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Kasper v Kiap [2021] PGNC 304; N9066 (18 August 2021)

N9066

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 497 OF 2018


FREDRICK KASPER
Plaintiff


AND:
HONK KIAP AS CHAIRMAN OF THE STAFF APPEAL TRIBUNAL
First Defendant


AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Second Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Waigani: Miviri J
2021: 06th & 18th August


PRACTICE & PROCEDURE – Judicial Review & Appeals – Order 16 Rule 5 Application for Judicial review – Council Engineer – Negligence or Careless discharge of duties – Charged Suspended –Right to hearing – Error of Law Section 10 Staff Disciplinary Code – Breach of Procedure – balance discharged – Judicial Review granted – Cost follow event.


Cases Cited:

Fallscheer v Okuk and The State [1980] PNGLR 101

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Monouluk v Pala [2020] PGSC 119; SC2031
Counsel:


F. Kasper, plaintiff in person
L. Raula & C. Malala-Vao, for Defendants


RULING

18th August, 2021


  1. MIVIRI, J: This is the ruling on the Plaintiff’s Notice of motion for judicial review ordered for re hearing by the Supreme Court SCA 165 of 2018 on the 17th December 2020. It quashed the orders of the National Court of the 04th September 2018 and remitted the matter for rehearing. This is the rehearing on the substantive notice of motion.
  2. He was terminated as Minor Works Manager, Council Engineer Moresby South Electorate with the National Capital District Commission on the 28th January 2012.
  3. He had started employment as a general labourer on the 15th June 1992. And in the course of that engagement was assisted by the second respondent with further training at the Lae Technical College in 1995 where he graduated with a Diploma in civil engineering 03rd December 1997. As at the date of termination he had worked with the Defendants for over twenty-two (22) years. He started out as a general Labourer, then became Assistant technical Officer, Technical Officer, Assistant Engineer and finally Council Engineer. He was married with a family of seven children who were still in school. He was traumatized and heavily depressed by that fact. And that he had a current loan with the ANZ bank which he was paying K 700 per fortnight for the next 15 years. He has never been assisted in his housing by the defendants.
  4. He was charged with eight (8) charges altogether and suspended with pay pursuant to the Staff Disciplinary Code on the 04th May 2011. The eight (8) charges primarily comprised:
  5. He argues that he was not accorded natural Justice. He was never physically present either in person or represented by a lawyer as allowed for Part 4 item 10 (2) of the National Capital District Commission Staff Disciplinary Code. He argues that he was denied appearance at the Staff Appeals Tribunal to examine and cross examine those persons who had laid the charges against him. And he did not address the appeal in response. His termination did not stand because he had not been accorded natural justice in law.
  6. He seeks declaration that his termination was wrongful null and void. And that he be reinstated back to his former post or similar post with all salary and other emoluments to be backdated to 13th January 2012 and paid. And General Damages of K 120, 700.00, Special damages of K 21, 700.00 and exemplary Damages K 50, 000.00 with interest pursuant to the Debts and Damages Act Chapter 52 of K 3, 480.00, costs of and incidental to the proceedings of K 5000.00 all be awarded him and paid to the total of K 200, 880.00.
  7. In so pursuing He relies on the following evidence as basis for his case. His own affidavit firstly filed of the 19th July 2018, secondly of the 21st July 2020, affidavit of Gabi Lega of the 18th June 2018, John Oapaisa filed of the 18th June 2021 and his own affidavit of the 28th June 2021.
