N7552

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 880 of 2017

BETWEEN:
MATHAIS PAUSI
Plaintiff

AND:
BETTY PALASO   OBE
Commissioner-General of
Internal Revenue Commission
First Defendant

AND:
INTERNAL REVENUE COMMISSION
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani:   Thompson J
2018:	  5th November

JUDICIAL REVIEW - Judicial Review of Summary Dismissal – Internal Revenue Commission Act – Breach of Commission Administrative Orders – Failure to report for duty without good reason – No requirement to be heard before summary dismissal.

Counsel:

Mr J Lome, for the Plaintiff
Mr G Wau, for the First Defendant

5th November, 2018 

1.	THOMPSON, J:   The Plaintiff is seeking judicial review of the Defendants’ decision of 2nd August 2017, to summarily terminate his employment.

Background
2.	After having being previously terminated by the Defendant, the Plaintiff had been reinstated to his position in March 2017.  The Plaintiff says that on 28 June 2017 his wife became ill and was admitted to hospital in Wabag.   The Plaintiff says that on 30 June 2017 he obtained an Application for Leave form, and verbally informed someone that he intended to apply for leave.   On 2 July 2017 the Plaintiff flew to Mt Hagen and on to Wabag.  The Plaintiff says that he returned to Port Moresby on 13 July 2017, and reported for duty on 14 July 2017.  On 2 August 2017 he received a letter from the Defendants informing him that as he had been absent from work without good reason  for at least 10 days, he was regarded as having absconded from work, and was summarily dismissed pursuant to paragraph 38 of the Commission Administrative Orders 5 – 15  (Discipline).  
 
3.	On 7 August, the Plaintiff appealed by way of a letter to the Defendants’, but on 10 August 2017 his appeal was rejected.   On 2 October 2017, the Plaintiff’s lawyers made a submission to the Defendants’ for the dismissal to be revoked and for the Plaintiff to be reinstated, but on 11 October 2017 that submission was rejected.  

Law
4.	Under the Internal Revenue Commission Act 2014, the Second Defendant is a body corporate and it expressly provides that the provisions of the Public Services (Management) Act  do not apply to the IRC.  Under Sections 9, 10 and 29 of the Act, the IRC has the power to make Orders for the good governance and management of staff, including the selection and appointment of staff, the terms and conditions of employment of staff, and procedures for the discipline and dismissal of staff.   Pursuant to those powers, the IRC made various Commission Administrative Orders including Orders CAO No. 5-14 - Leave and Travel Policy and CAO No. 5-15 - Discipline. 

5.	Orders CAO No. 5-14  provides, inter alia, as follows:

11.	All staff members … are responsible for submitting applications for leave in accordance with the procedures set out in this document … and must seek approval from their Divisional Head and/or his/her delegate prior to taking leave in accordance with this policy and procedure.  

83.	A staff member is entitled to 10 days paid leave … where … a member of the staff member’s immediate family contracts an illness …  that poses a serious threat to  …  their life …

84.	Unless it is impracticable,  a staff member will seek approval to take compassionate leave  prior to taking that leave.  

6.	Order CAO 5 – 15 provides, inter alia, that:

29.   If an IRC staff member is irregular in their attendance or is absent from the work place without leave during office hours, the circumstances shall be reported … and the staff member shall be charged for a disciplinary offence. 
   
30.   An IRC staff member shall not, except with the express permission of their Line Management, … the Assistant Commissioner or their Director, leave their employment during office hours except on official business.  

33.  An IRC staff member  shall not be absent from duty without prior approval unless there are circumstances that exist which are beyond their control.  
  
34.    If an IRC staff member is prevented by … emergency from attending duty, they shall as soon as possible, in any case within 24 hours,  … advise the Assistant Commissioner or Director or other responsible person within the Division to which they are attached, of the circumstances …   

Abscondment

36.   Where a …. member is absent without notification… for … 3 days … they shall be deemed to have absconded and shall be removed from the .. payroll until such time as they attend work and provide a written explanation as to their unapproved absence.

37.  Where a staff member does not report for duty without good reason for a period of 3 working days, the IRC staff member may be charged with a serious disciplinary offence …   

38.  Where an officer does not report for duty without good reason for a period of 10 working consecutive days, then the officer shall be summarily dismissed by the Commissioner General without regard to the disciplinary process.  

39.  Where the absence of the IRC staff member  is satisfactorily explained and it is evident that their absence was beyond their control, the Assistant Commissioner responsible … shall be furnished with a report … to which they shall respond in writing with a decision as to whether the absence is deemed to be with or without pay.  

