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Kisau v National Capital District Commission [2002] PGNC 30; N2324 (3 April 2002)

N2324

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 682 OF 2000

WESLEY KISAU

-v-

NATIONAL CAPITAL DISTRICT COMMISSION
&
BERNARD KIPIT

WAIGANI: SALIKA, J

JUDICIAL REVIEW – Plaintiff terminated from employment – plaintiff charged criminally – criminal charges not proceeded with – plaintiff charged with disciplinary offence – found guilty and terminated by second defendant – plaintiff appealed to Staff Appeal Tribunal – Staff Appeals Tribunal recommends to Second Defendant to uphold termination – matter to go back to Staff Appeals Tribunal to make a decision.

Counsel:
Mr P Kingal for the Plaintiff
Mr J Nonggor and Mr C Nidue for the Defendants

The plaintiff’s originating summons reads:

1. An order that leave be granted to the Plaintiff to judicially review the decision of the Second Defendant’s to terminate the Plaintiffs employment with the First Defendant.
2. A declaration that the defendants’ decision to suspend the Plaintiff without pay for four (4) months, three (3) weeks and five (5) days from 2 march to 26 July 2000, before terminating his employment amounted to an unreasonable delay and therefore further amounted to a very harsh and oppressive act not reasonably justifiable in a democratic society.
3. A declaration that the Plaintiff’s termination was grossly unfair and or disproportionate to the circumstances of the disciplinary charge in that the offence he was alleged to have committed, occurred as a result of an act authorized by the first defendant and or its agent and in the best interest of the First Defendant to ensure efficiency within the organization.
4. A declaration that the purported letter of termination dated 21 July 2000, was orchestrated by the second defendant and or his agents and servants to annul and or superseded the decision of the Waigani Committal court to dismiss the criminal charges brought against the plaintiff and therefore deprived the plaintiff’s right to reinstatement pursuant to Public Service General Order, Order 8.16.
5. A declaration that the plaintiff’s termination in all circumstances was harsh and oppressive and not reasonably justifiable in a democratic society, having proper regard for the rights and dignity of mankind.
6. A declaration in the alternative, that the National Capital District Commission Staff Disciplinary code is inconsistent with the principle of natural justice and it does not allow for a disciplinary matter to be dealt with expeditiously.
7. A declaration that the NCDC Staff Disciplinary Code in not providing a time frame within which to determine a disciplinary charge is open to abuse and therefore is inconsistent with constitution Section 59, and therefore is not a law that is reasonably justifiable in a democratic society.
8. An order in the nature of a mandamus directing the second plaintiff to reinstate the Plaintiff to his former position with the First Defendant together with all entitlements backdated to the date of suspension without pay.
9. An order in the nature of a certiorari removing into the National Court and quashing the decision of the second defendant and his agents and/or servants dated the 21st of July, 19th of September, 2000 and 16th October, 2000 respectively.
10. An order that leave be granted to the Plaintiff to file a statement of claim for damages and or loss arising as a result of the termination.
11. An order that the Defendants meet the cost of this application.
12. Any other or such necessary orders as this honourable court sees fit and proper in the circumstances.
    

The originating summons was amended by order of the Court on the 13 July 2001. The amendment reads:-

The Court Orders that:-

1. The plaintiff is granted leave to amend the originating summons as proposed in the schedule to the Notice of Motion, and amend the statement under Order 16 of the National Court Rules in the terms of the draft in the schedule to the Notice of Motion filed on 6th July, 2001.
   

An order for leave for judicial review were obtained on the 13 December, 2000. The matter then was heard on 3 April, 2002 and decision reserved generally.

FACTS:

The plaintiff was at all material times an employee of the First Defendant occupying the position of Rates and Information Technology Project Manager. He had been employed by the National Capital District Commission, the first Defendant, for 18 years. The National Capital District Commission is a public body established under an Act of Parliament.

On or about the 1st of March 2000 the plaintiff was suspended by the second defendant without pay and disciplinary charges were laid for disgraceful conduct contrary to s.3(a) of the National Capital District Commission Staff Disciplinary Code. Two charges laid were:-

1. "Between 22 December 1999 and January 2000 whilst being employed by the National Capital District Commission, fraudulently obtained a cheque No 127592 for K780.16 issued to Theodist Ltd and used it on 19January 2000 to obtain supplies for personal use. The cheque was actually requisitioned by Market Section who was all that time looking for the cheque.
2. Between 13 January 1999 to 9 February 2000 whilst being employed by National Capital District Commission fraudulently obtained cheque No 127445 dated 7 January 2000 for Beltek Chemicals and attempted to defraud the National Capital District Commission through cashing it. The cheque was recovered from him 28 days later".
   

