Walongor v Mumu [2021] PGNC 506; N9311 (19 November 2021)

N9311

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 243 OF 2019

BETWEEN:
ALBERT WALONGOR
First Plaintiff

AND:
PERCY HARUKU
Second Plaintiff

AND:
LAWRENCE AUMORA
Third Plaintiff

AND:
ROY MUMU AS THE SECRETARY FOR TRANSPORT
First Defendant

AND:
DEPARTMENT OF TRANSPORT
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 17^th & 19^th November

PRACTICE & PROCEDURE – Judicial Review – Substantive Notice of Motion – Public Servants – Public Service Management Act 2014 – Section 55 Strike PSM Act 2014 – Termination – By Departmental Head – Amendment to CAA Act 2000 – National Weather Service – Directorate Department of Transport – Employees of Department – No Ultra Vires – No Error of Law – Judicial Review not Made Out – Refused – Cost Follow the Event.

Cases Cited:

Kilepak v Kaivovo, Secretary Department of East New Britain [2003] PGNC 91; N2402

Sinebare v Raminai [2021] PGNC 143; N8873

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Counsel:

J. Pupu, for Plaintiffs
M. Tukuliya, for the Defendants

RULING

19^th November, 2021

1. MIVIRI, J: This is the decision on the substantive notice of motion of the 20^th September 2019 by the three plaintiffs to judicially review the decision of the First Defendant Roy Mumu, who is the secretary for the Department of Transport terminating them from their employment because of strike action they conducted.
   
2. They seek declaration that the First Defendant cannot invoke section 55 of the Public Service Management Act 1995, because there was no transfer for the National Weather Service to the Department of Transport of the kind envisaged by section 259 (3) of the Civil Aviation Act 2000, because of the absence of a transfer order by the Governor General to affect such transfer.
   
3. Further they seek an Order in the nature of certiorari to bring up the decision of Mr Roy Mumu, as against them as it was ultra-Vires his powers, as the Plaintiffs were employees of the National Weather Service under the Department of Civil Aviation, and not Transport, and the Public Service Management Act 1995 now amended 2014 did not apply in their termination.
   
4. That their lost salaries and entitlements be paid to them as at the time of termination to the date of reinstatement.
   
5. Costs in the nature of Solicitor Client basis to be paid by the first defendant.
   
6. The relevant evidence in the matter is set out in the affidavits of Roy Mumu sworn and filed of the 09^th July 2021. He is the Secretary of the Department of Transport. He deposes that the plaintiffs are terminated officers of the National Weather Service. They were terminated for leading strike action over salary discrepancies in the months of January and February 2018.
   
7. And he made that decision on the 18^th April 2018 by way of a notice of termination from employment on the grounds, that each one of the Plaintiffs led the National Weather Service Staff to go on an illegal Strike (stop work), from 05^th January 2018 to 12^th January 2018. And again, from Friday 06^th April 2018 and continued to the date of the termination.
   
8. Annexure “P1, P2, & P3,” to his affidavit are the three copies of the termination letters issued to each of the Plaintiffs. They are told the reasons as to why they are terminated. And they are told also of what the management was doing to raise and settle the matter that they raised in the strike. No heed was taken by each of the Plaintiffs and they persisted with the course that they had set in the matter. They were public Servants and knew that what they were doing was illegal pursuant to section 55 strikes of the Public Service Management Act 2014. They were guilty and terminated of their employment from the Department of Transport.
   
9. They were granted leave to apply for judicial review on the 20^th August 2019.
   
10. Apart from their initial affidavits all three plaintiffs Albert Walongor, Percy Haruku, and Lawrence Aumora, have each sworn an affidavit of the same date 11^th August 2021 in response to the affidavit sworn and filed of the 19^th July 2021 by Roy Mumu. All confirmed that they were each terminated together by Roy Mumu Departmental Secretary of Transport from Employment from the National Weather Service. They all are seeking review of that termination primarily because they were National Weather Service Employees, Not Department of Transport Employees. Their termination is illegal and does not stand in law.
    
11. In this respect the common facts relevantly set out between the Plaintiff and the defendants, are that the Plaintiffs used to be officers of the National Weather Service established as an agency of the Civil Aviation Authority under section 259 (1) of the Civil Aviation Act 2000.
    
12. In the 2005 civil aviation reforms approval was granted by the Civil Aviation Board to transfer the National Weather Service (NWS) to the Department of Transport (DOT) as a division within headed by a director there. And the Civil Aviation Authority in consultation with the Department of Personal Management endorsed the transfer with a condition that the transfer was to remain on the Civil Aviation Authority Salary Structure (Salary Fixation Agreement) until superseded by another agreement. Which change became effective on pay number 3/2009.
    
13. Whilst negotiations to address the discrepancies in salaries of the NWS officer and requests by the Transport Department and DPM for funds from Treasury Department were still going, on 14^th December 2017, the NWS staff, led by the plaintiffs, issued a notice under Section 323 (2) – (6) of the CA Act 2000 to the First Defendants giving 21 days to shut down operations (stop work) for an indefinite period of time.
    
