Himsa v Sikani, Commissioner of Correctional Services [2002] PGNC 34; N2307 (8 November 2002)

N2307

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 641 & 642 OF 2001

BETWEEN:

MATHEW PETRUS HIMSA and NAPAO NAMANE

Plaintiffs

AND:

RICHARD SIKANI
COMMISSIONER OF CORRECTIONAL SERVICES
First Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

KANDAKASI, J.
2002: 16th August
8th November

ADMINISTRATIVE LAW – Judicial review – Review of decision terminating employment at end of written contract of employment – Written contract of employment preserves employment in public service at end of written contract without specifying the terms and conditions on which that is to happen – Lack of certainty in fundament terms of contract – Practice of keeping persons in the public service pool unattached not a practice enforceable at law – Contract unenforceable for lack of certainty – Relationship of parties governed by contract – Remedy at private law may be available but judicial review not an available remedy – Application for judicial review therefore dismissed.

JUDICIAL REVIEW – Review of decision by National Executive Council to terminate employment in the public service – Whether there existed other remedies – Whether such remedies were exhausted – No available remedy when the NEC makes the decision – Judicial review appropriate remedy but for contract of employment – Remedy may be available at private law only – Consequently reinstatement as a remedy is not available once a contract of employment ends at the agreed expiry date unless a statutory provision provides to the contrary.

EMPLOYMENT CONTRACT – Written Contract of Employment in Public Service – Contract expiry on agreed date – No renewal but contract allowing continuity of employment in Public Service – Terms and conditions on which that is to happen not certain – Contract void for uncertainty of fundamental terms and conditions of employment - Contract unenforceable.

Papua New Guinea Cases Cited:
John Kopil v. Malcolm Culligan and The State Unreported National Court Judgement (Unreported judgement delivered 28/06/95) N1333.
Sulaiman v. PNG University of Technology Unreported National Court (Unreported judgement 20/08/87) N610.
Albert Kuluah v. The University of Papua New Guinea [1993] PNGLR 494.
Odata Ltd v. Ambusa Copra Oil Mill Ltd (Unreported judgement delivered 06/07/01) N2106.
Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v. The Independent State of Papua New Guinea [1993] PNGLR 285.
Mark Ankama v. Electricity Commission of Papua New Guinea (Unreported judgement delivered /10/02) N2303.
Jack Livinai Patterson v. National Capital District Commission (Unreported judgement delivered on 05/10/01) N2145.
Teio Raka Ila v. Wilson Kamit & The Bank of Papua New Guinea (Unreported judgement delivered on 11/10/02) N2291.
Lima Dotaona & Paul Tohian v. Moses Makis & The State (Unreported judgement delivered on 17/12/98) N1797.
Leo Niua v. The State (Unreported judgement delivered on 29/08/00) N1986.

Overseas Cases Cited:
Scammel & Nephew Ltd v. Ouston [1941] AC 25.

Text Cited:
Chitty on Contracts (24th edn.) pp. 700- 70.

Counsel:
Mr. D. Dotaona for the Plaintiff
Mr. Kua for the Defendants

8th November 2002

KANDAKASI, J: These are two identical applications for judicial review by the applicants. The facts are the same and so are the arguments and issues for determination. The parties therefore decided to deal with the applications as one.

Proceeding on the above basis, the Chief Justice granted them leave on 10th December 2001 to review a decision of the National Executive Council (NEC) on 15th July 2001, revoking their respective appointments as Assistant Commissioner (Personnel and Management Training and Operations respectively) with the Department of Correctional Services (DCS).

The applications came before me on 16th August 2002 and I directed the parties to file written submission by 20th August 2002. This was necessitated by a lack of time for me to deal with the matter on that date after the parties had agreed to a trial by affidavit only with no requirements for cross-examination.

The parties have filed their submissions on 20th August 2002 as directed. But I was not able to get to a judgement on this matter quickly due to my time being taken up in motions and election petitions in between.

Arguments

The applicants’ claims are that, when their respective written contracts of employment (the contracts) expired they remained as employees of the DCS, pending deployment elsewhere in the Department or the public service generally. Hence, they argue that they could only be terminated in accordance with the procedure for termination under the Correctional Services Act 1995 (CSA). They go on to argue that they were not terminated in accordance with the procedure under the CSA. Therefore they claim that their termination is null and void and of no effect.

The defendants on the other hand argue that, when the applicants entered into their respective written contracts, they gave up their rights or privileges under the CSA because their terms and conditions of employment came under the governance of the contract. Hence, when the contract expired on the agreed expiry date, their employment with the DCS and therefore the public service ended.