Those were the charges laid against him and the plaintiff after being served the suspension notice and charges on 3rd March 2000 replied on 4 March 2000 saying:-

(a) The cheque collected to purchase stationary for Rates and Information Technology projects and accounts payable because it was mistakenly believed that it was the cheque requested by the plaintiff for that purpose earlier in October 2000. That it was an honest mistake of fact and the stationery used for the benefit of the Commission.
(b) The cheque payable to Beltek was returned to the treasury section in good faith after discovery that they were picked up along with other cheques belonging to accounts payable section. In any case the cheques were to be paid through the accounts payable section.

The plaintiff was subsequently referred to the National Fraud Squad. At the request of the Fraud Squad he returned all stationary items purchased. He was then charged for stealing K780.16 worth of stationary belonging to the National Capital District Commission and committed to stand trial at the Waigani Committal Court.

Pending court proceedings the plaintiff made numerous requests personally and through his lawyers to have the charges deliberated on by the Commission itself through its disciplinary process or otherwise have him reinstated. He argued that it was an honest mistake on his part but his requests were turned down.

On 27 June 2000 the second defendant wrote to the plaintiff’s lawyers advising that they were not prepared to consider the plaintiffs reinstatement "until such time his case is determined in court and the outcome of the disciplinary charges contemplated against him". Despite the letter the plaintiff’s lawyers on 26 July 2000 requested the defendants to consider the matter as an internal disciplinary matter and have it dealt with separately from the Courts. There was no response to this request.

The Waigani District Court on committal hearings refused to commit the plaintiff to the National Court for trial and the plaintiff was discharged from the charges. A letter was written to the Defendant advising them of the Court decision.

In the meantime by a letter purported to have been written on 21 July 2000 the second defendant terminated the plaintiff from his employment. The plaintiff received the letter in mid August, of 2000.

The plaintiff subsequently appealed the decision of the termination to the Staff Appeals Tribunal.. The Staff Appeals Tribunal deliberated on the appeal and recommended dismissal of the plaintiff to the second defendant or about October 2000. The second defendant refused the appeal. This application is to review the actions of the second defendant.

The grounds for the review are:-

1. The suspension of the plaintiff without pay from the outset was unreasonable and wrongful in that:-

(1) It was illegal and contrary to clause 21(4) of the NCD Staff Disciplinary Code because there was no order for the plaintiff to be suspended without pay;

(2) His charge was for disgraceful conduct pursuant to s.3(1) (g) of the NCD Staff Disciplinary Code as opposed to ss(2)(b)(viii) of the code.
(3) The suspension without pay amounted to an harsh and oppressive act given the circumstance that the materials and stationery purchased were committed for the use of the first defendant commission.
(4) The undue delay by the defendants to deliberate on the plaintiff disciplinary charges within a reasonable period of 21 days amounted to a tactic by the defendants to frustrate and cause the plaintiff to suffer unnecessary hardship which amounted to or was equivalent to a self executed punishment.
(5) The defendant actin to further await the district court to deliver its finding on the plaintiff’s charges and subsequently termination him after learning of the dismissal of his charges in the district court amounted to an unfair and indecisive decision by the defendants therefore further amounted to a wrongful and arbitrary dismissal.
(6) That the plaintiff having been suspended without pay from 3rd March 2000 to 28th July 2000 in the circumstance that he had five (5) dependants to feed and without any means to support amounted to a very harsh and oppressive action and therefore a self executing punishment given the nature of the offence.

2. The purported letter of termination dated 21 July 2000 was orchestrated by the second defendant and or his agents and servants to annul and supersede the decision of the Waigani Committal Court to dismiss the Criminal Charges brought against the plaintiff thereby depriving his rights to reinstatement upon acquittal of the criminal charges.
3. The termination of the plaintiff after he had been acquitted of the criminal charges was illegal and contrary to s.3(2) of the National Capital District Commission Staff Disciplinary Code in that:-
   • (a) He was not convicted of the offence for which he was charged and therefore he was not guilty of misconduct as charged by the commission.
   • (b) He was terminated for reasons other than the charge for disgraceful conduct or misconduct, which offence he was charged with disciplinarily.
   • (c) The disciplinary offences for which the plaintiff was subsequently terminated are not the offences for which he was disciplinarily charged and suspended. He was terminated for "committing an act of fraud" a charge the provision for which was to stipulated in the disciplinary charge.

(d) The charges against the defendants had lapsed for inaction by the commission and therefore he was entitled to immediate reinstatement.

4. The second defendant in terminating the plaintiff failed to take into account the following considerations.
   • (a) About one third of the stationary and materials had been returned to the police during their investigation of the alleged offences;
   • (b) The plaintiff’s past clean records with the commission;
   • (c) The plaintiff’s record of eighteen (18) years service with the commission;
   • (d) His suspension without pay for five (5)months; and
   • (e) The importance of his position as I.T. and Rates Manager with NCDC.
     

