N1076

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPLICATION OF DEMAS GIGIMAT

Mount Hagen
Woods J

12 June 1992
26 June 1992

JUDICIAL REVIEW - Leave - Dismissal from employment in Post & Telecommunication Corporation - Statutory rights of employee - Procedures for dismissal.

Facts

The applicant worked with the Post & Telecommunication Corporation for 21 years, 5 of which were in a supervisory capacity in the business office in Mount Hagen. Investigators found that a large sum of money was missing and the applicant, being the supervisor, was asked to explain. He was subsequently charged under the relevant disciplinary by-laws and, failing to give satisfactory reasons for the disappearance of the money, was dismissed from his employment. His application to the Reconsideration Committee to review the order was unsuccessful. He then applied to the National Court seeking leave for judicial review of the decision.

Held

1. The established principles in seeking leave for judicial review emphasise that an applicant must show that he has an arguable case.

2. The court in considering leave to review is not necessarily concerned with the merits of the decision in respect of which the review is sought but rather the decision-making process itself.

3. It is not the purpose of review to substitute the opinion of the judiciary or the individual judge for that of the authority constituted by law to decide the matter in question.

4. Rejecting the application, a reviewing court is not a court of appeal.

Cases Cited

Papua New Guinea case cited

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.

Other case cited

Council of Civil Service Unions v Minister for the Civil Services [1984] 3 All ER 935.

Counsel

P Luben, for the applicant.

26 June 1992

WOODS J: This is an application for leave to seek Judicial Review of the decisions of certain officers of the Post and Telecommunication Corporation to suspend and dismiss the applicant from his employment with the Corporation.

The applicant aged about 48 years, had been employed by the Corporation or its predecessor since 1969. From 1986, he was the supervisor of the Telecom Business Office in Mount Hagen. Early in 1991, investigators of the Corporation found that a large amount of money had gone missing from the office. The applicant, being the supervisor, was held responsible and asked for an explanation. The investigation report recommended that charges be laid against him under the by-laws, in particular under s 19. In accordance with the disciplinary by-laws, he was asked to give reasons as to why he should not be dismissed from the Corporation.

In due course, he gave an explanation. However, his explanation was held to be not acceptable. The reason given was that he was the person responsible for ensuring that proper procedures were in place when counting and banking of monies took place in the Mount Hagen business office. This he failed to do - and as a result a total of K2,858.63 were missing. The Telecom District Manager, therefore, resolved that the applicant should be dismissed. The District Manager referred the applicant to the review procedure following such dismissal. The applicant did seek a review of this dismissal; however, the PTC Reconsideration Committee resolved that his appeal was unsuccessful.

The applicant is seeking this court's review of these procedures and decisions and seeking a finding of wrongful termination.

The established principles in seeking leave for judicial review emphasise that an applicant must show that he has an arguable case. The court in considering leave to review is not necessarily concerned with the merits of the decision in respect of which the review is sought but rather the decision-making process itself. It is important to remember that the purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which it has been subjected. But it is not the purpose of review to substitute the opinion of the judiciary or the individual judge for that of the authority constituted by law to decide the matter in question. A reviewing court is not a court of appeal.

The established grounds on which administrative decisions of this nature can be reviewed can be summarised from what Lord Roskill said in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 953:

1. Want or excess of jurisdiction.

2. Where there is an error of law on the face of the record.

3. Failure to comply with the rules of natural justice.

4. The Wednesbury principle - where a power is exercised in so unreasonable a manner.

And as Kapi DCJ said in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at 124:

"The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. "

So, does the applicant have an arguable case here? Has there been an error in the decision-making process? This is not an appeal from the severity of the decision of the Corporation or the officer who made the decision.

The evidence before me is that the applicant was a senior officer of the Corporation with a responsibility which included the accounting and security of cash received in the office of the Corporation for which he was responsible. Any employer or corporation is entitled to expect a high standard of responsibility where money is involved. The corporation had found a serious discrepancy and was entitled to call the applicant to account. The Corporation followed the correct procedures for dealing with an employee in such a situation. It gave him a chance to put his case or explanation. When the officer of the corporation was not satisfied with the explanation, it made a decision it was empowered to do. Moreover, that officer then drew the applicant's attention to the appropriate review procedure, which the applicant then availed himself of, to no avail. I can find no errors in the decision-making process. The Corporation was quite entitled to terminate for such a breach of responsibility involving money, and the procedures for a fair hearing were followed.

There is no way, therefore, that this Court can or should interfere. There is sufficient material before me on this application for leave to lead me to refuse leave for judicial review.

___________________

Leave for Judicial Review is refused.
Lawyer for the applicant: Joseph Mek Teine.