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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS No. 749 of 1999
Between:
PETER BON
- Plaintiff -
And:
MARK NAKGAI,
ACTING CHIEF EXECUTIVE OFFICER,
WEWAK GENERAL HOSPITAL
- First Defendant –
And:
LAURA MARTIN, ACTING CHAIRPERSON,
WEWAK HOSPITAL MANAGEMENT
- Second Defendant –
And:
DR. PUKA TEMU, SECRETARY,
DEPARTMENT OF HEALTH
- Third Defendant –
WAIGANI: GAVARA-NANU, J
2001: 21, 29 May
PRACTICE & PROCEDURE – Judicial review – Public Services Management Act 1995, s. 52 (2), (3), (4), (5) & (6) – Disciplinary charges – Defective if not laid by the Departmental Head, or an officer authorised by the Departmental Head to lay charges – Suspension – Unlawful if not imposed by the Department Head, or an officer authorised by the Departmental Head to lay charges and where there is no emergency – Termination – Unlawful if imposed by an authority other than the Departmental Head, or an officer having delegated powers.
PRACTICE & PROCEDURE – Judicial review – Public Services Management Act 1995, ss. 13, 18 – Constitution, s. 191 – Powers of the Public Services Commission to collect evidence to review a personnel matter – Discretionary powers of the Public Services Commission – Recommendations by the Public Services Commission bear Constitutional force – Authority refusing to implement recommendations by the Public Services Commission must have valid reasons.
PRACTICE & PROCEDURE – Judicial review – Public Services Management Act 1995. s. 23 – Delegated powers from a Departmental Head must be specified in writing – Authority with delegated powers cannot sub-delegate those powers – Authority claiming delegated powers has the onus to prove them on the balance of probabilities.
ADMINISTRATIVE LAW – Judicial review – Principle of fair and adequate remedy - Powers to reinstate where termination is clearly unlawful and where reinstatement is to give effect to the Public Services Commission recommendation and is the fair and adequate remedy – Inherent powers of the Court – Constitution, s.155 (4) - Long service and special qualifications of the terminated officer constitute exceptional circumstances warranting reinstatement – Where remedy is in damages, the terminated officer may be treated as having been retired or retrenched and be compensated accordingly under the Public Services General Orders – Where there are no exceptional circumstances, the Court to determine an appropriate period for which the officer should be compensated based on the officer’s entitlements - Employment Act, Ch. No 373 is inapplicable.
ADMINISTRATIVE LAW – Judicial review – Delay - Order 16 r 4 of the National Court Rules –Delay is a substantive issue which must be decided objectively on the overall evidence before the Court.
MASTER & SERVANT – Principles of pure master and servant and simple employer/employee do not apply to public servants – Public Services Management Act 1995 protects and governs the terms and conditions of employments for public servants.
Facts
The Plaintiff, a Pharmacist by profession was the Officer In-Charge of the Wewak General Hospital Dispensary Unit. He was terminated by the Hospital Management for chewing betel nuts on the hospital grounds
after the hospital management issued Circulars to the staff stopping them from chewing betel nuts and smoking on the hospital grounds. He was charged and suspended by an officer other than the Departmental Head or an officer authorised by the Departmental Head to lay charges, under s. 52 (2) of the Public Services Management Act. The Plaintiff was eventually terminated by the hospital management. The notice of punishment under s. 52 (6) of the Public Services Management Act was issued by an officer claiming to have the delegated powers from the Departmental Head, but no evidence was produced to prove such claim. After reviewing the Plaintiff’s complaint, the Public Services Commission recommended that the Plaintiff be reinstated without any loss in salary and service entitlements, but the recommendation was rejected on the basis that the Commission did not seek the views of the officer who issued the notice of punishment to the Plaintiff. At the time of his termination, the Plaintiff had been working for the Department of Health for 22 years. The Plaintiff sought declarations that his termination was harsh and oppressive and an order in the nature of certiorari to quash his termination and the notice of punishment. He did not specifically seek reinstatement but sought such other Orders as the Court deemed fit.
Held:
Christopher Appa –v- Peter Wama & Others [1992] PNGLR 395 – not followed.
Papua New Guinea Cases Cited:
Kekedo v Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122
Godfrey Niggints v Henry Tokam & Ors [1993] PNGLR 66
Kundu Busu v Post & Telecommunication Corp. [1993] PNGLR 321
Application of Eric Gurupa – N856
Avia Aihi v The State [1981] PNGLR 81
Steven Pupune & 7 Ors v Aita Ivarato & Ors – N1539
David v Pitzz [1988-89] PNGLR 143
Phochon Lili v Joseph Gabut & Ors – N1394
NTN Pty Ltd v Post & Telecommunications Corp. [1987] PNGLR 70
Wata Potenge v Boski Tony & Ors. (Unreported – 9th June, 2000)
Christopher Appa v Peter Wama & Ors [1992] PNGLR 395
Malloch v Alberdeen Corporation [1971] All ER 1278
Counsel:
Mr J. Kawi for the State
Mr D. Liosi for the Plaintiff
28th May, 2001.
