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Kumbule v Rakatani [2021] PGNC 684; N8947 (28 July 2021)

N8947

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 111 OF 2017

BETWEEN
CORPORAL TONY KUMBULE
Plaintiff

AND
COLONEL J. RAKATANI, Chief of Personnel of the PNG Defence Force
First Defendant)

AND
LIEUTENANT COLONEL J. M MATAGARAKIKAI, Commanding Officer of Defence Air Wing
Second Defendant

AND
BRIGADIER GENERAL, GILBERT TOROPO, Commander of PNG Defence Force
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail, J
2021: 16^th, 22^nd & 28^th July

LIBIALITY – Wrongful dismissal action – Member of PNG Defence Force – Unlawful discharge – Member absent without leave – Admission of being away from work – No evidence of approval granted to take leave – Proof of – Absent from duties not in the best interests of the PNG Defence Force – Liability not established – Defence Force Act – Section 33 – Defence (Period of Service) Regulation – Section 11(2)(e)(ii) – Manual of Personnel Administration – Chapter 115.3

Cases Cited:
Anthony Corena v. Commander of PNG Defence Force &The State (2019) N7996
Leo Nuia v. Benias Sabumei, Minister for Defence [1992] PNGLR 90
Raphael Pius v. Commodore Peter Ilau & The State (2009) N3833
Raphael Pius v. Commodore Peter Ilau & The State (2011) SC1115

Counsel:
Mr. L. Aigilo, for Plaintiff
No appearances, for First and Second Defendants
Ms. V. Balio, for Third and Fourth Defendants

JUDGMENT

28^th July, 2021

1. MAKAIL J: This is a trial on liability and assessment of damages based on a wrongful dismissal action or in military terminology, ‘unlawful discharge’ of the plaintiff from the Papua New Guinea Defence Force (“Defence Force”).

2. The plaintiff was recruited as a member of the Defence Force in 1989 and served until he was served with a notice of discharge in the form of a signal under Chapter 115.3 of the Manual Personnel Administration (“MPA”) on 12^th November 2013. This signal followed an earlier one dated 16^th October 2013 which stated that the plaintiff went on absent without leave (“Awol”) since 31^st May 2013. At the time of discharge, the plaintiff was holding the position of Tradesman of the Airwing Unit of the Defence Force and based at the northern side of the Jacksons International Airport.

3. In essence the second signal stated that he was on Awol for twenty-one days and was the reason for his discharge as a member of the Defence Force. He categorically denied being Awol and asserted that he was at work after he returned from recreation leave on 22^nd May 2013 and was put back on the pay roll until it ceased in November 2013 and was discharged. His explanation may be found at paragraphs 12 and 13 of his affidavit in support sworn on 5^th October 2018 and filed 8^th October 2018. Furthermore, at annexure “C” to that affidavit in the document identified as “Minute Paper”, he stated that he was at Waigani for three months sorting outstanding allowances for his Unit members.

4. He went on to blame the Defence Force and responsible officers for not checking their records in relation to the reasons for their claim that he was absent and verify with his immediate superiors of his attendance at work at the material time before issuing the signal. He even accused one of his work colleagues whom he did not identify by name in evidence as being the person responsible for the issuance of the signal and discharge because he and this person had an ongoing feud. More or less, the signal was fabricated.

5. Putting aside all these assertions to one side for the moment, the issue that is pivotal to the issue of liability before consideration may be given to award of damages is whether the plaintiff was granted approval to leave his place of work at the Airway Unit at Jacksons International Airport to go to Waigani to sort out the outstanding allowance for his Unit members.

6. A signal is issued because it has significant implications on the operations of the Defence Force in terms of monitoring of its members when it is considered in light of Chapter 115.3 of the MPA where a number of units and sections in the Defence Force and Department must be informed of the absence of the member. They are set out in Chapter 115.3 of the MPA.

7. Chapter 115.3 of the MPA states in part:

“When the absence of a member without leave has continued for more than 72 hours, the responsible unit is to report the absence within the next 24 hours by signal which constitutes an POR, to the following:

1. PNG Defence Force Police Unit,
2. PNG Defence Force Records Office,

100. Force Pay Office,

4. Servicing Paymaster, and
5. The member’s parents unit if appropriate........

.........”

