Noese v Abraham [2019] PGNC 240; N8045 (14 October 2019)

N8045

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. JR NO. 83 of 2019

BETWEEN
IVAN NOESE
Plaintiff

AND
DR.JIM ABRAHAM, ACTING CHIEF EXECUTIVE OFFICER OF ANGAU GENERAL HOSPITAL
First Defendant

AND
DR. CHRISTOPHER KENIHERCZ, CHIEF EXECUTIVE OFFICER OF ANGAU GENERAL HOSPITAL
Second Defendant

AND
MR. DAVID WISSINK, CHAIRMAN OF ANGAU GENERAL HOSPITAL BOARD
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Lae: Makail, J
2019: 23^rd September &14^th October

JUDICIAL REVIEW – Review of Public Service decision – Decision to vary termination of officer – Termination substituted with demotion of position – Failure by General Hospital to comply with decision – No review sought against decision to vary termination – Effect of – Decision binding after thirty days – No lawful reason not to comply with decision – Mandamus granted – Public Service (Management) Act – Section 18

Case Cited:
Cliff Gabi Boutau v. Central Provincial Government (2016) N6284
JominoHolee&Ors v. Sem Vegogo& The State (2013) N5101
Peter Bon v. Mark Ngagai Acting Chief Executive Officer of Wewak General Hospital &Ors(2001) N2123

Counsel:
Mr. L. Kevere, for the Plaintiff
Ms. S. Maliaki, for the Defendants

JUDGMENT

14^th October, 2019

1. MAKAIL, J: The plaintiff was the Director of Corporate Services Division of Angau Memorial General Hospital in Lae from March 2007 until 17^th June 2015 when he was terminated for disciplinary reasons. He was found guilty of assaulting the first defendant after a disagreement over a decision of the Angau General Hospital Board to withhold additional payments and entitlements of the latter until further clarification from the latter.

2. On 21^st March 2016 the plaintiff lodged an appeal to the Public Service Commission (“PSC”) against the decision of the defendants to terminate his employment. Due to lack of funding, the PSC did not complete its hearing until two years later and on 30^th July 2018, upheld the appeal in part, varied the decision to terminate the plaintiff and demoting him to a Grade 15 position.

3. The defendants failed to act on the PSC decision within the grace period of 30 days by either complying with it or reviewing it by way of judicial review. By 30^th August 2018, by virtue of Section 18(6)(b) of the Public Service (Management) Act, the PSC decision became binding on them and they must comply with it: see Jomino Holee & Ors v. Sam Vegogo & The State (2013) N5101 and Cliff Gabi Boutau v. Central Provincial Government (2016) N6284.

4. Still they did not comply. They even did not response or give any reasons for their refusal to comply with it. After seven months had passed and with no response from the defendants, on 19^th February 2019 the plaintiff commenced this judicial review proceeding to seek an order in the nature of mandamus to compel the defendants to comply with the PSC decision and reinstate him to a Grade 15 position.

5. It was not until the judicial review proceeding was commenced that the defendants filed an affidavit of Daniel Narakou the Human Resource Manager of the Hospital saying that they did not comply with the PSC decision because the position of Director of Corporate Services Division was advertised and someone had applied and given the position. That person has been in that position for the last three years and there will be a clash between that person and the plaintiff if the latter were reinstated to the same position.

6. Secondly, to reinstate the plaintiff to this position would be detrimental to good order and administration of the hospital because it will cause tension and disharmony between the plaintiff and senior officers of the hospital who had witnessed the assault of the first defendant by the plaintiff.

7. However, the defendants’ defence is misconceived. The three significant factors which are against the defendants are these; First, the PSC varied the defendants’ decision to terminate the plaintiff as Director of Corporate Services Division and replace it with a demotion to a Grade 15 position.

8. Second, the defendants did not seek judicial review of the PSC decision. This means that the validity of decision to demote the plaintiff to a Grade 15 position has not been tested and found to be wrong. It must, therefore, stand and be complied with. Third, there will not be any inconvenience or disruption caused to the holder of the position of Director of Corporate Services Division because the plaintiff will not be reinstated to that position but a different one.

9. It follows that there was no lawful reason for the defendants not to comply with the PSC decision. The question of what relief is to be granted remains discretionary. In a case where a public servant is seeking reinstatement, one of the factors the Court will look at is, his or her professional qualification and experience to determine whether or not the public servant can be employed back in the public service: see Peter Bon v. Mark Ngagai Acting Chief Executive Officer of Wewak General Hospital & Ors (2001) N2123, per Gavara-Nanu J.

10. In this case, there is no dispute that the plaintiff is a holder of a Masters Degree from an overseas University and had served for more than ten years prior to his termination. The State through the Angau Memorial General Hospital had spent money to educate him when he went for further studies and in return, benefited from his knowledge and experience when he returned. It would be simply a waste of money and human resource to remove a public servant such as the plaintiff when his wealth of knowledge and experience could be best utilised by the hospital. That is not to say that what he did (assaulting his superior) should be condoned but, at the very least, he has been vindicated by the PSC. As the PSC had decided to have the plaintiff reinstated to a Grade 15 position, it gives the defendants the option of re-employing him on any position that carries a pay Grade 15 level.

11. All these factors support the plaintiff’s case that the defendants should be ordered to comply with the PSC decision. The plaintiff further seeks an order for his pay as Director of Corporate Services Division to be restored with no loss from the date of termination to the date of the PSC decision. He shall be awarded the relief as sought to the extent that the lost pay and other entitlements will be assessed and awarded at Grade 15 position based on the PSC decision.

12. In addition, the plaintiff seeks general damages for mental distress and hardship. As there is no evidence and submissions made in support of it, general damages will be refused. Finally, he seeks costs of the judicial review proceeding. He shall have the costs of the proceeding, to be taxed, if not agreed.

13. The orders are:

1. The application for judicial review is upheld.

2. An order in the nature of mandamus compelling the defendants to comply with the Public Service Commission’s decision of 30^th July 2018 to vary their decision to terminate the plaintiff as Director of Corporate Services Division of Angau Memorial General Hospital and reinstate him to a Grade 15 position.
3. An order in the nature of mandamus compelling the defendants to restore the plaintiff’s pay and other entitlements on a Grade 15 position, to run from the date of termination, to date of the Public Service Commission’s decision of 30^th July 2018.
4. An order for general damages for mental distress and hardship is refused.
5. The defendants shall pay the costs of the judicial review proceeding, to be taxed, if not agreed.

Judgment and orders accordingly.
_______________________________________________________________
Public Solicitor: Lawyers for Plaintiff
Solicitor General: Lawyers for Defendants