  8. In the affidavit of 19th July 2018, he confirms his employment details including his qualification with the subject diploma attached that he attained. And his promotion from a general labourer to a civil engineer Council Manager Moresby South Electorate on or around 04th November 2005 for three years. It was a contract position for three years. So, upon expiry it was renewed again in or around December 2009. It was from 04th November 2008 to 04th November 2011. The subject contract is attached. The termination took place on the 20th February 2012. Particulars of which are set out in annexure “C” to his affidavit, “that he wilfully disobeyed or disregarded a lawful order made or given; Negligent or careless in the discharge of your duties; guilty of disgraceful conduct or misconduct in your official capacity as otherwise. That the charges were sustained by resolution No. SDC05-04-2011 by the Staff /disciplinary Committee. And because of that fact he was effectively terminated and that he should see the payroll manager for his final settlement. It was signed by Leslie Alu the City Manager. And that under Part 3 Division C of the Staff Disciplinary Code sub section 5 (b) he was given two days within which to appeal to the Staff Appeals Tribunal constituted under part 4.
  9. The particulars of his charges are set out at annexure “D” of his affidavit. His careless discharge of duties includes particulars of missing properties from the Store house that he held the keys to, and which were not accounted for. The disgraceful conduct was in relation to his assault upon the Bowser attendant over fuel. The service of which are in accordance with annexure “E” of his affidavit. Annexure “F” is the reply that he made to the charges dated the 11th May 2011. Annexure F4 is the loan approval from ANZ bank to fund his house in the sum of K 112, 050.00. Annexure “G” is the additional Charges of negligent and careless discharge of duties and this was in relation to the engagement of Hornbill Construction Company. The charge is dated 04th July 2011. He was required to respond to it within 7 days upon receipt. Annexure “H” is his response to the charges handwritten. Annexure “I” is his appeal to the Staff Appeals Tribunal after he was found guilty by the SDC. Annexure “J” is the dismissal of his appeal confirmation of the decision of the SDC dated the 28th January 2013.
  10. The affidavit of Gabi Lega of the 18th June 2021 deposes to this fact that termination was secured 24th August 2012 by the SAT confirming the decision of the SDC to dismiss him. And it was sustained on the basis of not observing financial procedures in awarding contract to Hornbill Construction Company Ltd of a type 7 open line drain at Gorobe Street Badili. In that Three (3) quotations were received whilst two (2) quotations were signed by the same person, Managing director for Hornbill Construction. The contract for works and services were duplicated and yet the plaintiff allowed it to be processed by allowing Hornbill Construction to sign documents for another Company duplicating payment. He knowingly defrauded the Second Respondent organization and was careless and negligent in the discharge of his duties and breached financial procedures. The affidavit concludes that Staff are not normally called into the SDC and the SAT. What they give in written response is considered and the decision is made from those materials. There is compliance with the law and it was the same here against the plaintiff. His written responses in each case were determined and decision made leading to his termination.
  11. The affidavit of Joe Opaisa Senior Engineer is the same in all material as with Gabi Lega but he attaches the accounting documents that led to the payment through an inter-office memorandum of 28th April 2011 which is addressed to the Financial Advisor. It is from Council Manager Moresby South. Subject is Hornbill Constructions and AEE BEE construction. It is advice written by the plaintiff recommending one Hornbill Construction out of the three received. And they were paid as a result. The cheque requisition and cheque show K 23,674.00 paid to Hornbill Construction. The payment has been made but the Managing Director of Hornbill writes that he was told to sign documents of Aee Bee Constructions which was not his company by the Plaintiff.
  12. What sets apart both witness is annexure “A” to the affidavit of Gabi Lega the Staff Disciplinary Code of the National Capital District Commission. Relevantly part 3 of that Code is titled discipline. It describes the offences including those that were levelled against the plaintiff.
  13. Of prominence in the light of the allegations raised by the Plaintiff that he was not accorded natural justice in accordance with that Code is section 10 of Part 4, Proceedings before Staff Appeal tribunal. It is in the following terms:

