N8094
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 356 OF 2018

CHRISTINE SAPAKA
Plaintiff

V

AGNES METEN, SOLICITOR-IN-CHARGE,
OFFICE OF THE PUBLIC SOLICITOR, MADANG
First Defendant

THOMAS ILAISA, CHAIRMAN, DISCIPLINARY COMMITTEE, OFFICE OF THE PUBLIC SOLICITOR
Second Defendant

LESLIE MAMU, PUBLIC SOLICITOR
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Cannings J
2019:  9, 14, 16 March, 24 April, 24 May

JUDICIAL REVIEW – disciplinary proceedings – review of decision to find officer of Public Solicitor guilty of disciplinary offence and to dismiss officer from Public Service – whether abuse of administrative process – whether errors of law made – whether breach of natural justice principles. 

The plaintiff was an instructions officer in the Office of Public Solicitor. The Public Solicitor charged her with a disciplinary offence regarding alleged abscondment from duties and, after receiving the plaintiff’s response, found her guilty and imposed the penalty of dismissal from the Public Service. The plaintiff, having been granted leave by the court, applied for judicial review of the decision of the Public Solicitor to find her guilty and to impose the penalty of dismissal. The plaintiff relied on three grounds of review: (1) abuse of administrative process; (2) error of law;and (3) breach of natural justice. 

Held:

(1)	Ground 1 was dismissed because, apart from 12 days which were conceded by the defendants to have been erroneously included in the list of 60 working days on which the plaintiff had allegedly absconded from duty, the allegation was clearly put to the plaintiff that she had absconded from duty on 48 working days, the alleged failure to promptly approve resumption of duty from leave was inconsequential, no evidence was provided by the plaintiff as to her alleged hospitalisation or the defendants’ alleged failure to properly investigate the allegations and the defendants were not obliged to give a notice of reprimand or suspension prior to dismissal

(2)	Ground 2 was dismissed because the charge was not based on an incorrect provision of the Public Services (Management) Act, there was no failure to give the plaintiff the opportunity to explain the dates of alleged abscondment, there was no obligation to give a notice of reprimand or suspension prior to dismissal, the penalty of dismissal was available under the Act and there was no materialfailure to authorise the plaintiff’s resumption from leave.

(3)	Ground 3 was dismissed because the decision was not against the weight of the evidence, the penalty of dismissal was not harsh or oppressive, there was no evidence that the decision was biased or prejudicial or made without proper investigationor that the plaintiff was not afforded a proper opportunity to be heard and the plaintiff was not dismissed for a non-existent offence.

(4)	As no ground of review was sustained, all relief sought by the plaintiff was refused and the proceedingswere dismissed. 

Cases cited:

The following cases are cited in the judgment:

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Kwame Okyere Boateng v The State [1990] PNGLR 342
Pausi v Palaso (2018) N7552

JUDICIAL REVIEW

This was an application for judicial review of the decision of the Public Solicitor to find an officer guilty of a disciplinary offence and to dismiss the officer from the Public Service.

Counsel:

D F Waáu, for the Plaintiff
R Pariwa, for the Defendants
	
24th May, 2019

1.	CANNINGS J: The plaintiff, Christine Sapaka, was an instructions officer in the Madang branch of the Office of Public Solicitor. The Public Solicitor charged her with a disciplinary offence regarding alleged abscondment from duties and, after receiving the plaintiff’s response, found her guilty and imposed the penalty of dismissal from the Public Service. 

2.	The plaintiff, having been granted leave by the court, applies for judicial review of the decision of the Public Solicitor to find her guilty and to impose the penalty of dismissal. She relies on three grounds of review: 

1.	abuse of administrative process; 
2.	error of law; 
3.	breach of natural justice.

3.	Each ground is supported by five distinct arguments. I will, before addressing each ground and each argument, set out the train of events that led to the plaintiff’s dismissal.

