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Evi v Kopkop [2007] PGNC 112; N3251 (30 July 2007)

N3251

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 1092 OF 2005 (JR)

BETWEEN:

JOEL FRANK EVI
Plaintiff

AND:

MARIA KOPKOP,
CHAIRPERSON OF PORT MORESBY
TECHNICAL COLLEGE GOVERNING COUNCIL
First Defendant

AND:

INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Defendant

Waigani: Injia, DCJ
2007: 30 July

JUDICIAL REVIEW – Dismissal of ancillary staff of State-run Technical College – Employed under written Contract of Employment – No disciplinary process in Contract – Disciplinary process provided for in Terms and Conditions of Employment of Ancillary Staff of Technical College - No evidence of Terms and Conditions of Employment of Ancillary Staff of Technical College being promulgated by Governing Board under Education Act (Ch. 163), s 74(1)(i) & (2) – Employment governed by private contract – Not subject to judicial review – Application dismissed.

No cases cited in the judgment.

Counsel:

P. Liskia & Ms Kogora, for the Plaintiff
M. Nandape, for the Defendants

30 July, 2007

1. INJIA, DCJ: The plaintiff is a former employee of the Port Moresby Technical College (POMTEC) as its Student Warden. By Notice of Motion filed on 30 March 2006, he applies for judicial review of the decision of the Council of POMTEC made on 17 March 2005, to terminate his employment on disciplinary grounds. The application is made under O 16 of the National Court Rules (NCR). Leave to apply for judicial review was granted on 1 March 2006.

2. The application is supported by the plaintiff’s affidavit sworn on 22 November 2005 and filed on 30 November 2005 and his affidavit sworn on 6 July 2006 and filed on 9 July 2006. The defendants contest the application. They rely on the affidavit of Maria Kopkop sworn and filed on 7 June 2006, affidavit of Richard Green sworn and filed on 7 June 2006 and Minutes of Council Meeting held on 3 March 2005 and 17 March 2005.

3. Both counsel filed written submissions and made oral submissions in Court.

4. I have considered the evidence and submissions of counsel.

5. The three grounds set out in the Statement filed under O 16 r 3 are:

"1. The first defendant had acted ultra vires its powers in terminating the plaintiff without charging him with any disciplinary offence.

"2. The plaintiff was not accorded the right to be heard on any charges before the first defendant terminated him contrary to the rules of Natural Justice.

"3. The decision of the first defendant to terminate the plaintiff without preferring any disciplinary charges against him was harsh and oppressive."

6. All three grounds raise the threshold issue of whether the first defendant Council is a statutory body and if so, what are its powers and functions in relation to staff recruitment and discipline. In respect of discipline, in order to bring the matter within the ambit of judicial review, disciplinary action against a public official must be founded on some disciplinary procedure prescribed by statute or sub-ordinate legislation. An employer’s right to dismiss an employee purely under contract of employment is a private right that is governed by the terms of the contract itself and the Employment Act and it is not proper subject matter for judicial review. The appropriate recourse is for specific performance or damages for breach of contract.

7. The grounds of review as they are pleaded do not make reference to breach of any disciplinary procedure prescribed by statute or sub-ordinate legislation. As a result both parties have ended up arguing on the relevant statutory provisions applicable.

8. There is no dispute that POMTEC is a state-run national institution established under Part III sub-division C of the Education Act: Section 1 of Education Act (Ch. No. 163) defines a "national institution" to include a technical college. The Council of POMTEC is a public body and its’ staff are public officials.
   

9. Part III Subdivision C of the Education Act provides for governing bodies of Technical Colleges. Section 74 sets out the functions of the governing council. The relevant part of this section reads:

"s 74. Functions of Governing Councils:

(1) Subject to this Act, a Governing Council is responsible, within the limits of funds and other resources available to it for -...

(i) the engagement and control of locally employed ancillary staff.

(2) A Governing Council has, in addition to the functions and responsibilities set out in Subsection (1), any other function and responsibilities that are necessary or convenient for carrying out or that are ancillary to, the functions and responsibilities set out in that subsection."

10. The appointment and discipline of professional teaching staff is the sole responsibility of the Teaching Services Commission (TSC): s 85 of the Act. The "appointment and control" of ancillary staff, that is staff other than teaching staff, is the responsibility of the Governing Council of the technical college. In my view, by virtue of s 74(1)(i), the word "control" includes discipline of ancillary staff. I am satisfied that the plaintiff was a member of the ancillary staff of the college.

11. By circular number 45/99 dated 23 September 1999, the Secretary for Education issued a "Terms of Reference" (TOR) for governing councils of all Technical Colleges. The TOR include clause 4(1)(i) which simply restates s 74(1)(i) of the Education Act without amplifying the Governing Councils’ powers under that provision. I accept Ms Kogora’s submission that both under TOR, clause 4(1)(i) and in particular s 74(1)(i) and (2) of the Act when read together, do empower the Governing Council to develop policies, rules and guidelines to govern the engagement, control and discipline of ancillary staff. The dispute between the parties is whether the Governing Council at any time, promulgated such guidelines and applied them. If it did, what are its provisions for staff recruitment and discipline. If it didn’t, one can only infer that the governing council would be dealing with ancillary staff recruitment and discipline matters on a case by case basis or ad hoc basis. Whether the latter is acceptable under the Act is a separate issue.

