N10572

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 92 OF 2021 (IECMS)

IN THE MATTER OF JUDICIAL REVIEW UNDER
ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:
MIN EREMUGE, PHILIP AURE, THERESA KOTIO, ENOS TAUBONA, HELEN INARU, CHARLIE KEAFAE, SAMA SUGUYA AND ANTON KARO
Plaintiffs

AND:
DR. JOSEPH APA
First Defendant

AND:
EASTERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani:   Dingake J
2023:    6th & 10th November

JUDICIAL REVIEW - Disciplinary charges – health professionals – participation in peaceful protest – Dismissal – No oral hearing held – whether the sanction of dismissal was too harsh and disproportionate – held that there was denial of natural justice and that the sanction of dismissal was too harsh and disproportionate.

Cases Cited

Air Niugini Ltd v Doiwa [2000] PNGLR 347
Marat v Hanjung Power Ltd [2014] SC1357

Counsel

Mr. Solomon Wanis, for the Plaintiffs
Mr. Russell Uware, for all the Defendants
JUDGMENT

10th November 2023

1.	DINGKALE J: INTRODUCTION: This is an application, by eight (8) health professionals from Eastern Highlands Provincial Health Authority (EHPHA) for judicial review of the decision of the First Defendant by way of letters dated the 24th and 29th of November 2017, in which he terminated the employment of the Plaintiffs.
Background

2.	The background to this judicial review may be stated briefly. On the 20th of March 2017 there was a protest by Staff at Eastern Highlands Provincial Health Authority (EHPHA) over allegations of mismanagement at Goroka General Hospital. 

3.	Following the charges of participating in an illegal protest, the Plaintiffs were dismissed from their employment by a letter dated 24th and 29th of November 2017. 

4.	The letters of dismissal were on the face of it signed by the Head of Department, but the Plaintiffs assert without offering any cogent evidence that the signature appearing in the letters of dismissal was that of the First Defendant.

5.	The Plaintiffs being unhappy with the decision to terminate their services, successfully lodged a review application with the Public Service Commission (PSC) with the result that the decision to terminate their employment was quashed and they were reinstated.

6.	The First Defendant, being unhappy with the decision of PSC successfully reviewed the decision of PSC before the National Court in Goroka in November 2019. The National Court decision in Goroka was successfully appealed against, by the Plaintiffs, before the Supreme Court, which remitted the matter back to the National Court, for a re-hearing before another Judge.
Relief

7.	The Plaintiffs seek the following relief from this Court:
(a)	An order in the nature of certiorari to remove into the Court and quash the First Defendant’s decision made by the two letters dated the 24th and 29th November 2017.
(b)	General damages to be assessed.
(c)	Missed Salaries and other entitlements.
(d)	Costs of and incidental to the proceeding.
(e)	Any other orders the Court deems appropriate.

8.	The Plaintiffs relied on the following affidavits evidence:
(a)	Affidavit by Min Eremuge filed 25th June 2021.
(b)	Affidavit of Philip Aure filed 25th June 2021.
(c)	Affidavit of Theresa Kotio filed 25th June 2021.
(d)	Affidavit of Enos Taubona filed 25th June 2021. 
(e)	Affidavit of Theresa Kotio filed 25th June 2021.
(f)	Affidavit of Helen Inaru filed 25th June 2021.
(g)	Affidavit of Charlie Keafae filed 25th June 2021.
(h)	Affidavit of Anton Karo filed 25th June 2021.

9.	The Defendants did not file any evidence to support their version of the events.

10.	Based on the uncontradicted evidence of the Plaintiffs, I have made the following findings of fact:
•	The Plaintiffs were charged with taking part in an illegal protest against the Health Minister and Secretary.
•	It seems probable from the evidence supplied by the Plaintiffs that they could have been charged on or about the 25th of April 2017 and given seven (7) days to respond to the charges).
•	It also seems that the Plaintiffs responded to the charges which they denied but in response, without holding any hearing, to prove the offences preferred against them, the First Defendant and or Defendants, dismissed the Plaintiffs from their employment.
•	On the face of it the letters of the 24th and 29th of November 2017 were signed by the Departmental Head. The name of the Departmental Head is not indicated.

Grounds

11.	The Plaintiffs rely on two grounds to review and quash the decision complained of, namely, error of law/ultra-vires and denial of natural justice. The ground of denial of justice is in two (2) limbs:
(a)	failure to conduct an oral hearing in terms of which witness would have been called, 
(b)	the imposition of the ultimate sanction of dismissal without offering them an opportunity to be heard on the sanction.

12.	Under the ultra-vires ground the Plaintiffs submit that the First Defendant acted ultra-vires or exceeded his powers when by way of letters dated 24th and 29th of November, 2017 he terminated the employment of the Plaintiffs in contravention of Section 52 (5) of the Public Service (Management) Act 1995, as the power to terminate the employment lies with the Head of Department and not the First Defendant as the Chief Executive Officer (CEO) of a Provincial Health Authority.