EVENTS 

4.	The events occurred in 2017. On 23 March the plaintiff commenced recreation leave. She resumed duty on 12 May.

5.	On 26 September the plaintiff was served with a disciplinary charge in the following terms: 

CHARGES UNDER SECTION 52
OF THE PUBLIC SERVICES (MANAGEMENT) ACT

TO CHRISTINE SAPAKA

TAKE NOTICE that you are hereby charged with committing an offence within the meaning of Section 50 of the Public Services (Management) Act, namely:

Commits a breach of the Act;
and
Abscondment of duties under General Order 15.19(a)

Facts
Between March 2017 and August 2017, records per the daily attendance sheet show that you have absconded from duties in the Madang Public Solicitor’s Office. The particular dates are as follows, March (27th-31st), April (3rd-7th& 10th& 11th), May (23rd-26th& 29th-31st), June (1st-2nd, 9th, 12th, 14th-16th, 19th-23rd, 26th-30th), July (4th-7th, 10th-14th, 17th-21st, 25th-28th& 31st), August (1st-4th). 

AND TAKE FURTHER NOTICE that in accordance with Section 52(4) of the Act, I hereby call upon you to state in writing, whether you admit or deny the truth of such charge, and give any explanation in writing you may think fit as to such offence for my consideration.

AND TAKE FURTHER NOTICE that if no reply is received from you within 7 days after receipt of the charge, you may be deemed to have admitted the truth of the charge. 

6.	The disciplinary charge was framed under the Public Services (Management) Act 1995. No issue has been raised by any of the parties about whether the plaintiff should have been dealt with under the Public Services (Management) Act 2014. It is presumed that the 1995 Act was the relevant law. 

7.	On 2 October the plaintiff responded in writing to the charge. She denied the charge. She stated that she resumed duty from leave on 12 May and was attending work but had failed to sign the daily attendance sheet. Then there was a delay in sending her resumption from leave form to head office, due to a problem with the office fax machine. She acknowledged that there were periods of absence in June and July as she was ill and attending Modilon General Hospital for examination and treatment. She was admitted to hospital for one night before being discharged due to a lack of medicine. She was diagnosed with renal calculi (kidney stones) and had provided four medical certificates and these were given to a relative so that they could be delivered to the Madang office so that they would be sent to head office; but she does not know whether that had been done. She tried to enclose those certificates with her response to the charge but was told by the Madang office staff that they had been misplaced. She was still on medication and had to attend the clinic every Tuesday for review. She apologised to the Public Solicitor for causing inconvenience. 

8.	On 23 October the Public Solicitor issued a notice of punishment, stating that the charge had been sustained and that the punishment was dismissal from the Public Service.

9.	The plaintiff later sought review of the Public Solicitor’s decision by the Public Services Commission but there was no timely response and it was on that basis that this Court granted leave for judicial review of the decision. 

GROUND OF REVIEW 1: ABUSE OF ADMINISTRATIVE PROCESS

10.	It is argued that administrative processes were abused in five ways:

a)	the allegation of absconding from duties was based on incorrect dates;
b)	negligent failure to approve resumption of duty from leave;
c)	including dates on which the plaintiff was admitted to hospital and failure to grant medical leave; 
d)	failing to properly investigate the allegations prior to laying the charge; 
e)	not giving a notice of reprimand or suspension prior to dismissal

(a)	The allegation of absconding from duties was based on incorrect dates

11.	It is argued that the following dates should not have been included in the charge:

(i)	27 March to 11 May – the plaintiff was on recreation leave;
(ii)	23 to 31 May – the office was closed due to non-payment of rent;
(iii)	1 to 30 June – the plaintiff was hospitalized;
(iv)	1 to 4 August – the plaintiff was undergoing medical review.

