Lupai v Kali [2015] PGNC 208; N6109 (2 October 2015)

N6109

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 446 OF 2013

BETWEEN:

PAUL LUPAI
Plaintiff

AND:

JOHN KALI in his capacity as CHAIRPERSON OF SELECTION COMMITTEE, DEPARTMENT OF PERSONNEL MANAGEMENT
First Defendant

AND:

THE PUBLIC SERVICES SELECTION COMMITTEE, DEPARTMENT OF PERSONNEL MANAGEMENT
Second Defendant

AND:

JOHN KALI – SECRETARY FOR DEPARTMENT OF PERSONNEL MANAGEMENT
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Nablu, AJ
2014: 19 November
2015: 2 October

JUDICIAL REVIEW – Public Services (Management) Act s 41 – Employment in Public Service – Senior Management Contract – Decision not to renew Contract – National Senior Management Contract - Terms and conditions pursuant to Contract – Employment not subject to Public Law – Decisions not subject to Public Law rather Contract Law – No remedy in Judicial Review – Remedy in damages in Contract Law - Application for Judicial Review is dismissed.

Cases cited:

Ereman Ragi v. Joseph Maingu (1994) SC 459
Kopil v. Culligan (1995) N1333
Kuluah v. University of PNG (UPNG) [1993] PNGLR 494
Vaki v. Baki (2012) N4809

Counsel:

G.Kogora, for the Plaintiff
A.Nasu, for the Defendants

2nd October, 2015

1. NABLU, AJ: Leave was granted to Paul Lupai, the plaintiff on 25th September 2013 to review various decisions of the defendants to terminate or refuse to renew his senior management contract, category C of the Public Service, thereby rendering him an unattached officer or effectively terminating his employment with the Public Service, pursuant to Order 16 Rule 1 of the National Court Rules.

2. There are number of decisions under review which I have summarised below for ease of reference.

3. The first decision under review is the decision of the first and second defendant dated 13th March 2012 to award the position of Executive Manager, Management Information Service (MIS) Division, Grade 18, Position No. DPM 6 to a person other than the plaintiff.

4. The second decision of the third defendant dated 15th March 2012, terminated the plaintiff’s service from the public service.

5. The failure of the third defendant to reinstate the plaintiff to his substantive position as ordered by the Public Services Commission in its decision made on 25th February 2013.

Background Facts

6. The plaintiff joined the Public Service in 1990 and was employed in various capacities and different departments until he was allegedly terminated in 2012. In 2005 he commenced employment as the Executive Manager of the MIS Division in the Department of Personnel Management. He was employed on contract as a senior officer for a term of three (3) years. On 25th May 2008, his contract was renewed for another three (3) year term and he retained his position as the Executive Manager – MIS.

7. Days before his contract was due to expire on 25th May 2011, he was informed by way of a letter dated 11th May 2011 by the departmental head that his contract was due to expire. Because his performance appraisal was not submitted within time, the position would now be advertised in the open market. He was at liberty to apply for the position.

8. On 30th May 2011, the Secretary informed the plaintiff that he had received the performance appraisal late and therefore the contract review process had not been complied with, the plaintiff was now an unattached officer. The position was then advertised in August or September 2011 and the plaintiff applied for it.

9. The performance appraisals were then submitted in December 2011. On 22 March 2012, the plaintiff was notified by notice that his application for the position had been unsuccessful. On 2 May 2012, the plaintiff was informed that his employment had ceased and he was directed to return all office equipment and vacate the office. On 3rd May 2012 he removed all his personal effects and vacated the office.

10. On 7th May 2012 he applied to the Public Services Commission to review a personal matter pursuant to Section 18 of the Public Services (Management) Act.

11. On 25th February 2013 the Public Services Commission made a decision in favour of the plaintiff and directed that the Departmental Head reinstate the plaintiff to his substantive position. They also annulled the decision of the Selection Committee to appoint another candidate for the position.