Disciplinary Process

108.	Where a staff member is alleged to have committed an offence under this Administrative Order, the staff member shall … be formally charged in writing ...”

7.	The Order CAO 5 – 15 provides very detailed procedures and forms for the disciplinary process, which include specific provisions for procedural fairness and giving a right to be heard.

Evidence 
8.	There was a conflict in the evidence as to the circumstances leading up to the Plaintiff’s summary dismissal.  

9.	In his affidavit filed on 10 November 2017, the Plaintiff said that his wife was very sick on 28 June 2017, he asked for a leave application form and verbally informed his supervisor Joe Kaima that he would be applying for leave.  He says that he then flew to Wabag on 2 July and stayed there until his wife recovered on 11 July.   He says that he returned to Port Moresby on 13 July, and reported for duty on 14 July 2017.   He attaches a copy of an Application  for Leave form which requests leave from 3 July to 14 July 2017, which was signed by the Plaintiff on 3 July 2017.   It is not signed by the Divisional Head or any other person and has not been processed by Personnel, with those parts of the Form being blank.  

10.	In his letter to the Defendant on 7 August 2017, the Plaintiff says that he filled out a Leave Form and gave it to his Director, John Heni, on 3 July 2017.  

11.	In his lawyer’s letter to the Defendant of 2 October 2017, it was said that the Plaintiff signed the Leave Application Form on 3 July 2017 at 7.45 am and gave it to his “immediate boss who gave verbal approval of the leave”.     The immediate boss is not named.  Later in the letter, it was said that the Plaintiff had complied with directions of his immediate supervisor, Joe Kaima, although those directions were not identified.

12.	 The statement in his lawyer’s letter that the Plaintiff signed the leave form on 3 July 2017 at 7.45 am and left it with his immediate boss who gave verbal approval, cannot be true.  The airline ticket submitted by the Plaintiff showed that he had already flown from Port Moresby to Mt Hagen at 7 am on Sunday 2 July 2017.

13.	The Plaintiff said in his affidavit that he returned to Port Moresby on 13 July and reported for work on Friday 14 July 2017.  That could not be true, as the airline ticket submitted by the Plaintiff showed that he was in Mt Hagen on Friday 14 July 2017 and flew to Port Moresby on that afternoon.  He could not have reported for work before Monday 17 July 2017.

14.	In his affidavit, the Plaintiff does not actually say that he gave the Leave Form to Joe Kaima or to John Heni or to any other person.

15.	The Plaintiff produced no affidavit or other evidence showing that he had asked for or was given verbal approval either by his Divisional Head or Assistant Commissioner or Director or any other responsible person as prescribed by paras 11 and 34.

16.	The Plaintiff gave no explanation or evidence showing why his  “immediate boss” did not submit the Leave Form to the Divisional Head or Assistant Commissioner or Director or other responsible person, or indeed to anyone, for processing in the prescribed way.

17.	The Plaintiff’s decision to take time off work and travel to Wabag to visit his ill wife, was not an immediate emergency situation.  The Plaintiff’s evidence was that he knew of his wife’s illness on Wednesday 28 June, and two days later he obtained a leave form, and then 2 days after that he travelled to Wabag on Sunday 2 July 2017. 
 
18.	No reason was given as to why it was impracticable for him to comply with the requirement to submit an application for recreation or compassionate leave in accordance with the prescribed procedures.  It was not in fact impracticable as he had several days in which to do this.  

19.	Even after the Plaintiff was in Mt Hagen or Wabag, he made no attempt to telephone or email his supervisor to check that his application had been received and submitted or that it had been approved.  

20.	There is in fact no evidence to show that the leave form was ever submitted to or approved by anyone or that any person gave verbal or any approval for the leave. 
 
21.	The Defendants say that no leave form was ever submitted to or received by them, and no approval was given. 

22.	The Defendants’ records show that all that happened is that the Plaintiff was not at work on Monday 3 July 2017, was absent without notification, and did not return to work until Monday 17 July 2017.    
 
23.	In view of the seriousness of the charge of abscondment and penalty of dismissal, it would be reasonable to expect the Plaintiff would have obtained a statement from his “immediate boss” or Joe Kaima or John Heni or whichever person he says that he gave the leave form to, and whom he says gave him verbal approval.  However, no such evidence was provided.
  
