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Busu v Post and Telecommunication Corporation [1993] PNGLR 321 (3 March 1993)

PNG Law Reports 1993

[1993] PNGLR 321 - Kandu Busu v Post and Telecommunication Corporation

[1993] PNGLR 321

N1152

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KANDU BUSU

V

POST & TELECOMMUNICATION CORPORATION

Waigani

Brown J

3 March 1993

ADMINISTRATIVE LAW - Judicial review - Whether the decision to terminate plaintiff's employment was reviewable.

ADMINISTRATIVE LAW - Natural justice - Whether the Reconsideration Committee of PTC was required under PTC Staff By-laws to apply the rules of natural justice before confirming the termination of plaintiff - PTC Staff By-laws, ss 24(2)(3)(4) and 25.

ADMINISTRATIVE LAW - Remedies - Certiorari - Whether appropriate plea for breach of employment contract - Whether plaintiff's employment has incidence of some public character or whether it was a relation of master and servant.

PRACTICE AND PROCEDURE - Claim for general and special damages - Whether claim can stand with the originating summons - Claim for damages for breach of employment contract - Statement of claim not filed in originating summons nor served - Whether claim can be considered.

Facts

The plaintiff employee of Post & Telecommunication Corporation was dismissed by the management for absenteeism. He sought orders in the nature of certiorari to review the decision of the Reconsideration Committee, which confirmed the dismissal, on the grounds that the committee had not accorded him his right to be heard. The plaintiff further alleged that the decision to terminate him was motivated by malice, jealousy, and bias.

Held

1.       The employment of the plaintiff by the corporation is a simple one of employer/employee relation but affected by statutory by-laws. The by-laws expressly provide for disciplinary proceedings to be held in accordance with the rules "of natural justice". Consequently, the Court may, by this administrative law remedy, review the actions of the appropriate authority of the corporation terminating the plaintiff where he alleges that no right of hearing had been accorded him.

2.       In the circumstances, the plaintiff had been accorded the opportunity to be heard and had actually exercised this right before the decision to terminate him was made.

3.       The allegations of malice, jealousy, and bias had no basis in fact.

Cases Cited

Papua New Guinea cases cited

Eviaisa v Hela (1992) unnumbered, unreported NC.

Fallscheer v Okuk [1980] PNGLR 101.

Okuk v Fallscheer [1980] PNGLR 274.

PNG v Kapal [1987] PNGLR 417.

Other cases cited

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

Malloch v Aberdeen Corporation [1971] 2 All ER 1278.

R v British Broadcasting Corp. exparte Lavelle [1983] 1 All ER 241.

Ridge v Baldwin [1963] UKHL 2; [1964] AC 40.

Vidyodaya University of Ceylon v Silva [1964] 3 All ER 865.

Counsel

S Injia, for the plaintiff.

M Mugarenang, for the defendant.

3 March 1993

BROWN J: This originating summons, filed on the 4 December 1991, seeks an order in the nature of certiorari to quash the decision of the defendant corporation terminating the plaintiff's services for disciplinary reasons. Leave was later given for review. The plaintiff also sought general and special damages for dismissal. Such a claim cannot stand with the originating summons as filed. On 17 June last year, I directed the plaintiff to proceed by way of statement of claim in the event of an apparent allegation of an unlawful dismissal and, hence, claim for damages for breach of employment contract. The plaintiff has not seen fit to comply with that direction. Although he handed up at the outset of the hearing today a document headed Statement of Claim, it has been neither filed nor served.

I must disregard it and propose to deal with the originating summons as originally filed, for that is the cause which the defendant corporation has come to answer.

The defendant corporation has argued that the relief sought by the plaintiff is not available for the disciplinary course adopted by the corporation, whose acts may be categorised as acts of a private or domestic tribunal. In those circumstances, the act of dismissal is outside the scope of certiorari, for the corporation's authority is derived solely from the employment contract, and the remedy is inappropriate for breaches of the employment contract. Mr Mugarenang relied upon the authority of R v British Broadcasting Corp, ex parte Lavelle [1983] 1 All ER 241, a decision of a single judge of the Queens Bench Division. That decision is not binding on this court, of course, but its persuasive value may assist the corporation if the ratio decidendi follows the underlying law at Independence as affected by decisions since.

