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Talin v PNG Waterboard [1992] PGNC 114; [1992] PNGLR 211; N1082 (24 July 1992)

N1082

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

NERE TALIN

V

PNG WATERBOARD

Mount Hagen
Woods J

23 June 1992
24 July 1992

JUDICIAL REVIEW - Disciplinary measures in a government corporation - Nature of employment in a government corporation - Employment Act Ch 373 - No permanancy of employment.

MASTER AND SERVANT - Employment of citizen - Use of Public Service General Orders - Duty to be fair and just - Reviewable by the Court.

Facts

This was an application to the National Court for review of the decision of the General Manager of the National Water Supply and Sewerage Board whereby the applicant was demoted with consequential loss of salary and entitlements and was also ordered to pay compensation for damage done to the Board's vehicle. The applicant is seeking reinstatement and reimbursement of salary and repayment of the money paid for the damages.

Held

1. The Court has power to review the fairness and the justness of the exercise of those powers by the Board in respect of matters covered under the Public Service General Orders.

2. The penalty of K850 imposed on the plaintiff for the damage caused to the vehicle and paid by plaintiff by way of salary deductions is to be reimbursed to the plaintiff.

3. All other disciplinary measures taken by the Board are sustained.

Cases Cited

Rooney v Forest Industry Council [1990] PNGLR 407.

Counsel

J Pakau, for the plaintiff.

24 July 1992

WOODS J: The applicant, Nere Talin, is seeking a review of the decision of the General Manager of the National Water Supply and Sewerage Board (hereafter "the Board") whereby the applicant was demoted within the service of the Board and thereby suffered a loss of salary and loss of entitlements and further was ordered to pay compensation to the Board following damage to a vehicle owned by the Board. The applicant is seeking reinstatement and reimbursement of salary and repayment of the money paid for the damages.

The facts are that in December 1989 he was charged for two disciplinary offences. One charge related to a motor vehicle accident on 10 November 1989, when the applicant was driving a vehicle owned by the Board and was involved in a collision with a PMV on the Okuk Highway near Kimininga. It was alleged that he had been drinking beer before the incident.

The second charge relates to the applicant obtaining the pay packets of 2 fellow employees and using the money for himself.

Notice of the 2 charges was served on the applicant on 4 December 1989 in accordance with procedures under the Public Service (Management) Act, being procedures adopted by the Board in connection with disciplinary offences within the service of the Board.

The applicant replied to the charges. In February 1990, the head of the Board advised the applicant, following consideration of the charges, that he was to be demoted and was required to reimburse the cost of damage to the vehicle involved in the accident.

The applicant in March 1990, by letter to the general manager, sought a review of the punishment. This application for review became a review by the Public Services Commission. In March 1991 the Public Services Commission advised that, following its review of the matter between the applicant and the Board, it recommended that the general manager's decision be revoked and the applicant be restored in his substantive position with consequential reimbursement of loss of salary. It was noted that the Public Services Commission only had the power to recommend in a personnel matter within the National Public Service.

The Board did not act on the recommendation of the Public Services Commission. In March this year, the applicant filed this application for review.

It is submitted on behalf of the applicant that the charge and penalty in relation to the use of and damage to the motor vehicle cannot be substantiated and the penalty in relation to the use of the pay packets is excessive in the circumstances.

The police investigation and action in relation to the collision showed that the driver of the other vehicle, a PMV, was at fault, and he was subsequently charged by the police for offences under the Motor Traffic Act. Whilst the applicant may have also been charged for driving without due care and attention, this charge was not proceeded with. There was no charge of driving under the influence and no evidence that he was under the influence of liquor, the only material fact being that the applicant admitted he had had 2 beers before leaving from Kundiawa for Mount Hagen the afternoon of the collision.

With respect to the pay packets of his fellow employees, the applicant admitted that he had used that money but said he had promised to pay it back, which he later did.