14. Whilst the negotiations were still on going, on the 05^th January 2018, the NWS staff led by the Plaintiffs again issued a notice to withdraw meteorological services, advising the DOT Secretary of their intention to enforce the nationwide work stoppage. And which was scheduled to commence by the Close of Business on Friday 05^th January 2018, reasoning that their salaries were not upgraded with the passing of pay No. 1 of 2018.
    
15. And despite verbal notices or warnings given to the NWS staff to stop such industrial actions, it dawned on the First Defendant to formally respond to the Notice letter of the Chairman of the NWS working Committee, by requesting him, Mr. Albert Walongor to show cause why serious disciplinary actions should not be taken against him by the DOT for continuous insubordination against the Management and non-compliance of relevant Legislative requirements.
    
16. The Treasury Department finally on the 05^th March 2018 assisted the Department of Transport and DPM with K 1.7 million to sort out the plaintiffs and NWS staffs outstanding pay discrepancies.
    
17. However, a 21 day-notice of intention to withdraw meteorological services pursuant to section 323 (2) –(6) was served on the first Defendant’s office by the NWS officers on the 16^th March 2018 advising that there would again be a nationwide stoppage on 06^th April 2018 if their claims were not immediately addressed. The first Defendant also received a petition from the NWS staff on that same day.
    
18. And on this day the NWS officers staged an illegal Protest March to the office of the First Defendant demanding when the payment of K1.7 million would be paid. The DOT addressed them and advised them that the K 1.7 million was already approved by the Department of Treasury and the DPM was authorized to input the information for payment. The NWS officers advised of another strike by 06^th April 2018 if they were not paid by COB then.
    
19. On Saturday 07^th April 2018 the NWS officers finally commenced strike action and issued a notice to Airmen advice to that office.
    
20. The plaintiffs were terminated by the First Defendant on the 18^th April 2018 from employment through a notice of termination from employment issued by the DOT on the grounds that they led the NWS staff to go on an illegal Strike from 05^th January 2018 to the 12^th January 2018, again from the 06^th April 2018 and continued to the date of their termination.
    
21. The Plaintiffs Statement in support of the 15^th April 2019 pose two grounds of review. Firstly, it is their allegation that the First Defendant’s decision of the 18^th April 2018 to terminate each of them was ultra-Vires and was an error of law because;

(a) The First Defendant did not have the power to terminate them from employment with the NWS under the Department of Civil Aviation Authority; and

(b) The First Defendant erroneously invoked section 55 of the Public Services Management Act 2014 because the Plaintiffs were employed by the National Weather Service under the Department of Civil Aviation by Law.

22. It was therefore posed whether or not the first Defendant had the power to terminate the plaintiffs in their employment with the National Weather Service under the Department of Civil Aviation Authority?
    
23. Secondly whether or not the First Defendant erroneously invoked section 55 of the Public Services Management Act 2014, because the Plaintiffs were employed by the NWS which was under the Department of Civil Aviation Authority by Law.
    
24. At the outset the relevant Law is the Civil Aviation Act 2000, section 18 of which establishes the Civil Aviation Authority of Papua New Guinea. And the NWS is an agency of the Civil Aviation Authority established under section 259 of that Act. As part of the Civil Aviation reforms 2005 the Civil Aviation Board approved to transfer the NWS to the Department of Transport to be a division headed by a director there. Because of this the Civil Aviation Act 2000 was amended in 2010 by the Civil Aviation Amendment Act 2010. That amendment established three new entities in its place to take over the duties and functions of the Civil Aviation Authority. These three new Authorities were, firstly the Civil Aviation Safety Authority (CASA) established by section 18, secondly the Papua New Guinea Air Services Limited (PNGASL) established by section 143, and thirdly the National Airports Corporation Limited (NAC) established under section 147A.
    
25. Section 14 of the Civil Aviation Act 2000 which placed the meteorological warning services under the functions of the Civil Aviation Authority was repealed by section 10 of the Civil Aviation Amendment Act 2010. And section 86 of the Amendment Act created a new section, section 258A, which placed the functions of the Civil Aviation Authority under the responsibility of the Departmental Head.
    
26. And the Amendment Act by section 87 amended section 259 of the Civil Aviation Act 2000 creating the National Weather Service. Relevantly section 87 is as follows: “Authority to Establish the National Weather Service (Amendment of Section 259)
    
27. Section 259 of the Principal Act is amended- (a) in the heading, by repealing the words “AUTHORITY TO ESTABLISH “and (b) in Subsection (1) by repealing the words “The Authority Shall Establish” and replacing them with the words ”The Departmental Head shall maintain” and
    

(c)in Subsection (3), by repealing the words “may be Order” and replacing them with, “may by notice published in the National Gazette” and

(d) in Subsection (5)-

(i)by repealing the word “Authority” and replacing it with “ the Departmental Head” and

(ii)by repealing the word “financial” and replacing it with “finance” and

(e)in subsection (6)-

(i)by repealing the reference “subsection (3)” and replacing it with “Subsection (5)” and

(ii)by repealing the words “state aviation enterprise” and replacing them with “ State Aviation Enterprise”.