GAVARA – NANU, J.: The Plaintiff seeks a declaration that the notice of punishment issued to him by the First Defendant on 30th March, 1999, which effected his termination on 26th March, 1999, is excessive, harsh and oppressive and seeks further Orders in the nature of certiorari to remove into this Court and quash the notice of punishment and the decision by the First Defendant to terminate him from his employment as a public servant. He also seeks such other Orders as the Court deems fit.
The Plaintiff is a Pharmacy technician by profession, who at the time of his termination was the Officer In-Charge of the Dispensary Unit at the Wewak General Hospital (‘the hospital’). His duties included supplying and distributing medicine to all the hospitals, aid posts and clinics in the East Sepik Province. Prior to his termination, he had been employed by the Department of Health for 22 years. He also contends that his long and dedicated service to the Public Service was not taken into account by the Defendants and that the decision to terminate him was influenced by irrelevant factors.
This judgement was given on 28th May, 2001. I said I would publish it later, that I do now.
The Plaintiff was charged with two disciplinary offences on 12th March, 1999, under the Public Services Management Act 1995, (‘the Act’). The charges were incorporated in the suspension notice, which was also dated, 12th March, 1999. The first charge was laid under s. 50 (d) of the Act for wilful disobedience or disregard of a lawful order. This charge was based on the three Circular Instructions which were issued by the hospital management to the staff on 6th December, 1996, 27th August, 1997 and 5th August, 1998, respectively which banned the staff from smoking and chewing betel nuts on the hospital grounds. The Plaintiff is alleged to have chewed betel nuts on the hospital grounds, thus going against these instructions and according to his notice of suspension, he was given the final warning on 4th February, 1999, by the hospital Acting Chief Executive Officer.
The second charge was laid under s.50 (e) of the Act for being negligent in discharging his duties. Again, according to his notice of suspension, this charge was based on reports and complaints the hospital received from the members of the public about the hospital dispensary not being opened on time. Related to this was the allegation that on 11th March, 1999, the Plaintiff did not open the dispensary in the afternoon and was seen at a betting shop during working hours. The Plaintiff admitted both charges except, he said that in the afternoon of 11th March, 1999, he was attending to an important family commitment, thereby denied being at the betting shop as alleged in the charge.
The Plaintiff had nonetheless apologized for his conduct and assured the hospital management that he would not repeat them.
The charges and the suspension notice were laid and imposed on the Plaintiff under s. 52 (2) of the Act, by the Acting Director of the Medical Services of the hospital one Dr. Edward Warmin, who also gave the Plaintiff seven (7) days to reply to the charges. The Plaintiff replied to the charges on 13th March, 1999. In his reply to the first charge, the Plaintiff admitted that he was a frequent betel nut chewer and had been warned once by the Acting Chief Executive Officer of the hospital Mr Mark Nakgai (‘the Acting Chief Executive Officer’) in a Minute. As to the second charge, he explained that there were two keys to the main door of the dispensary, one was held by a Mr Frank Manauj and the other was held by him. He said he had previously asked Mr Manauj to return the spare key to him so that a staff member of the dispensary unit could hold it and whenever he was not available, that staff member could open the dispensary for business, but Mr Manauj never returned the key to him. He said in the afternoon of 11th March, 1999, Mr Manauj was aware that the dispensary was not opened for business but did not bother to open it with the spare key he was holding.
The Plaintiff was advised of his termination in a letter dated 29th March, 1999, signed by the Acting Chief Executive Officer. That letter, which was headed "Termination of Your Employment" advised that the termination was effective from 26th March, 1999. The ‘Notice of Punishment’ which was served on the Plaintiff pursuant to s. 52 (6) of the Act, was signed by the Acting Chief Executive Officer on 30th March, 1999, and in the Notice, the Acting Chief Executive Officer advised the Plaintiff that he was imposing the punishment of ‘Termination of his employment’ and informed the Plaintiff that he had the right to appeal to the Public Services Commission (‘the Commission’) to review his termination.
