N4322

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS No. 131 of 2008

BETWEEN:

BARRICK (NIUGINI) LIMITED
Plaintiff

AND:

BEVERLEY DOIWA as Chairperson of the Industrial Arbitration Tribunal
First Defendant

AND:

TAKI PAKAPI
Second Defendant

Waigani: Gavara-Nanu J
2010: 9th July,
2011: 01st July,

ADMINISTRATION LAW – Judicial Review – Review of decision by Industrial Tribunal – Order reinstating employment of a mine employee – Employee suspected of removing company property without authority – Strong circumstantial evidence – Such evidence not given due weight – Decision against the evidence and weight of the evidence – Employee breaching company policy – Decision by Industrial Tribunal null and void – Decision quashed.

Cases cited:
Papua New Guinea cases

Christopher Appa v. Peter Wama & Others [1992] PNGLR 395
Ereman Ragi & Others v. Joseph Maingu (1994) SC459
Felix T Ramran v. National Broadcasting Commission & Others, N1110 
Gideon Barereba v. Margeret Elias, N2197
Kita Sapu v. The Commissioner of Police (2003) N2426
Nazel Wally Zanepa v. Ellison Kaivovo, 
Pogera Joint Venture Manager, Placer (PNG) Ltd v. Robin, (2 July, 2010)
Public Employees Association of PNG v. Public Services Commission [1983] PNGLR 206
Robert Karava V. Kevin Byrne & Anor, N1805 
Robinson v. National Airlines Commission [1983] PNGLR 473; 
Sudi Yaku v. Commissioner of Police [1980] PNGLR 27

Overseas cases

Hill v. C. A and Co. Ltd [1971] ALL ER 1345
Howe v. Gosford Shire Council [1962] NSWR 58 
Vine v. National Dock Labour Borad [1956] ALL ER 1

Counsel

D. Wood, for the plaintiff
F. Alua, for the defendants

1st July, 2011

1.	GAVARA-NANU J:	The plaintiff seeks review of the decision given by the first defendant on 18 December, 2007, ordering reinstatement of the second defendant to his employment with the plaintiff. 

2.	The second defendant was terminated by the plaintiff for alleged theft of property belonging to the plaintiff. The alleged theft took place on 19 December, 2003. 

3.	The plaintiff seeks an order in the nature of certiorari to remove into this Court the above decision and be quashed.

4.	Further or alternatively, the plaintiff seeks a declaration that the said decision is null and void and of no effect. 

5.	Further or alternatively, the plaintiff seeks a declaration that the second defendant is not entitled to reinstatement of his employment.

6.	The second defendant was appointed a Supervisor in the Exploration Section of the Geology Department of the Porgera Joint Venture which is the trading name for the plaintiff on 20 February, 1999, by a letter which constituted the contract of employment. He was on initial salary of K18, 200.00 per annum and under the contract his point of hire was Porgera, Enga Province. He was initially employed on three months probation and confirmation of his employment was dependent upon satisfactory performance of his work during his three months probation. 

7.	The plaintiff has an Open Door Policy ("the Policy") which the second defendant had to abide by; clause 5.6.3 of the Policy states the types of offences which if committed by an employee may result in dismissal. These offences include dishonesty, stealing, fraudulent conduct or activity and removal of company property without authority. 

8.	The second defendant was terminated for allegedly removing consumable and electrical items belonging to the plaintiff without authority contrary to clause 5.6.3 of the Policy. The consumable were biscuits, pens and soap which were found inside a personal bag belonging to the second defendant. The electrical items were found inside a large nylon bag which was hidden among stock feed at the back tray of a truck. When these items were found the second defendant was sitting inside the front cabin of the truck which had delivered vegetables to the mine under a contract with the plaintiff, he was sitting inside the cabin with the driver and a crew of the truck. The items were discovered by the mine security guards during a routine check as the truck was leaving the mine. 

9.	When the second defendant was questioned about the consumable items by the guards, he admitted removing them from the mine but said that they were given to him by the company for his personal consumption. In regard to the electrical items he denied having any knowledge about them. When the driver and the crew were questioned about the electrical items, initially they too denied having any knowledge about them, but when the guards told them that they could loose their contract with the mine to supply vegetables for the mine if they did not tell the truth, they changed their story and told the guards that the nylon bag containing the electrical items belonged to the second defendant. When the second defendant was confronted with this evidence he told the guards that the driver and the crew of the truck lied about him because he was their tribal enemy. 