24.	In circumstances where the Plaintiff had only recently been reinstated to his employment in March following an earlier termination, and he described the employer-employee relationship as sour, it would be reasonable to expect the Plaintiff to take care that he complied with all the terms and conditions of his employment. It is therefore surprising that he was unable to produce any evidence to show that he had complied with the requirement to obtain prior approval for his absence from work. 

25.	After leaving the work place, he made no attempt in the next 2 weeks to contact the office about his absence.  Even on his return to the office on Monday 17 July 2017, or for the next few weeks, he made no attempt to check with any one about his leave.

26.	Leaving aside the issue of whether or not his wife’s chest infection and gastroenteritis were life threatening, as required by para 83 of CAO 5 – 14, it was not impracticable for the Plaintiff to seek approval at any time from 28 June, prior to taking leave.  

27.	The Defendants’ attendance records showed that the Plaintiff’s attendance from 1 June 2017 to 30 June 2017 was very poor, with him arriving several hours late and leaving early almost every day.  They show that he did not attend at all from 3 July 2017 until his late arrival on 17 July 2017.

Issues
28.	The Defendants exercised their powers under Section 38 to summarily dismiss the Plaintiff for not reporting for duties without good reason for a period of 10 days without prior approval.

29.	Did the Defendants err in finding that the Plaintiff had not reported for duty for 10 consecutive working days and had failed to obtain prior approval, without good reason?  

30.	There is sufficient evidence from both the Plaintiff and the Defendants to show and it is not in dispute that the Plaintiff did not report for duty from 3 – 14 July inclusive, which was a period of 10 consecutive working days.  There was therefore no error on this finding. 

31.	Once 10 days absence was found, the onus was on the Plaintiff to show either that he had sought and obtained prior approval, or had a good reason for not doing so.

32.	The requirement to show good reason is not for an absence, it is necessarily for an unapproved absence.  

33.	There was no evidence given by the Plaintiff of why it was impracticable for him not to have sought prior approval.  On the contrary, his evidence was that he had several days in which to do so, before he left. 

34.	His wife was sick, he decided to visit her in hospital, and he had several days in which to obtain approval.  He booked an airline ticket for several days away on 2 July 2017.  There is no good or indeed any reason why he did not seek approval from the Divisional Head or Director or Assistant Commissioner as prescribed. The Plaintiff gave contradictory explanations for the circumstances of his absence from and return to work, he made statements which were not true, and he did not produce any evidence to confirm his explanation, in circumstances where it would have been reasonable for him to have obtained corroborating evidence from the persons he named in his explanations.  

35.	Accordingly, as at 3 July 2017, when the Plaintiff was first absent from duty, the evidence was that the Plaintiff had not submitted an application for leave in accordance with procedures set out in the Orders, or at all, had not sought prior approval from his Divisional Head or delegate, had not obtained approval and had not provided a reason for why it was impracticable to seek approval prior to taking leave.  The evidence showed that at 3 July 2017, the Plaintiff had failed to comply with the requirements of CAO 5 – 14, and this continued until 17 July 2017.

36.	It was therefore open to the Defendants to find that the Plaintiff had not sought or obtained prior approval, before leaving the work place for 10 days, and had not given a good reason for this.

37.	Having found that the Plaintiff had not reported for duty without good reason for a period of 10 consecutive working days without prior approval, the provisions of para 38 provide that the officer shall be summarily dismissed without regard to the disciplinary process.  

38.	When it has been established that a staff member has committed a breach of the Orders, then the provisions of CAO 5 -15 come into operation.  This Order sets out the procedures for dealing with different types of breaches and offences.

39.	There are three sections which are relevant to the Plaintiff’s position:    Paras 29 – 32 refer to Absence during Office Hours.   Paras 33 – 35 refer to Absence Without Prior Approval.  Paras 36 – 39 refer to Abscondment.  

40.	When reading the three sections, it is apparent that the first section is intended to deal with leaving the work place during office hours, the second section is for not attending the work place, and the third section is for not attending the work place for long periods.

41.	The Plaintiff’s case fits squarely with the third section.

42.	Under para 36, if a staff member is absent for 3 days, they can be removed from the payroll.   Under para 37, where they are absent for 3 days without good reason, they can be charged with a serious disciplinary offence.

43.	Under para 38, where they are absent without good reason for 10 consecutive working days, then they shall be summarily dismissed without regard to the disciplinary process.  That is the para which was relied on by the Defendants to summarily dismiss the Plaintiff.

Natural Justice

44.	The Plaintiff has submitted that para 38 must be read together with para 39.   The only effect of para 39 is to enable the Assistant Commissioner to make a decision to deem an absence to be with or without pay, after receiving an explanation.   This is not consistent with para 38 which provides for dismissal by the Commissioner-General, and which does not refer to explanations.