On 19th April, 1999, the Plaintiff applied to the Commission to review his termination. In a letter dated 17th September, 1999, to the Acting Chief Executive Officer, the Commission recommended that the Plaintiff be reinstated to his substantive position without any loss in service and salary entitlements. The basis of that recommendation was that the Acting Chief Executive Officer did not have the powers to terminate the Plaintiff. In a letter dated 2nd June, 1999, the Office of the Secretary for Health directed the Acting Chief Executive Officer to reinstate the Plaintiff to his former employment. But in a letter dated 12th August, 1999, the same Office advised the Plaintiff that its earlier direction to the Acting Chief Executive Officer to reinstate him was revoked after confirming that the Acting Chief Executive Officer did have powers to terminate him under the Public Health Act, 1994, and the Revised General Order 15 of 1996. There was no mention in the letter of the Acting Chief Executive Officer having delegated powers from the Secretary for Health to discipline staff. On 30th September, 1999, the Acting Chief Executive Officer wrote to the Commission and advised the Commission that it had failed to comply with s. 18 of the Act, when recommending the Plaintiff’s reinstatement in that, the Commission did not obtain the views of the Departmental Head, which he said in this case was himself as the officer who terminated the Plaintiff. He said he had the powers to discipline the Plaintiff because his appointment was by the Hospital Board and that the Secretary for Health had in writing delegated powers to him to discipline the staff. He told the Commission that the Plaintiff would not be reinstated.
The Law
Section 50 of the Act, prescribes the types of disciplinary offences that may be laid against an officer. Sections 51 and 52 prescribe the respective procedures in dealing with minor and serious disciplinary offences. The Departmental Head or an officer authorised by the Departmental Head to lay charges may under s. 52 (2)(a) lay charges against an officer and if the charge is serious and the officer should not continue performing his duties, the Departmental Head may under s. 52 (2)(b)(i), suspend the officer or in an emergency, an officer authorized by the Departmental Head to lay charges under s. 52 (2)(b)(ii), may suspend the officer. Section 52 (3) provides that the suspension may be effected before, at the time of or after the laying of the charge and may be removed at any time by the Departmental Head concerned pending determination of the charge and where the charge is not sustained is to be lifted immediately. Section 52 (4) provides that the officer who is charged with a serious disciplinary offence is to be promptly given a copy of the charge and is to be directed to reply to the charge in writing in seven (7) days, stating whether he admitted or denied the truth of the charge and to give any explanation he may wish to give regarding the charge. If after considering reports relating to the offence and the charge, the reply and explanation (if any), of the officer charged and any further report that he thinks necessary, the Departmental Head concerned is of the opinion that the charge has been sustained, he may under s. 52 (5), impose any of the five penalties prescribed in the sub-section from a fine of a sum not exceeding 20% of the officer’s gross fortnightly pay to the most serious penalty of dismissal from the Public Service. Section 52 (6) makes it mandatory for the Departmental Head to notify the officer of the punishment imposed or the recommendation made by him.
The power to impose a punishment under s. 52 (5) is vested only in the Departmental Head and so is the power to suspend under s. 52 (2)(b)(i), save in an emergency under s. 52 (2)(b)(ii) where the officer authorised by the Departmental Head to lay charges may suspend the officer. Under s.52 (3), the Departmental Head has the power to remove the suspension pending the determination of the charge.
So whilst the power to lay a disciplinary charge under s. 52 (2)(a) may be exercised either by the Departmental Head or an officer authorised by the Departmental Head to lay charges, the powers to suspend save in an emergency or to remove the suspension and to impose a penalty under s. 52 (2)(b) (i), (3) and (5) respectively, are intended to be vested solely in the Departmental Head. Therefore, if those powers are to be exercised by an officer other than the Departmental Head, that officer must have proper authority from the Departmental Head and or if the officer uses his delegated powers from the Departmental Head, such powers must be specified in writing to the officer personally, so that the officer acts within the powers given to him, (see s. 23). This ensures that the overall management and control of a Department is in the Departmental Head who is responsible for the general working and efficient conduct of his Department, it also prevents possible abuse of such powers which if allowed, would affect the good administration of the particular Department, (see s. 24). Such control of the use of delegated powers by officers with such powers also prevents any unwarranted interferences with the rights of every other officer to employment, a right which is guaranteed under s. 48 of the Constitution.
The Commission has wide discretionary powers under s.13 of the Act, when reviewing a personnel matter or when performing its other functions. Section 18 regulates the review process of personnel matters, sub-section (1) of which provides that the Commission shall review a personnel matter connected with the Public Service either on its own initiative or following a complaint by an officer to the Commission, where the officer has been affected by the personnel matter. Sub-section (2) provides that when the Commission is conducting a review of a personnel matter, it shall complete the review within 60 days of the making of the complaint and shall consider whether the decision in relation to the personnel matter was an appropriate decision, having regard to the nature of the decision and the views of the officer charged and of the Departmental Head and recommend confirmation, variation, or revocation of the decision in relation to the personnel matter. Sub-section (3) provides that the Commission shall determine its own procedures in carrying out its reviews and shall ensure that the views of the officer affected by the decision in relation to the personnel matter are before it either orally or in writing.