I should say at the outset, I am satisfied that the plaintiff has pursued the available appeal provisions of the PTC Staff By-laws, so the question posed and answered in PNG v Kapal [1987] PNGLR 417 does not arise. The appeal procedure has been utilised, and leave for judicial review granted.

Again, the plaintiff takes no issue with the power in the Executive Manager Security and Investigation to issue valid termination notices of the type used in his case, relying as he did on breaches of discipline detailed in PTC Staff By-laws 19(a)(c)(h) and (m). That notice was dated 2 April 1990 and was the basis for his application for review to the Reconsideration Committee.

The plaintiff's argument, however, is that he was denied natural justice in the event of his dismissal. His originating summons seeks a review of the PTC Reconsideration Committee's confirmation, dated 18 May, 1990, of the dismissal notice of 2 April 1990. That committee had been convened pursuant to s 24(2) of the by-laws. Its powers are set forth in subsections (3) and (4).

"(3)     The committee so appointed shall meet as soon as reasonably possible to consider the request for review and shall have the power to interview any persons, inspect any written material, and to do any other act, deed, matter or thing which it considers to be necessary or desirable in order to ensure that the principles of natural justice have been complied with in relation to the suspect.

(4)      The committee may either confirm, reject or modify the decision under review but shall not increase the penalty imposed, and the decision of the committee shall be final".

In all proceedings, the principles of natural justice are to apply by virtue of s 25. Before I deal with the substance of the application, I must first be satisfied the plaintiff is entitled to the relief sought, which is to have the review quashed with, presumably, a direction by this Court to reconsider the dismissal, taking particular notice of any failings in the committee, which failings have given rise to an order of certiorari.

Should this Court review this PTC Review Committee's decision, a decision quite within its powers? Mr Mugarenang's submission has merit, for the BBC case on which he relies follows a line of authorities including some which have been applied with approval in the Supreme Court.

In Okuk v Fallscheer [1980] PNGLR 274 the Supreme Court applied Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 and Malloch v Aberdeen Corporation [1971] 2 All ER 1278 at 1282 and approved the National Court decision in Fallscheer v Okuk [1980] PNGLR 101.

In that last mentioned case, Greville-Smith J in the National Court considered the rights of the General Manager of the National Airlines Commission to be heard in the event of his dismissal by the Minister on stated grounds of inefficiency. Fallscheer to fall within boundaries delineated by Lord Reid in the "third" category of dismissal cases, namely dismissal from "an office" where there must be something against a man to warrant his dismissal. Lord Reid's "third" category is found in the House of Lords decision, Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 65, where His Lordship said:

"So I shall deal first with cases of dismissal. These appear to fall into three classes: dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal. The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract."

In this case, however, the plaintiff was employed as a security guard. He cannot be classified in the "third category" but, rather, in the "first", relating to "master and servant", qualified, however, by any particular incidents of employment to be found in the PTC Staff by-laws. The by-laws do provide for a scheme of administration of disciplinary charges and give the servant or employee a right to natural justice in the course of that administration. Great care must be exercised by the courts to identify, in the terms of employment, a sufficient public character, or one in the nature of a "public office", where the ordinary incidents of master/servant relationship apply, for without that clear public character or office, the courts should not interfere with the management of staff by way of an administrative law remedy.

Firstly, the distinction between an administrative law remedy, here certiorari, and damages in common law for breach of contract must be appreciated.

Lord Reid, in Malloch v Alberdeen Corp [1971] 2 All ER 1278 (applied and approved by the Supreme Court in Fallscheer's case), expresses it thus at 1282:

"The first depends on a submission that the status of teachers in Scotland is simply that of an ordinary servant. At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract."

Secondly, has the incidence of this plaintiff's employment some public character which attracts the right to seek an administrative remedy.

On a first glance, a securityman for PTC would not seem to be a position sufficiently outside the ordinary employer/employee categories to attract such a remedy as certiorari. In other words, the plaintiff must rely on his common law right to sue for damages for the alleged breach of contract.

In National Court OS 247/92, Eviaisa v Hela, the plaintiff sought a declaration preventing the first respondent and the Police Association from terminating his appointment as president of the association. The Court refused the declaration. It was not satisfied that the controversy was subject to the Court's jurisdiction generally and also within the jurisdiction of the Court so far as private rules of the association allowed. The principle relied upon was that a court should not interfere with a private association or its activities or management unless a proprietary right is shown to be involved. No proprietary right was shown and, consequently, there was no basis for interference by declaratory order.

Vidyodaya University of Ceylon v Silva [1964] 3 All ER 865 was an appeal from an order of the Supreme Court of Ceylon quashing (on the respondent professor's petition for a writ of certiorari) an order made by the appellants, the Council of the Vidyodaya University of Ceylon, terminating the respondent's appointment as professor and head of department. The appellants contended that, in making the order, they were acting in an administrative and not a judicial or quasi-judicial capacity, and therefore, that the remedy of certiorari was not open to the respondent professor. They said the appropriate remedy, if any, was an action for damages for wrongful dismissal or, alternatively, proceedings before a labour tribunal. The Privy Counsel set aside the Supreme Court's order for certiorari on the ground that the relation was that of master and servant to which the remedy of certiorari had no application.

Silva's case is difficult to reconcile with other decisions in England for it involves a denial of an administrative law remedy in a situation analogous to Malloch's case, for instance. In Malloch's case, Lord Reid was careful to categorise the teacher (while an employee) as holding some kind of office sufficient to call into play the entitlement to the writ, or administrative remedy. Lord Wilberforce said at p 1294.

"The argument that, once it is shown that the relevant relationship is that of master and servant, this is sufficient to exclude the requirements of natural justice is often found, in one form or another, in reported cases. There are two reasons behind it. The first is that, in master and servant cases, one is normally in the field of the common law of contract inter partes, so that principles of administrative law, including those of natural justice, have no part to play. The second relates to the remedy: it is that in pure master and servant cases, the most that can be obtained is damages, if the dismissal is wrongful; no order for reinstatement can be made, so no room exits for such remedies as administrative law may grant, such as a declaration that the dismissal is void. I think there is validity in both of these arguments, but they, particularly the first, must be carefully used. It involves the risk of a compartmental approach which, although convenient as a solvent, may lead to narrower distinctions than are appropriate to the broader issues of administrative law. A comparative list of situations in which persons have been held entitled or not entitled to a hearing, or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizarre. A specialist surgeon is denied protection which is given to a hospital doctor; a university professor, as a servant, has been denied the right to be heard, a dock labourer and an undergraduate have been granted it; examples can be multiplied. [Lord Wilberforce cited a number of cases.] One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), these must be confined to what have been called 'pure master and servant cases', which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter partes aspects the relationship may be called that of master and servant, there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void".

The plaintiff in the present case does have a number of regulations which affect his employment. He had been made a "permanent officer" of the corporation. He was subject to the corporation's by-laws, especially in relation to discipline, so relevant here. By s 25 of the by-laws, the principles of natural justice are to apply to disciplinary proceedings, so the plaintiff, in spite of his relatively minor position, has the right to seek the order in the nature of certiorari, a right impliedly recognised by the PTC legislative rules.

FACTS

The plaintiff was charged in writing on 5 March 1990 with the breach of various particular by-laws, asked to provide written explanation, and invited to attend an interview by the Manager, Security Operations on a nominated date. He was also advised of his right to have a union delegate (or other party approved by the MSO) present at the interview when representations and submissions may have been made on his behalf. The seriousness of the charges were illustrated by the warning contained in his notice of charge that the penalties provided for, if the allegations were proven, included dismissal. This notice of charge followed a meeting organised by David Kowo, the PTC Manager, Security Investigation Branch, and Acting Manager, Security Operations. That meeting included two other security supervisors, Michael Ove and Joseph Ombe. The plaintiff described that meeting.

He said:

"When they saw me coming, they stopped talking and look at me with a guilty look on their face. I asked them what they were talking about, and David Kowo told me, 'You did not work so we are making a report on you. You do not know a thing. I am the father of Government'. When he said this, his face swelled with arrogance and bids (sic). I departed feeling very depressed. I regarded him as a 'big boss' who was capable of firing a security guard like me and had (sic) already taken a bias approach towards me".

In his affidavit, David Kowo said of the meeting:

"Both Joseph Ombe and Michael Ove turned up early for the meeting. While waiting for the complainant to turn up, we had general discussions. When the complainant came in the presence of all of us present at that time, it was never resolved, as the complainant (Kandu Busu) was shouting and yelling at the top of his voice trying to justify his poor performance. I deny having made the statements that 'you did not work so we are making a statement on you. You do not know a thing. I am the father of the Government'.