12.	As to (i), the defendants agree that the plaintiff was on leave from 23 March to 11 May and that the dates 27 to 31 March, 3 to 7 and 10 and 11 April, should not have been included in the charge. To that extent the defendants concede that errors occurred in the drafting of the charge, but they deny that the errors are material given that if those 12 days are disregarded the rest of the charge remained intact; and there remained a serious allegation that the plaintiff had absconded from duty for 48 working days in a period of less than three months from 24 May to 4 August. I uphold the defendants’ argument. The fact that some incorrect dates were included does not make the charge defective or render the charge unintelligible or give rise to an abuse of administrative processes.

13.	As to (ii), the argument that the Madang office was closed from 23 to 31 May was not raised in the plaintiff’s response to the charge, so it is an irrelevant issue, and in any event no evidence was introduced to support the allegation that the office was closed in that period. 

14.	As to (iii) the plaintiff did not say in her response to the charge that she was hospitalised for the whole month of June. She said only that she was ill and was admitted for one night and was attending hospital for examination and treatment. She did not say that she was so ill she could not attend work or that she was attending hospital every day. 

15.	As to (iv) the plaintiff did not say in her response to the charge that she was undergoing medical reviews on each day from 1 to 4 August. This is a new and irrelevant issue. 

16.	Apart from the erroneous inclusion in the charge of 12 days on which the plaintiff was on leave, I am not persuaded that incorrect dates were included in the charge. No abuse of administrative processes occurred in the manner alleged. 

(b)	Negligent failure to approve resumption of duty from leave

17.	The plaintiff argues that her resumption from leave form was not processed until 23 May and that this delay was another instance of abuse of administrative processes.

18.	This argument was not raised in the plaintiff’s response to the charge, so it is an irrelevant issue; and in any event no evidence was introduced to support the allegation that there was a delay in processing the resumption from leave form. It is a doubly irrelevant issue as it was not alleged in the charge that the plaintiff had absconded from duty in the period that the alleged delay occurred, from 12 to 22 May. No abuse of administrative processes occurred in the manner alleged. 

(c)	Including in the disciplinary charge, dates on which the plaintiff was admitted to hospital, and failure to grant medical leave

19.	The plaintiff argues that the charge included dates that she was admitted to hospital and that there was a failure to grant medical leave.

20.	Neither of these arguments was raised in the plaintiff’s response to the charge, so they are irrelevant issues; and in any event no evidence was introduced to support the assertions that the plaintiff was admitted to hospital for an extended period or that she had applied for and been refused medical leave. It appears from the evidence that she did not request medical leave at any time, and that being the case it must be inferred that medical leave was never refused. No abuse of administrative processes occurred in the manner alleged. 

(d)	Failing to properly investigate the allegations prior to laying the charge 

21.	This is a hollow argument, not raised in the plaintiff’s response to the charge and there is no evidence to support the assertion that there was no proper investigation. No abuse of administrative processes occurred in the manner alleged. 

(e)	Not giving a notice of reprimand or suspension prior to dismissal

22.	It is argued that the Public Solicitor, having found that the disciplinary charge was sustained, ought to have given the plaintiff a reprimand or imposed a period of suspension.

23.	Such punishments were available to be imposed under the punishment regime in the Public Services (Management) Act. However, it remained within the discretion of the Public Solicitor to impose the punishment of dismissal. No abuse of administrative processes occurred in the manner alleged. 

Conclusion re ground 1

24.	None of the five arguments show than an abuse of administrative processes occurred. Ground 1 is dismissed. 

GROUND OF REVIEW 2: ERROR OF LAW

25.	It is argued that the Public Solicitor committed five errors of law:

a)	basing the charge on incorrect provisions of Public Services (Management) Act and Public Service General Orders;
b)	not giving an opportunity to explain dates of alleged abscondment; 
c)	not giving a notice of reprimand or suspension prior to dismissal;
d)	imposing a penalty of dismissal contrary to the Act;
e)	basing the penalty of dismissal on negligent failure to authorise the plaintiff’s resumption from leave.