Reasons for the Decision
It is clear that the manner in which the Defendants terminated the Plaintiff was in breach of s. 52 of the Act. Firstly, the charges against the Plaintiff were laid by Dr. Warmin who had no authority to lay the charges because under s. 52 (2)(a), those charges could only be laid either by the Departmental Head or an officer authorised by the Departmental Head to lay charges. There is no evidence before me to show that Dr. Warmin was the officer authorised by the Departmental Head to lay the charges. The charges were under Dr Warmin’s hand and his signature appears above the words "Departmental Head". Secondly, Dr. Warmin suspended the Plaintiff which he again had no authority to do, as he was not the officer authorised by the Departmental Head to lay charges. Only the Departmental Head had the power to suspend the Plaintiff under s. 52 (2)(b)(i), if it was considered that the charges were of such serious nature that the Plaintiff should not continue performing his duties and in the absence of the Departmental Head, the officer authorised by the Department Head to lay charges who had the power to suspend the Plaintiff and such officer could only exercise that power if there was an emergency under s. 52 (2)(b)(ii). There is no evidence before me of an emergency at the time the Plaintiff was suspended by Dr. Warmin. These were fundamental breaches of s. 52 (2) by the Defendants.
In the letter to the Commission by the Acting Chief Executive Officer, dated 30th March, 1999, which was annexed to the Plaintiff’s affidavit, the Acting Chief Executive Officer told the Commission that he had delegated powers from the Secretary for Heatlh to discipline the Plaintiff but there is no evidence before me to show that he did in fact have such delegated powers. Section 23 of the Act provides that, the Departmental Head has to put in writing under his hand, the powers that were being delegated to a person and the person having those delegated powers cannot sub-delegate them to another person. The power to delegate under s. 23 is vested only in the Departmental Head. So, even if the Acting Chief Executive Officer did have delegated powers, such delegated
powers could only be exercised by himself, not by Dr. Warmin or any other person because s. 23 does not allow sub-delegation of the delegated powers. In any case, there is no evidence before the Court to show that Dr. Warmin might have acted under sub-delegated powers when he laid the charges against the Plaintiff and suspended him, so I need not dwell further on this point. It suffices to say that Dr. Warmin had no powers at all to charge and suspend the Plaintiff. Therefore, the charges laid against the Plaintiff and his suspension were defective and unlawful.
Because the charges were laid by Dr. Warmin, the Plaintiff’s reply to the charges was addressed and forwarded to Dr. Warmin who had no authority to receive the reply. In acknowledging the Plaintiff’s reply, Dr. Warmin in the second paragraph of his letter of acknowledgment said, ‘you will be advised of the final course of action pertaining to your case after the management has considered your response.’ That was in breach of s. 52 (5) of the Act, because the management of the hospital had no power to consider the Plaintiff’s reply or even to receive it for purposes of deciding whether the Plaintiff could be punished, that power is vested in the Departmental Head. Then in a letter dated 29th March, 1999, the Acting Chief Executive Officer informed the Plaintiff that ‘the management had thoughtfully and thoroughly gone through your response and explanations to the charges laid against you and had resolved that your employment as the OIC of Dispensary be immediately terminated.’ That letter further advised the Plaintiff that the management had no option but to terminate him, it then went on to give reasons for the termination. That was in breach of s. 52 (5)(e) because the power to terminate is vested in the Departmental Head after duly considering any reports relating to the offence charged and the reply and any explanation by the Plaintiff. Here the penalty was considered and imposed by the hospital management.
The notice of punishment was signed by the Acting Chief Executive Officer. That is a function of the Departmental Head, however, assuming he signed the notice on the basis that he had delegated powers from the Secretary for Health, there is no evidence of that before me. The termination of the Plaintiff was therefore also done in breach of s. 52 (5)(e) and (6) of the Act. The Plaintiff’s termination is therefore unlawful.
In Kekedo v Burns Philp (PNG) Ltd & Ors [1988-89] PNGLR 122, at page 124, Kapi DCJ said, judicial review may be available:
"... where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abused its powers ... the purpose of a judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process."
In this case, there were multiple errors of law committed by the Defendants in terminating the Plaintiff.