“(1) Upon receipt by the manager of a written notice of appeal pursuant to section 6 (5) of this Code the Manager shall within two (2) days of receipt of the notice of appeal appoint a Staff Appeal Tribunal and the Staff Appeal Tribunal shall convene and hear the appeal within two (2) days of being so appointed by the manager.

(2) On the hearing by a Staff Appeal Tribunal in relations to a charge against him, an employee may be represented by a lawyer, who may examine and cross examine witnesses and address the Tribunal on his behalf.

(3) The Charging Authority may be represented at any hearing by a lawyer.

(4) The Staff Appeal Tribunal shall make a thorough investigation without having regard to legal forms or solemnities of the rules of evidence and may inform itself on any matter in such manner as it thinks proper.

(5) The employee charged shall be notified in writing of the time and place of the hearing of the appeal.

(6) The Staff Appeal Tribunal may adjourn the hearing to a time and place to be appointed but such adjournment shall not be for more than two (2) days unless the employee charged and the Charging Authority consent to a longer adjournment period.”


  1. Annexure “D” of the affidavit of Gabi Lega is Minutes of the Staff Disciplinary Committee Supplementary Meeting No. 03 signed by Pinio Kalus chairman of the SDC. It is approved for implementation by Leslie Alu as the city Manager. The date is 20th October 2011. Examining that minutes, it depicts as if a meeting is conducted and not what is set out above by Code section 10 of Part 4, Proceedings before Staff Appeal tribunal. That is a hearing into an allegation of a charge. On the face of that record there is no appearance either by the Plaintiff Fredrick Kasper or a lawyer either for him or the Authority charging. There is no examination of witnesses or cross examination likewise. It is what is written that is moved on the basis of which come out the decision. And there is nothing in confirming with Code section 10 of Part 4, Proceedings before Staff Appeal tribunal. It is eight (8) Page minute, but there is no explicit detailing of the reasons as to why the Committee finds as it does. The minute also lumps in the allegation of the assault of the Plaintiff at the hands of another employee one Paul Fagan.
  2. There are also incidents involving other employees all are lumped into that hearing and come out into that minute involving all. There are four other employees whose discipline and charges are also determined in the minute.
  3. A number of observations follow against this procedure detailed by the Minute. It is not a hearing per se where each of the staff alleged appear before in person are put the matter fulfilling. Because the words of section 10 are direct and immediate, “(1) Upon receipt by the manager of a written notice of appeal pursuant to section 6 (5) of this Code the Manager shall within two (2) days of receipt of the notice of appeal appoint a Staff Appeal Tribunal and the Staff Appeal Tribunal shall convene and hear the appeal within two (2) days of being so appointed by the manager.
  4. The hearing depicts presence of the accused or appellant in person before that Staff Appeals Tribunal. Reading and discussion the fate of a Staff member is a different matter altogether from hearing. It denotes voice projection and receipt of the senses of hearing via the ear and sight. Seeing physically the person or appellant in the hearing to conduct including his examination of the witnesses there and cross examination thereof. Its convening constitution is specific to hear the appeal, not to read the appeal. And from it write a minute to the City Manager on the same. That is what is depicted out here. It is a minute as opposed to a hearing conducted sourced in person from the appealing, persons examined cross examined and the determination of the committee into written form against the particular appellant. Certainly not in the minute form as is current before me. Here it is a convoluted minute from written material that are not verified as to their veracity. Strict rules of evidence are not binding but truth is a must where employees are appealing against termination as is the case of the plaintiff here.
  5. That is clear when examination and cross examination is called, it means physical appearance by Fredrick Kasper before the Staff Appeals Tribunal with his lawyer, or if not then he in person to examine cross examine evidence that is levelled against him. The minute of the Staff Appeals Tribunal do not show that on its face. It means it was not the case hence the record is self-explained.
  6. And the dispute that he raises against the affidavit of Gabi Lega of the 18th June 2021. Particularly paragraphs, 17, 18, 19, 20, 21, 22, & 24 is materialized here. There is no personal appearance by Fredrick Kasper on each of those occasions. Whatever was made as decision emanating was not following this process set out above. There was no thorough investigations under section 10 (4) and that would have been so if there was attendance in person by the Plaintiff with witnesses and conversely that of the defendants similar with their lawyer. That is not the evidence apparent on the face of the Minute of the Staff Appeals Tribunal.
  7. In the Code there is distinction made between a serious offence and not a serious offence code division B Minor Offence and Division C serious Offence. Further the appeal is on the grounds of innocence and excessiveness or severity of the punishment Code Section 8. It naturally follows that there will be thorough investigations under section 10 (4) of the Code. To prove innocence means to examine the witnesses or evidence of both sides by lawyers representing or in this case by the employee in person. This accepts that it is the last chance for the employee to fight their cause within the Department or the Organization. Innocence depicts complete and thorough examination and cross examination of the offence. That is not evident on the record of the minute.
  8. His appeal letter addressed to The City Manager; National Capital District Commission is allegedly annexure “I” to the affidavit of Gabi Lega of the 18th June 2021. The letter is dated 14th August 2012. The subject is appeal against Disciplinary Punishment. He contends that the punishment is too harsh and unjust. This is all written down but there is no evidence of the formal appearance of Fredrick Kasper before that committee. It is clear that the committee has not accorded what the Code section 10 calls in the proceedings against Fredrick Kasper.
  9. This is particularly so of annexure “E” of the affidavit of Gabi Lega the additional charges that were served on the plaintiff. That too by annexure “F” which led to annexure “G” minutes of the Staff Disciplinary Committee is only that there is no evidence of compliance of section 10 of the Code. It maybe excusable here because it is institution of the disciplinary process. In the case set out above of an appeal after that process, it is very clear what the intent of the law is there. Particularly considering that the employee as here Fredrick Kasper will suffer serious consequences following, confirmation of the termination or otherwise.
  10. Natural justice flows from Section 59 of the Constitution Principles of Natural Justice. It is in the following term:

