El-Bashary v State; Brawn v State [1981] PGNC 52; N333(L) (27 November 1981)

N333(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

W.S. 1012 OF 1981
W.S. 1013 OF 1981

ADEL A. EL-BASHARY
PLAINTIFF

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
DEFENDANT

DAVID A. BRAWN
PLAINTIFF

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
DEFENDANT

Waigani: Bredmeyer J
19 November 1981; 27 November 1981

REASONS FOR DECISION

BREDMEYER J: By consent I heard these similar cases together. A number of documents were tendered by each side without objection and the facts are not in dispute. Mr. Brawn is an Englishman who signed a contract to work for three years, from 1st January 1979 to 31st December 1981, as a Senior Lecturer in the Public Services Commission at a salary of K13,300 plus gratuity entitlement of 24%. Mr El-Bashary signed a contract to work for the same period. His contract is in identical terms except that his employment was as a Rural Development Technician Grade 6 in the Department of Transport and Civil Aviation, his commencing salary was K9,800, his gratuity 40%. The legal position in relation to the two men is identical and when I refer to Mr. Brawn hereinafter, my remarks apply equally to Mr. El-Bashary.

The contract in question is between the Independent State of Papua New Guinea as employer and Mr. Brawn as employee and is made under the Public Employment (Non-Citizens) Act 1978 (No. 58 of 1978). Clause 9 of the contract reads as follows:

Terms and Conditions of Employment

9.1 The Employee acknowledges that the terms and conditions of his employment hereunder shall be those as set out in the Terms and Conditions and that he is bound to comply with such Terms and Conditions.

9.2 If any further Terms and Conditions are made which abrogate or diminish the rights or emoluments given to the Employee by this Agreement the Employee may forthwith terminate the employment hereunder and the termination shall be deemed to be a termination under Clause 10.1.

It is agreed between the parties that the terms and conditions referred to in clause 9.1 are those contained in a 24 page document headed "Summary of Terms and Conditions of Employment and Transitional Arrangements for Contract Employment of Non-Citizens" issued by the Department of the Public Services Commission, Port Moresby, dated July 1978.

On p. 13 of that document under the heading of "Miscellaneous Conditions" is clause 4 which reads as follows:

"4. ADVANCEMENT

Contract employees will be eligible to apply for promotion or transfer to any advertised vacancy within the Public Service.

However contract employees will be considered only after it has been determined that no suitably qualified and experienced national officer is available to be promoted or transferred to the vacant position."

The plaintiff contends that that right of promotion, albeit a conditional right, was negated by decision No. 69 of the Public Services Commission made at a meeting of the Commission on 19th September 1980 which reads as follows:

NON-CITIZEN PROMOTIONS

On 19th September, 1980, the Commission decided that:

(1) Expatriate contract officers will not apply for gazetted positions nor be appointed substantively to these positions.

(2) Expatriate contract officers may, however, be held against a higher position if there are no nationals available but with the approval of the Public Services Commission.

(3) When Government Organizations propose to engage an expatriate at a higher position than his/her contract position, the candidate must submit to PSC the full necessary and appropriate particulars and the localization programme. Only after PSC approval has been granted can an expatriate be engaged higher than his/her contracted position.

(4) will issue a Circular Instruction to all Public Service Departments and Organisations on Promotion of Non-Citizen Contract Officers.

(5) For localising these positions PSC will have a pool of positions that can be utilised.

A. TOLOLO

Chairman

Public Services Commission.

On or about 19th July 1979 Mr. Brawn applied for promotion to a position designated EX 12 - FAS Level 1, advertised in Government Gazette PS 7 of 19th July 1979. On 27th March 1981 he received a reply referring him to Decision 69 and advising that as a result of that decision - "Your application ... is now ineligible for consideration by a selection committee."

Mr. Brawn consulted his legal advisers who advised the Commission that the decision was an abrogation or diminution of his rights under clause rml 9.2 of the contract which justified a termination of it under clause 10.1.

The plaintiff’s statement of claim pursues two causes of action: an action at law for breach of contract, and an action for declaration and mandamus. The relief claimed for breach of contract was:

(a) three months’ salary in lieu of three months’ notice/alternatively two months’ salary in lieu of notice;

(b) damages.

