Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Tavatuna v Silovo [2011] PGNC 256; N4379 (20 September 2011)

N4379

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 185 OF 2011

BETWEEN:

FRANCIS TAVATUNA
Plaintiff

AND:

RONALD SILOVO, SECRETARY NATIONAL JUDICIAL STAFF SERVICE
First Defendant

AND:

CHIEF JUSTICE SIR SALAMO INJIA, Kt, as the CHAIRMAN OF JUDICIAL COUNCIL
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Thompson, AJ
2011: 20 September

EMPLOYMENT LAW – application by plaintiff for various declarations seeking re-instatement and damages – plaintiff terminated for reasons of alleged forgery and misappropriation – whether plaintiff an employee appointed under NJSS Act – whether plaintiff an "officer" within the meaning of the National Court Act - secretary NJSS has power to recruit and terminate employment under NJSS Act – Chief Justice has Power to terminate employment of court officers under National Court Act – Plaintiff's termination by Chief Justice lawful by virtue of National Court Act – Plaintiff only entitled to damages as appropriate remedy and not reinstatement

Facts

The plaintiff was a judge's associate who was terminated on allegations of forgery and misappropriation. He brought proceedings seeking reinstatement and damages on the basis that he was wrongfully terminated without the benefit of the disciplinary provisions in the National Judicial Staff Service Act.

Held
1. An associate to a judge is appointed to a position created by the National Court Act and is not an officer or employee under the National Judicial Staff Service Act;

2. The Chief Justice as the delegate of the Judicial and Legal Services Commission has both power to appoint and power to terminate an associate under the National Court Act.

Cases Cited:
Jimmy Malai v. PNG Teachers Association [1992] PNGLR 568
New Britain Oil Palm Ltd & Ors v. Vitus Sukuramu (2008) SC 946)
Robinson v. National Airline Commission [1983] PNGLR 476
Tau Mavaru Kamata v. David Sode & Ors (2006) N3067)

Counsel:
Mr. A. Klewaki, for the Plaintiff
Mr. B. Koae, for the Defendants

20 September, 2011

DECISION

1. THOMPSON AJ: On 4 December 2006, the Plaintiff was appointed as Associate by the Chief Justice, pursuant to Section 7 of the National Court Act, under which the powers of the JLSC have been delegated to the Chief Justice. This is an application by the Plaintiff for various Declarations relating to the subsequent revocation of his appointment, and seeking reinstatement plus damages.

2. On 23 January 2009, the Plaintiff's judge provided him with information and documents relating to alleged forgery and misappropriation, to which he was invited to respond. On 26 January 2009, he gave a written response. On the same day, the judge informed him in writing that his response was not acceptable, and that he was suspended with pay, pending disciplinary proceedings. On 6 April 2009, the Chief Justice revoked the Plaintiff's appointment as Associate.

3. On 26 June 2009, the Defendants found some evidence suggesting that the Plaintiff had attempted to present a forged cheque.

4. On 27 October 2009 the Plaintiff was charged with the first alleged forgery and other offences under the Criminal Code. On 8 April 2010 the charges were struck out for want of prosecution.

5. No written charges were ever formally laid against the Plaintiff by the Defendants. The Plaintiff says that he attempted to lodge an appeal to the Appeals Tribunal, but that the Tribunal declined to hear it because there were no charges. There was no evidence of this process.

6. The National Judicial Staff Service Act provides that the NJSS includes officers, and Sections 14-19 set out the procedures to be followed in the case of disciplinary offences by officers. In essence, the Secretary is to prepare a written charge, provide it to the officer and invite him to respond, consider his response, and then may make a recommendation of dismissal to the Judicial Council. The officer may appeal to the Appeals Tribunal, who may also make a recommendation of dismissal to the Judicial Council. The Council then makes a decision on the dismissal.

7. Section 7 of the National Court Act says that a person who is appointed as an Associate, is an officer of the Court. Section 7(2) says that officers of the Court are not subject to direction or control by any person other than the Chief Justice and the other judges. Section 7(3) says that the terms and conditions of service of officers of the Court shall be determined by the Judicial and Legal Services Commission.

8. In his statement of claim, the Plaintiff essentially pleads that the revocation of his appointment was in breach of the provisions of the NJSS Act, because he was suspended without pay and then his appointment was subsequently revoked, without any disciplinary charges being laid against him, and without a termination decision having been made by the Judicial Council.

9. The Plaintiff has not actually pleaded that he is an officer within the meaning of Section 12 of the NJSS Act, although he has denied in his pleading that he is an employee within the meaning of the NJSS Act. He has specifically pleaded that he is an officer of the Court pursuant to his appointment under Section 7 of the National Court Act.

10. The primary issue for determination is whether or not the Plaintiff was an officer of the Court, and/or an officer or employee within the meaning of the NJSS Act. Each of these three categories of employees have different terms and conditions of employment and disciplinary procedures.

11. The wording of both the NJSS Act and the National Court Act, is clear and unambiguous. Section 1 of the NJSS Act says that an officer means an officer in the Service, and the Service is defined to mean the NJSS. Section 11 says that the Secretary may create an office and specify the qualifications for that office. Section 12 says that "a person shall not be appointed under this Act as an officer unless ..." and sets out various qualifications including the making of an oath in schedule 1. It is quite clear that the reference to an officer in the Service means a person who is appointed under the NJSS Act to an office created by the Secretary.