45.	It would make more sense for para  39 to be read in conjunction with para 36, which provides that the employee shall be removed from the payroll until such time as they attend work and provide a written explanation.  If the explanation is satisfactory and found to be beyond their control, then under para 39  their absence can be deemed to be with or without pay.  

46.	Similarly, under para 37, if the member is charged with a serious disciplinary offence, he has the opportunity to respond by giving a good reason, through the disciplinary process. 

47.	Para 38 is quite different.  It provides that where an officer has not reported for duty without good reason for  10 days, he shall be summarily dismissed without regard to the disciplinary process, ie; without being charged with any offence.

48.	The Plaintiff has submitted that if paras 38 and 39 are read together, the officer must first be given the opportunity to provide a satisfactory explanation and that his absence was beyond his control, before being summarily dismissed.

49.	That interpretation would be inconsistent with the concept of summary dismissal, which by definition, means being dismissed without being heard.  If the employer had to notify the nature of the breach or charge to the employee in writing, conduct a hearing, and give the opportunity to respond or appear before making a decision to dismiss, it would not be summary.   It is the process which is followed by the Defendants pursuant to the Disciplinary Process for terminating staff with notice.  However, it is not the process followed by the Defendants for summary dismissal, which by its nature, means without prior notice.  
  
50.	The reference in Para 39 of CAO 5 – 15  to  the giving of a satisfactory explanation and that the absence was beyond the officer’s control, can relate only to the earlier paragraphs referring to absences of less than 10 working days, where summary dismissal is not applicable.  It would not make sense to interpret para 39 to require explanations and written reports and further written responses, before a summary dismissal.

51.	However, even on the Plaintiff’s interpretation, he had to show evidence that his unauthorized absence was beyond his control.  Clearly, he did not show this.  The evidence showed that his unauthorized absence was entirely within his own control, and he arranged it over a period of days.

52.	The only exercise of discretion in para 38 is in relation to “good reason”.  What may be considered good reasons are set out in the other provisions relating to absence from duty:   CAO 5 – 14 para 84 (impracticable), CAO 5 – 15 (circumstances beyond his control) and CAO 5 – 15 para 34 (emergency).

53.	The Plaintiff did not provide any of those good reasons.  He did not show that it was impracticable for him to seek approval prior to taking leave, he did not show that his failure to obtain prior approval was due to circumstances beyond his control, and he  did not show that he had been prevented by emergency from seeking approval.

54.	As a result of this, on Monday 17 July 2017, the Plaintiff had reported for duty without good reason after being absent for a period of 10 consecutive working days.  Under para 38, he was obliged to be summarily dismissed.

55.	If the Plaintiff had provided a good reason even after his return to the office on 17 July, he may have avoided the application of para 38.  However, after failing to obtain prior approval for his absence, the Plaintiff did not make any attempt to obtain approval after his absence and while he was in Mt Hagen or Wabag, and still made no attempt after his return to the office or at any time in the subsequent weeks prior to his termination, to check that the leave form had been submitted and approved.  He was therefore in breach of his obligations under para 11 of CAO 5 – 14.

56.	Even if this was not the case, the Plaintiff did in fact provide his explanation to the Defendants in his letter of 7 August 2017 and his lawyer’s letter of 2 October 2017.

57.	If these letters were regarded as being given an opportunity to provide a good reason under para 38, the Defendants were entitled to find that good reason was not shown.  The Plaintiff gave contradictory statements that he submitted his leave form to John Heni on 3 July, or to Joe Kaima at 7.45 am on 3 July 2017.  Neither statement was true, as the Plaintiff’s airline ticket showed that he was not even in Port Moresby on 3 July, as he had gone to Mt Hagen on 2 July 2017.  He did not show that it was impracticable to obtain prior approval, and did not show that he could not obtain prior approval due to circumstances beyond his control or that he was prevented from obtaining prior approval by emergency. 

58.	The Plaintiff has submitted that natural justice required him to be given a right to be heard before being summarily dismissed.  In Dicky Nanan v John Maru and the Police Commissioner N1507 and Kamangip v Orim 1998 PGNC 17, the Courts considered the procedures for disciplinary hearings under the Police Force Act, which set out in detail the processes to be followed.   They found that the legislature intended to regulate the procedures of disciplinary hearings by the provisions set out in the Act.  They therefore concluded that where the provisions exclude what may be regarded as some of the common law principles of natural justice, they will not be implied into the Act by the Courts.  That Act gave no right for the Plaintiff to be given material relied on by the Commissioner, and the Courts would not imply that right into the wording of the Act. There was no room for the application of the principle of the right to be further heard.

