N2303

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 955 OF 1999

BETWEEN:

MARK ANKAMA
Plaintiff

AND:

PAPUA NEW GUINEA ELECTRICITY COMMISSION
Defendant

KANDAKASI, J.
2002: 23rd August
23rd October

PRACTICE & PROCEDURE – Proper mode of commencement of proceedings – Writ of Summons mode used to seek reinstatement by dismissed employee – Reinstatement not an available remedy subject to specific legislation – Dismissal effected after all administrative procedures exhausted – Judicial review of decision to terminated could have been appropriate remedy subject to leave being granted – No application for review and leave for review sought – Only remedy sue for damages for unlawful or wrongful dismissal.

PRACTICE & PROCEDURE – All issues in a case should be dealt with together to minimize cost, time and inconvenience of parties and witnesses – The practice of separate trials should not be encouraged except in very complex cases – Parties should settlement all matters out of court and go to trial only on a succinct issue – Counsel should assist the Court with a good opening to get the Court stay focused. 

EMPLOYMENT CONTRACT – Termination of employment contract – Dishonesty ground for dismissal – Dishonestly claiming and receiving higher duty allowances without proper authorisation – Prior record of dishonestly applying employer’s property to own use – Employment lawfully terminated – Action dismissed – s.36 Employment Act 1978 – s.12 Electricity Commission Act 1961.

Cases Cited:
Robinson v. National Airline Commission [1993] PNGLR 476.
Gideon Barereba v. Margaret Elias (Unreported judgement delivered on 15/02/02) N2197.
Public Officers Superannuation Fund Board v. Sailas Imanakuan (Unreported judgement) SC677.
Ome Ome Forest Ltd v. Bill Garey & Ors (2002) N2289. 
National Airline Commission trading as Air Niugini v. Valerian Lysenko [1986] PNGLR 323.
Yooken Pakilin and Alvis Kandai v. The Independent State of Papua New Guinea (2001) N2212.
Bank of Hawaii (PNG) Ltd v PNGBC (2001) N2095.

Counsel:
Mr. D. Uyassi for the Plaintiff.
Ms. L. Maru for the Defendant.

23rd October 2002

KANDAKASI, J:	This is a claim in damages for an alleged unlawful dismissal of the plaintiff (Mr. Ankama) by the defendant (ELCOM) following disciplinary actions allegedly for receiving higher duty allowances unlawfully. 

Preliminary

Initially, Mr. Ankama was seeking reinstatement of his employment with ELCOM on the basis that his employment with ELCOM was unlawfully terminated. At the outset of the trial, I inquired with Mr. Ankama’s counsel as to whether, his client was entitled to such a relief. I proceeded on the well-established legal principle that subject only to specific legislation, reinstatement is not an available remedy once an employment relationship has ended. Andrew J in Robinson v. National Airline Commission [1993] PNGLR 476 succinctly stated the relevant principles at 478:

"It is true that the rights of the plaintiff lie at law by way of an action for wrongful dismissal, assuming the dismissal to be unlawful. In a suit between master and servant in which the servant seeks to prevent the master suspending or dismissing him, the court will not interfere. If it is a suit for a declaration that the service continues, again in the case of an ordinary relationship of master and servant, the court will not interfere. Equity will not compel either master or servant to continue a personal relationship which has become noxious to either one of them: See Howes v. Gosford Shire Council [1962] NSWR 58."

These principles have been adopted and applied in many judgements with the latest by my brother Justice Sevua in Gideon Barereba v. Margaret Elias (Unreported judgement delivered on 15/02/02) N2197.

Counsel for Mr. Ankama decided to abandoned the claim for reinstatement and instead proceed with the trial for a claim in damages instead. In view of the law on point, the plaintiff’s lawyer was correct in abandoning his client’s claim for reinstatement.

The trial therefore, proceeded only on the issue of liability. Prior to that happening, neither of the counsels informed me that, that was the case. I proceeded under the impression that both the issue of liability and damages were being tried. These highlights the practice by some lawyers these days of not presenting the Court with an opening address and separating trials on liability and damages when there is no real need for it.