12. The position of Associate is not an office which is created by the Secretary under the NJSS Act. It is a position which is specifically created under the National Court Act. A person who is appointed as an officer of the Court under Section 7 of the National Court Act, is not the same as a person who is appointed as an officer under Section 12 of the NJSS Act. They are two completely different types of officer.

13. As the Plaintiff's appointment as an Associate was not made under the NJSS Act, he was neither an officer nor an employee within the meaning of that Act. The disciplinary procedures set out in Part III of the NJSS Act are only applicable to officers appointed under that Act. As the Plaintiff was not such an officer, those procedures are not applicable to him. The Plaintiff has not pleaded breaches of any other procedures or statute or common law.

14. The National Court Act does not specify any disciplinary procedures for officers of the Court. It only says that their terms and conditions shall be determined by the JLSC. There is no evidence of those terms and conditions.
15. Pursuant to Section 10 of the Organic Law on the Judicial and Legal Services Commission, the JLSC delegated its powers to the Chief Justice, the Second Defendant herein. Under Schedule 1.10 of the Rules for Interpretation of the Constitutional Laws, and Section 36 of the Interpretation Act, where a Law or an Act confers the power to make an appointment, it includes the power to suspend or remove. As the Second Defendant had the power to appoint the Plaintiff, he also had the power to suspend and remove the Plaintiff. There is no evidence of any statutory qualification on the exercise of that power.

16. The Plaintiff has not established that the revocation of his appointment was in breach of the National Court Act or any other Act, or was in any other way unlawful. There is therefore no basis for challenging the decision to revoke the Plaintiff's appointment. The only question which can arise, is the question of the Plaintiff's possible entitlements following the revocation of his appointment.

17. The Employment Act does not prescribe reinstatement as a remedy for wrongful dismissal. There is no evidence of any other statutory right to reinstatement. It is a remedy which may be available at common law and equity. (See cases ranging from Robinson v. National Airline Commission [1983] PNGLR 476 to Jimmy Malai v. PNG Teachers Association 1992 PNGLR 568 and New Britain Oil Palm Ltd & Ors v. Vitus Sukuramu (2008) SC 946). The established common law is that specific performance of a contract of employment of personal service will not generally be ordered. A determining factor is whether or not the relationship between the employer and employee has broken down so that there is no longer any mutual trust between them.

18. In this case, the Plaintiff has not shown any contractual or statutory or common law entitlement to reinstatement. The relationship of trust between him and his employer has clearly been lost, and has become noxious. The Court will not compel the parties to resume that relationship.

19. Further, reinstatement is an equitable remedy, and the rule is that he who comes to equity must come with clean hands (see Tau Mavaru Kamata v. David Sode & Ors (2006) N3067). In the present case, the Plaintiff had been informed by the Defendants that they believed he had committed some acts of dishonesty, including forging cheque payment documentation. There were two letters written by the Plaintiff, in response.

20. There is one letter which is a bare denial, unsupported by any particulars or explanation or documentation.

21. There is another letter which on the face of it was written by the Plaintiff, admitting to the dishonest acts. The Plaintiff says that this letter is a forgery. On the face of it, the signature on that letter is similar to the Plaintiff's signature on all the other documents, he has not produced a handwriting expert to say that it was not his signature, and the letter appears genuine because it contains a lot of information about the Plaintiff's personal life including his childhood and schooling, which only he could know. The Plaintiff does not identify any person who might have forged the letter. It is inherently implausible to assert that it is not his signature and that the letter was forged. I consider that it is prima facie evidence that the Plaintiff had acted dishonestly.
His conduct does not show that he has entirely clean hands.

22. Consistently with the common law and the Employment Act, the Plaintiff's appointment could have been summarily revoked for cause, without giving notice or pay in lieu, or at best, could have been revoked on giving notice or pay in lieu (See Robinson v. NAC & Ors (supra). The Plaintiff had been in the position of Associate for just over three years. Under Section 34 of the Employment Act, he would therefore have been entitled to two weeks notice or pay in lieu, on the most favourable view.

23. While the Second Defendant had the power to suspend or revoke the Plaintiff's employment, I do not consider that the power to suspend would include the power to do so without pay, in the absence of an express statutory provision to that effect. If the Plaintiff's appointment had simply been revoked in January 2009, he could not have had any cause for complaint. However, I consider that it would be implied in the terms and conditions of appointment that a person whose appointment had not been revoked, is entitled to be paid, in the absence of a condition or statutory provision to the contrary.

24. I find that his suspension without pay was in breach of this implied term. What is the appropriate remedy, for this breach? In the absence of any terms and conditions determined by the JLSC, and the absence of any contract of employment, the Court can only fall back on the common law and the Employment Act. The appropriate remedy is damages, not reinstatement.

25. Using the period of notice which may have been required under the Employment Act as a guide, I consider that an amount equivalent to two weeks pay would be an appropriate amount for damages.

26. Finally, there is evidence that the Plaintiff owed money to the Defendants at the time of the revocation of his appointment. If such amount has been established by the Defendants, they may determine whether or not a deduction should be made from the payment to the Plaintiff, to offset any monies payable by the Plaintiff for his suspension without pay.

27. I therefore make the following orders:

(a) The Declaratory relief sought in the Originating Summons, is

refused.

(b) The Defendants are to pay an amount equivalent to two weeks salary to the Plaintiff, less any amount found to be due and owing by the Plaintiff to the Defendants.

(c) Each party is to pay its own costs.

________________________________

Pais Lawyers: Lawyers for the Plaintiff
NJSS In House Lawyer: Lawyer for the Defendants