10.	In her decision the first defendant said once the mine gave the consumable items to the second defendant for his consumption or use, the items no longer belonged to the mine and the second defendant had the authority to remove them from the mine or his work place. In regard to the electrical items, the first defendant found that there was no evidence directly linking the second defendant to the items. 

11.	The first defendant also found that the second defendant was not given an opportunity to be heard on the allegations made against him before being terminated. 

12.	It is noted that the mine manager Mr. Glen Salt says in his affidavit sworn on 2 May, 2006, more particularly in paragraph 10 that he invited the second defendant to have an interview but the second defendant declined the interview. 

13.	Mr. Wood of counsel for the plaintiff submitted that clause 5.6.3 of the Policy states clearly that employees are not allowed to take company property out of their work places and facts revealed clearly that the second defendant had breached this Policy, thus warranting his termination. He cited as an example a case where an expatriate employee was terminated after he was caught being in possession of property belonging to the mine outside his work place. 

14.	In the instant case, the second defendant was also charged with a criminal offence of stealing but the case was dismissed by the Porgera District Court because of the failure by the police to prosecute the case. Despite being discharged from the criminal charge the plaintiff terminated the second defendant from his employment for committing a disciplinary offence prescribed under clause 5.6.3 of the Policy. The plaintiff maintains that the second defendant's termination having been made under the Policy for a discipline offence was valid and proper.

15.	 It should also be noted that when the security guards did a body search on the second defendant they found a piece of paper containing a list of electrical items all of which matched all the electrical items which were found in the nylon bag at the back of the truck. The note was found in the second defendant's shirt pocket. When questioned about the note, the second defendant admitted writing the items on the piece of paper. The plaintiff relied on this and other evidence to terminate the second defendant from his employment. Mr. Wood submitted that the first defendant's findings are against the evidence and the weight of the evidence,

16.	In regard to the consumable items, Mr. Wood submitted that the first defendant made wrong findings of fact in that in her judgment she made no reference to the other consumable items which were found in second defendant's possession, it was submitted that this was an error and that the first defendant had misdirected herself as to the relevant facts.

17.	Mr. Wood also submitted that the decision by the first defendant to reinstate the second defendant to his employment is against established principles of law relating to master and servant relationship, which is, once the plaintiff as the master terminated its relationship with the second defendant by terminating the second defendant's contract of employment, the first defendant could not order the plaintiff to continue the relationship which had become noxious. It was submitted that if the second defendant wanted to challenge the termination, his remedy was in damages for wrongful termination. For this contention the plaintiff relied on: Christopher Appa v. Peter Wama & Others [1992] PNGLR 395, Robert Karava V. Kevin Byrne & Anor N1805 and Gideon Barereba v. Margeret Elias N2197. 

18.	It was further submitted that if the second defendant was to seek damages for wrongful termination he could only be entitled to damages equivalent to the period of appropriate notice under the contract, unless the parties had expressly agreed that such damages would be for the balance of the contract which he said is not the case here. For this contention the plaintiff relied on: Felix T Ramran v. National Broadcasting Commission & Others N1110, Ereman Ragi & Others v. Joseph Maingu (1994) SC 459, Nazel Wally Zanepa v. Ellison Kaivovo, Department of East New Britain & Anor (1999) SC 623 and Pogera Joint Venture Manager, Placer (PNG) Ltd v. Robin Kamsi, a decision by the Supreme Court given on 2 July, 2010. 

19.	In regard to the consumable items, I am not satisfied that they were removed without authority or that they were stolen by the second defendant. Allegation of stealing being criminal in nature such allegation should be supported by strong and cogent evidence. The plaintiff has in my opinion failed to adduce such evidence to prove its assertion, I therefore dismiss the claim. 

20.	In regard to the finding by the first defendant that the plaintiff was not given an opportunity to be heard on the allegations made against him prior to his termination, I find that the second defendant was given such opportunity. There is evidence of this in the affidavit sworn by Mr. Glen Salt on 2 May, 2006, more particularly paragraph 10 in which Mr. Salt says he invited the second defendant for a record of interview but the second defendant declined the interview. This evidence is not disputed by the second defendant. 

