Sam v Tsiamalili [2006] PGNC 64; N3072 (21 July 2006)

N3072

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No. 911 of 2005

ROBIN SAM
Plaintiff

AND:

PETER TSIAMALILI
First Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Lay, J.
2006: 6 and 21 July

PUBLIC SERVICE (MANAGEMENT) ACT – s18 – enforcement of Public Service Commission decision - relief – reinstatement – damages by way of restitution.

Facts:

The Plaintiff was dismissed from the Public Service. The Public Service Commission reviewed the Plaintiff’s dismissal and recommended that he be re-instated and paid all lost entitlements. The recommendation was not followed.

Held:

(1) The recommendation of the Public Services Commission became binding 30 days after this was made. The Departmental Head must implement it.

Public Service (Management) Act s.18; Francis Damen v Jerry Tetaga (2005) N2800 followed and applied.

(2) It is not relevant that Public Service (Management) Act s.18 (3)(d)(ii) was not in force on 4 April, 2006 when the decision to terminate was made. The section came into force on 1 June, 2002. It is only necessary to look at the law in force when the recommendation was made on 29 July, 2002.

Government Gazette G142 of 5 September 2002 Interpretation Act s.28(1).

(3) The Plaintiff is entitled to re-instatement and damages by way of restitution for loss of entitlements. Mision Aiki v Manasupe Zurenuoc SC 797.

Counsel:
R. Uware, for the Plaintiff

21 July, 2006

1. LAY J.: This matter came before me for listing on 3 July 2003, Mr. D. Lambu appearing for the Defendants, and was fixed for hearing on 6 July 2006, previous date for hearing on 10 April having been vacated. The matter proceeded before me on 6 July, 2006 with no representation for the First and Second Defendants.

2. The Plaintiff joined the Public Service on 6 November, 2000 with the Department of Personnel Management as a Transport Officer. On or about 8 June, 2001 the Plaintiff was inducted into the Public Service. On 25 January, 2002 the Plaintiff was charged with disciplinary offences pursuant to s.50 of the Public Service (Management) Act 1995. On 28 January, 2002 the Plaintiff replied to the charges denying them. On 4 April, 2002 the Plaintiff was found guilty of the charge and dismissed by the First Defendant.

3. By letter dated 24 February, 2003 the Plaintiff sought review of the decision with the Public Service Commission. On 22 May 2003 the Public Service Commission notified the First Defendant of its intention to review the matter and sought a written response from the First Defendant with the relevant documents.

4. By letter dated 29 July, 2003 the Public Service Commission advised the First Defendant of its findings and it recommended:

1. That the Plaintiff’s dismissal be revoked;
   
2. That the Plaintiff be immediately reinstated to the substantive position he occupied prior to his dismissal;
   

100. That the Plaintiff be paid all his salary and other entitlements he had lost as a direct result of his dismissal.
     

5. The Plaintiff followed the matter up personally and through his lawyers and to date has received no response from the First Defendant.

6. The Public Services Management Act s.18 (3) (d) provides:

"The decision of the Commission under para. (c) (ii)─

(ii) shall become binding after a period of 30 days from the date of the decision.

7. That provision was considered in the case of Francis Damem vs. Jerry Tetaga (2005) N2900 (Injia D.C.J.) where his Honour said:

"A decision made under s.18(3)(c)(i) and (ii) is not complete and cannot take effect until it is immediately communicated to those summonsed. The word "immediate notification" under s.18(3)(c)(iii) means on the same day or shortly after the decision is made, because under s.18(3)(d)(ii), the decision becomes binding as or "from the date of the decision". In my view, the binding effect of the decision, therefore, is conditional upon notification of the decision. The notification must be made to the persons summonsed to appear and heard on the review, under s.18(3)(a) and (b). Notification of the decision through other persons be they their sub-ordinates, servants or agents, (except a person delegated by the Secretary under s.18(3)(a)(ii)) falls short of the mandatory requirements of s.18(3)(c)(iii). There is no question that when that is done, the decision becomes binding by operation of law – by virtue of s.18(3)(d)(ii). Once the decision becomes binding, the Departmental Head is bound to implement the decision of the Public Service Commission. He has no choice - he or she must implement the decision. If he or she fails to do so, a person aggrieved by the refusal or failure to implement the Public Service Commission decision may apply to the National Court for judicial review under O16 of the National Court Rules seeking an order of mandamus. "