8. In Anthony Corena v. Commander of PNG Defence Force &The State (2019) N7996, the plaintiff who was a member of the Defence Force sought leave from his Platoon Commander by telephone to travel to Popondetta on emergency grounds to attend to his injured nephew who was hospitalised at Popondetta General Hospital after he was attacked by an enemy tribe during a customary land dispute. However, it was held that there was no evidence that he was granted leave to leave work pursuant to Chapter 115.3 of the MPA. That case highlights the significance of obtaining approval or leave by a member of the Defence Force prior to leaving work. A failure to do that will be considered as being absent without leave contrary to Chapter 115.3 of the MPA.

9. I accept his evidence that he resumed duties after his recreation leave on 22^nd May 2013. However, by his own admission, he was at Waigani. It is quite clear from his evidence that he did not obtain approval to leave his place of work to go to Waigani for a period of three months to sort out the outstanding allowances for his Unit members. He does not even say who his immediate superior was and if it was the second defendant, if the latter had granted his request for approval to leave his place of work.

10. It is interesting to note that the plaintiff who is a tradesman spent time in Waigani sorting out outstanding allowances for his Unit members when he is not employed in the payroll section of the Defence Force or Department. Whether the reason given would justify a grant of approval remains to be seen. But his counsel attempted to explain from the bar table without evidence that he was one of the lead plaintiffs pursuing a court case against the Defence Force for outstanding allowances at Waigani National Court and it was intermediately for one hour or so in a day. This explanation must be disregarded because it does not have the backing of evidence.

11. The defendants have in their submissions gone to great length to demonstrate the inadequacies in the evidence of the plaintiff where he had failed to call witnesses to corroborate his evidence that he was present at work at the material time prior to the issuance of the signal. I uphold this submission. The plaintiff failed to call the Chief Clerk and the second defendant to verify his assertion that he was at work at the material time. It becomes necessary when by his own admission he has unequivocally put himself at Waigani for three months sorting out outstanding allowances for his Unit members. A period of three months being away from work is more than the period of 72 hours prescribed for an Awol period in Chapter 115.3 of the MPA.

12. Surely, the period of absence of that long must be of great concern to the Defence Force, especially the plaintiff’s superiors. And so, returning to the assertions by the plaintiff that the defendants failed to verify their records and if they did, they would have found that he was at work at the material time, it is not surprising to note that when the plaintiff utilised Section 50 (Redress of Grievances) of the Defence Act and asked his superiors to reverse the decision to discharge him and as a last resort, appealing to the Commander Brigadier-General Gilbert Toropo, the Commander had no hesitation but to dismiss his appeal because the plaintiff was considered a repeated Awol offender.

13. The failure to obtain approval to leave work renders unnecessary a consideration of the plaintiff’s submission on the failure by the defendants to adopt the disciplinary procedure under the Code of Military Discipline (“Code”). This was a case of the member being on Awol under Chapter 115.3 to Chapter 115.21 of the MPA. See more discussions on these two processes in the cases of Leo Nuia v. Benias Sabumei, Minister for Defence [1992] PNGLR 90, Raphael Pius v. Commodore Peter Ilau & The State (2009) N3833 and Raphael Pius v. Commodore Peter Ilau & The State (2011) SC1115.

14. As was observed at [12] in Anthony Corena case (supra), where a member of the Defence Force like the plaintiff is Awol for a period of three months, it would be extremely difficult for his superiors to justify their decision to retain him in the best interests of the Defence Force under Section 33 (Termination of Service) of the Defence Act and Section 11(2)(e)(ii) (Period of Service) of the Defence (Period of Service) Regulation.

15. In conclusion the plaintiff has failed to discharge the onus of proof on the
balance of probabilities that the signal was issued without any basis or in breach of procedure, hence unlawful and the subsequent discharge from the Defence Force unlawful. Liability has not been established and it will not be necessary to consider the issue of damages. The order will be that the proceeding is dismissed with costs to the defendants, to be taxed, if not agreed.

Judgment and orders accordingly.
________________________________________________________________
Gibson Bon Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for Third and Fourth Defendants