As the Supreme Court said in Public Officers Superannuation Fund Board v. Sailas Imanakuan (Unreported judgement) SC677 at p. 24, all disputes and or conflicts between people are capable of settlement out of Court. Thus, only matters that can not settle after all serious efforts toward that should go to the Courts with agreement on almost everything except of the points in real contest. This should produce succinct issues for trial in the Courts. A good opening would then be able to assist the Court to focus its mind on the real issues for trial and come up with a judgement on it. No doubt, this would save a lot of time, money and inconvenience for all of the parties involved, including the Courts. 

It should necessarily follow from this that, unless a matter is so complex and complicated which requires much more time, energy and effort to resolve, both the issues of liability and damages should be dealt with together. This would help eliminate duplication of costs for the parties, recalling of all or some of the witnesses and the taking up of more judicial time and eliminate the need for two judgements on the one matter.

Issue

The only issue for me to determine in this case is whether Mr. Ankama was lawfully disciplined and eventually terminated? If I find that he was lawfully disciplined and terminated, that will be the end of the matter. If I find to the contrary, then the parties will take up the issue of damages themselves with a view to settling out of Court.

Evidence 

The parties agreed to a trial by affidavit mainly with only one cross-examination. The cross-examination was that of Mr. Ankama by ELCOM. The affidavits before me by consent of the parties are the affidavits by:

1.	Mr. Ankama sworn on 3rd July 2001;
2.	Mr. Ankama sworn on 12th November 2001;
3.	Mr. Ankama sworn on 12th November 2001; 
4.	Mr. Ankama sworn on 12th November 2001;
5.	Maera Raepa sworn 27th June 2000;
6.	Rex Ila sworn 11th October 2001;
7.	Gime Saga sworn 24th October 2001;
8.	Numana Kila sworn 15th October 2001; 
9.	Gabriel Waiut sworn 16th October 2001; and
10.	Gabriel Waiut sworn 8th November 2001.

Facts

From these evidence the facts are these. Until his termination on 13th November 1998, Mr. Ankama was an employee of ELCOM. He was employed as a Cost Reporting Officer. Following a Mr. Nambuk taking his six weeks recreational leave, a Mr. Peter Impey was approved to act in Mr. Nambuk’s position creating a vacancy in Mr. Impey’s position. Mr. Ankama was therefore approved to act in Mr. Impey’s position, Project Cost Control Officer. That was for the period 2nd September 1996 to 11th October 1996. He performed those duties and was paid higher duty allowances (HDA). Copies of the relevant approved application for HDA and Salary Variation Form (SVF) are annexed to a number of the affidavits in evidence including anexures "B" and "C" to Mr. Ankama’s own affidavit sworn on 3rd of July 2001. 

After the end of the approved HDA, Mr. Ankama continued to receive HDA until 24th November 1997. The total of the amounts he received in HDA added to K3,158.00. ELCOM considered this to be illegal and dishonest on Mr. Ankama’s part and had him charged under the relevant disciplinary process and had him dismissed on the basis that the continuation of the HDA was not approved. When deciding to dismiss him, ELCOM took into account Mr. Ankama’s prior records, which has a series of improper conducts resulting in a number of disciplinary actions against him.
 
The above facts are not in issue. What is in issue is what happened after 11th October 1996. Mr. Nambuk in his affidavit of 26th October 2000 says he resumed duties on 14th October 1996. That meant that Mr. Impey had to and in fact reverted to his substantive position and so did Mr. Ankama. Mr. Ankama says however, that he continued in his acting position and continued to receive HDA up to 24th November 1997 properly. Therefore his dismissal was unlawful.

There was no approved application for the continuation of the higher duties. Mr. Maera Raepa in his affidavit sworn on 20th June 2000, says a few days after the receipt of the approved HDA, Mr. Ankama told him to leave the period of the HDA in the SVF indefinite as Mr. Nambuk was going to be away for sometime yet. Mr. Raepa is the relevant officer in the personnel division of ELCOM. Thinking this to be true, Mr. Raepa made the SVF indefinite. 

Mr. Raepa also says in his affidavit that, on 23rd October 1997, Mr. Ankama directed him by telephone to increase his HDA on account of a 5% CPI increase. At the same time, Mr. Ankama informed him that he was again on higher duty from 1st October 1997 to 31st March 1998. They were not supported by any formal approved documentation but Mr. Raepa prepared the necessary SVF and forwarded them to the pay office for payment. He says he did as he was told to do by Mr. Ankama because Mr. Ankama put him under a lot of pressure. 

