National Court of Papua New Guinea

Finally I must say and hand honestly admit that during these dates specified in the seven (7) charges, the Port was not busy and in fact no ships were along side or in Port.” (sic)He also said ̶“he did not fail to perform his duties” and took this action to “ease his feelings by havinew beers on the specified dates” and in the period “no complaints were lodged bged by the Boards employees or Port users.” This would appear an inco incorrect inference. Ttivities must have reach each the notice of the Head Office in order for these charges to be instigated. He put forward points dinguding the way he was informed of the new appointment, tct that more senior officerficers were not investigated and the way the investigation was carried out. He also submitted in his that the suspension and send seven (7) charges were too severe.

His views in this letter were taken account according to the avits to the Corporate Secretary of the Harbours Board. Also tanto account were were were prior disciplinary charges against the Plaintiff in 1991. It is not ted that the Plae Plaintiff had been given an opportunity to present his case to the Board id so by way of the letter tter I quoted in part above.

The Board considered the reply of the Plaintiff and on the 5th of December 1992 made decisions on each of the counts and fined the Plaintiff K40, on the 2nd demoted him from Grade 10 Level 5 to Grade 9 Level 7. On the 3rd demotedfurther ther to Grade 8 Level 7. On the 4th, demoted him further to Level 6 Grade 8. On the 5toted him further ther to Level 5 Grade 8 and the 6th demoted him further to Level 4 Grade 8. On7th demoted him bnsferhiferhim from a Grade 3 Port to a Grade 1 Port, viz friz from Rabaul to Popondetta.

The PThe Plaintiff was informed that he could a this decision and he did appeal the decision and it was coas considered at the hearing on the 28th of May 1993. The appeal andages of writ written submission by the Plaintiff were before the Board and considered. In that sically says it wait was unand/or suggests that he had little time to respond to the original complaint laid against hnst him. so appears to challeng facg facts of the charges i.e. that he was drunk or drinking bung but adduces no real evidence to suggest that the behaviour as stated incharges either did not occur or was mistaken.

It is t is clear on the facts that the Plaintiff had an opportunity to be heard at the appeals tribunal. B this court the Plaintiffntiff relies heavily on the ruling of the Chief Justice (Amet J as he then was) in Godfrey Niggints v Henry Tokam, Paul Songo & The State, Unreported N1158 and submits that the penalty was oppressive as it should have been dealt with under s. 124 of the Harbours Board Rules. Counsel for thintiff suggesuggested that there should be only one punishment as the charges were laid under one section and the effect of the penalties was that he was graduaemoted in one day. He points tofirst three chee chargcharges and says that they all occurred on one day. It does not seem to bputedputed that there are different events although two (the abuse of the Port Manager’s wife and the Clerk) were on the say and arise out of the other charge, that is the drunkenness.

The Plaintiff points ints out that the Board in assessing his appeal did not give reasons for their decision. He concedese is nothing inng in the Act which obliges the Board to give reasons but refers to the ruling in Niggints v Henry Tokam & Ors Supra. At page 9 of that judg, itt, it was stated &#8220statement of principle I no I now enunciate is that the Departmental Head who decides in his discretion on proper consideration of thmission’s recommendation not to accept it should stat state the reasons for not so accepting the recommendation. It is noficient to dismisssmiss the recommendation in the way the First Respondent did...” If no ns are stated other ther this kind of statement then it leaves the court with no option than to conclude there were nore no goods reasons at all.

Public ials discharge public duties are required for public accounccountability to provide reasons for their actions and decisions. Ifr decisions affect substsubstantial interests and welfare of other officers and their families then good management and common sprinciples of fairness require that reasons be given.

That decision related to recomrecommendations going from the Public Service Commission to the Commissioner of CIS concerning a CIS Officer and his dismissal. The c Service Commission mion made recommendation which the Commissioner for CIS refused to accept. He gave no reasons for his refusal.

That judgment o National Court, was not binding on the Harbours Board sinc since they were not directly affected by the case but is of very persuasithority as it relates to any State Institution or Corporatioration and enunciates principles of practice for Public bodies and their dealings with their employees.

I note that the decision in Niggints (Supra) was given on the 15th of July 1993 and the hearing of the PNG Harbours Board Appeal Tribunal which determined the Plaintiffs appeal was on the 28th day of June 1993, that is before the decision of the National Court in Niggints v Tokam & Ors. It could not havn known town to the Harbours Board Appeal Tribunal nor apply to them at the time.