There are other aspects of the Plaintiff’s termination which I must comment on, namely, the Circular Instructions by the hospital management which banned the hospital staff from chewing betel nuts and smoking on the hospital grounds which the Plaintiff is alleged to have breached. The Plaintiff’s first charge arose from those Circular Instructions. I am of the opinion that the Instructions which were copied in the Plaintiff’s suspension notice were unreasonable and unlawful, in so far as they applied to the hospital grounds, because such restrictions are intended to be enforced only inside the offices to ensure clean work environments for workers, not outside the offices or as in this case, on the hospital grounds. Therefore, the Plaintiff could not be guilty of disobeying such instructions or orders which were unreasonable and unlawful. Even if those Instructions were lawful, in my opinion, the charge was not of such a serious nature to warrant the Plaintiff’s termination. As to the second charge, it is apparent that extraneous matters were considered and taken into account, such as the Plaintiff being seen at a betting shop in the afternoon of 11th March, 1999. The Plaintiff did not admit that. In his reply to the charge, he said, he was attending to an important family matter that afternoon. He thereby denied that allegation. There is no material evidence from the Defendants to support the allegation. There was also the allegation by the Defendants that the Plaintiff had been disciplined before for which he was demoted from Grade 3 to Grade 1 Dispenser. This was not admitted by the Plaintiff and again there was no evidence from the Defendants to support the allegation. In fact, the evidence contradicts that allegation because the Plaintiff was the Officer In-Charge of the hospital’s dispensary unit at the time of his termination. Therefore the termination under the second charge could not be justified either.
There is another matter - the Acting Chief Executive Officer, in his letter to the Commission dated 30th September, 1999, remonstrated that the Commission did not obtain his views on the Plaintiff’s termination before recommending the Plaintiff’s reinstatement. He said, s. 18 of the Act made it obligatory on the Commission to seek his views. In my opinion, the Commission did not have to obtain his views. He was referring to s. 18 (2)(b), which has to be read together with s. 13, which gives the Commission wide discretionary powers to collect whatever evidence it may deem necessary to perform its Constitutional functions including, review of personnel matters. Had the Commission considered it necessary to obtain more comments or views from him, it would have done so under such powers, but it is obvious that the Commission considered that the materials it already had were sufficient to form a view on the matter, it therefore did not call on him to give any added comments or views on the matter before making its recommendation. The remonstration by the Acting Chief Executive Officer therefore had no merit. On this point, I feel compelled to offer some comments regarding the weight and the significance of the recommendations by the Commission under s.18 (2)(c) in judicial review matters. The Commission’s recommendations are based on its investigations and reviews of personnel matters under ss.13 and 18 (2)(b) of the Act as sanctioned by s. 191 (a) of the Constitution, therefore although not binding, such recommendations carry the force and the weight of the Constitution, thus they must be given proper considerations by the Departmental Heads and if they are rejected, there must be valid reasons for such rejections because if the recommendations are simply rejected or dismissed in the way side without any valid reasons, or without any reasons at all, such decisions would be rendered arbitrary and be open for judicial review. Another reason why there must be valid reasons to reject the Commission’s recommendations is that the power exercised by the Departmental Heads when terminating officers under the Act, is a public function, having public character by reason of the fact that the Departmental Heads hold public offices, which makes them accountable to the public and to the Public Service of which they are a part. The duty to account and to give valid reasons for terminations by the Departmental Heads was strongly emphasised in Godfrey Niggints v Henry Tokam & Ors. [1993] PNGLR 66. In that case, the Plaintiff who was a Correctional Officer applied for the review of his termination by the First Defendant who was the Commissioner for Correctional Institutional Services. After reviewing the Plaintiff’s termination, the Commission recommended his reinstatement. The First Defendant in a written reply to the Commission’s recommendation said:
"Recommendations from the Public Services Commission are only recommendations. I do not accept Public Services Commission recommendations and therefore, you remain dismissed."
His Honour Amet J (as he then was) at page 72 said:
"... Powers such as the power to dismiss and power to accept or not accept recommendation are not absolute and unfettered. They are not intended to be exercised arbitrarily and without good reasons."
In my opinion, Godfrey Niggints’ case clearly shows that public servants cannot be terminated at will by the State or its agents without valid reasons. This is because of the public character of their employments and the protection given to them given by the Act, which governs the terms and conditions of their employments. For this reason, common law principles of pure master and servant and simple employer and employee, in my opinion cannot apply to the public servants. They may have the character of servants but they are not ordinary servants, because of the statutory protection afforded to them. I respectfully think that, Lord Wilberforce was making this point in Malloch v Alberdeen Corporation [1971] All ER I278, when his Lordship at page 1294 said:
"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 enviably 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 exist, then, in my opinion, whatever the terminology used, and even though in some inter partes aspects of relationships 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 dismissal being declared void." (my underlining).
The observations by Lord Wilberforce in Malloch v Alberdeen Corporation (supra), were adopted in Kundu Busu v Post & Telecommunication Corporation [1993] PNGLR 321 at page 324, where Brown J said:
"Great care must be exercised by the courts to identify, in terms of employment, a sufficient public character, or one in the nature of a "public office", where ordinary incidents of master/servants relationship apply, for without that clear public character or office, the courts should not interfere with the management of staff by way of administrative law remedy."
The public character of the Public Service employments and the statutory protection given to them are made clear by the Preamble and ss. 2 and 3 of the Act.
The Preamble states:
"Being an Act –
(a) to make provision for the appointment, conditions of employment...."
Section 2 defines ‘employee’ differently from ‘officer’ in that ‘employee’ is define as:
"a person employed to render temporary assistance in the Public Service, but does not include a person employed in an honorary capacity or a person remunerated by fees, allowances or commission only: ..."
The ‘officer’ is defined by the Section in this way:
"an officer in the Public Service, but does not include –
(a) an employee, and
(b) a person employed in an honorary capacity, or
(c) a person remunerated by fees, allowances or commission only".
The "terms and conditions of service" are defined by the Section as:
"the obligations, entitlements and all benefits as specified in General Orders and Regulations".
The ‘Act’ is defined as including the Regulations and the General Orders.
Section 3 which is headed – Application of this Act, states:
"This Act applies to and in relation to officers, employees and all other persons otherwise employed or engaged under this Act, whether inside or outside Papua New Guinea".
Section 2 makes it clear that terms and conditions of employments for the public servants are to be found in the Public Services General Orders and not elsewhere, it therefore follows that if the appropriate remedy for an officer who is unlawfully terminated is in damages, then such damages can only be properly and correctly determined under the Public Services General Orders.
Remedy
The primary purpose of a judicial review is to determine whether the administrative action being reviewed was legal. In termination cases, it is to determine whether the termination was legal or lawful. The customary scope of judicial review therefore, is confined to question of legality. However, in this jurisdiction, the Courts have gone beyond the customary scope by using their equitable inherent supervisory review jurisdictions to order reinstatement of officers terminated unlawfully where the circumstances of the cases warranted reinstatements, and if reinstatement was the fair and adequate remedy for the Plaintiff, as in Godfrey Niggints’ case. The threshold question is – What is a fair and adequate remedy for the Plaintiff/Applicant whose termination is declared unlawful and is therefore null and void? If the fair and adequate remedy is reinstatement then subject to Order 16 Rule 4 of the National Court Rules, such remedy should be readily granted by the Courts. In considering Order 16 Rule 4, the primary issue is whether there had been an undue delay, if not, the related issue is whether the reinstatement is likely to cause substantial hardship to, or substantially prejudice the rights of, any person, or would be detrimental to good administration, see Steven Pupune & 7 Ors v Aita Ivarato & Ors. N1539 at page 6 and NTN Pty Ltd v Post & Telecommunications Corporation. [1987] PNGLR 70. If reinstatement is refused in cases with exceptional circumstances such as those in this case because of undue delay and the other factors in Order 16 Rule 4, the Court can in my opinion, properly invoke its inherent equitable jurisdiction under s. 155 (4) of the Constitution to order that the officer be treated either as having been retired or retrenched and be compensated in accordance with the appropriate rates in the Public Services General Orders. Such Orders would in my opinion accord with the principle of fair and adequate remedy and would be appropriate to do justice in the circumstances of such cases.
Where there are no exceptional circumstances, the Court can in its discretion determine an appropriate period for which the officer should be compensated, based on the officer’s entitlements. This approach was adopted by Los J. in Wata Potenge v Boski Tony & Ors. (Unreported – 9th June, 2000). I respectfully agree that such is a sensible approach and one which accords with the principle of fair and adequate remedy.
S. A. de Smith in – Judicial Review of Administrative Action, 3rd Edition, in emphasising the principle of adequate remedy for a successful applicant at page 438, says:
"The courts will not normally declare a wrongful dismissal from private employment to be invalid; for dismissal effectively terminates the employment, even though it gives rise to a right of action for breach of contract. But it is the function of the courts to keep public authorities within the limits of their statutory powers; if therefore, a public authority purports to dismiss an employee otherwise than in accordance with mandatory procedural requirements, or on grounds other than those expressly sanctioned by statute, the courts have jurisdiction to declare its act to be a nullity, and they have exercised that jurisdiction in cases where damages have not been an adequate remedy." (my underlining).
S.A. de Smith, of course states the common law position which has been extended by the Courts in this jurisdiction by ordering reinstatements in appropriate cases, as discussed earlier.