(a)	Basing the charge on incorrect provisions of Public Services (Management) Act and Public Service General Orders

26.	It is argued that neither of the provisions on which the charge was based (Section 50(a) of the Public Services (Management) Act and General Order 15.19(a)) provide for the disciplinary offence of absconding from duties, so it was an error of law to put the charge to the plaintiff under those incorrect provisions.

27.	It is true Section 50(a) does not expressly refer to an offence of absconding from duties. It states:

An officer who … commits a breach of this Act including the Public Service Code of Business Ethics and Conduct … is guilty of a disciplinary offence and is liable to be dealt with and punished … under this Part. 

28.	Likewise, with General Order 15.19(a), which states:

An officer commits a disciplinary offence (of a minor or serious nature) if he or she … commits a breach of the Act (including the Public Service Code of Business Ethics and Conduct). 

29.	I agree that the charge could have been more appropriately framed under other provisions of the Act, such as Section 50(i), which provides:

An officer who … is guilty of disgraceful or improper conduct in his official capacity or otherwise … is guilty of a disciplinary offence and is liable to be dealt with and punished … under this Part. 

30.	However, I am not persuaded that the Public Solicitor’s choice of provision was a wrong, at least not to the extent that it amounted to an error of law. The gist of the charge was clear: that the plaintiff absconded from duty on a multitude of days and that this amounted to a disciplinary offence. I find no error of law in the manner alleged. 

(b)	Not giving plaintiff opportunity to explain dates of alleged abscondment

31.	This is a curious argument. I fail to see how it can seriously be suggested, as pleaded in the Order 16, Rule 3(2)(a) statement, that “the plaintiff was never given a fair opportunity to give an explanation of the dates relating to the abscondment”. The plaintiff was given the opportunity, in accordance with the Act,to within seven days respond in writingto the charge. She availed herself of that opportunity by denying the charge and arguing her case, in writing. I find no error of law in the manner alleged.  

(c)Not giving a notice of reprimand or suspension prior to dismissal

32.	This argument was dealt with under ground 1(e). There was no obligation to give the plaintiff a reprimand or impose a suspension before imposing the most serious penalty, dismissal from the Public Service. I find no error of law in the manner alleged.  

(d)	Imposing a penalty of dismissal contrary to the Act

33.	This is a rehash of the argument that the Public Solicitor was obliged to give the plaintiff a reprimand or impose a suspension before imposing the penalty of dismissal. The argument is entirely without merit. I find no error of law in the manner alleged.  

(e)	Basing the penalty of dismissal on negligent failure to authorise the plaintiff’s resumption from leave

34.	This argument was dealt with under ground 1(b). The plaintiff argues that her resumption from leave form was not processed until 23 May. It is an irrelevant issue as it was not alleged in the charge that the plaintiff had absconded from duty in the period that the alleged delay occurred, from 12 to 22 May. I find no error of law in the manner alleged.  

Conclusion re ground 2

35.	None of the five arguments show than an error of law was committed. Ground 2 is dismissed. 

GROUND OF REVIEW 3: BREACH OF NATURAL JUSTICE 

36.	It is argued that the principles of natural justice were breached in five respects:

a)	the decision to dismiss the plaintiff was against the weight of the evidence; 
b)	the penalty of dismissal was harsh and oppressive; 
c)	the decision was biased and prejudicial and made without proper investigation;
d)	the plaintiff was not afforded a proper opportunity to be heard; 
e)	the plaintiff was dismissed for a non-existent offence. 

(a)	The decision to dismiss the plaintiff was against the weight of the evidence

37.	Medical evidence was introduced at the trial to support the propositions that the plaintiff was in fact ill during June and could not attend work and that she had, through a relative, delivered medical certificates to the Madang office, which justified her absences from the workplace. 