12. The plaintiff raised six grounds of review to challenge the defendant’s decisions. The plaintiff has not clearly articulated the grounds of review. Upon perusal of the Statement in support pursuant to Order 16 Rule 3(2)(a) of the National Court Rules, I have summarised the grounds of review to reflect the legal grounds of judicial review.

13. The first five grounds of review alleged that the third defendant did not comply with the mandatory statutory process under General Order 9 of the Public Services General Orders (PSGO).

14. The sixth ground of review is based on the failure of the third defendant to comply with the decision of the Public Service which is legally binding pursuant to Section 18(3) (d) (ii) of the Public Services (Management) Act.

15. The legal issues identified by the parties for determination by the Court are that:

1. Whether the third defendant complied with the mandatory steps under the General Orders to refuse the renewal of the plaintiffs’ contract?
   
2. Whether the plaintiffs’ performance rating of 4, automatically warranted renewal of his Contract?
   
3. Whether the decision of the first and second defendants dated 13th March 2012 to appoint an officer other than the plaintiff to the position of Executive Manager, MIS of the Department of Personnel Management is null and void and of no effect?
   
4. Whether the decision of the third defendant, dated 15th March 2012 to terminate the services of the plaintiff from the Public Service is null and void and of no effect?
   
5. Whether the decision of the Public Services Commission dated 25th February 2013 to reinstate the plaintiff to his substantive position is legally binding and the Court should endorse it?
   

16. The plaintiff relied on his Affidavit sworn and filed on 16th August 2013. In response the defendants filed the Affidavit of John Kali sworn on 7th May 2014 and filed on 8th May 2014.

17. The principle area of law in dispute, is the interpretation and application of the Public Services (Management) Act and the Public Services General Orders.

18. Before considering the grounds of review raised by the plaintiff, I am of the view that the pertinent legal issue to be determined, is whether the decisions are administrative decisions which can be reviewed by the Court. The plaintiff was employed under a contract of employment under the National Public Service. Given that fact, which is not disputed, the first question which comes to my mind is whether the plaintiffs’ employment was one of public law? If that question is answered in the negative, then the next question for the Court to determine is what remedy is available to the plaintiff for the breach of his terms and conditions of employment? It is settled law that where a person’s employment was governed by private law his remedy does not lie in judicial review but damages for breach of contract or damages for unlawful termination.

19. Ms Kogora of counsel for the plaintiff submitted that judicial review was available to the plaintiff. The decision making power which the public authority made its decision is derived from a statute or subordinate legislation. She submitted the case of Vaki v. Baki (2012) N4809 as authority to support the contention that judicial review is available to a public officer under contract.

20. She also submitted the National Court case of Ereman Ragi v. Joseph Maingu, where a senior officer of the POSF Board had been terminated on the ground of non-performance. She submitted that the National Court granted judicial review and found that the applicant was wrongfully terminated and should be reinstated to his position.

21. At the outset, I reject counsel’s submission. The facts of the case in Vaki v. Baki (supra) are distinguishable from the present case. The appointment in that case related to a public official, namely, the Deputy Police Commissioner which was provided for under the Police Act and the Constitution. In that case, the appointing authority was the Police Commissioner and the National Executive Council. The Court held that the appointment was made by these two public authorities pursuant to legislation therefore, the decisions were subject to judicial review. Whereas in this case, the appointing authority is the departmental head, who is responsible for the administration of the contract of employment between the plaintiff and the Public Service. The appointment in the present case was not that of a public official and therefore was not of a public law nature.

22. Furthermore, the National Court case of Ereman Ragi v. Joseph Maingu, that case was overruled by the Supreme Court in Ereman Ragi v. Joseph Maingu (1994) SC 459. The Supreme Court allowed the appeal and ruled that the respondent’s employment was one of private law and therefore not susceptible to judicial review.