The complainant was well aware that there was this meeting, and he never asked what this meeting was about when he came into my office on 1 March 1990. Because of the complainant's behaviour during the meeting, the differences between them was not resolved at all. The meeting was cancelled and I arranged to see them individually later, which I did".

Neither deponent was called before this Court, but on their affidavits, it is clear the meeting was acrimonious. It is also clear that it was called in relation to problems which had arisen over Kandu Busu's alleged absenteeism, and cross accusations made by Kandu Busu against his immediate supervisors concerning misuse of corporation's vehicles. The alleged absenteeism formed the basis of the written notice of charge, dated 5 March 1990, setting out the date and times when the plaintiff was absent contrary to clause 1 9(e) of the PTC Staff By-laws, together with other charges which were not particularised. The interview took place, according to the written record, on 13 March 1990 and commenced at 2.55pm. It was recorded in pidgin. Needless to say, the plaintiff was present and was afforded opportunity to answer the charges and put submissions on his own behalf. The meeting was recorded and affords ample evidence of the exercise by the plaintiff of his right to be heard. I reproduce the introductory part of that record:

"1.      Kandu, do you know the reasons why you are brought to this office?

Ans:    It's in regard to green forms, which has records of attendance and absentees to work.

2.       Kandu, like you stated. I have asked you to come here because of a letter I have here, containing the main reason which I sent to you on 5th day of this month. Are you clear?

Ans:    Yes.

3.       As to your reply in return, you stated that you have asked a representative from the union to come, but no one came. Is it true that I rang the union's office and also did Mr Karagu?

Ans:    Yes.

4.       Can I ask you questions, before any of them arrive, will that be OK?

Ans:    Yes, its OK."

That record formed part of the material considered by Mr David Kowo, the Manager, Security Investigations Department, who recommended the plaintiff's termination on the basis of the material in his disciplinary report of 20 March 1990. The recommendations relate to the finding of absenteeism on the dates and times particularised in the notice of charge. I am satisfied on the evidence before the Manager, Security Investigations Department, that the finding of absenteeism was available to him. It is not a finding so irrational or unjustifiable as to warrant reconsideration.

I am further satisfied that the material considered by Mr L J Hollan, the Executive Manager, on termination was material known and addressed by the plaintiff in his interview of 13 March.

The plaintiff asserted that Messrs Joseph Ombe and Michael Ove were motivated by malice and jealousy. There is no evidence of this allegation. Rather, the evidence is of numerous warnings given the plaintiff to improve his work record.

The assertion that Mr David Kowo exhibited bias towards the plaintiff relies on his supposed assertion that he was "cleaning up the Security Section". Further, the plaintiff asserts that his repeated warnings to the plaintiff is evidence of Mr Kowo's intention to dismiss. I find that Mr Kowo's attitude may evince a wish to improve the efficiency of the section by clamping down on absenteeism, but it does not show particular bias against this plaintiff nor in any way reflect on the right to be heard afforded this plaintiff in relation to his disciplinary charges. It was Mr Kowo's duty to administer the procedures laid down for disciplinary offences and, in the light of all the reports, the interviews and documentary time sheets (using the terminology loosely) referred to by the various deponants, I am satisfied the administration has been carried out in accordance with his duty. No bad faith, mistake in construing the limits of his powers, procedural irregularity or unreasonableness in the Wednesbury sense has been shown (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223) .

As I have shown, there was a right to be heard given the plaintiff, he exercised that right. There is nothing exceptional in the administrative or procedural steps which would cause me to exercise my discretion to judicially review the decision to terminate.

Had there been no by-laws specifically dealing with disciplinary aspects and giving an aggrieved party the right to plead an alleged breach of natural justice, I am of the view the conditions of employment of an employee of this type, even if governed by statutory rules, are more of a matter for private, not public law, and, consequently, not susceptible to this type of application.

I had previously directed that the proceedings proceed by way of statement of claim, but that was not done. The evidence, however, does not support a claim for damages on dismissal for breach of the employment contract. Whilst these comments are obiter, they are relevant, I feel, to avoid unnecessary litigation. I refuse the application for the order in the nature of certiorari for the reasons I have given. I dismiss the remainder of the plaintiff's application.

The defendant shall have its costs.

Lawyer for the plaintiff: Shepherds Lawyers.

Lawyer for the defendant: Mugarenang.