Issues

The parties agree that this gives rise to a number of issues, which this Court must determine. The issues are as follows:

1. Whether the applicants’ employment with the DCS ceased upon the expiry of their respective contracts of employment.
2. Whether there is a legal basis for a contract of employment under the Correctional Service Act?
3. Whether judicial review is available when the applicants’ written contract expired?
4. If judicial review is available, did the applicants exhaust all available remedies before coming to Court?
5. Whether the State is obliged to reinstate the applicants to their original position when their position have been filled?
   

Facts

The facts are not disputed and I find these are the relevant facts. The applicants were Assistant Commissioners, respectively as Personnel Management and Training and Operations with the DCS until the NEC revoked their appointments to those positions on 5th July 2001. They were appointed to their respective positions by the NEC on 2nd August 1996.

On 19th February 1998, the applicants signed their respective written contracts of employment with the State. They were made retrospective to 15th August 1996. The contracts were for a term of three years each. Eventually, the contract expired on 2nd August 1999.

By letter dated 13th August 1999, the then Commissioner of Correctional Services wrote to the applicants saying their contacts would end on 15th August 1999 and that he (the Commissioner of Correctional Services) decided to allow their contracts to continue until the NEC make a new appointment to the applicants’ positions. The applicants therefore continued to serve in their respective positions under the now expired contract until new appointments were made. Subsequently, on 5th July 2001 the applicants’ appointments were revoked and two other persons were appointed by the NEC to the positions the applicants had held under their respective contracts.

The applicants claim that no grounds of the revocation by NEC were ever conveyed to them.

The relevant provisions of the contract are clauses 4, 9.7, 27.5 and 35.1 and 35.2 of the Standard Terms of Employment of Assistant Commissioners of Correctional Service (the standard contract). Clause 4 provides as to the period of the contract with its commencement date specified and that the contract may be terminated in accordance with the terms of the contract. The other provisions are quite specific on the points in issue. These provisions read as follows:

"9.7 Upon completion of the Contract, a new Contract may be offered to the Assistant Commissioner of Correctional Service in accordance with these terms and Conditions, provided that where a new contract is not offered, employment in the Correctional Service may continue."

"27.5 Subject to the Assistant Commissioner of Correctional Service securing future employment in the Correctional Service or National Public Service under Section 35 hereunder, termination of the Contract will other wise result in termination or employment from the Correctional Service Pursuant to the Correctional Service Act."

"35.1 Upon termination of the Contract in the event either:

(a) the Commissioner of Correctional Service does not wish to renew the Contract; and
(b) the Commissioner of Correctional Service does not arrange an alternative offer of employment;

then the Assistant Commissioner of Correctional Service shall be free to take up any other appointment secured by him within the National Public Service, and service shall be continuous as defined hereunder.

35.2 In the event that upon termination of the Contract the Assistant Commissioner of Correctional Service does not take up a new contract, or secure a position within the National Public Service of the Correctional Service, then the Assistant Commissioner of Correctional Service shall cease, provided that the Selection and termination procedures in the Correctional Service Act shall be followed."

I now proceed to deal with first issue, which I consider is the key issue in this case.

Whether the Applicants’ employment ceased upon the expiry of their contracts

Relying on the provisions of clause 4, 9.7, 27.5 and 35.2 as well as Part V ss.38 – 57 of the CSA, the applicants argue that their employment with the DCS did not cease upon the expiry of their respective contracts. They instead argue that the revocation of their appointments on 5th July 2001 did not result in a termination of their employment with the DCS because they were not terminated in accordance with the termination procedures set out in the CSA.

There is no argument that the relevant provisions under the CSA are those under Part V ss. 38 – 57 of the CSA. Under these provisions, a member may be terminated after being found guilty of a serious disciplinary offence. So the normal procedures of a charge being laid against an officer, their right to be heard in their defence before decision on the charge and if found guilty their right of address on penalty apply. In their case, they submit that no charges were laid against them and those procedures were not followed.

The defendant submits that once an officer enters into a contract of employment he brings himself out of the ambit of the relevant legislation under which he is employed. In this instance, it is the CSA and the Public Services (Management) Act 1995.

In so arguing, the defendants refer to and rely on the cases John Kopil v. Malcolm Culligan & The State Unreported National Court Judgement (Unreported judgement delivered on 28/06/95) N1333; Sulaiman v. PNG University of Technology Unreported National Court (Unreported judgement delivered on 20/08/87) and Albert Kuluah v. The University of Papua New Guinea [1993] PNGLR 494.