28. These amendments abolished the Civil Aviation Authority who was then responsible for the NWS. Three new entities were created instead to take over those responsibilities. The NWS was placed under the mandate of a Departmental Head. And Section 3 of the Civil Aviation Act 2000, defines department as “means the Department responsible for civil Aviation matters;” And further through the amendment to section 3 of the Principle Act the definition of Departmental Head was inserted “means the person appointed, for the time being, as head of the Department;”
    
29. The 2010 Amendment Act does not place the NWS under any of the new entities that were created. But approval was granted to transfer it to the Department of Transport as a division headed by a director. Which was endorsed by the Civil Aviation Authority in consultation with Department of Personal Management. And it was endorsed that as part of the transfer the Civil Aviation Authority Salary Structure will remain until superseded by another agreement.
    
30. In 2010 section 14 of the Civil Aviation Act 2000, placed the meteorological warning services under the functions of the Civil Aviation Authority, was repealed and the function was placed under the Departmental Head of Department of Transport by section 258A. And section 259 of that Act, which created the NWS, so administratively the staff of NWS were transferred to the Department of Transport. They were public Servants employed in that Department not in an authority or a company as such. And as such renumeration terms of employment with conditions were now governed by the Public Service Management Act and the General Orders. That is clear because NWS staff have since November 2009 being paid as public servants.
    
31. What is deduced now by this position in law is that, the actions of the First Defendant against the Plaintiffs were not erroneous in law. He was entitled to in law flowing and he was within his prerogative by that law to act as he did in the termination of the Plaintiffs. He did not act ultra vires or in error of the law. The converse is Kilepak v Kaivovo, Secretary Department of East New Britain [2003] PGNC 91; N2402 (2 May 2003) where the decision terminating the public servant was overturned, because disciplinary process was not followed, and what was meted out to the plaintiff did not stand in law. He successfully got his case in his favour. This is not the same by its facts and circumstances levelled out in favour of the plaintiffs here. The consequence is that this ground of the review of the Plaintiff does not hold in their favour given. It is therefore dismissed as being without merit and baseless in law.
    
32. It follows that the actions of the Plaintiffs are covered by the Public Service Management Act 2014, section 55 is mandated given to breach the Plaintiffs as charged by the first Defendant, the Departmental Head. The evidence set out in detail above is very clear, that the plaintiffs led, and were involved in the strike, section 55 clearly was made out. They were officers who aided, abetted and took part in the strike action. What they did interfered and prevented and was calculated to interfere and did interfere with the discharge of services of the State, by that Directorate NWS to Papua New Guinea. The first defendant was mandated in law and did not commit an error of law in the way that he dealt with the plaintiffs, by the prerogative that the law bestowed upon him: Sinebare v Raminai [2021] PGNC 143; N8873 (10 June 2021). Here the First defendant followed the law and its process in the matter. This ground is not made out in favour of the plaintiffs. And this is clear by section 55 definition covering what they did.
    
33. Section 55 Strikes is as follows: “(1) An officer who aids, abets, foments or takes part in a strike that –
    

(a) interferes with or prevents; or

(b) is intended or calculated to interfere with or prevent; or

(c) attempts to interfere or prevent,

the carrying on of any part of the public service or utilities of the country commits an illegal act against the peace and good order of the country.

(2) Any officer adjudged by the departmental head concerned, after investigation and hearing, to be guilty of any action referred to in Subsection (1) may be summarily dismissed by the departmental head from the Public Service, without regard to the procedures prescribed in this Act for dealing with disciplinary offences.”

34. The first Defendant is excused in what he did by this law. He was complying with the law. The same cannot be said of the Plaintiffs. They were not content with the administrative process of government and took matters illegally into their own hands. They breached the law set out above, section 55 Strikes, PSM Act 2014 and the consequences are clear, they were processed and terminated. They raise no allegations against the process employed to see them out. It remains that they were lawfully exited from the Department of Transport who had since taken carriage and were part and parcel of that Department. Therefore, the Head of the Department, the First Defendant acted as he did by law not without to terminate the plaintiffs. That is a decision in law and by the law and stands. The plaintiffs do not discharge the required balance in their cause. They lack and do not demonstrate any iota of merit in the allegation that they raise against. This grounds both levelled against the action of the First Defendant do not, and have not been made out to the required balance in fact, and importantly in law. The converse is Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) which is not in any way near. The Aggregate is this action is without any merit, judicial review is refused with Costs in favour of the defendants against the Plaintiffs.
    
35. Alternatively posed under section 323 of the Civil Aviation Act 2000 here also it does not extend to cover the plaintiffs individually and severely, because they were not employees there, they did not hold any aviation documents as such being meteorological officers. In short, they have no standing even in this sphere and their action has no merit if gauged here. It fails on all its fours and is dismissed forthwith with costs following against them in favour of the defendants. Because the first defendant has not exceeded the powers that the law has accorded him, and his decision is in accordance not without, there is no basis in law demonstrated by the facts and circumstances here to derailing that decision: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.
    
36. The formal orders of the Court are:
    
    • (i) Judicial Review is not made out and is refused.
    • (ii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Public Employees Association PNG: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants