Ango v Mapusa [2013] PGNC 265; N5693 (27 September 2013)

N5693

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 691 OF 2011

BETWEEN:

JOSEPH ANGO & SIMON SIPA
First Plaintiff

AND:

JAMES NAPILI
Second Plaintiff

AND:

JOHN MAPUSA, Acting Director General, National Narcotics Bureau
First Defendant

AND:

THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Gavara-Nanu J.
2012: 12 December
2013: 27 September

CONTRACT - Casual employees - Employment Act, Chapter No. 373, ss. 1, 10 and 16 - Oral contract - Contract of service - Relevant period of contract of service - Termination without suspension or charge - Whether the employees can be reinstated.

Cases cited:

Benedict Petrus v. Telikom PNG Ltd (2008) N3373
Damine Take v. Amean & Ors (2006) N3070
Mairi Hoi v. Arthur Somare (2012) N4749

Counsel

T. Berem, for the plaintiff
M. Mai, for the defendants

27th September, 2013

1. GAVARA-NANU J: The plaintiffs are seeking review of the decision by the first defendant to put them off the payroll of the National Narcotics Bureau (NNB), which employed them as casual workers.

2. The decision was made on 31 October, 2008. When putting the plaintiffs off the NNB payroll, they were treated as terminated although they were never charged with any disciplinary offences.

3. The evidence shows that the plaintiffs were put off the NNB payroll without being charged with any disciplinary offences either under the Public Services Management Act 1995 or the Public Service General Orders.

4. On 5 September, 2008, the Secretary for Department of Personnel Management (DPM) directed that all aggrieved employees including the plaintiffs by the actions of the first defendant be reinstated to their previous positions with the NNB with full pay and without loss of their entitlements. That decision was made after the plaintiffs and other employees took their complaint to the Secretary for DPM in August, 2008. The Secretary for DPM appears to have reversed that direction in a letter dated 3 October, 2008. I have decided to disregard that letter because it was subject to Public Service Commission's decision upon review of the plaintiffs' complaint.

5. On 10 February, 2010, after investigating the plaintiffs' complaint, the Public Services Commission (PSC) nullified the decision of the first defendant.

6. Apart from the plaintiffs not being charged with any disciplinary offences or suspended or terminated before being put off the NNB payroll which the plaintiffs argue is sufficient ground to render the actions of the first defendant unlawful, they also claim that the first defendant's position as Acting Director General of NNB had already expired when he put them off NNB payroll. Thus the plaintiffs argue that the first defendant had no authority at all to put them off the NNB payroll. There is evidence that the first defendant's first appointment as Acting Director General of NNB expired on 9 October, 2007.

7. I am merely highlighting these facts because the defendants have conceded through their counsel Ms Mugugia that actions of the first defendant were unlawful. I must applaud Ms Mugugia for this concession because even if the application had been defended, the Court would have still found infavour of the plaintiffs. The evidence upon which the Court could make such a finding is overwhelming.

8. I have disregarded the decision by the Secretary for DPM to confirm the plaintiffs' purported termination in a letter dated 3 October, 2008, because that decision as noted was subject to the decision of the PSC, which is empowered under the Public Services (Management) Act, to review grievances of public servants.

9. The PSC's decision was binding on the defendants after 30 days from the date of the decision under s. 18 (3) (d) (ii) of the Public Service Management Act.

10. The National Court nonetheless has power to review such decision if challenged in Court. The Court in its equitable supervisory jurisdiction can either affirm the decision of the PSC, vary it or declare it as void. In this regard the power of the Court is wide. If the Court has to vary the decision of the PSC or declare the decision void, it must do so on proper grounds and be based on strong and cogent evidence.

11. In this case there is clear uncontested evidence that the first defendant had no authority to put the plaintiffs off the NNB payroll, because his appointment as Acting Director General of NNB had expired. This is an added reason why the Court should find that the first defendant's actions were unlawful.

12. Thus on the basis of this finding as well as the concession made by the defendants through their counsel, I affirm the decision of the PSC and find that the first defendant's action was unlawful.

13. The question then is, what is the appropriate relief for the plaintiffs? One of the matters that the PSC noted in its decision was that the Memorandum of Agreement (MOA) between Public Employees Association (PEA) and DPM which provided that casual employees employed continuously for twelve months be recategorized as Public Service Grade 1 and be paid accordingly.

14. For the types of relief each plaintiff should be granted should be determined by considering each plaintiff's case separately from the other. First, in regard to James Napili, according to his affidavit he was employed by NNB on 1 January, 2001, as a security guard. In paragraph 3 of his affidavit, he says because there was infighting at the top Management of NNB, he decided to go to his village in Enga Province. He returned to Port Moresby and tried to resume work with NNB in early 2008. In other words he was away in his village for 5 years. On his return to work he was told that he had been put off the NNB payroll. He says in the same paragraph that when he was in his village he received only one fortnight pay. The MOA between the PEA and DPM came into effect on 1 January, 2007, when James was in his village. This plaintiff like the other plaintiff is seeking orders that he be reinstated to his former job with NNB and be paid general and special damages. These claims are in addition to his claim that all his lost wages and entitlements be paid to him.