In the first case, the National Court held in effect that a plaintiff who has a written contract of employment with the State takes him or herself out of normal public service disciplinary and termination process or procedures. That was in a case of the plaintiff holding a contract position for three years. Subsequently, there was a restructuring in the department he was employed which resulted in him and others being treated as holding acting positions.

The plaintiff was concerned with what he claimed to be irregularities in the advertisement, selection and appointment of officers. He therefore, applied to the National Court for a judicial review of the relevant decisions.

In dismissing the plaintiff’s application, His Honour Mr. Justice Woods said:

"The Plaintiff has a contract of employment with the State for service in the Department of Western Highlands. By accepting a contract he 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. If he feels that this contract has been breached he must then consider whether there is any cause of action in contract law available to him. Such a cause of action would be affected by the general law of employment and would have to be actionable by way of an action for breach of contract or wrongful dismissal with a Writ of Summons."

In the second case it was an employment of a non-citizen. The Court expressed similar comments as those in the first by Justice Woods. That was a case in which a non-citizen had a written contract of employment with the defendant. The contract had a detailed procedure for termination, which was not followed for the plaintiff’s dismissal. He therefore filed for judicial review.

In dismissing the action, the Court said:

"Where courts have interfered by way of review in the process of dismissal because of the failure to observe the rules of natural justice, it has been where there is a statutory power or procedure being exercised, not a contractual power and I refer again to the Taylor v. National Union of Seamen case above. The applicant here is trying to make the position of the University under its Terms and Conditions, a position of special status. I am not satisfied the employee here has a special status which would enable this Court to interfere in this way in a contract of employment. The relationship between the parties is governed by contract and the applicant must afford himself of whatever remedies are available for the alleged breach of that contract. This court will not enforce through these procedures or interfere in this manner in the process whereby that contract may have been terminated or broken. The applicant is not without a remedy. He has a remedy in damages for wrongful dismissal. He has a remedy under a contract law. I therefore dismiss the application."

In the final case the plaintiff was also on a written contract of employment with the defendant University. When the contract expired, the defendant refused to renew it. The plaintiff therefore applied to the Court for a review of that decision. In refusing the application, my brother Justice Sheehan said at p. 497 of the judgement:

"In the first place, it is acknowledged that the plaintiff's contract of employment was a private contract. As such, the action or the decisions of the parties to it are outside the scope of judicial review. Judicial review is concerned only with the protection of rights under public law, not the private rights and duties of parties that arise under contract or tort. Judicial review is certainly not available to those involved in disputes regarding private contracts of employment: Sulaiman v PNG University of Technology [1987] SPLR 267."

In all of these cases it is not clear as to what were the relevant provisions of the contracts and what was said about their termination. What is apparent though is that, there were straightforward employment contracts in each of the cases. The issue was one of whether or not those provisions were complied with. The Court in each of the cases considered judicial review was not available in the absence of any statutory provision creating the respective plaintiffs’ position and securing their employment. The Court in each of the cases were of the view that, where a contract of employment exists, the contract speaks on the rights and or duties and obligations of the parties to the contract. Also, such a contract removes one from the protection or procedure for termination that may be provided for in a statute, and therefore a right to judicial review as a remedy for any breach of the contract.

So what does the contract in the present case say about termination. As noted the relevant provisions of the contract are clauses 9.7, 27.5, 35.1 and 35.2. In my view, the last provision sums up the effect of all of these provisions. That provision once again reads:

"In the event that upon termination of the Contract the Assistant Commissioner of Correctional Service does not take up a new contract, or secure a position within the National Public Service of the Correctional Service, then the Assistant Commissioner of Correctional Service shall cease, provided that the Selection and termination procedures in the Correctional Service Act shall be followed."

(Emphasis supplied)

The law in relation to the meaning to be given to or the construction of words used by the parties to a contract is settled. A classic statement on the construction of the terms of a contract is in Chitty on Contracts 24th edition at pages 700-701, in the following terms:

"The object of all construction of the terms of a written agreement is to discover there from the intention of the parties to the agreement...the cardinal presumption is that the parties have intended what they have in fact said, so that their words must be construed as they stand. That is to say, the meaning of the document or of a particular part of it is to be sought in the document itself: "One must consider the meaning of the words used, not what one may guess to be the intention of the parties."