21.	In regard to the electrical items, I find that there was strong circumstantial evidence linking the second defendant to the items, first; the driver and the crew of the truck told the guards that the nylon bag in which these items were found belonged to the second defendant, second; the second defendant when confronted with this evidence told the guards that he was framed by the driver and the crew because they were his tribal enemies, but this claim contradicts his own evidence that he wanted go home in the truck with the driver and the crew because it was safe for him (see page 185 of the Review Book), third; the second defendant was going to take a ride home in the truck; fourth, the nylon bag was the type issued by the Exploration Section of the Geology Department of PJV where the second defendant worked as a Supervisor, naturally because of his position it was easy for him to get the bag, fifth; a list of electrical items found in the second defendant's shirt pocket by the guards was written by the second defendant and the items in the list matched all the electrical items which were found in the nylon bag and sixth; the second defendant was at that time building a house in his village. These factors were in my opinion sufficient to link the second defendant to the items. The only reasonable conclusion one could draw from these facts and circumstances was that the second defendant was the one who took the items from his work place and placed them at the back of the truck and concealed them among the stock feed because they were stolen. Thus, to my mind there was strong and cogent evidence establishing that the second defendant was responsible for removing the items from his work place without authority, thus warranting his termination under clause 5.6.3 of the Policy. 

22.	The first defendant's decision to reinstate the second defendant to his employment appears to have been based mainly on the dismissal of the criminal charge or charges against the second defendant by the Porgera District Court. This is clear from her remarks in the judgment that at the District Court the plaintiff failed to adduce evidence to prove criminal charges against the second defendant and therefore there was no evidence upon which the plaintiff could terminate the second defendant. As a result she described the second defendant's termination as "double jeopardy". The relevant passages of the judgment are found at pages 20, and 22-23. At page 20 of the judgment she said: 

"The Complainant was charged by the Senior Security Officer Mr. Glen Salt who was also a Reserve Police Officer at the time. I cannot accept that he was not responsible. He was responsible, as the Charging Officer to ensure that police were adequately supported to make the case against the Complainant. Where Police prosecution failed Management should have ensured that the investigations conducted by the Security personnel were intact to justify their actions.

I find that the evidence before the Tribunal remains inconclusive and I cannot accept that the Complainant was responsible for the bag of electrical items and components found at the bag (sic.) of the truck.

However I cannot disregard the fact that this issue was treated as criminal i.e. theft at the time and investigations were conducted and statements would have been taken from persons involved at that time and such statements would have been kept by Management as (sic.) the result was that it was deemed a terminable offence". 

Then at pages 22-23 she said:

"The Complainant was charged for being in possession of stolen property belonging to PJV and was remanded to appear in Court and this matter was not made out. He was then advised after an appeal that he was terminated for removing Company property without authorization, in this instance biscuits and soap. The varying reasons given by the management for the dismissal or termination of employment brings into question the genuineness of the actions of Management. This is improper and is grossly unfair. An employee cannot be charged and penalised for an offence and where it does not hold, he is then charged for another this is unacceptable and grossly unfair. 

In this situation Mr. Taki Pakapi, the Core Shed Supervisor for the Geology Section at that time was charged and penalized for being in possession of items suspected to have been stolen and was remanded to appear in Court. This matter was then dismissed by the Court and simultaneously ordered reinstatement as Police failed to prosecute. The Complainant appealed to Management seeking reinstatement but was advised that he was terminated for removing Company property without authorization in this instance soap and biscuits. This is unfair and it cannot be accepted by this Tribunal. An employer cannot try an employee for one offence and where it does not hold the employer then tries the employees (sic) for another offence. "This is double jeopardy".