The plaintiff’s termination in all circumstances is biased in that:-

(a) All other employees of the commission facing similar or serious charges were allowed on suspension with pay
(b) The plaintiff’s case was treated unfairly as he was kept in suspension without informing him of the decision within a reasonable period of time.
(c) His appeal against termination was never presented to the Appeals Tribunal with the required two days or if not at all.

5. The plaintiff’s case was not accorded a fair hearing in that his appeal against the second defendant was never heard.
6. The defendants action were harsh and oppressive and not justifiable in a democratic society having no proper regard for the rights and dignity of mankind.
   

The plaintiff seeks the following reliefs:-

(1) An order that leave be granted tot he Plaintiff to judicially review the decision of the second defendant’s to terminate the plaintiff’s employment with the First Defendant.
(2) A declaration that the defendant’s decision to suspend the plaintiff without pay for four (4) months, three(3) weeks and five (5) days from 2nd March to 26th July 2000, before terminating his employment amounted to an unreasonable delay and therefore further amounted to a very harsh and oppressive act not reasonably justifiable in a democratic society.
(3) A declaration that the plaintiff’s termination was grossly unfair and or disproportionate to the circumstances of the disciplinary charge in that the offence he was alleged to have committed, occurred as a result of an act authorized by the first defendant and or its agent and in the best interest of the first Defendant to ensure efficiency within the organisation.
(4) A declaration that the plaintiff’s termination was grossly unfair and or disproportionate to the circumstances of the disciplinary charge in that the offence he was alleged to have committed, occurred as a result of an act authorized by the first defendant and or its agent and in the best interest of the First Defendant to ensure efficiency within the organization.
(5) A declaration that the plaintiff’s termination in all circumstances was harsh and oppressive and not reasonably justifiable in a democratic society, having proper regard for the rights and dignity of mankind.
(6) A declaration in the alternative that the National Capital District Commission Staff Disciplinary Code is inconsistent with the principle of natural justice as it does not allow for a disciplinary matter to be dealt with expeditiously.
(7) A declaration that the NCD Staff Disciplinary Code in not providing a time frame within which to determine a disciplinary charge is open to abuse and therefore is inconsistent with constitution Section 59, and therefore is not a law that is reasonably justifiable in a democratic society.
(8) An order in the nature of a certiorari to bring into the National Court and quash the decisions of the Acting City Manager its servants and or agents dated the 21 July, 19 September and 16 October 2000, respectively.
(9) An order in the nature of a mandamus directing the second plaintiff to reinstate the plaintiff to his former position with the First Defendant together with all entitlements backdated to the date of suspension without pay.
(10) An order that leave be granted to the plaintiff to file a statement of claim for damages and or loss of earning arising as a result of the termination.

The chain of events leading to the plaintiff’s termination are as set out. The plaintiff was charged with disciplinary offences for which he was found guilty. He was also charged by the police for fraud but the District Court may have refused to commit him for trial in the National Court.

It appears that the termination followed the finding and recommendation of the disciplinary committee to the second defendant.

The plaintiff has been paid his final entitlements. As I understand this action he is seeking judicial review of the second defendants action with a view to have him reinstated to his former position at the National Capital District Commission. He also had the option to pursue damages for wrongful termination.

The defendants have argued that the plaintiffs termination was based on the internal disciplinary procedures under the National Capital District Commission Staff Disciplinary Code. It said that the outcome of the Court proceedings had no bearing on the decision. The defendants argued that they had followed proper procedures to terminate the plaintiff.

From the evidence it appears that the second defendant suspended the plaintiff. The plaintiff was then charged under the NCDC Staff Disciplinary Code. At the same time he was referred to the Fraud Squad for investigation and subsequently charged. The police charges were later dealt with by the court and he was acquitted of the criminal charges. It is not clear to me who or which body heard the two disciplinary charges. I presume it was the second defendant. It seems that the plaintiff replied to the two charges. The second defendant considered the plaintiff’s reply and terminated him from employment. The plaintiff then appealed to the Staff Appeals Tribunal. The tribunal instead of making a decision on its own made a recommendation to the second defendant to uphold the termination.

It is not proper in my view that the Staff Appeals Tribunal should recommend to the same authority that originally terminated the plaintiff. In my view the Staff Appeals Tribunal had erred in making the recommendation to the Second Defendant. It must make its own decision either to confirm the termination or to quash the termination.

In the circumstances, I order that the NCDC Staff Appeals Tribunal deliberate on the matter and make a decision on the applicant’s appeal.
___________________________________________________________________
Lawyer for Plaintiff : Kingal Lawyers
Lawyers for the Defendants : Nonggor & Associates