38.	The evidence fell short of proving any of those propositions of fact.If they were proven, the fact remains that the plaintiff did not request medical or any other leave, and she was not granted leave. For 48 working days in the period from 23 May to 4 August she was absent without leave. It is one thing to prove a good reason for being absent from work. It is another thing to prove a good reason for not seeking leave to cover the absence. It is common sense and it must be regarded as a basic principle of the law of employment, including public employment, that an employee who is absent without leave must show good reason, such as circumstances beyond the employee’s control, for not applying for leave (Pausi v Palaso (2018) N7552). In any event, this is a judicial review of the Public Solicitor’s decision to find the plaintiff guilty of a disciplinary offence and to impose the penalty of dismissal. This is not an appeal against that decision. The focus of the court’s inquiry is the decision-making process and whether the decision was made fairly and in accordance with law, not the merits of the decision (Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122). The Public Solicitor’s decision is being reviewed on the basis of the evidence that was before the Public Solicitor when the decision was made. The plaintiff had the opportunity to put the medical evidence before the Public Solicitor when she responded to the charge, but did not do so; she just alluded to it vaguely. In these circumstances it cannot be said that the decision was against the weight of the evidence. I find no breach of natural justice in the manner alleged. 

(b)	The penalty of dismissal was harsh and oppressive

39.	The penalty is argued to be harsh and oppressive as the plaintiff’s absenteeism was caused by the negligent failure of the first defendant (the solicitor-in-charge of the Madang branch) to sign the resumption of duty form. 

40.	I have already decided, in arguments 1(b) and 2(a), that this is a non-issue. Any delay in signing the form was of no consequence as the period of the delay was not included in the charge. The penalty of dismissal was not in any objective sense harsh or oppressive as the plaintiff was absent from duty, without leave, for 48 days in a period of less than three months. I find no breach of natural justice in the manner alleged. 
(c)	The decision was biased and prejudicial and made without proper investigation

41.	This is another vague argument, which invites the court to assess the merits of the Public Solicitor’s decision to find the plaintiff guilty and to dismiss her from the Public Service.

42.	This is a judicial review and an argument that a decision-maker was biased must be framed in conventional terms. It must be argued, and proven, that the decision-maker was actually biased against the plaintiff or that the decision-maker made the decision in such a way as to give rise to a reasonable apprehension of bias (Kwame Okyere Boateng v The State [1990] PNGLR 342).Such an argument has neither been made nor proven. The argument that the decision was biased and prejudicial and made without a proper investigation is an empty shell and is dismissed. I find no breach of natural justice in the manner alleged. 

(d)	The plaintiff was not afforded a proper opportunity to be heard

43.	This is a rehash of argument 2(b). I reiterate that the plaintiff was given the opportunity, in accordance with the Act, to respond in writing, within seven days, to the charge. She availed herself of that opportunity by denying the charge and arguing her case, in writing. She was afforded a proper opportunity to be heard. I find no breach of natural justice in the manner alleged. 

(e)	The plaintiff was dismissed for a non-existent offence

44.	This is a rehash of argument 2(a). I reiterate that there was no error of law in the drafting of the charge. It was squarely put to the plaintiff that she had absconded from duty for a multitude of days in a short period and that this gave rise to a breach of the Public Services (Management) Act. This was an identifiable disciplinary offence. The plaintiff was not prejudiced by the drafting of the charge. I find no breach of natural justice in the manner alleged. 

Conclusion re ground 3

45.	None of the five arguments show that a breach of the principles of natural justice occurred. Ground 3 is dismissed. 

CONCLUSION 

46.	As none of the grounds of review has been sustained the application for judicial review fails and the proceedings will be dismissed. This is not an appropriate case in which to order costs against the unsuccessful plaintiff. 

ORDER

1.	The application for judicial review is refused and all relief sought by the plaintiff is refused and the proceedings are entirely dismissed. 

2.	The parties will bear their own costs. 

Judgment accordingly.
_________________________________________________________________
Ninerah Lawyers: Lawyers for the Plaintiff
Public Solicitor: Lawyer for the Defendants