N6459
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 547 OF 2014

BETWEEN
CHRISTOPHER PETER
 (First Plaintiff)

AND
DR VELEPAT ILA’AVA - ACTING SECRETARY
DEPARTMENT OF AGRICULTURE & LIVESTOCK
(First Defendant)

AND
PHILIP KEREME
CHAIRMAN, PUBLIC SERVICE COMMISSION
(Second Defendant)

AND
PUBLIC SERVICE COMMISSON
(Third Defendant)

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(Fourth Defendant)

Waigani: Makail, J
2016: 19th August, 22nd & 30th September  

JUDICIAL REVIEW – Review of decision by Public Service Commission – Dismissal of review of a personal matter – Dismissal of Plaintiff from employment – Disciplinary reason – Public Services (Management) Act, 1995 – Section 18
JUDICIAL REVIEW – Grounds of review – Breach of natural justice – Right to be heard – Hearing before Public Services Commission – “Directional hearing” – Procedure for hearing before Public Services Commission discussed – Public Services (Management) Act, 2014 – Section 18

Cases cited:

Allan Pinggah v. Margaret Elias & The State (2005) N2850 
Jerry Magari v. Papua New Guinea Forest Authority (2009) N3670

Counsel:

Mr. A. Kongri, for Plaintiff
No appearance, for First and Fourth Defendants 
Mr. R. Simbil, for Second and Third Defendants

JUDGMENT
30th September, 2016

1.	MAKAIL, J:    This is an application for judicial review pursuant to Order 16 of the National Court Rules.

Background Facts

2.	The plaintiff was the acting Officer in Charge, Assets of the Department of Agriculture and Livestock.  He was based at the head office of the Department at Konedobu in the National Capital District.

3.	On 9th March 2012 he was charged with a disciplinary offence under section 52 of the Public Services (Management) Act, 1995 (“PSM Act”).  He was alleged to have attempted to steal a desk-top computer of the Department.  He denied the charge and explained that he took the computer out of the office to have it fixed at the computer shop at down-town Port Moresby.

4.	On 24th April 2012 he was found guilty and dismissed from employment.  On 2nd May 2012 he appealed by way of a review to the third defendant under section 18 of the PSM Act.  On 28th February 2013 the third defendant dismissed the review and upheld the decision of the first defendant. 

Grounds of Review

5.	He relied on two grounds as noted from the Statement filed pursuant Order 16, rule 3 (2) of the National Court Rules. First is that the decision by the third defendant was in breach of the principles of natural justice because there was no hearing before the third defendant as required by section 18 of the PSM Act.  Secondly, the finding of guilt and dismissal was unreasonable given that he merely removed the computer from the office to have it repaired or fixed and returned it.

6.	The second and third defendants denied the allegations.  They alleged that there was a hearing conducted by the third defendant.  The plaintiff attended and was heard in support of his application for review.  There was overwhelming evidence supporting the finding of guilt and dismissal and the third defendant upheld the decision of the first defendant.

Breach of Natural Justice

7.	As to the first ground, the right to be heard is provided for under section 18 of the PSM Act. It sets out the procedure for a review hearing by the third defendant.  It states:

“18.	Review of personnel matters connected with the National Public Service.

(1)	The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review any decision on a personnel matter relating to appointment, selection or discipline connected with the National Public Service, where that officer has been affected by the decision.

(2)	A complaint referred to in Subsection (1) shall be —

(a)	in writing; and

(b)	made to the Commission by the officer within 60 days of the date on which the decision is made, but the Chairperson may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the complaint; and

(c)	copied to the departmental head of the Department of Personnel Management by the officer making the complaint.

(3)	The Commission shall summons —

(a)	the departmental head of the Department of Personnel Management or his delegate; and

(b)	the departmental head of the Department in which the officer is or was employed, or his delegate; and

(c)	the officer making the complaint, who may at his request and at his own cost, be represented by an industrial organisation of which he is a member, or by a lawyer.