23. Ms Nasu of counsel for the State submitted that the plaintiffs’ contract of employment is governed by the Public Services (Management) Act and therefore he is bound by the terms and conditions of the Contract as provided for in the Agreement entered into between the plaintiff and the State. She submitted further that by accepting the terms and conditions of the contract he had taken himself out of the normal public service disciplinary and termination process. She referred the Court to the case of Kopil v. Culligan (1995) N1333 and Kuluah v. University of PNG (UPNG) [1993] PNGLR 494.

24. It is not disputed that the plaintiff was employed under a contract of employment. A copy of the Contract is annexed to the Affidavit of the plaintiff and is entitled “The agreement for senior officers of the National Public Service (the contract) and dated 25th May 2008”.

25. Senior public service officers’ contracts of employment are governed by Part X of the Public Service Management Act. A person who is appointed to a senior office is still considered an officer of the public service, however, the terms and conditions of employment are those contained in the Contract. Section 41 of the Public Services (Management) Act states that:

41. CONTRACTS OF EMPLOYMENT.

(1) Subject to the Salaries and Conditions Monitoring Committee Act 1988 an officer appointed to a management position shall be employed under, and hold office in accordance with, the terms and conditions of a contract of employment with the State, (sic)

(2) A contract of employment under Subsection (1) shall be executed by the appointee and, on behalf of the State, by –

(a) in respect of appointees under Section 40(2)(a), the Head of State; and

(b) in respect of appointees under Section 40(2)(b), the departmental head of the Department of Personnel Management.

(3) Notwithstanding the provisions of this Act relating to discipline of officers, a contract of employment shall make specific provision for discipline and an officer employed under a contract of employment is exempted from the provisions of Part XIV of this Act.

(4) Notwithstanding the provisions of this Act relating to promotion and appointment, where –

(a) a contract of employment terminates or is terminated and is not subsequently renewed; and

(b) the appointee under that contract of employment is not re-appointed to another office under this Act, employment in the Public Service is terminated on conclusion of the due notice period.

26. In the contract it states that the agreement and the Standard Terms and Conditions for employment of senior officers in the public service 1999, category B and both documents shall be read together. The terms and conditions have the full force and effect of the agreement. It was also agreed that the contract was governed by the Public Services (Management) Act and the General Orders made thereunder and where the contract was silent, the General Orders prevailed. Also in any event where there is any inconsistency in the Contract and the General Orders the Contract prevailed.

27. Under the Public Services (Management) Act, there are different categories of employees. Those that are employed as departmental heads are governed by different appointment procedures and are appointed by different authorities. On the other hand, there are those senior officers who are appointed under contracts pursuant to Section 41 of the Act. Those senior offices are designated by the Minister. For contract officers, their terms and conditions of employment are stipulated in the contract. The rest of the employees are employed under the normal terms and conditions provided for under the Public Service (Management) Act.

28. The departmental head is responsible for the administration of the Contract. This is probably based on the reason that the Department of Personnel Management is responsible for the National Public Service.

29. I am of the view, that judicial review is not available to the plaintiff. His terms and conditions of employment were governed by the Contract and therefore, his action lies in Contract Law. The Contract governs his terms and conditions of employment. It also includes conditions of termination of contract.

30. Even if I am wrong, the Public Services Commission exceeded their powers to review the plaintiff's complaint which they did not have jurisdiction to determine. The plaintiffs' remedy lies in Contract Law. The proper course was for the plaintiff to file an action for damages for breach of contract or unlawful dismissal of employment. He is still at liberty to take that course of action, judicial review is not available to him. The provisions in the Contract refer to a review of the decision by the Secretary for Personnel Management, such decision is reviewable by the Court. The Public Services Commission acted ultra vires when they proceeded to hear and determine the application for a review of the personnel matter pursuant to Section 18 of the Public Services (Management) Act.

31. I am of the view that the plaintiff should have filed an action for breach of contract, since judicial review is not appropriate.

32. For the foregoing reasons, the plaintiff's application for judicial review is refused and is dismissed. The plaintiff is to pay the defendant's costs.
______________________________________________________________
Mirupasi Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants