Yafai v Kereme [2018] PGNC 523; N7637 (13 December 2018)

N7637

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 806 OF 2014

BETWEEN:
JACOB YAFAI
Applicant

AND:
DR. PHILIP KEREME (Ph.D), CHAIRMAN – PUBLIC SERVICES COMMISSION
First Respondent

AND:
PUBLIC SERVICES COMMISSION
Second Respondent

AND:
SIR MANASUPE ZURENUOC, Kt, OBE, CHIEF SECRETARY and in his capacity as the ACTING SECRETARY – DEPARTMENT OF FINANCE
Third Respondent

AND:
DR. KEN NGANANG (Ph.D), ACTING SECRETARY – DEPARTMENT OF FINANCE
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Nablu, J
2018: 5^th June
13^th December

JUDICIAL REVIEW – Public Services Commission – review of a personal matter – ss. 18, 41 Public Services (Management) Act – Senior National Contract Officers – no evidence of executed contract – preliminary issue – mater remitted back to Public Services Commission for re-consideration.

Cases cited:
No cases cited.

Counsel:

I. Molly & M. Kombri, for the Plaintiff
R. Simbil, for the First & Second Defendant
A. Nasu, for the Third, Fourth, & Fifth Defendant

13^th December, 2018

1. NABLU, J: The plaintiff seeks to review the decision of the Public Services Commission. The plaintiff contends that the first and second defendants committed serious errors of law and procedure. The plaintiff seeks orders in the nature of certiorari to quash the decision of the third defendant to dismiss him from employment on 15^th July 2013. He also seeks to quash the decision of the Public Services Commission dated 9^th September 2014 which upheld the decision of the Secretary to dismiss the applicant from employment. The plaintiff also seeks various declarations and an order that he is reinstated and paid his lost salaries and entitlements.

2. The material facts of the matter are not disputed. The plaintiff was employed as the Deputy Secretary (Operations) of the Department of Finance. The position was a contract position, however, the plaintiff did not execute a contract of employment. Notwithstanding that, he was paid the contractual allowances and entitlements in accordance with the terms and conditions of a Senior National Contract Officer. For the purposes of the hearing the plaintiff concedes to the fact that he was a contract officer. On 17^th of May 2013, the plaintiff was suspended by the Secretary on grounds of serious allegations which related to the approval and facilitation of payments to Paraka Lawyers. The plaintiff was then charged for numerous serious disciplinary offences and he responded to those charges. On 15^th July 2013, the Acting Secretary for Finance found him guilty of those charges and terminated his contract of employment. He was effectively dismissed from the Public Service. The plaintiff applied to the Public Services Commission to review the Acting Secretary’s decision to dismiss him.

3. The Public Services Commission considered the application for review and decided to uphold the decision of the Acting Secretary. The plaintiff sought leave to review the decision of the Public Services Commission to the National Court.

4. Initially, the National Court refused the application for leave and dismissed the leave application. The plaintiff then appealed to the Supreme Court. The Supreme Court upheld the appeal, granted leave for judicial review and remitted the matter back to the National Court for hearing. The Supreme Court in granting leave ordered that the plaintiff was only granted leave to review the decision of the Public Services Commission.

5. In the decision subject of review, the Public Services Commission decided to uphold the Secretary’s decision to terminate the plaintiff’s employment. Upon reading the decision, it appears that the Public Services Commission upheld the Secretary for Finance’s decision for the following reasons. They are summarized as:

1. there was no procedural defects in the disciplinary procedure;
2. there was evidence that the plaintiff removed relevant material and documents during the course of the investigation; and
3. the Acting Secretary charged the plaintiff and also considered the charges and imposed the penalty which breached the mandatory disciplinary procedure.
   

6. The plaintiff challenges the decision of the first and second defendants on four main grounds. Firstly, the plaintiff says that the Public Services Commission failed to quote the relevant sections of the law of which he is alleged to have breached and therefore the decision is flawed.

7. In the other grounds of review (ground 5.1 and 5.4) the plaintiff contends that he provided ten (10) grounds of review and the Public Services Commission failed to consider all those grounds of review. They took into account irrelevant considerations. No reasons were provided for the decision. And that the decision by the Public Services Commission was unreasonable within the Wednesbury sense.

8. Before I consider the questions raised in the substantive judicial review. It is necessary to consider a pre-requisite question which deals with the jurisdiction of the Public Services Commission to consider such personal review matters.

9. At the outset, I am of the view that the Senior National Contract Officer’s right of review against the decision of the Secretary of Personnel Management to terminate a contract or enforce any rights or obligations under a standard contract is to institute legal proceedings for unfair termination or unlawful dismissal.

10. My view is supported by Clause 25 (d) of the Standard Contract Terms and Conditions which reads:

“The decision of the Secretary for the Department of Personnel Management, shall be final and the terminated Senior Officer may seek redress through the Papua New Guinea Courts of Law in the event that he considers the termination to have been made unfairly.”

11. In the present case, the plaintiff accepts that this was a contract position and despite been paid the contractual allowances and entitlements, he did not execute a contract. Section 41 of the Public Services (Management) Act requires that a contract is executed.

12. 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. (Emphasis mine)

13. It is clear, that Section 41 of the Public Services (Management) Act is worded in mandatory terms. Section 41(2) is clear that the contract of employment must be executed by the appointee and in this case the department head of the Department of Personnel Management who executes the contract on behalf of the State.

14. There is no evidence of a contract of employment duly executed. In the absence of such evidence, I find that the plaintiff was not employed by a Standard National Contract because there is no evidence of an executed contract between the plaintiff and the Secretary. Therefore, the Public Services Commission should have considered the review of a personal matter pursuant to the provisions of the Public Services (Management) Act. By considering other irrelevant matters like the National officer’s contract terms and conditions, they did not have the jurisdiction to do so.

15. For that reason, I find that the Public Services Commission was correct in accepting his application for review of a personal matter. That the Public Service Commission has the jurisdiction to consider the review. However, the Public Service Commission proceeded to make a decision on the basis of contract provisions which they did not have the power to do so. The Public Service Commission should have considered the review on the basis that the plaintiff was a non-contract officer.

16. For the foregoing reasons, I decline to consider the grounds of review and determine the plaintiff’s judicial review application. It is appropriate that I order this matter is remitted back to the Public Services Commission for proper consideration of the plaintiff’s application for a review of a personal matter dated 7^th of August 2013.

17. Costs follow the event, the respondents to pay the plaintiff’s costs of and incidental to this proceedings to be taxed if not agreed.

Kombri Lawyers: Lawyers for the Plaintiff
Public Services Commission – In house Legal counsel: Lawyers for the First and Second Respondents
Solicitor – General: Lawyers for the Third and Fourth Respondents