15. Should the relief sought by James be granted? In answering this question, it is appropriate to stress that the plaintiff as a casual or a temporary employee of NNB had to be appointed to that position by the Director General of NNB. As a casual employee, pursuant to s. 10 of the Employment Act, Chapter No. 373, he was on oral contract with NNB: Benedict Petrus v. Telikom PNG Ltd (2008) N3373 and Mairi Hoi v. Arthur Somare (2012) N4749. Pursuant to s. 16 of the Employment Act, the period of his oral contract had to be determined by reference to the periods by which his wages were paid. Thus, in James' case, he received his last fortnight pay while he was in Wabag. Applying s. 16 of the Employment Act, the period of his oral contract with NNB ended on the day he received his last wage or fortnight pay when he was in Wabag. He left for Wabag in 2003, so one would expect that he received his last pay sometime in 2003.

16. Thus pursuant to s. 16 of Employment Act, James ceased being an employee of NNB well before he was purportedly put off the NNB payroll on 3 October, 2008. In my opinion, James had also by his own conduct in staying away from his employment for 5 years, which is the period in which he was no longer on NNB payroll, terminated his oral contract with NNB.

17. The Court is not bound by the decision of the PSC. This was the approach taken by the Court in Donnie Take v. Amean & Ors (2006) N3070, in that case the Court refused to grant mandamus to compel the defendant to comply with the decision of the PSC and reinstate the plaintiff to his former employment on the ground that such an order would cause administrative hardship in NNB.

18. In this case, James was no longer deemed to be an employee of NNB because his oral contract ended on the day his last wage was paid to him. He was therefore no longer an employee of NNB by 31 October, 2008, the date on which the plaintiffs were put off the NNB payroll.

19. In regard to the other two plaintiffs they were also on oral contracts of service pursuant to s. 10 of the Employment Act. Section 1 of Employment Act, defines contracts of services as "any agreement whether oral or in writing, express or implied, by which one person agrees to employ another person as an employee and that other person agrees to be employed as an employee".

20. In James' case, by staying away for 5 years, in Wabag, he was also in breach of his contract of service with NNB because in those 5 years he did not work for NNB. In other words he did not provide any service to NNB in those 5 years. For these reasons, the application by James is refused.

21. In regard to Joseph Ango and Simon Namba unlike James, they continued to render services to NNB up to 3 October, 2008, when they were put off NNB payroll. It is clear that their contracts of service were unlawfully terminated. I therefore find that the PSC's decision in their cases is binding on the defendants. They were employed as a driver and a cleaner respectively. I appreciate that it is almost 5 years since they were put off NNB payroll and their contracts terminated, however, I find that these are jobs that NNB can find for the two plaintiffs within its organization.

22. I therefore order that they be reinstated to their previous employment forthwith. In case of Simon, he was the official driver for the previous Director General. In case of Joseph, he was a cleaner. If they cannot be re-employed on their previous respective positions, then they should be re-employed to do jobs at those levels.

23. The two plaintiffs have sought orders that they be reinstated as Grade 1 employees in the Public Service, pursuant to the MOA entered into between the PEA and DPM. After considering the matter, I have come to the view that I cannot make such orders because they have to first satisfy the requirements of s. 35 of Public Services Management Act, i.e they have to undergo various medical tests and other mandatory procedures before they can become permanent public servants. I consider that whether they should become Grade 1 public servants and become permanent public servants or not is a matter which should be left to their employer and the DPM to decide quickly. I would however recommend strongly that NNB and DPM seriously consider their cases pursuant to the terms of the MOA and decide quickly whether they should be made permanent public servants at Grade 1.

24. The plaintiffs have claimed general and special damages however, I do not think I can order such damages. I am of the view that if they wanted to claim damages, they should have claimed them by a writ of summons and properly plead them.

25. I therefore order that only their lost wages and entitlements be paid to them. The period for which lost wages and entitlements should be calculated is from 3 October, 2008, which is the day they were put off the NNB payroll to 17 August, 2011, when the proceeding was commenced. When calculating their lost wages and entitlements, they should include any leave credits due to them during the period between 3 October, 2008 and 17 August, 2011. The lost wages for the period should be calculated at the level they were paid when they were put off the NNB payroll, and that such lost wages should be calculated no lower than the minimum wages for casual workers at that time. If the minimum wages have been increased then the lost wages must be calculated at such minimum wages level. The calculation of such lost wages and entitlements should also take into account any CPI increases.

26. On top of the lost wages and entitlements, I order that the defendants pay K2,500.00 to each plaintiff for causing them mental distress and anxiety.

27. The final amount calculated in lost wages and entitlements for the plaintiffs are to be paid with interest at 8% per annum. I have ordered interest because the plaintiffs have been unlawfully deprived of the use and enjoyment of such wages and entitlements.

28. The defendants will pay the plaintiffs' costs of and incidental to the proceeding.
____________________________________________________________
Public Solicitor: Lawyers for the plaintiffs
Solicitor-General: Lawyers for the defendants