13.	On the ground relating to the denial of natural justice the Plaintiffs submit that the First Defendant’s actions were unfair and contrary to the principles of natural justice, as guaranteed by Section 59 of the Constitution of Papua New Guinea (PNG) in that:
a.	The notice of suspension; charge and punishment were not served personally on the Plaintiffs.
b.	The Plaintiffs were not given the opportunity to be heard on the penalties that were imposed.
c.	The Plaintiffs were charged for a wrong date of the Minister’s visit. The Minister and his Secretary visited on the 20th  of March 2017 and not 24th April 2017.
d.	The offence complained of was minor, yet the penalty imposed was excessive.
e.	There was a gross breach of the disciplinary process and no witness statements against the Plaintiffs were presented.

14.	Under the ground of Wednesbury unreasonableness the Plaintiffs contend that the decision to terminate their services/employments was unreasonable as the offences were not serious or severe to warrant dismissal. They argue that the punishment is harsh and disproportionate to the offences they were charged with.

15.	The Plaintiffs submit that they have proven that the decision(s) taken by the First Defendant and or Defendants were unlawful based on the grounds referred to earlier and pray for the relief earlier outlined.

16.	The Defendants argue that the Plaintiffs are not entitled to succeed in this judicial review because they were dismissed by the Departmental Head as required by law and that the Plaintiffs right to natural justice was not breached as they were charged and found guilty and then dismissed.

17.	I turn to the arguments of the parties considering the evidence and the law.

18.	The Plaintiffs bear the onus to prove their case on a balance of probabilities.

19.	On the evidence, there is nothing to suggest or prove that the decision to terminate the Plaintiffs employment was taken by the First Defendant in his capacity as the CEO. The evidence, in the form of the letters of dismissal/termination dated the 24th and 29th of November 2017, shows, on the face of it, that it was the decision of Head of Department.

20.	During submissions, learned Counsel for the Plaintiffs, Mr. Wanis, sought to argue that the signature was not that of the Departmental Head but that of the First Defendant, but no proof was tendered to prove that allegation.

21.	I therefore find that the allegation that the Plaintiffs were dismissed and or terminated by the First Defendant was not proven.

22.	The evidence with respect to the assertion that the termination was unreasonable was too weak to be sustained. I find that this ground was not established.

23.	On the evidence I find that the Plaintiffs had served the nation as health professionals for many years; some for over 30 years, their termination, based on their alleged participation in the protest, assuming that was established, was harsh and disproportionate to the offences they were charged with and liable to be quashed for that reason alone.

24.	In this case I am satisfied that the sanction imposed was harsh and disproportionate as to offend the principles of natural justice. I am aware that the ground of proportionality as a separate ground for judicial review is still evolving and is not yet universally accepted as the cases of Air Niugini Ltd v. Doiwa (2000) PNGLR 347, Marat v. Hanjung Power Limited (2014) SC 1357, illustrate. However, given the general trend in other commonwealth jurisdictions such as UK and Australia to accept “proportionality” as a separate ground for judicial review, I think the time has come to follow suit in Papua New Guinea. I am fortified in this view I hold by the provisions of Section 41 (1) (b) of the Constitution that provides that an act is unlawful if it is disproportionate to the circumstances of a particular case.

25.	Put at its simplest form proportionality in this case seeks to answer the question whether, based on the alleged protest staged by the Plaintiffs, given the importance of their (Plaintiffs) service to the nation and the number of years they dedicated to serve the public, would it be fair that they be given the ultimate sanction for the alleged offences? I do not think so.

26.	On the issue of alleged breach of natural justice based on failure to hold an oral hearing, I think there is merit in this argument, given the nature of the case. As is now well known, natural justice depends on the circumstances of each case. It seems to me that this was a case that required witnesses to testify and if need be cross examined. It is not the kind of case where the matter could have fairly been disposed of on the papers. In my mind, in so far as this was not done, there was no fairness, and the principles of natural justice were breached.

27.	However, even if I may be wrong to hold as I do that failure to call witnesses, given the nature of the case breached the principles of natural justice, I would still be inclined to hold that natural justice was also breached in the sense that the Plaintiffs were not afforded an opportunity to address the decision maker on the sentence before it was imposed. (Kelly Yawip v. The Police Commission [1995] PNGLR 122; Pierson Joe Kamagip v. Police Commission N1853 (1999)).

28.	In all the circumstances of this case, I am satisfied that the decisions of the First Defendant or Defendants sought to be reviewed is/are unlawful for being disproportionate and or violating the principles of natural justice.

29.	In the result this Court orders that:
(a)	 An order in the nature of certiorari, shall be issued to remove into the Court and quash the First Defendant’s decision made by the two letters dated the 24th and 29th November 2017.
(b)	General damages, that includes missed salaries, and other entitlements to be assessed.
(c)	Costs shall be in the cause.
(d)	This matter is scheduled for directional hearing on the 5th of December 2023 at 9:30 am.

_______________________________________________________________
Solomon Wanis Lawyers: Lawyer for the Plaintiff
Office of the Solicitor General: Lawyer for the Defendants