(4)	A person summonsed under Subsection (3) shall make himself available to appear before the Commission within 14 days of the date of summons.

(5)	The Commission shall —
	
(a)	consider all the facts relative to the matter, including —

(i)	the views of the persons summonsed under Subsection (3); and

(ii)	the personnel management policies of the National Public Service; and
(iii)	the cost implications of any decision which it may make; and

(b)	make a decision to uphold, vary or annul the decision, the subject of the complaint; and

(c)	give immediate notification of its decision to the persons summonsed under Subsection (3).

(6)	The decision of the Commission under Subsection (5)(b) —

(a)	shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission; and

(b)	is binding after a period of 30 days from the date of the decision.” (Emphasis added).

8.	The procedure for hearing was discussed by Injia DCJ (as he then was) in Allan Pinggah v. Margaret Elias & The State (2005) N2850.  In essence it must be an oral hearing. It starts with the third defendant summoning the Departmental Head of the Department of Personnel Management and Departmental Head of the aggrieved officer, in this case the first defendant and the aggrieved officer – the plaintiff to attend the hearing within 14 days of the date of summons.  

9.	They shall express their views in relation to the subject of the complaint.  After that, the third defendant shall make a decision to uphold, vary or annul the decision the subject of the complaint.  The decision shall be made within 90 days from the date of receipt of the complaint by the third defendant or such further time as allowed and shall be binding after 30 days from the date of decision.

10.	There is conflicting position in relation to first the attendance of the plaintiff at the hearing and secondly, the type of hearing held by the third defendant.

11.	The plaintiff alleged that he was not summoned by the second and third defendants to attend the hearing and that as a consequence, he did not attend.  He deposed to these matters in his affidavit and denied suggestions during cross-examination by counsel for the second and third defendants that he was served the notice of hearing, that he acknowledged service by signing the service acknowledgement form and that he attended the hearing on the stated date. 

12.	The second and third defendants alleged that the plaintiff attended the hearing on 11th June 2012 after receiving notice.  They produced a copy of the service acknowledgment form to prove service.  A Mr. Joshua Ngawi the Director of National Review Division in the third defendant deposed to an affidavit confirming serving the notice on the plaintiff and the plaintiff acknowledging it by signing the service acknowledgment form.

13.	On cross-examination he denied suggestions that the plaintiff was not served the notice, that the plaintiff did not sign the service acknowledgment form and that the plaintiff did not attend the hearing.  

14.	As to the procedure for hearing, counsel for the second and third defendants chose not to address it because he said it was not pleaded as a ground of review.  He relied on the case of Jerry Magari v. Papua New Guinea Forest Authority (2009) N3670 which he submitted held that no ground will be relied on by a plaintiff if it is not pleaded in the Statement filed pursuant to Order 16, rule 3 (2) of the National Court Rules.

15.	However, during cross-examination Mr. Ngawi explained that it was a “directional hearing” intended to be short and based on written statements and submissions presented to the third defendant by the first defendant and the plaintiff as the aggrieved officer.  Where these documents are submitted, the third defendant shall direct that they be exchanged and respective responses be received by a fixed date.  This is to shorten the hearing and utilise the limited time available to the third defendant.

16.	I deal with the last aspect of the second and third defendants’ submissions first.  The ground on breach of procedure forms part of the ground on breach of natural justice.  It has been sufficiently pleaded in the Statement filed pursuant to Order 16, rule 3 (2).

17.	The allegation is that the hearing by the third defendant is an oral one and the plaintiff expected the second and third defendants to summon him to attend it.  They did not and as a result he was not aware of the hearing and did not attend. I am satisfied the allegation is sufficiently pleaded and the plaintiff can rely on it.

18.	The real issue is whether the “directional hearing” held by the third defendant on 11th June 2012 constituted a hearing within the meaning of section18 of the PSM Act.