This why the law has developed to the stage of precluding the parties from calling extrinsic evidence to show what was it that the parties agreed to: Odata Ltd v. Ambusa Copra Oil Mill Ltd (Unreported judgement delivered 06/07/01) N2106. Generally, the Courts will let the words employed by the parties in their contract to speak without the need for calling extrinsic evidence: Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v. The Independent State of Papua New Guinea [1993] PNGLR 285.

The words in clauses 97.2, 27.5, 35.1 and 35.2 of the contract in this case are very clear. The parties agreed that, if at the end of the applicants’ contract the applicants do not get a new contract with the DCS or get employed in the National Public Service, their services would cease, "provided that the Selection and termination procedures in the Correctional Service Act shall be followed." In other words, the parties agreed that, if the applicants fail to secure a renewal of their contracts or fail to secure a position in the National Public Service at the end of their contracts, they remain employees of the DCA unless, they are terminated in accordance with the termination procedures under the CSA.

The defendants submit however, that these provisions of the contract exits for administrative convenience. It exists to ensure smooth flow of events following the expiry of the contract. They also submit that, the CSA caters for selection and termination of officers below the rank of Assistant Commissioners on disciplinary grounds. The employment and termination of Assistant Commissioners is governed by contract and is appointed by the Head of State under s. 17 (3) of CSA acting on advice. In my view, therefore, we need to revert to the contract for guidance on the issue.

The issue here is after the contract has come to an end at its agreed expiry date as opposed to termination prior the expiry date. The applicants were not able to refer me to any specific provision in the CSA on the point in issue. Both the contract and the CSA are silent on the terms and conditions under, which the applicants could continue as employees of the DCS after the expiry of their contracts. If the parties indeed intended that the applicants would continue to remain as employees of the DCS, they would have at the least agreed and provided as to what position the applicants would hold and their salary or wages and other terms and conditions of their employment.

As I have recently said in the case of Mark Ankama v. Electricity Commission of Papua New Guinea (Unreported judgement delivered 23/10/02) N2303, that all employment within the public service and public authorities are in effect matters of contract but governed by their respective and applying legislation. In the case of employment with the DCS, the Commissioner is empowered to recruit such employees as he considers necessary on terms and conditions he considers appropriate subject to the approval of the Salaries and Conditions Monitoring Committee (SCMC) (s. 30 of the CSA). Obviously no one could be forced to accept any employment with the DCS or even else where, unless he or she accepts the terms and conditions that are being offered. The actual terms and conditions of employment especially, as to duration, salary and other benefits and entitlements are considered fundamental in an employment contract.

As of necessity therefore, there must be certainty in the terms and conditions on which one is employed. It is settled law that only contracts with certainty in the fundamental terms or conditions can be enforced. The converse of that is that, where there is uncertainty, the contract is null and void. There are numerous cases on point that makes this clear. An example of that is the old case of Scammel & Nephew Ltd v. Ouston [1941] AC 25, where Viscount Maugham said at page 255:

"in order to constitute a valid contract the parties must so express themselves that their meaning can be determined with reasonable degree of certainty. It is plain that unless this can be done it would be impossible to hold that the contracting parties had the same intention; in other words the consensus ad idem would be a matter of mere conjecture."

That was in a case of contract of sale where the price of the goods to be sold was left to be determined in terms of, "this order is given on the understanding that the balance of purchase price can be had on hire purchase terms over a term of two years." The Court found this stipulation to be too vague and therefore unenforceable.

Following this line of authorities, I have in the case of Jack Livinai Patterson v. National Capital District Commission (05/10/01) N2145 found a purported contract for service to be unenforceable for uncertainty in consideration or the price of the services to be provided by the plaintiff.

In the present case, there is no provision at all either in the contract or in the CSA as to the terms and conditions under which the applicants were to continue to remain in the employ of the DCS after the expiry of their contracts. There is no evidence at all of what were the terms and conditions on which the applicants were to remain in the employ of the DCS. Also there is no evidence showing what position the applicants would hold, their salary and other terms and conditions of employment and how they could be terminated under the CSA once their contract expired. There is a complete failure or a lack of certainty of agreement in these important areas. Given that, I find that the parties were not at any consensus ad idem on these important aspects. In the circumstances, the words "provided that the Selection and termination procedures in the Correctional Service Act shall be followed" as used in the contracts have no practical meaning and effect.