Mr. Ankama then continued to receive the HDA until about 24th November 1997, when Mr. Nambuk advised him that Mr. Ankama’s HDA was to end on 11th October 1996. That is when Mr. Raepa learned that Mr. Ankama had lied to him.

Mr. Raepa also says that an investigation was carried out over Mr. Ankama’s continued HDA. The investigations revealed that Mr. Ankama had forged Mr. Nambuk’s signature to approve HDA for another officer, Nivani Kwapena for the period 5th January to 9th February 1998.

The affidavit of Mr. Rex Ila supports that of Mr. Raepa. The affidavit of Mr. Nambuk, which is annexure "A" to Mr. Kila’s affidavit also, supports Mr. Raepa’s evidence. Mr. Nambuk adds that Mr. Ankama applied for and received from ELCOM’s petty cash a sum of K50.00 by forging his (Mr. Nambuk’s) signature. Once Mr. Ankama received the money he applied it to his own personal use. This occurred on 14th October 1997. 

Mr. Gime Saga’s affidavit of 24th October 2001 also supports Mr. Raepa’s evidence. He adds that, Mr. Anakama ordered and received through forgery also a number of goods from ELCOM. This was committed in early March 1997. That was done by filling a "Stores Requisition" under the forged signature of Mr. Saga for the benefit of a Somo Sasenu who knew nothing about it. The goods consisted of one pair of boots, two pairs each of shirts and trousers. Mr. Saga says Mr. Anakama admitted to the forgery and receiving the goods for his own personal use due to financial problems.

Eventually, Mr. Ankama was charge under ELCOM’s disciplinary process in respect of the HDA, the forgery and the related conducts over the money he took from the petty cash and the goods he took from ELCOM’s stores and raising of the HDA for Nivani Kwapena. All of his charges were categorized as an intention to defraud ELCOM. 

Mr. Ankama was heard in relation to each of the charges. He took no issue on the basis for the charges. In his written reply to the charges dated 10th November 1998 (annexure "H" to Mr. Saga’s affidavit) he spoke only of the reasons why he committed the offences and asked for a lighter penalty. The reason he provided for having committed the offences as he claimed was that, he was having problems in his marriage coupled with financial problems and these problems forced him to commit the offences. 

By letter dated 11th November 1998, (annexure "I" to Mr. Saga’s affidavit), ELCOM terminated Mr. Ankama. In so doing, ELCOM, set out his disciplinary history up to the recent charges. These included about 8 prior warnings and final warnings for reporting for duties drunk and or late, sleeping during working hours, use of abusive language to female employees, playing computer games, being absent from work, chewing betelnut and spitting into waste bin and his pay being deducted as a form of punishment in relation to one of the charges.

None of the deponents of the affidavits filed for ELCOM was cross-examined on their respective affidavits. So their evidence stands wholly unchallenged. I therefore accept these evidence as credible.

On the other hand, Mr. Ankama was cross-examined on his affidavits. He did not impress upon me to be a truthful witness. For example, when he was specifically asked about the reasons why he continued to receive the HDA, he was evasive. He was not even ready to accept the contents of his letter of response to the charges laid against him. He was also not prepared to accept the fact that all of his conduct amounted to dishonesty. He produced no other credible evidence to support his claims. I therefore, reject his evidence as both untruthful and unreliable. 

At the trial Mr. Ankama claimed that he performed duties at a level higher than his substantive position. He was therefore entitled to receive the HDA even though the relevant officers did not specifically approve that. He also claims that, it was ELOM who paid him the HDA. If indeed it was improper, it was within ELCOM’s power to stop the payments but it did not do that. Therefore, the payments that were made to him were in order. Further, he argues that the officers who dealt with him did not have the necessary authority to charge him. His argument is that, only supervisors can charge officers below them having regard to clause 7.2.2 of ELCOMS discipline rules. 