Mr. Coady, counsel for the plaintiff, expressly abandoned (a) and I imply from his argument that he also abandoned (b) in this action. He did not lead any evidence on

(b) He said if the declaratory relief sought was granted he proposed to seek instructions on pursuing a claim for damages. He expected any such claim to be settled without a court action, or if not so settled, then pursued in a separate action in the National or District Court depending on the amount claimed. I accept those submissions and consider that if I grant the declaratory relief sought the plaintiff should not be barred from seeking damages for breach of contract in a separate action (see Order 4 Rule 11). If the defendant had wished to stop the plaintiff from such a course it should have got him to sign a release that the K12,090.62 paid to him on 30th October 1981 by Central Staffing Unit was in satisfaction of all claims he may have had against the State. Mr. Coady expressly abandoned the claim for mandamus. In the upshot the relief sought by the plaintiff is twofold: a declaration that Decision 69 is null and void, and costs.

I have considered the various attacks made by Mr. Coady on the validity of Decision 69 but regard it as valid and within the powers of the Public Services Commission. The Public Services Commission by s.5 of the Public Employment (Non-Citizens) Act 1978 has power, inter alia, to determined the salaries and terms of conditions of non-citizens to whom the Act applies. The Terms and Conditions dated July 1978 already referred to was one such determination; Decision No. 69 was another such determination. I do not agree with Mr. Coady’s argument that any determination made under s.5 must be contained in regulations made by the Head of State under s.13. Section 5 does not require the determinations to be prescribed in regulations. I do not agree with Mr. Coady’s argument that the Public Services Commission is a stranger to the contract. The Public Services Commission is a constitutional body, see ss. 190-194 of the Constitution and the Organic Law on the Public Services Commission. It is not a statutory corporation. It has no independent legal existence of its own. It is simply an arm of the State responsible for certain functions conferred by Constitution s. 191 and other statutes. It cannot enter into contracts and it is therefore appropriate that the contracts of employment were made between the State and the employee. The Commission has the power by s.5 of the Act cited to determine the salaries and terms and conditions of non-citizen employees. By s.32 of the Interpretation (Interim Provisions) Act 1975 that power may be exercised from time to time. I consider Decision 69 to be intra vires s.5 of the Public Employment (Non-Citizens) Act.

Although Decision 69 is intra vires s.5 of the Act, it is nevertheless contrary to the plaintiff’s contract of employment. As recited above, one of the terms of the contract (clause 4 on p.13 of the Terms and Conditions incorporated into the contract by reference) is that the employee is eligible for promotion provided there is no suitably qualified and experienced national officer available to fill the position. I consider that the word "promoted" there means promoted substantively to the position. Decision 69 detracts from that entitlement. Under it a contract officer cannot be appointed substantively to a higher position under any circumstances. The plaintiff applied for promotion and was not considered because of Decision 69. It is clear his contractual right to be considered for substantive promotion was abrogated Decision 69. That is a breach of clause 9.2 of his contract which entitles him to terminate his employment and obtained certain benefits under clause 10. This conclusion will come as no surprise to the defendant for it appears from the staff file of the plaintiff tendered that he has in fact been paid out his full entitlements under clause 10 and I assume that is the reason why that head of damage sought in the statement of claim was abandoned before me. Secondly, by a later decision, Decision No. 193 made in 1981, the Public Services Commission decided that all "non national applications" - I take that to mean applications for promotion - "in response to gazetted advertisements up to and including P.S. 11/80" - a reference to the Government Gazette 11/1980 published on 23rd October 1980 - "should be treated in the normal manner, regardless of Decision 69/80".

As I have said, I consider Decision 69 to be within the powers of the Public Services Commission to make. I therefore decline to grant the declaration sought that it is null and void. However I grant a related declaration, which although not expressly pleaded fairly arose out of Mr. Coady’s argument, that the State breached the term in Mr. Brawn’s contract relating to advancement when, acting on Decision 69, the Public Services Commission advised him that his application for promotion was ineligible for consideration. The plaintiff had of course applied for promotion. It is not necessary for this action, nor desirable, that I should rule on the legal position of a contract officer affected or potentially affected by Decision 69 but who, in fact, did not apply for promotion.

I decline to answer any of the "Questions for Trial Before a Judge at Port Moresby" contained in the pleadings. The State Solicitor did not by signature agree and consent to them being submitted to me, neither did his counsel Mr. Mullumby agree to them from the bar table. (Nor did he disagree). Moreover the case was argued on both sides on the basis of the statement of claim.

A similar declaration will be made in Mr. El-Bashary’s action. I invite submissions on the question of costs.