Whilst I consider the general principles apply, I consider it would be r to say that the Board breached a decision of the Nationalional Court when that court had not handed down the decision. I thinre is also a distincstinction here between what happened in the Niggints case, where it obviously the foundation of fact was tha Commissioner had acted contrary to recommendations of two independent groups. Here tere the Plff admittemitted the facts but sought to give an explanation of his past behaviour and the behaviour that gave rise to the charges.

Those explanations amto admissions that he had been drinking in the course of hiof his working day but not the entire working day and said that he was not “drunk and disorderly”. Hence in fact, his apgroungrounds went to confirm his behaviour. So whilst I agree the ruli ruling in Niggints should apply to the Harbours Board, I consider (1) that they could not have been aware of it at ime a decision had yetd yet be made and (2) the Plaintiff gave no good reasons to show that the the Board was in error in laying charges against him.

The Plaintiff says that he should have been dealt with under Clause 124 and not Clause 125, Clause 124 being the minor charges provision. I consider that the Board has a discretion under which Section it charges an employee, a parallel could be drawn on the discretion of the Prosecutor in a criminal matter. In any event, thegations wons were serious ere not of a minor naor nature and Insee no error in the decision of the Board in laying charges under the more serious provisi/p>

The second leg of the argument is on the punishment ment handed down on the Plaintiff. They what the totality of y of punishment had effect of lowering the applicant by 6 grades in one day and in doing so resulted in a loss of salary and monetary entitls which amount to reduction in his income and status. #160; The tiff says concurrncurrent rather cumulative punishment should have been imposed.

Concurrent and cumulative sentences are principles which apply in criminal cases. This is a civil r rel, fun, fundamentally, lly, to a breach of a contract, that is a contract of employment which obliges a person to act in accordanth the terms of his employment, those terms being set out in the Harbours Board Regulationstions.

Certainly the principles of having an opportunity to speak before a tribunal and having a fair hearing apply to a situation such as this one but I consider it would be inappropriate to transfer the principles of cumulative and concurrent sentences to a civil proceeding.

The principles which apply in criminal cases are not on a par with the Disciplinary provisions of a contract of employment. Even was to apply the conc concept of concurrent sentences to these facts what would be the outcome? Firstly, where a criminalnce or a series of criminal charges arise out of the same situation or facts, (for example mple in a case of fraudulent forgery and ung, the same series of events is needed to achieve both charges), a concurrent sentence usue usually is imposed. Here we have ste incidentsdents occurring on six (6) different days. It appea me that the plainplaintiff was drunk on the first day.&#16 had an opportunity, maybe with a “hangover”, to think better of it but he went went ahead and got drunk on another day.

These are not same serieseries of events all arising from the same incident. There are differvents on d on different days when the plaintiff had more than enough time to think better of his behaviour. Hence I do not thint basicbasic concept of connt sentences would apply to this situation both for reasonsasons of law and reasons of fact.

The “totality principle&#82lso applies in criminal cases that is where a series of senf sentences for different offences are imposed at the same time. Theciple is that together ther they should not be too severe or too crushing on a person.

Here we have a situation where thentiff we could say was not “a first offender”. (I ue expression with with with care as this is definitely not a criminal situation). He had two prncidents for for which he was found to be in breach of disciplinary provisions and he doesdispute those.

The BThe Board was therefore entitled to take a less lenient attitude to him. pears to me in a situationation such as this, he was lucky not to have been terminated.

He says as part of his grounds that there were no ships in port.& That is not a reason for coming drunk to work. LawyeLawyers, mrates, judg judges could say “I have no court cases today”, that does not entitle anyone to come drunk to work.

He has conceded that he was drunk and that he was abusive.&#1eing abusive is different fent from failing to do a job properly. It is a separate incident. Iider the Disciplinary Boay Board must look at the status of the applicant or plaintiff and the facts as a whole. On the facts b me I considonsider this plff deliberately, on separate days, got himself inlf into a to a drunken state. These are not seven ints ants arising on one day0; They are different days, different locations and he made made a definite decision or allowed himself to get drunk on each of thoserate days. For that reason I doconsidonsider that thet the Board erred. I find that the Board dereidered his grounds which they were obliged in law and in fairness to do.

I consider that they had powers to discipline him in the way they did and, agh I must say the way the punishment was pronounced looks aoks a little odd on first reading, I cannot see that the Board erred in making their decision.

The powers of this court are only to change the Board’s decision by way of certiorari if the Board made an error either in law, equitable principles or in following their own regulations. I cannot on the facts before me see that they erred in any of these ways and as such I do not uphold the plaintiff’s application. I dismiss the catio certioertiorari with the costs to be agreed or to be taxed.

Lawyer for the Plae Plaintiff: Warner Shand

Lawyer for the Defendant: Mr Emilio