Mr. Ankama did not raise any of these issues at the time he was charged and was being dealt with. In any case, the uncontested evidence of Mr. Saga is that, he was Mr. Ankama’s divisional head and he proceeded to deal with Mr. Ankama under the directions of Mr. Nambuk in that capacity as there was a vacancy in the position of head of the branch. There is no credible evidence challenging or casting any doubt on ELCOM’s evidence. The effect of this is that, I find and accept the evidence of ELCOM as the uncontested facts for this case. I do so on the basis that, I have no reason to question their reliability and truthfulness. In any case, there is documentary evidence supporting ELCOM’s case. Those documents speak for themselves. No credible evidence has been put before me by Mr. Ankama to doubt the import of the documentary evidence.

I do not find any persuasion in the argument by Mr. Ankama that, ELCOM was in a position not to pay him but it did. Implicit in there is the doctrine of estoppel by conduct. However, for this doctrine to apply there must be knowledge of what is said or done. Then the person, against whom what is done or said, must say or do something that will excuse or permit what is being done. The person who is so excusing or permitting what is done or said must have intended that the other person will act on his or her representations. Mr. Ankama was not able to demonstrate any or all of these elements existing and or argue in those terms. There is no evidence of any conduct on the part of ELCOM that could be taken to amount to estoppel by conduct. 

Further, as I said in Ome Ome Forest Ltd v. Bill Garey & Ors (2002) N2289 a corporate body has no mind of its own. It acts through the minds of its officers. If the officers are not diligent enough, they may not be able to discover what is done against the corporate body. I know of no authority that says, lack of discovery amounts to acceptance and therefore exculpate the offender. 
 
In relation to the decision to terminate Mr. Ankama, Mr. Atkinson Talvat, signed the termination letter for and on behalf of a Mr. G. Hoffmeister. Under the ELCOM disciplinary rules 7.2.6 divisional heads are empowered to effect dismissals. It is also clear that the charging officer can not hear the charge and determine it. In this case, there was no immediate divisional head so Mr. Saga charged Mr. Ankama. Mr. Talvat heard the charges and decided to dismiss Mr. Ankama. Mr. Talvats substantive position was "Acting Chief Engineer Development," which was a position higher and above Mr. Ankama and was a divisional head though in an acting capacity. But Mr. Anmkama says that only a substantive divisional head could terminate him and not one that is acting. I find no support for Mr. Ankama’s argument in the discipline rules. In these circumstances I reject Mr. Ankama’s claims. 

In any case, I note from Mr. Nambuk’s affidavit that, Mr. Ankama was given the opportunity to appeal against the decision within 7 days from the date of the decision to terminate him. He did not make use of that opportunity.

I therefore, find that procedurally, Mr. Ankama was fairly dealt with. If he was dissatisfied with the decision to terminate him, he had the opportunity to appeal against that decision but he chose not to. 

On the merits, the law is clear. An employee can be dismissed instantly, without prior notice or warning and no pay in lieu of notice in case of misconduct or what has become know as "on sufficient cause." Section 36 of the Employment Act 1978 makes that position clear in these terms:

"36.	Grounds for termination of contract.

(1)	An employer may terminate a contract of service without notice or payment instead of notice—
(a)	where the employee—
(i)	wilfully disobeys a lawful and reasonable order; or
(ii)	misconducts himself by an act of omission or commission that is inconsistent with the due and faithful discharge of his duties; or
(iii)	is guilty of a fraud or dishonesty; or
(iv)	is habitually neglectful of his duties; or
(v)	is imprisoned for a period exceeding seven days; or
(vi)	is continually absent from his employment without leave or reasonable excuse; or
(vii)	is convicted of an offence or contravention of this Act or any other law relating to employment; or
(b)	on any other ground on which he would be entitled to terminate the contract without notice at common law.
(2)	An employee may terminate a contract of service without notice—
(a)	if the employer or a person acting or purporting to act on his behalf or by his authority—
(i)	induced him to enter into the contract by force, fraud or a statement that was misleading in any material particular relating to the employment; or
(ii)	has been convicted of an offence against or a contravention of this Act or any other law relating to the employee or his dependants; or
(iii)	has been negligent or careless in the discharge of his duties towards the employee or his dependants under the contract, this Act or any other law; or
(iv)	has committed an act of omission or commission that is inconsistent with the due and faithful discharge of his obligations towards the employee or his dependants; or
(v)	has ill-treated the employee; or
(b)	on any other ground on which he would be entitled to terminate the contract without notice at common law.
(3)	Termination of a contract of service under Subsection (1) or (2) shall be made as soon as practicable after the happening of the event on which the termination is based.
(4)	This Act does not prevent termination of a contract of service under this section being the subject of an industrial dispute under the Industrial Relations Act 1962."

