it was implemented.

23. Secondly, the Council took into account additional information in the form of further allegations of misconduct against the plaintiff, without putting those allegations to the plaintiff and giving him the opportunity to respond to them, and found the allegations proven and found the plaintiff guilty of serious misconduct, warranting dismissal from employment as Pro Vice-Chancellor. The Council’s deliberations in that regard are set out in the following parts of the Vice-Chancellor’s letter to the plaintiff of 31 March 2020:

The Council on 25.03.20 received the SSDC Determinations/Recommendations and the Report from the SSAC. The Council also is privy to additional information available to the members. The additional information available to the Council members include:

1. Cases of blatant insubordination when you failed to:
   
   • Respond to lawful instructions from Council given to you through the 19 charges
   • Return the keys to the official vehicle and office
   • Return the official vehicle to the Admin car park
   • Submit copy of your Thesis, Degree Testamur, and
   • Submit Financial Report requested by Chancellor
     
2. Disrespect the internal University disciplinary processes when you:
   
   • Wrote to the Minister on 27/01/10 to establish an ‘Independent Arbitration Team’ where existing statute is silent,
   • Wrote directly to the HERST minister without allowing the existing processes to conclude,
   • Ill-advised the management that you sought the Minister’s approval to retain the vehicle when administrative processes cannot be thwarted by ‘political’ directions outside of the legal mechanisms, and
   • Dictated a Terms of Reference for investigations against the University through the Minister for HERST which could be interpreted as ‘political interference’ into administrative issues.
     

100. Subject to clause 3.4 of your Employment Contract all the matters referred to in paragraphs (a) and (b) above amount to serious misconduct in the performance of your duties as a Pro Vice Chancellor (Academic, Research and Innovation).
     

4. Further to paragraph c on the determinations of SSDC Decision, the SSAC Decision and Council collectively found you guilty of serious misconduct in the office of the Pro Vice Chancellor (ARI).
   

DECISION/RESOLUTION

The University Council considered the SSDC Determinations, SSAC Decision not to reverse SSDC Decisions and the additional information available (Serious Misconduct in Office), resolved that the SSDC determination to demote you be varied to Termination from the University of Goroka as Pro Vice Chancellor (Academic, Research and Innovation) with immediate effect (26.03.20) to reflect the serious misconduct enumerated above.

24. The above allegations were additional to the 19 disciplinary charges initially considered by the Special Staff Disciplinary Committee.

25. I uphold the defendants’ contention that it was open to the Vice-Chancellor and/or the Council to base a decision to terminate the plaintiff’s employment on a finding of “serious misconduct”, which the above allegations would appear to support. I also uphold the contention that that could be done in accordance with the contract of employment and s 14 of the Staff Discipline Statute without laying formal disciplinary charges or referring the allegations to a Special Staff Discipline Committee.

26. Clause 3.4 (suspensions and dismissals) of the plaintiff’s contract of employment stated:

After due and proper enquiry and subject to any statute on tenure of the Pro Vice Chancellor, the council may dismiss or temporarily suspend and stop payment of the salary of the Pro Vice Chancellor who has grossly or persistently neglected his/her duties as specified in Section 2 hereof, or has otherwise been found guilty of serious misconduct in or affecting the performance of such duties on serious misconduct affecting property and/or the welfare of the University in general.

After due and proper enquiry and subject to any statute on tenure of the Pro Vice Chancellor, the council may for such period as it may determine, not exceeding one year, suspend the Pro Vice Chancellor from his/her duties without loss of salary if the Council believes such suspension to be in the best interest of the University, provided that after the termination of such period of suspension imposed, the Council shall decide whether other periods of suspension may be imposed by the Council or after a specific interval.

27. Section 14 (dismissal or suspension without salary by council) of the Staff Discipline Statute states:

(1) Subject to Section 15, the Council may dismiss from his/her office or suspend from his/her duties without salary any staff member who-

• (a) has grossly or persistently neglected his/her duties as specified in the terms of his/her appointment; or
  
• (b) has otherwise been guilty of serious misconduct-
  
  • (i) in or affecting of his/her duties; or
    
  • (ii) prejudicial to the well-being of the University.
    

(2) Before the Council enters on the consideration of any dismissal or suspension without salary under Subsection (1) the following procedures shall be observed:-

• (a) Written notice of the grounds proposed for dismissal shall be given by the Vice-Chancellor to the staff member concerned at least one month before the date of the meeting of the Council at which the dismissal or suspension is to be considered; and
  
• (b) the notice shall particularise the facts relied on for the dismissal and specify the date on which the Council will consider the matter; and
  
• (c) on the date specified in the notice the Council shall inquire into the matter; and
  
• (d) before reaching any decision the Council shall-
  
  • (i) consider any written representation submitted by or on behalf of the staff member; and
    
  • (ii) if the staff member so requests, grant him/her, or his/her representative, an opportunity to appear before and address the Council; and
    
• (e) at least two weeks before the Council considers the matter the Vice-Chancellor shall on request, supply the staff member or his/her representative with copies of statements from all persons who have furnished information to the Vice-Chancellor concerning the facts relied on for dismissal or suspension; and
  
• (f) if the staff member or his/her representative notifies the Vice-Chancellor in writing that he/she wishes to cross examine any such person, then that person shall be made available for cross-examination at the time when the Council meets to consider the dismissal or suspension.
  