What has in fact happened in my view is that, the parties may have intended to place the applicants in what has become known as being placed in the public service "pool" to be deployed against a particular position as soon as a vacancy in a position they could hold exists. Indeed their arguments are in those terms. They go on further to say that they were to be in the positions they were in prior to the contracts on the same salary and other conditions. The practice is quite well known in the public service. However, in my view, it does not follow that that is the law and is therefore enforceable just because it is known in the public service.

The law however is that a valuable consideration must past from one party to another in a contract. I explained that concept as it applies to a contract for service in Jack Livinai Patterson v. National Capital District Commission (Supra) case. There I said the valuable consideration for the NCDC who purportedly engaged the service of Mr. Patterson was the provision of legal services in return for a fee to Mr. Patterson, which was the valuable consideration to Mr. Patterson.

In the public service pooling arrangement, a person continues to be on the State’s payroll even though such a person is not rendering any services to the State. He or she is in fact being paid for nothing. Such an arrangement lacks the passing of any valuable consideration, that is services from the public servants in the pool. Such a contract is in my view void and unenforceable for lack of valuable consideration. In my view, this kind of arrangement fails to serve any good to the State and therefore the people of Papua New Guinea. It only benefits the individuals involved at the expense of the people. I believe that over the years this as contributed to unnecessary public expenditure. No sensible government or person would allow such a practice to continue. Such arrangements therefore ought not to exist in the public service, as they are unnecessary source of a drain in the public purse. As such, the practice should cease immediately if not already stopped.

I accept the defendants’ argument that the relevant terms of the contract were similar to the Public Service General Orders in relation to contracts of senior officers within the public service, including the Police and the Correctional Service. The relevant General Orders are clause 9.26 to 9.29.

These provisions set out the grounds upon which a contract may be terminated.

They provide for a standard contract of three years duration may be entered into and may be terminated by either party at any time in accordance with the provisions of the contract.

A person under such a contract may resign by giving appropriate notice under the contract to their Departmental Head. Also, the Departmental Head, having consulted the Department of Personnel Management may also give notice of termination, provided that, reasons of termination shall be given in writing to the senior officer.

They further provide that upon termination of such a contract at any time, unless the contract specifically specifies otherwise, employment in the public Service will cease. When these provisions are read together with the terms of the particular contracts in this case, it is clear that at least the contract will have to come to an end and that the officer concerned no longer remains an employee of the State.

Taking all of the above into account both individually and collectively, I am of the firm view that the applicants’ employment with the DCS and therefore the State ceased at the expiry of their respective contracts. As such, the applicants could not legally and validly remain employees of the DCS and hence the State once their contracts ended and their further engagement was at the pleasure of the Commissioner of Correction Services also ended on the appointment of their replacements.

This now leads me to consider the next issue of whether there is basis in the CSA for the contract.

Legal Basis for Contract under the CSA

It should be apparent from the foregoing discussion that s.17 (3) of the CSA does provide for the appointment of a Deputy Commissioner or Assistant Commissioner by the Head of State acting on advice. The Act also empowers the Commissioner (s.30) to determine the terms and conditions of recruitment in the Correctional Service subject to the SCMC approval.

This in my view means there is basis in the CSA for the contract. But whether the contract is enforceable or not is dependent on whether or not SCMC approval was sought and obtained in accordance with the provisions of Salaries and Conditions Monitoring Committee Act 1995. I covered the need to obtain such an approval and the effects of a failure to do so recently in the case of Teio Raka Ila v. Wilson Kamit & The Bank of Papua New Guinea (Unreported judgement delivered on 11/10/02) N2291 and I need not repeat them here.

There is no evidence before me that the SCMC’s approval on the contracts in this case was sought and obtained. This may be due to the fact that the defendants have not taken any issue on this. I am therefore not inclined to making a decision on the point that might be determinative of the whole case. I do however consider it appropriate to say that, if indeed no approval was sought and obtained from the SCMC then the contract could not be enforced as it will remain null and void for want of SCMC approval.

Now having found that the terms and conditions of the applicants’ employment was governed by the contract based on the provisions of the CSA, it now leaves me to consider the next issue of whether or not judicial review is available to the applicants.

Whether Judicial Review is Available

The Defendants submit that judicial review is not available. In so arguing they submit that a person employed in the public service under contract gives up his or her public law rights and brings him or herself within the scope and framework of the contracts. Therefore, judicial review is not available. They rely on the judgements and principles enunciated in John Kopil v. State & Anor (supra), Sulaiman v. University of Technology (supra) and Kuluah v. PNG (supra).