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

  1. These observations are important when glossed because the accounting process in a government Institution is clear there are number of officers in the que playing their roles before the cheque with the money changes hands. National Capital District Commission is a public authority and has similar process and procedures relating to finance and application thereof. It is important in the light of the fact raised by the Plaintiff that he was not the signing authority or the financial delegate authorizing to make the payment. His immediate boss Mr Joe Opaisa Senior Engineer was the authority to commit the funds. The payment was made to approved contractors. Here the authorized signatory was Joe Opaisa as Senior Engineer overlooking the plaintiff who reported to him. There is no record of this examination or cross examination on the minute of the Staff Appeals Tribunal.
  2. In all fairness and reasonableness Joe Opaisa Senior Engineer also had a lot of explanation that entailed only the Plaintiff, leaving him out and clawing the plaintiff did not see the full story of the matter. There was a lot outstanding because there was no one in person making appearance, doing examination and cross examination. Innocence was not thoroughly investigated to make it stand after that process. Particularly when the structure was in order of seniority, Leslie Alu City Manager, Deputy City Manager, Works Manager Joe Opaisa, Fredrick Kasper Deputy Works Manager council engineer, Senior Technical Officer, Technical Officer, Supervisor, Foreman, Drivers, office cleaner, tea girl, general labourer. It makes administrative perfect sense that the plaintiff reported to Works Manager Joe Opaisa and therefore the accounting process would involve him and not only the plaintiff.
  3. This would have been uncovered if heed was given section 10 Proceedings before Staff Appeal Tribunal of the Code. Hearing Fredrick Kasper in person would have given light to this fact, examination of witnesses would have given clear where lay the fault. It could not be done because heed was not paid to section 10 of the Code in processing what was before it on Appeal by Fredrick Kasper. Examination of the process in accounting by witnesses called to thoroughly investigate as to the innocence or not of Fredrick Kasper, would have seen that there was more to it then that which was seen by reports written and submitted to it. It did not seal that the process to consider and determine an appeal was concluded in accordance with section 10 of the Code. And what was laid out to arrive at the termination of Fredrick Kasper did not in all material particulars overt by the print on the minute depicted that process was indeed heeded. There is no iota of that fact on record. No appearance of Fredrick Kasper or any witnesses or if he had secured a lawyer appearance of the lawyer and the particulars of evidence illuminated by examination and cross examination. Innocence was not thoroughly investigated to give effect to section 10 of the Code.
  4. That determination decision terminating Fredrick Kasper cannot stand in law. The process to arrive is breached as particulars set out above. The decision made would not have been what it arrived at if the complete process was followed through. A reasonable tribunal given the facts and circumstances posed here would not have made the decision that was made by both the SDC as well as the SAT. The same observations are applicable in respect of the proceedings in SDC. Grave consequences to derail employment of staff who have faithfully served to rise the ranks as here from a labourer to Deputy Works Manager is not attained overnight. Procedures for determination of disciplinary matters is not in a haste. And is not just a committee meeting but a hearing of the allegation and the evidence and if sustained the reasons properly settled in law: Fallscheer v Okuk and The State [1980] PNGLR 101.
  5. It is convened purposely for that fact and cannot be just another committee hearing. Human beings are not equipment in an office subjected to a board of survey report to be replaced. Life lives from the employee to his family not without. Written material must be verified to arrive at a sound basis either in fact or law to set the avenue for the decision coming. It was more to be seen out in that initiating process of the SDC. Section 59 of the Constitution was the bar to gauge and here serious consequences were not on paper hearing alone. There was immediate need for obvious reason as to severity of penalty because these were serious offences against the Plaintiff.
  6. It is gravely clear that process was violated under section 10 of the Code and section 59 of the Constitution. Both decisions in the SDC as well as the SAT were in violation of procedure and therefore did not stand against Fredrik Kasper in all respects. They had no bearing on him because of the violation of procedures. His termination was not founded in due process had no legal effect against him. Because judicial review abides with internal process and does not allow circumventing, or avoiding, or overruling or overstepping: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). In his case as in Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) procedure has been violated to arrive at the termination. The plaintiff has in all respects discharged the required balance for judicial review. Here the decision that was made of the 13th January 2012 terminating him by the Staff Disciplinary Committee endorsed on appeal by the Staff Appeals Tribunal is brought into Court and quashed forthwith pursuant to Order 16 Rule 9 (3) of the National Court Rules.
  7. Further it is ordered that he be reinstated to the position he held of Deputy Works Manager, or to a similar position with all salaries emoluments and entitlements to be paid to him back dated to 13th January 2012. Prejudice is not in issue where there has been grave injustice by the procedure applied to terminate a servant who has made his way from a general labourer to deputy Works Manager with 22 years career span there. It is not the same as in Monouluk v Pala [2020] PGSC 119; SC2031 (24 November 2020), therefore his plea for reinstatement is granted with full entitlements backdated to 13th January 2012 to be paid to him.
  8. He has sought damages which are allowed by Order 16 Rule 7. That is granted to him in the light of the law and the facts set out above. He has suffered because the law has been violated in terminating him. He is entitled to damages and is accordingly awarded damages. But to be assessed as I am not satisfied on the material that he has filed that they would be in the amount in the headings that he has set out, total sum of K 200, 880.00 set down in different headings as; General Damages of K 120, 700.00, Special damages of K 21, 700.00 and exemplary Damages K 50, 000.00 with interest pursuant to the Debts and Damages Act Chapter 52 of K 3, 480.00. They would be assessed.
  9. As to the costs of and incidental to the proceedings that is allowed to be taxed if not agreed. The costs will follow the event if not agreed to be taxed.
  10. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Fredrick Kasper in person : In person

NCDC Inhouse : Lawyer for First and Second Defendants

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