28. I consider that termination of the plaintiff’s employment could only be lawfully effected, other than by first referring the charges to a Staff Discipline Committee, if the procedures in s 14 were followed. In this case, the procedures in s 14 were not followed, as:

• no notice of the proposed grounds of dismissal was given to the plaintiff (s 14(2)(a));
• the plaintiff was denied the opportunity to make written representations to the Council (s 14(2)(d)(i));
• the plaintiff was not given the opportunity to appear before and address the Council (s 14(2)(d)(ii));
• the plaintiff was not provided with copies of statements from persons concerning the facts relied on for dismissal (s 14(2)(e)); and
• the plaintiff was not given the opportunity to cross-examine such persons (s 14(2)(f)).
  

29. I conclude that the Council’s decision to terminate the plaintiff’s employment, to the extent that it was based on the additional allegations referred to in the Vice-Chancellor’s letter of 31 March 2020, involved an error of law due to the failure to adhere to the procedures in s 14.

GROUND OF REVIEW 2: BREACH OF NATURAL JUSTICE

30. Some of the errors of law referred to in ground 1 also amount to a breach of the principles of natural justice, in that there was a failure to act fairly and to be seen to act fairly. I find that breaches of the principles of natural justice were committed:

• by the Appeals Committee, when it refused without good reason to allow the plaintiff the opportunity to appear before it, to argue his appeal against the decision of the Special Staff Discipline Committee (it was not a good reason to say that the plaintiff did not respond to the Special Staff Discipline Committee as the Appeal Committee could not properly make such a prejudicial finding without hearing from the plaintiff to check that he did not in fact respond, and if he did not respond, why he did not respond); and
  
• by the Council, when it failed to give notice to the plaintiff of the additional allegations referred to in the Vice-Chancellor’s letter of 31 March 2020 and failed to give him the opportunity to respond to those additional allegations.
  

REMEDIES

31. The primary grounds of review have been upheld. The decisions of the Special Staff Discipline Committee, the Appeals Committee and the University Council each involved errors of law, and in the case of the Appeals Committee and the Council also involved breaches of the principles of natural justice. The decisions are susceptible to judicial review.

32. It does not necessarily follow that the court will make the declarations and orders sought by the plaintiff. In any judicial review the court’s determination of the review proceeds in two stages: (a) determining whether the plaintiff has proven one or more grounds of review, and if he has (b) deciding as a matter of discretion what remedies, if any, should be granted (Dale Christopher Smith v Minister for Lands (2009) SC973; Isaac Lupari v Sir Michael Somare (2008) N3476).

33. The primary remedy sought by the plaintiff is reinstatement, without loss of emoluments. The defendants resist such an approach, saying that the plaintiff should be restricted to private law remedies, such as damages, and that the Court should not order the parties to renew an employment relationship that has become noxious.

34. I don’t accept the proposition that the plaintiff is restricted to private law remedies. He was granted leave for judicial review on the basis that, though employed under a contract of employment, he was appointed to an office provided for by statute (the University of Goroka Act) and held office under terms and conditions, including being subject to a disciplinary code, set under pieces of delegated legislation (the various University Statutes). The decisions made in the course of the disciplinary process, culminating in the decision to terminate his employment, were made in purported compliance with the provisions of the Staff Discipline Statute. He is clearly eligible for public law remedies.

35. It nonetheless remains a matter of discretion. If it was clear that the plaintiff’s relationship with the defendants was so noxious that ordering his reinstatement would create insurmountable dysfunction and clearly not be in the best interests of the University, the Court would hesitate before ordering reinstatement (Waipo v Simitab (2016) N6266). However, I do not consider that those scenarios exist here.

36. Inevitably, reinstatement of the plaintiff will not be easy for everyone. Things have no doubt been said and done over the last six months that have created unease and friction and unfriendliness. However, these are issues that can, and must, be managed and resolved with good intentions, maturity and leadership being displayed by both sides.

37. There are important principles of good governance and human rights at stake in a case such as this. Those in authority must make decisions affecting the livelihood and reputation of others in accordance with the prevailing law and adhere to the principles of natural justice, acting fairly and being seen to act fairly at all times. For those reasons I will order that the plaintiff be reinstated and make the appropriate accompanying declarations and orders.

38. As to costs, I decline the plaintiff’s application for costs on an indemnity basis. I don’t think the defendants made their decisions in bad faith. Mistakes were made but I think they were honest mistakes. Costs will follow the event, and be payable on a party-party basis.

ORDER

1. The application for judicial review is granted.
   
2. It is declared that the decision of the Council of the University of Goroka of 26 March 2020 to terminate the employment of the plaintiff as Pro Vice-Chancellor (Academic, Research and Innovation), notice of which was conveyed to the plaintiff by a letter from the second defendant dated 31 March 2020, is unlawful and null and void; and it is ordered that that decision is quashed.
   
3. The defendants shall take all steps necessary to, within 14 days after the date of this order, reinstate the plaintiff to the position he previously occupied, and within 28 days after the date of this order pay the plaintiff back-pay and all other lost emoluments arising from the unlawful termination of employment.
   
4. The plaintiff shall within 21 days after the date of this order reimburse any monies paid to him in the form of final entitlements upon termination of his employment.
   
5. The first, second, third and fourth defendants shall pay the plaintiff’s costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.
   

Judgment accordingly.
_________________________________________________________________
Ashurst Lawyers: Lawyers for the Plaintiff
H Best Wally Lawyers: Lawyers for the First & Third Defendants
Waisi Lawyers: Lawyers for the Second & Fourth Defendants