59.	The Courts found that if the legislature had intended that a person should be given an opportunity to be heard before a penalty was imposed, it would have provided that in the various processes prescribed in the Act.   As it did not, then by necessary implication the prescribed processes excluded that right.

60.	In this case, the Orders made under the Act provide lengthy procedures for being given a right to be heard in the disciplinary process.  However, para 38 expressly provides for summary dismissal without regard to the disciplinary process.  If the legislature had intended to give such a right, it would have provided it in para 38.   As it did not, there is therefore no room for the Court to imply that right into the wording of para 38.
  
61.	The Plaintiff has submitted that the Defendants’ decision was biased and made without regard to his explanations, because of his previous termination and reinstatement.  However, there is very little room for bias or discretion in para 38.    Whenever an officer has not reported for duty without good reason for a period of 10 days, he shall be summarily dismissed.  It was not in dispute that the Plaintiff had not reported for duty for a period of 10 days, and the Defendants records showed that no reason at all had been given.  

62.	As he had breached the prescribed procedures for absence from duty, then on 17 July 2017 he became liable to be summarily dismissed, and this position had not changed by 2 August 2017, when he was summarily dismissed.  

Grounds

63.	Based on these findings, consideration is given to the Grounds of Review set out in the Statement.

64.	Ground 5.1 

(a)	The reference in the Defendants’ termination letter of 2 August 2017  to the Plaintiff being absent from duty from 2 June 2017 to 14 July 2017 covers both being absent during working hours without authority from 2 June – 30 June, and being completely absent from 3 July – 14 July 2017.  The letter goes on to say that it is abscondment, which is being absent for 10 days.  That was correct from the Defendants’ records, and it was therefore not unreasonable for the First Defendant to say that.

(b)	There is no requirement in the legislation for “proper consultation with the Plaintiff’s immediate bosses”.  

(c)	There was no evidence from the Plaintiff’s immediate boss or any other relevant person to show that the Plaintiff had been given verbal approval, and so it was not unreasonable for this not to be considered.  

(d)	The Plaintiff’s obligation was not to merely give a reason for his absence - It was to show a good reason for  his failure to obtain prior approval  for his absence.    He could have shown that his failure to obtain approval was due to emergency or circumstances beyond his control,  and that it was impracticable for him to apply for approval.   As such reasons were not shown by him, they could not have been considered by the Defendants.

(e)	The legislation contains no provision for appeal, but the document show that the First Defendant did consider the Plaintiff’s appeal contained in his letter of 7 August 2017 and his lawyer’s letter of 2 October 2017, to which they gave written responses.

(f)	Reasons for the dismissal were provided in the Defendants letters of 2 August (setting out his absences, lack of authorization, definition of abscondment and para 38 of CAO 5 – 15) and 11 October 2017 (setting out time computations, lack of authorization and breach of procedures).

5.2	The penalty of summary dismissal was not harsh or oppressive, when it was a mandatory procedure prescribed by the legislation governing the terms and conditions of the Plaintiff’s employment.  

5.3	The termination of the Plaintiff was not based on any charge.   Under the legislation a charge is part of the disciplinary process, and under CAO No. 5 – 15 para 38, the officer shall be summarily dismissed without regard to the disciplinary process.

5.4	The Defendants did not lay any charge against the Plaintiff, and the legislation did not provide for an opportunity to be heard prior to summary dismissal, or provide any right of appeal.  Notwithstanding this, the Plaintiff was heard by his letter of 7 August 2017 in and his lawyer’s letter of 2 October 2017, which received responses.

5.5	The Plaintiff has therefore not shown any error in the procedures followed by the Defendants in summarily dismissing the Plaintiff under para 38 of CAO 5 – 15.

65.	I therefore make the following orders: 

a)	The Plaintiff’s application for a Declaration that the decision of the First Defendant dated 2 August 2017 be declared null and void, is refused.

b)	The application for certiorari against the decision of the First Defendant of 2 August 2017, is refused. 

c)	The application for reinstatement, is refused.  

d)	The application for payments of salaries and entitlements, is refused. 

e)	The application for damages is refused.

f)	The Plaintiff is to pay the Defendants costs.

________________________________________________________________
Jefferson Lawyers: Lawyers for the Plaintiff
IRC Legal Division: Lawyers for the Defendants