12. The plaintiff says in a meeting of the Governing Council in 2001, the Council promulgated the "Terms and Conditions of Employment for National Ancillary Staff" (TCENAS). This document provides for, inter alia, staff discipline. The document bears the seal of the College but it does not bear the signature of the chairman or members of the Governing Council. The document was compiled by the then Deputy Principal of POMTECH, Mr Joe K. Beno. The document does not say if the document was in fact issued by the governing council.

13. The TCENAS is in evidence. Clauses 11 and 12 provide for staff discipline as follows:-

"11. DISCIPLINE

Officers and Employees are required to carry out promptly and correctly all duties relating to their employment and to comply with all laws and instructions relating to their duties. If an employee;

(i) commits a breach of the provisions of any Act, Regulation or rules applying to him/her.
(ii) divulges without authority any information concerning public business.
(iii) willfully disobeys or disregards a lawful order given to him/her,
(iv) is negligent in the discipline of his/her duties.
(v) is inefficient or incompetent from causes within his/her control.
(vi) uses intoxicating liquors or drugs to excess.
(vii) solicits or accepts a free gift in connection with the discharge of his/her official otherwise he/she is guilty of a disciplinary offence.
(viii) is guilty of any disgraceful or improper conduct in his/her official capacity or otherwise he/she is guilty of a disciplinary offence.

Under the disciplinary provisions for officers and employees, offences are categorized under three (3) types:-

"Minor Offences" These will be dealt within the College Administration level with punishment limited to reprimand, caution or fine.

"Serious Offences" These may involve suspension as well as formal charges being laid. The Principal will recommend to Governing Council to deal with the matter and punishment may include a fine, reprimand or recommended for termination of employment.

In cases where the employees’ services are terminated, he will forfeit any rights to accrued recreation leave.

"Criminal Offences" Depending on the seriousness and nature of the offences, an employee charged with having committed an offence against a law of Papua New Guinea may be suspended from duty without pay. If convicted the employee may be punished by reprimand, fine or he/she may be recommended for dismissal. In the case of dismissal, the officer/employee will forfeit any right to accrued recreation leave.

12. APPEAL
    

There is no right of appeal against a punishment imposed on an officer or employee for Port Moresby Technical College offence, but the employee will be able to take the matter up with the Governing Council through normal College Administration channels.

An officer or employee who takes part in strike action or any unauthorized work stoppage, may be dismissed and will forfeit any right to accrued recreation leave. In addition to the above offences, the officer or employee is not permitted to:-

(i) engage in political activities; or
(ii) accept or engage in any re-numeration employment other than in connection with the duties of his/her position or positions, unless the Governing Council authorizes such other employment."

14. Ms Kogora submits in the absence of any other official document, the Court should accept this document to be a valid document issued by the Governing Council. Mr Nandape for the defendants submits the records of the Governing Council do not show the document was issued by resolution of the Council. It cannot find any signed record of the document. Mr Beno had no legal right to issue the document on behalf of the Council. Therefore, the document is null and void. This being the case, the provisions of the Employment Act 1978 and the Port Moresby Common Rules apply to ancillary staff of POMTECH.

15. There is another document which is relevant. That is the Contract of Employment executed between the plaintiff and the governing council dated 13 April 2004. The Contract is signed by the plaintiff and members of the Council. Whilst the contract does not fix a term of the contract, clauses 9 and 10 make provision for termination of employment as follows:

"9. It is jointly agreed that employment may be terminated by the employer giving one week’s notice of termination in writing. Such notice will be on the understanding that the payment of all wages accrued and any other financial amount outstanding will be paid by the end of the notice period including pay in lieu of holiday accrued.

"10. The Governing Council agrees that should the services of the employee be terminated without notice then one week’s salary in lieu of notice shall be paid unless dismissal results from the employee being found guilty in a criminal court of law, in which case the matter of pay in lieu of notice is at the sole discretion of the Governing Council".

16. Upon close examination of TCENAS and upon considering the evidence of the defendants, I am not satisfied that the TCENAS was promulgated by the POMTECH Council as an official document in the exercise of its ancillary powers conferred by s 74(1)(i) of the Act. There is no evidence on the face of the document that the Council issued the document. It does not bear the signatures of the members of the council. It appears to be a draft document prepared by the Deputy Principal for internal use only. In the absence of any proper records of the council confirming that document was issued, I accept the evidence of the council’s Chairperson Mrs Kopkop and College Principal, Mr Green.
    
17. I find that TCENAS in evidence has no application to the plaintiff’s employment. Consequently, I find that there being no disciplinary procedure prescribed by any provision of a statute or sub-ordinate legislation applicable to the plaintiff’s case, the plaintiff’s employment is not one which is amendable to judicial review. For this reason, I would dismiss the application.
    
18. I find that the terms of this Contract are exhaustive as to his terms and conditions of employment. Clauses 9 and 10 of the Contract are consistent with the provisions of the Employment Act.
    
19. I said earlier on that the question of whether it is open to the council for discipline of ancillary staff on an ad hoc or case by case basis remains to be decided. In my view, it is open for the council to do so. The Courts have held that the principles of natural justice do apply to a dismissal of a public official. The officer should be heard in his defence before he is dismissed from office and reasons for decision must be given to him. These principles are part of common law principle of natural justice which is adopted under s 59 of the Constitution. This is implied into the contract of employment of public officials. The question is one of enforcement of a term of the employment contract. The plaintiff’s remedy therefore is not in judicial review but for common law action for damages for breach of contract. For this reason, I am of the view that the plaintiff’s application is misconceived and it should be dismissed.

______________________

Stevens Lawyers: Lawyer for the plaintiff
Attorney General: Lawyers for the Defendants