The applicants argue however that since the parties reverted to the CSA after the expiry of the contract, they are entitled to judicial review. This is consistent with their earlier argument. They rely on the judgements in Lima Dotaona & Paul Tohian v. Moses Makis & The State (Unreported judgement delivered on 17/12/98) N1797, per Woods J and Leo Niua v. The State (Unreported judgement delivered on 29/08/00) N1986 per Sevua J.

In the first case, the Court held that judicial review was available. The case involved the appointment and earlier termination of the plaintiff’s employment as a provincial administrator four weeks after the execution of a written contract of employment. The termination was brought about prior to the agreed expiry of a written contract of employment, without following the procedure under the Organic Law on Provincial and Local-level Governments and general Public Service Orders.

It is not clear whether the contract incorporated the provisions for termination as provided for in the relevant Organic Law or the Public Service Standing Orders. Also, it is not clear whether the issue of the contract governing the relationship between the parties and therefore making it a private law was raised. If it was raised, it does not say how the Court considered that not to be the case so as to conclude that judicial review was an available remedy in that case.

I consider this omissions in the judgment very critical to the issue before me. Without knowing how the Court in that case considered it an appropriate case for judicial review, I can not be satisfied that the judgement in that case is of assistance to me in this case. I am therefore, of the view that, that case is distinguishable from the present case and is of no assistance to the applicants.

The case of Leo Nuia v. The State (Supra) was a claim for damages for unlawful dismissal. The Court found that the plaintiff was unlawfully dismissed because the procedure laid under the relevant legislative provision was not followed. The Court also found that the relevant procedure was incorporated in the contract of employment. This case is thus, distinguishable in my view from the present case. As such, it can not be of any assistance to the applicants. If at all however it might support a claim for any unlawful dismissal.

In the end, I am left with the authorities the defendants rely on, which I find to be based on proper principles developed and applied else where in jurisdictions similar to ours over many years. I therefore, find that judicial review is not a remedy that is available once a written contract is entered into between a public authority and an employee.

This in my view would render it not necessary for me to consider the other issue of whether or not the plaintiff has exhausted other available remedies before applying for judicial review. However, I consider it necessary to give some consideration to the plaintiff’s argument in this issue for future guidance purposes.

Exhaustion of Other Remedies

The applicants’ argument is that, they are placed in a peculiar position. They say their position is one under the CSA but they were purportedly terminated by the NEC under a contract of employment that expired on 15th August 1999, without following the procedure for termination under the CSA, which includes a right of an to the Appeals Tribunal under the CSA. They submit that they could not avail themselves of the administrative remedies under the CSA because they were never charged with an offence but the NEC revoked their appointment, which purportedly had the effect of dismissing them from the DCS and the State. They therefore, seek this Court’s intervention because the Tribunal would not have the jurisdiction to review a decision of the NEC. They go on to submit that the only recourse they have now is to come to this Court by way of judicial review.

I accept that this is a sound argument. If it were not for the contracts placing the applicants’ in the private law arena and removing them from the public law domain, I would accept the argument as correct. But since the contract governs the relationship between them and the defendants, they could only look to the private law for appropriate remedies, if any, in the absence of any provision in the contract preserving their public law remedy of judicial review.

I now turn to the final issue in this case. It is the issue of reinstatement of the applicants to the original position they held prior to entering into their respective contracts.

Reinstatement to Prior Position

Reinstatement of employment is not a remedy that is usually available following a successful claim of unlawful dismissal. The usual remedy is one of damages. The only recognised exception to that is in the case of a successful application for judicial review where appropriate and where a statute specifically provides for it as in the case of s.63 (4) of the Industrial Relations Act 1962 as amended and consolidated.

I have already found in this case that the applicants’ ceased their employment with the defendants when their contract expired and the period of their further engagement, upon the appointment of their replacement. I have also found that judicial review is not available to the applicants because the issue of whether or not they were correctly terminated became a matter of private law and the provisions of the contract were determinative of that issue. These being the case, I find that the applicants are not entitled to a reinstatement to their prior position. In any case ordering a reinstatement will mean them being placed in the "pool" unattached. The plaintiff in fact asks this Court to so place them. This runs contrary to what I have already said about this practice.

Bearing the foregoing discussions and findings in mind ultimately, I find there is no basis for a grant of the relief of judicial review and reinstatement of the plaintiff to their prior positions with the DCS. I therefore order a dismissal of their applications. Costs will follow that event.
__________________________________________________________________________
Lawyers for the Applicant: Stevens Lawyers
Lawyers for the Defendants: Solicitor General