19.	With respect, I agree with the view expressed by Injia DCJ (as he then was) in Allan Pinggah.  The hearing is an oral one.  Presentation and exchange of written statements and submissions are no substitute to an oral hearing.  Written submissions and other documents such as statements from the aggrieved officer and witnesses may be used and submitted to the third defendant.  

20.	They are additional materials that can be utilised by the parties and the Commissioners of the third defendant at the hearing.  However, parties must be allowed to express their views in person before the Commissioners so that the Commissioners will appreciate their concerns and views.  This is because the outcome of the hearing will have serious consequences on the parties.  The third defendant may uphold, vary or annul the decision of the Departmental Head.

21.	I do not think the hearing is intended to be a formal one like a Court hearing because section 18 does not give further details on the type of hearing or what the hearing entails, for instance, does it include cross-examination of witnesses by parties.  

22.	By the same token, I do understand that the third defendant does not have enough time to carry out its functions, moreover, a review hearing of a personal matter.  However, the hearing does not have to be a long one, may be half an hour long will do, so long as the main issue or issues are raised and discussed by the parties before the Commissioners. 

23.	One may argue that such an interpretation fails to take into account aggrieved officers who may not be in close proximity to the office of the third defendant in order to attend the hearing and be heard and I am referring to those officers living in the provinces.  Such would deny them the right to appear at the hearing.  The answer to this argument is found in section 18 (3) (c) which provides that the aggrieved officer may be represented by an industrial organisation of which he is a member or by a lawyer. One of them can be engaged to appear on behalf of the aggrieved officer at the hearing.

24.	The record of hearing annexed and marked “C” to the affidavit of the second defendant stated that the plaintiff and a representative of the first defendant one Mr. Jacob Pindae attended.  They were directed to exchange written submissions and given 14 days to respond to each other’s submission.  It does not state if they expressed views on the subject complaint at the hearing nor is there evidence of a further hearing where they attended and expressed their views on the subject complaint.

25.	I find that the “directional hearing” described by Mr. Ngawi and further confirmed by the record of hearing of 11th June 2012 fell short of a hearing within the meaning of section 18 of the PSM Act.  I further find that section 18 gives the plaintiff a right to be heard in person.  It is an oral hearing and the failure to accord the plaintiff that right constituted a denial of his right to be heard under section 18 of the PSM Act.

26.	It follows regardless of whether or not the plaintiff attended the hearing there was no oral hearing.  Either way, he was not heard in support of his complaint and denied natural justice.  This ground is upheld.

Conclusion

27.	The denial of that right by the third defendant constituted a serious breach in the decision making process which resulted in the third defendant upholding the finding of guilt and dismissal of the plaintiff by the first defendant being flawed and unlawful.  In my view, the decision must not stand.  It must be quashed and the review of the plaintiff’s complaint must be re-heard, this time observing the plaintiff’s right to an oral hearing under section 18 (3) of the PSM Act.  

28.	It is also not necessary to consider the second ground.  The plaintiff can raise those matters raised in support of this ground at the review hearing before the third defendant.  Likewise, ordering the first defendant to reinstate the plaintiff to his former position is not appropriate because the original decision by the first defendant still remains.  The appropriate order is to remit the matter to the third defendant for a re-hearing. 

Order

29.	The orders are:

	1.	The application for judicial review is upheld.

2.	The decision of the third defendant to uphold the decision of the first defendant in finding the plaintiff guilty of attempting to steal a desk-top computer of the Department of Agriculture and Livestock and dismissing him from employment is quashed.

3.	An order for reinstatement of the plaintiff to the position of acting Officer in Charge, Assets in the Department of Agriculture and Livestock is refused.

4.	The matter is remitted to the third defendant for a hearing on a date and time to be fixed.

	5.	Costs shall follow the event.
________________________________________________________________
Kongri Lawyers	: Lawyers for Plaintiff
In-house Counsel 	: Lawyers for Second & Third Defendants