This is the situation here and on this basis I find the actions by Porgera Joint Venture [PJV] unfair and totally unacceptable."(my underling) 

23.	These passages reveal the fundamental error the first defendant fell into when she regarded and treated the criminal charge against the second defendant as same as the disciplinary charge or offence created under clause 5.6.3 of the Policy. The criminal charge and the disciplinary offence were two totally different offences which also required two different standards of proof, the criminal offence with required criminal standard of proof while the disciplinary offence under clause 5.6.3 of the Policy in my opinion required a standard of proof that was lower than a criminal standard but higher than the civil standard. In my opinion because the disciplinary offence is neither criminal nor civil in nature it requires a standard of proof that is different to criminal and civil standards of proof. Because a disciplinary charge if proved would attract a penalty, which may include termination from employment as in this case, it should be proved with strong and cogent evidence, like offences under the Leadership Code: Sudi Yaku Commissioner of Police [1980] PNGLR 27. 

24.	The failure by the first defendant to differentiate between a criminal offence and a disciplinary offence appears to have been the reason why she described the termination of the second defendant for committing a disciplinary offence under clause 5.6.3 as - "double jeopardy". The imposition of a penalty for an offence under clause 5.6.3 of the Policy did not amount to double jeopardy or penalty because the offence was not a criminal offence either under the Summary Offences Act or the Criminal Code Act. Offences created under Clause 5 including those under 5.6.3 of the Policy are part of the management policies formulated by the plaintiff for its internal use aimed at regulating the conduct and behavior of its employees and for its own good and efficient management and administration. The plaintiff therefore had the power to terminate the second defendant for offending against such policy and the termination was valid and proper. 

25.	In any case, there was no double jeopardy because the second defendant could not be said to have been punished twice as there was no conviction and punishment by the Porgera District Court. Even if the second defendant had been convicted and punished by the Porgera District Court there still could not be double jeopardy because the plaintiff could not in law be barred from taking subsequent disciplinary action against the second defendant for committing a disciplinary offence. The first defendant therefore fell into error when it found that the termination amounted to double jeopardy.
 
26.	The first defendant also appears to say in the judgment that it was unfair for the plaintiff to terminate the second defendant over the electrical goods because the second defendant was questioned and investigated only in relation to the consumable items. I find this finding to be against the evidence and the weight of the evidence because the second defendant was also questioned about the electrical items and he denied having any knowledge about them, thus he was given the opportunity to be heard regarding the electrical items. The plaintiff clearly did not believe the second defendant's explanation and terminated him for breaching clause 5.6.3 of its Policy. On this point, it is also important to note that the dismissal of the criminal charge against the second defendant by the Porgera District Court was not made on the merits of the case because the case was dismissed due to the failure by the Police to prosecute the charge. In that regard, it was also wrong for the first defendant to criticize the plaintiff for failing to call evidence and prove the case. As I said above, no double jeopardy occurred because the discharge of the second defendant by the Porgera District Court on the criminal charge which was not on the merits of the case was no bar to the plaintiff taking subsequent disciplinary action against the second defendant under clause 5.6.3 of the Policy: Sudi Yaku v. The Commissioner of Police (supra); Public Employees Association of PNG v. Public Services Commission [1983] PNGLR 206 and Kita Sapu v. The Commissioner of Police N2426. 

27.	 In regard to the alternative relief sought by the plaintiff that the second defendant is not entitled to be reinstated to his employment, the law is trite, once the relationship between the plaintiff and the second defendant had become noxious following termination of the second defendant from his employment, the plaintiff cannot be forced to continue the relationship. This is where the first defendant also fell into error. The plaintiff's remedy is in damages for wrongful termination if he wants to challenge the legality of his termination. The second defendant was by law not entitled to reinstatement of his employment; Robinson v. National Airlines Commission [1983] PNGLR 473; Vine v. National Dock Labour Borad [1956] ALL ER 1; Howe v. Gosford Shire Council [1962] NSWR 58; Hill v. C. A and Co. Ltd [1971] ALL ER 1345.

28.	For the foregoing reasons, I declare that the decision given by the first defendant is null and void and of no effect. I also find that the first defendant was wrong in ordering the reinstatement of the second defendant to his employment. 

29.	 The order given by the first defendant on 18 December, 2007, reinstating the second defendant to his employment with the plaintiff is therefore quashed.

30.	The defendants will pay the plaintiff's costs and incidentals to these proceedings. 

__________________________________________
Blake Dawson Waldron Lawyers: Lawyer for plaintiff
Pacific Legal Group: Lawyer for Defendants