So what role has the Court got in what would appear to be simply a master and servant relationship in what appears to be a government corporation? The National Water Supply and Sewerage Board is established as a corporation under the National Water Supply and Sewerage Act 1986. The Board made no appearance in this matter to object to the name under which it was joined, so I will not rule on that and will assume for the purpose of this case that it has been properly joined.

Under s 14 of its Act, "(1) the Board may, with the approval of the Public Services Commission, engage such employees as are necessary for the performance of its functions under this Act. (2) The terms and conditions of employment of persons engaged under subsection (1) are as determined by the Board with the approval of the Public Services Commission."

I have been referred to no such terms and conditions; therefore, I must assume that, in the absence of any such condition there is no condition, or term giving a right to permanency of employment. I have been referred to no contract giving a fixed term of employment at any level or position; therefore, I must assume that the terms and conditions of employment are no better or more favorable than those set out in the Employment Act Ch 373, which is stated to be an act binding on the State and on every authority and instrumentality of the State. In Rooney v Forest Industries Council of PNG [1990] PNGLR 407 I noted that the Employment Act did not apply to the plaintiffs contract, as her employment was effected under the Forestry Industry Council Act and was a specific contract. In the case before me now, there is no contract, nor are there any terms and conditions of employment. I note that the applicant does have the benefit of the General Orders under the Public Service (Management) Act and was so treated in accordance with the disciplinary provisions of those orders. But that still does not give him any permanency of employment, and I note specifically that even with a review to the Public Services Commission, that body can only recommend.

So, it is still left as a master and servant situation with the right to hire and fire at will and to terminate for good reason or for no reason at all, subject to the provisions in the Employment Act for the giving of due notice. However, in the case before me now, it is not a termination but a demotion and a penalty.

The Court cannot tell an employer how to employ its staff. If an employer wishes to transfer its staff within its employment, that must be its right. And, again, I note that the Public Services Commission only has the power to recommend in personnel matters with the employer in this case.

But the Court must have a power to see that justice is done where an employer binds itself with a set of orders for the better management of its staff, like the Board's adoption here of the General Orders under the Public Service (Management) Act.

Has the Board acted justly and fairly under those orders? With respect to the first charge in relation to the use of the motor vehicle, an employer must be entitled to apply very strict rules for the use and operation of its vehicles, being as they are very expensive and essential items of equipment. And I note here the relevance of General Order 8.41, the Care of State Property. Therefore, the Board is quite within its powers to penalise an employee for the use of any alcohol at all whilst operating one of its vehicles. However, in this case the Board has gone further and has made the applicant pay for the damage to the vehicle when it would appear from the police evidence that the damage was not caused in any way by the driving of the applicant but by the driving of the other driver in the collision. So, in this regard, as the Board punished the applicant partly on the basis of wrong premises, part of that punishment may be unfair or unjust, namely the order to pay the damages, such damages being something that could be recoverable at law from the other driver in the collision.

With respect to the disciplinary act following the applicant's use of the pay packets belonging to the other employees, that was an act that could have been the basis of a criminal charge of misappropriation, so the Board was entitled to take whatever disciplinary action it wished. I am surprised at the Public Services Commission recommendation in that regard. I see no unfairness nor miscarriage of justice with respect to this charge.

Therefore, I am satisfied that in this situation, whilst the Court has limited powers to interfere, the Board having adopted a set of orders in personnel matters, the Court does have a power to review the fairness and justness of the exercise of those powers. And having noted what would appear to be an unfair exercise of those powers, I will review the exercise of those powers in relation to the penalty of the payment for the damage caused to the vehicle and order that the Board reimburse the sum of K850 paid by the applicant to the Board by way of deductions of salary. I will not interfere with the other disciplinary measures taken by the Board.

I note that the applicant has also joined the general manager in this application. However, as there is no evidence of malice in the general manager, I would make no orders against the general manager.

________________________

Lawyer for the applicant: Joseph Pakau.