In Christoper Appa v Peter Wama & Ors [1992] PNGLR 395, Woods J. took a similar approach, when he refused to reinstate the Applicant after finding that his termination was unlawful and held that the Applicant’s remedy was in damages. However, his Honour held that the damages had to be determined under the Employment Act, (Ch. No. 373), (‘the Employment Act‘). The Applicant was a Scientific Officer, who was In-Charge of the Pathology Section of the Mt. Hagen General Hospital. At the time of his termination, the Applicant was aged about 49 years and had been working as a public servant for 25 years. He was charged under the Act, following complaints about the operations of the Pathology Section. His Honour further held that the Applicant being a servant of the State, the principles of pure master and servant applied to him, thus once his relationship had become noxious to the State, the Court could not compel the State to continue the relationship. His Honour also held that the Applicant had no terms and conditions which gave him security of employment in the public service. His Honour at page 397 said:
"Therefore, I must assume that the terms and conditions of employment are not better nor more favourable than those set out in the Employment Act which is stated to be an act binding on the State. I find I am unable to order re-instatement and the Applicant is, therefore only able to claim damages for wrongful dismissal...It is a general rule that the employee wrongfully dismissed can recover damages for pecuniary loss resulting from wrongful termination to the equivalent of appropriate notice. In the usual case, damages will be equivalent to wages for the period of proper notice...The Employment Act, is an example and guidelines as to notice on dismissal. It provides for notice of 4 weeks or payment of 4 weeks salary in lieu thereof, if an employee has been employed for 5 years or more. It would appear this is what Parliament considers an appropriate and proper notice to an employee, whose services are to be brought to an end."
With great respect, I am unable to agree with his Honour’s reasoning that the principles of pure master and servant did apply to the Applicant and that his damages were to be determined under the Employment Act, which was pay equivalent to the appropriate notice period which was 4 weeks; for the reason that the Applicant not being an ordinary servant, the principles of pure master and servant did not apply to him and that his damages should have been determined under the Public Services General
Orders, which governed his terms and conditions. Further more, to compensate the Applicant with pay equivalent only to 4 weeks as provided in the Employment Act, after being a public servant for 25 years was unjust and manifestly inadequate. It was not a ‘ fair and adequate remedy ‘ for the Applicant.
What then is the fair and adequate remedy for the Plaintiff in this case?
The Plaintiff seeks the following relief Orders:-
Delay
Although the Defendants did not raise the issue of delay, I consider it necessary to address the issue, as it is relevant in determining the appropriate remedy or relief for the Plaintiff. Delay is a substantive issue and it must be determined on the overall evidence adduced before the court. I must therefore look at all the steps taken by the Plaintiff to prosecute his claims from the date of his termination or from the date he became aware of his termination to the date of the judgement. According to the affidavits sworn by the Plaintiff and his lawyer on 23rd November, 1999, and 24th May, 2000, respectively, following chronological steps were either taken or prompted by the Plaintiff and his lawyer to prosecute this application after the Plaintiff was terminated.
(i) Soon after the Plaintiff was charged on or about 23rd March, 1999, he sought assistance from the Public Employees Association (‘ the PEA’), Office in Wewak with which he is a member. That Office wrote to the Acting Chief Executive Officer and asked that if the Plaintiff had to be disciplined, he should be demoted only because to terminate him would be harsh.
(ii) After receiving his notice of punishment on 6th April, 1999, the Plaintiff flew to Port Moresby at his own expense to lodge his application to the Commission to review his termination. On 19th April, 1999, he lodged his application with the Commission.
(iii) On 2nd June, 1999, the Office of the Secretary for Health wrote to the Acting Chief Executive Officer and directed him to reinstate the Plaintiff on the grounds that he may not have had the powers to terminate the Plaintiff. This was prompted by the Plaintiff’s complaint to the Commission.
(iv) On 12th June, 1999, the Office of the Secretary for Health wrote to the Plaintiff and advised him that the direction it gave to the Acting Chief Executive Officer to reinstate him had been withdrawn because, it was confirmed that the Acting Chief Executive Officer did have the powers to terminate him.
(v) On 13th June, 1999, the Plaintiff flew back to Wewak at his own expense to await the result of the Commission’s investigations into his complaint.
(vi) In a letter dated 17th September, 1999, the Commission wrote to the Acting Chief Executive Officer and recommended that he reinstate the Plaintiff. That letter was faxed to the Plaintiff and the Plaintiff hand delivered the letter to the Acting Chief Executive Officer on the same day.
(vii) On 30th September, 1999, the Acting Chief Executive Officer wrote to the Commission and remonstrated that the Commission had failed to seek his views before recommending the Plaintiff’s reinstatement, he advised that the Plaintiff would not be reinstated.
(viii) On 27th October, 1999, the Plaintiff flew back to Port Moresby again at his own expense to seek legal assistance from the PEA to challenge his termination in Court.
(ix) On 10th November, 1999, Mr Liosi of Liosi Lawyers was instructed by the PEA on behalf of the Plaintiff to apply for judicial review of the Plaintiff’s termination.