8. I entirely agree, respectfully, with the observations of his Honour. The letter of the Public Services Commission dated 29 July, 2003 and addressed to the Acting Secretary of the Department of Personnel Management is before me in evidence. On 10 April, 2006 the Court ordered, in the presence of counsel for the Respondents, that the parties file their extracts of argument by 19 April, 2006. The Respondents filed no extract and they have therefore not taken any issue with service of the decision or with the proposition that it has come into effect and is binding and enforceable. The Departmental Head is bound to implement it.

9. However I should make reference to an argument raised to the Public Services Commission in the letter of the Acting Secretary dated 28 August, 2003. In that letter it was said "... I accept Secretary Tsiamalili's decision to terminate his services for non--performance which decision was made in April 2002 prior to the Amendment to the Public Service (Management) Act which makes Public Service Commission recommendations binding on Departmental Heads." The Acting Secretary was clearly arguing that because s.18(3)(d)(ii) was introduced after the decision was made to terminate the Plaintiff, the provision could not be relied upon. The fallacy in that argument is clearly this, the right to review existed prior to the request for a review, in the provision which applied before the coming into force of the Public Services (Management) Amendment Act No. 24 of 2002 on 1 June, 2002: See Gazette G142 of 5 September, 2002 at p.3. Where an enactment is brought into force by a notice in the Gazette, that notice may fix a date for commencement; see Interpretation Act s.28(i). At all material times the Plaintiff had that right to have his termination reviewed, and if reviewed in his favour, to have a recommendation made to his Departmental Head. That occurred and the recommendation was made after the amendment came into force. The date of the decision to terminate is irrelevant for the purposes of determining whether or not the recommendation becomes binding. It is only necessary to look at what was the state of the law at the date the recommendation was made. The new provision was in force at that date, making the recommendation binding 30 days after it was made.

10. It is only necessary now to look at what relief the Plaintiff should have. He is seeking reinstatement and back pay. In Mision Asiki v Manasupe Zurenuoc (2005) SC797 (Jalina, Cannings and Manuhu JJ) the court held that:

1. The relief ordered in a judicial review proceeding, if any, was in the discretion of the Court;
   
2. In the National Court the approach has not been consistent, on the one hand there is the argument that back pay amounts to an unjust enrichment for no work, on the other there are many cases where re-instatement has been accompanied by an order for payment of all lost entitlements.
   
3. A person who succeeds in a judicial review after fighting it for many years should receive monetary compensation in the same way that a successful plaintiff in an action for wrongful dismissal or breach of contract receives damages by way of restitution.
   
4. Reinstatement is a remedy available to the Court and has been availed of in a number of cases where Public Servants have been dismissed.
   

11. The Plaintiff in this case was a comparatively junior officer and I consider that in an organization of the size of the Public Service it would cause relatively little disruption to reinstate him to a position equivalent to that which he held before his dismissal.

12. The Plaintiff has persisted with his case; he has been ignored throughout by the First Defendant and his replacement. I consider that it is fair that he receive an award of damages equivalent to his lost salary and entitlements from the date of his termination until judgment, following and applying Mision Asini v Manasupu Zurenuoc (supra).

ORDERS:

1. The First Defendant’s decision of 4 April 2002 to terminate the Plaintiff is quashed;
2. The Plaintiff is to be forthwith re-instated to a position financially equivalent to the position held by him prior to his termination;
3. The Plaintiff is awarded damages equivalent to the salary and entitlements he would have earned between the date of his termination and today;
4. Liberty to the Plaintiff to apply for quantification of the damages if necessary;
5. Respondents to pay the Plaintiff’s costs of the proceedings.
   

Public Solicitor: Lawyers for the Plaintiff
Solicitor General: Lawyer for the Defendants