The Supreme Court reconfirmed this position in the case of National Airline Commission trading as Air Niugini v. Valerian Lysenko [1986] PNGLR 323.

The reference here to s.36 of the Employment Act 1978, is simply to show an example of a legislative expression of the legal position on instant dismissal. Of course, these provisions of the Employment Act 1978, do not apply to employment with ELCOM by reason of s.3 of the Act. Instead the provisions of s.12 of the Electricity Commission Act 1961 applies. 

Section 12 of the Electricity Commission Act 1961, obliges ELCOM to make a determination as to the terms and conditions of employment for officers other than the Managing Director. There is no evidence before me on the relevant determination by ELCOM except for the disciplinary rules. These rules in clause 7.1.3.(a), sets out a list of disciplinary offences for which an employee can be disciplined. They cover breach of any provision of an Act or regulation applying to an employee, wilful disobedience or disregarding lawful order given by a person in authority. Carelessness, incompetence, intoxication and chewing of betelnuts are also included in that list. Further, included on the list are acts amounting to an acceptance of a bribe and disgraceful and improper conduct. Criminal conduct both against ELCOM and others are specifically covered in clauses 7.2.2. 

What is apparent from this is that, even if an employee is caught in a situation that would ordinarily result in instant dismissal, no dismissal is possible except through the disciplinary process. If a decision is taken to dismiss an employee, such a person has the remedy of appeal under clause 7.2 (B) (b) within 7 days from the date of the decision. This means in my view, that only if the dismissed employee is not satisfied with the decision on his appeal he could then go to the Courts by way of judicial review for reinstatement or sue for damages for wrongful dismissal as he may choose.

Mr. Ankama’s claim here is for damages for wrongful dismissal. He claims his dismissal was wrong because the proper procedures under the disciplinary rules were not followed in that, the incorrect officers charged him and eventually dismissed him. I have already found that, there was nothing wrong in the way in which ELCOM proceeded with the charges and the eventual dismissal of Mr. Ankama. I have also found that Mr. Ankama had the opportunity to challenge the merits of the charges against him at the hearing of those charges. He took no issue on the merits of the charges and only pleaded for a lenient sentence. He is therefore, not at any liberty to revisit the merits of the charges after he has failed to make use of the remedy of the right of appeal that was open to him.

In any case, on the evidence before me, I find that the charges against Mr. Ankama were established beyond any reasonable doubt by reason of his admissions or if not failure to take issue on them. In the trial before me, I have not been placed with any credible evidence that could cast a doubt on the correctness of his apparent admissions and the reasons why ELOM decided to terminate his employment. There is no evidence before me disputing and rebutting the evidence produced by ELCOM. 

Simply put, Mr. Ankama being the plaintiff failed to discharge his burden to prove his case on the balance of probabilities. It is settled law that he who alleges must prove it. See Yooken Pakilin and Alvis Kandai v. The Independent State of Papua New Guinea (2001) N2212 and Bank of Hawaii (PNG) Ltd v PNGBC (2001) N2095 for examples of authorities on point.

Without Mr. Ankama establishing his case, ELCOM demonstrated by clear unchallenged evidence that Mr. Ankama committed more than one act of dishonesty or fraud against it. Mr. Ankama admitted to those conduct and pleaded for leniency when his employer was considering the charges against him. ELCOM noted that Mr. Ankama had a bad record of passed misdeeds, which landed him with various warnings and even pay deductions and none of that seemed to have prevented him from committing further conducts of misconduct. He was therefore correctly dismissed. 

For these reasons I find that Mr.Ankama’s claim is without basis either in fact or in law. I therefore order a dismissal of his action with costs to ELCOM, the defendant.
______________________________________________________________________
Lawyers for the Plaintiff:		S.D. Uyassi & Co, Lawyers
Lawyers for the Defendant:		Linda Maru (In House Lawyer)