(x) Sometime after receiving instructions, Mr Liosi wrote to the Solicitor General for extension of time to lodge the ‘Notice’ required under the Claims by and Against the State Act, 1996. The extension of 21 days was eventually granted on 27th April, 2000. The Court’s file on the case was misplaced so Mr Liosi had to check with the Registry Clerks and it was not until 12th May, 2000, when Sheehan J.’s secretary phoned Mr Liosi and told him that the file had been located.
(xi) On 16th May, 2000, Mr Liosi wrote to the Registrar and asked that the matter be listed in Sheehan J.’s list.
(xii) On 19th May, 2000, Mr Liosi served documents on the Solicitor General and the matter was listed for hearing.
The issue of delay has to be considered against Order 16 Rule 4 of the National Court Rules; the relevant sub-rules are (1) and (2), which are in these terms.
4. Delay in applying for relief. (UK. 53/4)
(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant -
- (a) leave for the making of the application; or
- (b) any relief sought on the application,
if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceedings for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.
As at the date of this judgment, it is two years two months since the Plaintiff’s termination, however, from the steps taken by the Plaintiff and his lawyer to prosecute this action as outlined above, I am satisfied that the plaintiff did everything in his power to diligently and expeditiously prosecute his claims.
It is also clear that certiorari does lie against the First Defendant, because the power exercised by him to terminate the Plaintiff was a public function as it derived from the Act, and is therefore a matter of public law, see Kundu Busu v Post & Telecommunication Corporation (supra) at page 324, see also, Michael Ntumy in "Leave Applications for Judicial Review" at page 4 where the learned author says:
"The main factor that determines whether a matter is one of public law or private law is the formal source of the particular power that is being used, not the status of the body exercising the power." See also Application of Eric Gurupa – N856 at page 4.
Under Order 16 Rule 4 (2), the relevant period is four months when considering whether certiorari ought to be granted. I respectfully agree with Doherty AJ (as she then was), in Application of Eric Gurupa (supra), that the four months period in applications for Orders for certiorari is not mandatory and does not fetter the discretionary power of the Court to grant applications exceeding that period. Each case has to be decided on its own merits. In the circumstances of this case, I am of the view that, there was no undue delay by the Plaintiff in applying for the relief he is seeking, I am therefore prepared to overlook the two years two months delay and grant the relief sought, see Davis v Pitzz [1988-89] PNGLR 143 at page 149. The Plaintiff is also a skilled and professional staff who worked for 22 years as a public servant in the Department of Health and to impose the maximum penalty of dismissal on him was in the circumstances of the case, harsh. In my opinion, the Plaintiff’s long service in the public service and his professional qualifications are exceptional factors which warrant his reinstatement given the circumstances of his termination. Consequently, although the Plaintiff has not specifically sought reinstatement, I propose to make such Order under the relief Order number 5 in his claim, which asks this Court to grant, ‘ such other Orders as it deems fit ’. The Court has the inherent equitable supervisory jurisdiction to make such an Order under s. 155 (4) of the Constitution which states:
"(4) Both the Supreme and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."
This Constitutional provision can in my opinion, be appropriately invoked to protect the Plaintiff’s primary right which is his right to employment at the level he was employed at the time of his termination, see Avia Aihi v The State [1981] PNGLR 81 at page 91. I consider his reinstatement a fair and adequate remedy for him in the circumstances of the case. As I said he is a professional staff with special qualifications who can be easily and conveniently employed back in the Public Service if not in the Department of Health. I have held that the delay of just over two years in this case was not undue in the circumstances of the case. I also do not consider that his reinstatement will cause substantial hardship to any person or substantially prejudice the rights of any person or would be detrimental to good administration, see Steven Pupune & 7 Ors v Aita Ivarato & Ors ( supra ). In any case, delay is a non issue here because the Defendants did not raise it, see Davis v Pitzz (supra) at page149. The length of delay in that case was over two years. See also, Phochon Lili v Joseph Gabut & Ors. – N1394. In that case, the Court ordered that the Plaintiff who had been suspended for more than two years be reinstated to his substantive position of the Deputy Secretary for the Department of Fisheries and Marine Resources or such equivalent position as the Department of Personnel Management determined. In this case, I also consider that the Plaintiff/Applicant is entitled to a similar remedy. Accordingly, I quash the decision by the Wewak General Hospital and the First Defendant to terminate the Plaintiff, which was effective on 30th March, 1999 and the subsequent issue of the notice of punishment on the Plaintiff by the first Defendant and order that the Plaintiff be reinstated if not to the position he was holding at the time of his termination, to a position equal to his former position as the Department of Health or the Department of Personnel Management may determine, without any loss in service and salary entitlements.
The Orders of the Court are:-
____________________________________________________________________
Lawyer for the Plaintiff: Liosi Lawyers
Lawyer for the Defendants: Solicitor General
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