Kopil v Culligan [1995] PGNC 24; N1333 (28 June 1995)

Unreported National Court Decisions

N1333

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 227 OF 1995
JOHN KOPIL
PLAINTIFF
V
MALCOLM CULLIGAN
FIRST DEFENDANT
THE STATE
SECOND DEFENDANT

Mount Hagen

Woods J
27-28 June 1995

EMPLOYMENT LAW - public service employment - public service contract and public service general orders - rights of employee governed by contract law - power of Court to interfere in Internal Public Service Employment procedures.

M. Tamutai for the Plaintiff

M. Pokia for the Defendant

28 June 1995

WOODS, J: The Plaintiff has filed an Originating Summons seeking certain Declarations concerning his position in the Public Service in the Department of Western Highlands and concerning the selection procedures being taken to fill certain positions in the Public Service in the Department of Western Highlands.

Originally it appeared that the Plaintiff was taking a class action for himself and other so-called displaced public servants in the Department of Western Highlands however following application by the State at the trial I struck out the reference to other unnamed persons as plaintiffs because at no time had these other persons been positively identified in the pleadings.

At the mention of this matter on 9 June 1995 there were orders made as to the addition of another Party and this date for the trial was set and it was ordered that the hearing was to be by way of submissions on affidavits filed.

Such orders and directions are provided for in the National Court Rules Order 4 Rule 31 for the expeditious hearing of matters commenced by Originating Summons. Howeverhe commencement of t of the hearing it was intimated that the plaintiff had subpoenaed a number of witness for oral examination. I ruled that such witnesses could not appear as orders had been made on 9th June and accepted by counsel. The Plaintiff thereagreed reed to proceed on submissions on the material already filed.

The background e action is that the plaintlaintiff is a contract officer under the new arrangement for contract employment of senior officers in the Public Service. The Plaintiff n January 19ry 1994 signed a contract for three years as a Senior Officer with the Department of the Western Highlands.

In about November 1994 there was a restructuring of the Department of Western Highlands and thus all existing officers were reclassified as acting in their various positions pending the advertisement and hearing by selection boards for the new positions. W the new structured positpositions were advertised in November all action on the selection was put on hold as there were no funds to proceed.

In 1995 fong the elections ions for a new Western Highlands Provincial Government the positions were readvertised and selection boards were established. The Plaintiff stthat himsehimself and othercers were concerned that beat because of the change of Government he and others felt under threat because of political favouritism bynew Government in the selection of persons to fill the posi positions under the new structure.

This court is thus being asked to interfere in the operation and selection of persons to fill positions in the Public Service on the basis of suggestions of political bias and favouritism. The Plaintiff has attempted to find irregularities in the actual procedures whereby the positions were advertised and whereby he and others were reallocated to other positions.

The first irregularity suggested is the advertisement of the pohe positions has not been done in accordance with the requirements of the Public Service Management Act. It is submitted that by advertising only in the National Newspaper and not in the National Gazette is contrary to Section 35 of the Act. However that sectlearly stly states "A Departmental Head may, by notice published in the National Gazette or elsewhere..." I find no substantialr in r in the way the advertising has been done such that this court should interfere for that reason in the internal operation of the Public Service.

The second irregularity is that the plaintiff submits there was a direction from the Secretary for Personnel Management freezing all new recruitment to the Public Service and that all advertising designed to fill vacancies must have the prior approval of the Secretary of the Department of Personnel Management. There wereptions for recrurecruitment of professional and technical positions. Whilst there was a directhon that direction is not ate and there are exceptions noted. Iatisfied that this is a ms a matter for the interinternal control and sanction of the Secrefor Personnel Management and not for this Court and anyway yway there is no evidence that the Secretary has not granted exemptions for these positions in the Western Highlands. As it is the State gh the the Solicitor General has appeared and has produced no evidence nor made any submissions to support that its own Departmental Head is wrong.

It is further submitted that the Depntal Head has acted wronglyongly in removing the plaintiff from the position he held and placing him in another position or in the unattached list. However thentiff is employmployed merely as a “Senior Officer” to, in the words of clause 3 of his contract, “serve the State as Assistant Secretary and in such other capacity as determined by the Secretary for the Department of Western Highlands from time to time”. This mehat whilst the plai plaintiff has security of the salary level granted in the contract the actual position he holds depends on the needs of the departmental head from time to time. By acng a act the plaintifintiffntiff has taken himself out of the usual Public Service General Orders situation and his position whilst s from the point of view of the salary level whilst ever he performs his duties, is subject ject to performance standards and the requirements of the Departmental Head. This would appear to belicpolicy of more accountability of senior public servants. Folg the reclassification tion of the positions it was clearly open to the Departmental Head to change his existing position tin anng capacity pendipending new selection procedures and also to reallocate him to other dutieduties. Of course if the Departmental Head is putting the plaintiff and others onto an unattached list and therefore incurring unbudgeted for salaries when no dutie being performed in this time of shortage of fundings then that is a matter that he is answ answerable for to the Secretary for Personnel Management or even to the Parliamentary Accounts Committee.

I therefore rule that in connection with the first Declaration sought the Departmental Head has full power to reallocate the plaintiff to other duties.

by virtue of the terms of the contract of employment he had entered into and this court has no power to interfere with that.

It thereupon follows that this court has no power to re-instate the plaintiff to any position.

In connection with the third declaration sought the Department of Western Highlands was quite entitled to advertise the relevant positions and it is not the role of this court to interfere with the proper Selection procedures.

In connection with the fourth declaration sought I have already found no errors in the way the restructured positions were advertised.

It also therefore follows that there is no need or power to order a readvertising of the vacancies.

It alslows that this court ourt cannot interfere with the operation of the normal Selection Board procedures.

The Plaintiff has a contract of employment with the State for service in the Depat of Western Highlands.&#16. Bypting a contract he has has taken himself out of many of the previous methods of disputing alleged irregularities in public service employment by way of the Public Service General Orders. Ifeels that this contract ract has been breached he must then consider whether there is any cause of action in contract law available to him. Such a cause oion wbe affe affected by the general law of employment and and would have to be actionable by way of an action for breach of contracwrongful dismissal with a Writ of Summons.

I find that there are no grounds for this this Court to interfere with the internal public service employment procedures provided for in this situation and this court should not make any of the declarations sought. I dismiss the applicatith with costs.

Lawyer for the Plaintiff: M.P. Tamutai

Lawyer for the Defendant: Solicitor-General