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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO. 42 OF 2024
BETWEEN:
BILL KAPEN – EXECUTIVE MANAGER, CORPORATE SERVICES DIVISION OF NATIONAL PROCUREMENT COMMISSION
Plaintiff
AND
JOE SAPA – ACTING CHIEF EXECUTIVE OFFICER OF NATIONAL PROCUREMENT COMMISSION
First Defendant
AND
NATIONAL PROCUREMENT COMMISSION
Second Defendant
Waigani: Wood J
2024: 21 June
2026: 17 February
EMPLOYMENT LAW - Termination of employment of plaintiff by the National Procurement Commission – being aggrieved by his termination, the plaintiff commenced proceedings in the National Court seeking orders and declarations
PRACTICE AND PROCEDURE - Notice of Motion filed by the defendants seeking dismissal of the proceeding on the basis that the plaintiff, if aggrieved, should have commenced judicial review proceedings – the plaintiff argued that his contract was governed by private law principles and not public law principles and therefore he was not required to file a judicial review application
Held
The relief sought by the plaintiff relates to public law matters and so the proceeding is an abuse of process and is dismissed
Cases cited
Attorney General v Tetaga, Chairman Public Service Commission [2005] N2900
Honk Kiap as Chairman of the Staff Appeal Tribunal & Anor v Frederick Kasper & Anor (2023) SC2435
Western Highlands Provincial Health Authority & Anor v Dr Kereme & others (2025) SC2791
Counsel
Mr Kombri for the plaintiff
Mr Tombiam for the defendants
JUDGMENT
Background
‘The plaintiff claims the following reliefs: -
‘Order 16 does not make any distinction between declarations or injunctions as a remedy for infringement of a right protected
under public law, as opposed to those under private law. The distinctions in O 16 relate to the nature of remedies set out in r 1(1),
which provides judicial review as the exclusive procedure, and declaration or injunction under r 1(2) which provide for optional
procedures.
An abuse of the process of the court may arise where, in an application for a remedy under O 16 r 1(1), a party can also obtain a declaration or injunction but does not do so and, subsequently, applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 and would, as well, constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis.’
“(1) An application for an order in the nature of mandamus, prohibition,
certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.
(2) An application for a declaration or an injunction may be made by way of an
application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if ...”
15. It is now well settled that a party wishing to challenge the decision of a
governmental body or public authority must use Order 16 of the National Court Rules if orders in the nature of prerogative writs are
sought. The requirement under Order 16(1) is mandatory. If only an injunction or declaration is sought, the plaintiff has a choice
- Order 4 or Order 16 can be used: Michael Gene v. Hamidian Rad [1999] PNGLR 444; Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906.
16. As the Supreme Court made clear in the latter case at [128] to [131], the essential consideration in determining the proper mode
of commencement is the substance or effect of the relief being sought:
“We do not consider that it is correct to say that whenever a person wishes to challenge the decision of a governmental body
or public authority, the challenge must be made by using Order 16. It is a matter of considering the relief being sought and applying Order 16, Rule 1, to see whether Order 16 is mandatory (Rule 1(1))
or optional (Rule 1(2)).”
17. If the substance or effect of the relief being sought is orders in the nature of declarations and injunctive orders then it is
optional to use the judicial review procedure under O 16 r 1(2) or the procedure under O 4 r 3. If the substance or effect of the
relief being sought is orders in the nature of prerogative orders, then proceedings must be brought pursuant to O 16 r (1).
18. In our view the relief sought in this case was in substance and effect orders in the nature of prerogative writs, namely certiorari quashing the decisions of the First and Second Respondents to register the Fourth Respondent’s title, and an order of mandamus compelling them to cancel the Fourth Respondent’s title. We agree therefore with the learned trial judge that the Appellant was seeking to achieve what should have been achieved by seeking orders pursuant to the judicial review process.’
‘Facts
The first Respondent, Mr. Kasper was employed by the first Appellant, NCDC, as Council Manager for Moresby South Electorate under a contract of employment for a term of three years commencing 4th November 2008 and expiring on 04 November 2011. In May 2011, Mr. Kasper was charged with disciplinary offences for misconduct to which he responded. Having found his responses unsatisfactory, the first Appellant’s Staff Disciplinary Committee decided to terminate him on 27th September 2011, which Mr. Kasper appealed against to the NCDC Staff Appeals Tribunal on 14 August 2012. The Appeals Tribunal dismissed the appeal and upheld the decision to terminate. Consequently, Mr. Kasper on 19th July 2018, sought judicial review of that decision. He named only the chairman of the Appeals Tribunal and the NCDC. The trial court upheld the review application, quashed the decision of the Appeals Tribunal, and ordered Mr Kasper’s reinstatement to a position, Deputy Works Manager, which he did not hold or asked for and ordered damages with back dated salaries. In upholding the application, the trial judge held the Appellants failed to follow section 10 Part 4 of the first Appellants Staff Disciplinary Code. Also, his Honour quashed a decision of 12 January 2012 contrary to the pleading that the decision for termination was 20th February 2012.’
“Ultimately therefore, I find that there is no provision in the contract allowing for the normal public service or the NCDC’s own disciplinary process to apply to the contract of employment in this case. Consequently, I find that the parties by agreement evidenced and contained in the written contract of employment decided to render Mr. Gesa’s employment with the NCDC as a private matter of contract and not something in the domain of public administrative law. Accordingly, I find that judicial review is not available as a remedy to the plaintiff.”
(Underlining supplied)
“The respondent here claimed his wrongful dismissal from employment was a matter of public law. In fact it is merely a matter of a private law nature, the right of an employer to control and deal with his own employees. There is no statutory duty here, there is no statutory protection which makes this a matter of public law. This is purely a matter of the relationship between a master and servant. Whilst the master here is a Board created by statute the employment of the staff of the Board is not a matter of statute, there are no provisions in the legislation setting up the Board which give terms and conditions of employment or other matters which have been raised in this case. Merely stating in the Act that the Board may employ staff does not by itself make that employment a matter of public law.”
(Underlining supplied)
“We find that there seems to have been some confusion over the use of the word ‘permanent’. The respondent asserted that he was a permanent officer but nowhere does he refer to any legislation or determination which explains or clarifies this term. He seems to be using the word permanent to support some long term tenure of employment although in submissions even counsel for the respondent notes that permanency does not mean life tenure. So what does it mean. We can only surmise that the respondent has confused the use of the word with the use of the word in staffing structures of the staffing establishment of a company or organisation. Thus in staffing structures the word permanent is used to show that the position will be a permanent one within the structure for planning and budgeting purposes as against the need for temporary staff at certain times. But just because the position is a permanent one in the establishment does not give the holder of that position any permanency. He would still be governed by the ordinary law of master and servant.
The respondent states that he was formerly a permanent public servant and that he took this status over with him to the Board. And the lawyer for the respondent submits that the respondent imported this public service norm to the Board, but nowhere has the court been referred to any legislation or Public Service Orders which creates this status. We note here that the respondent makes no claim to being employed under any contract of employment which gives him any special status. We therefore find that His Honour erred in finding that the respondent was a permanent officer.
...
There is nothing in the law that states that a public servant or any other employee has any claim to life employment. Public servant and other employees remain liable to termination for cause or for retrenchment upon due notice being accorded to them. Upon dismissal without opportunity to answer charges the usual assessment is made on the normal wages of the employee over a reasonable period. Under the Employment Act Ch 373 a reasonable period for a person who has been employed for 5 years or more is 4 weeks. This Act is stated to bind the State so even if it was argued that the Board is not a normal private employer because it is owned by the State, the employees still come under the Employment Act. The respondent did not have the benefit of any contract of employment which took him out of the general law.
(Underlining supplied)
“Order 16 of the National Court Rules cannot give rise to a cause of action. It relates to judicial review of administrative acts and in some circumstances, quasi judicial acts but only where there is a sufficient public interest.
...
There is nothing in the circumstances of this case, to give it any sufficient flavour of a public nature to justify this Court’s
interference. A lawyer especially, may make his own arrangements for employment and the fact of his employment does not place his
position in the public domain, to such an extent for instance, that a member of the public could demand an account of the appellant’s
work at the Harbours Board. That is the sole prerogative of the employer, the Board and the Court has no business to enquire into the private arrangements made
between these two parties. This highlights the distinction between public law and private law rights.
“We are of the view that the incidents of the appellant’s employment with the Harbours Board are of a private law nature and
consequently not amenable to judicial review. Since the Board has embarked on procedures of a quasi judicial nature when dealing
with Mr Wedau’s appeal against the conditions laid down for his continued employment, Mr Wedau’s argument that he consequently
has the right of review by virtue of the nature of the tribunal (quasi judicial), cannot succeed in the face of the private law status
of his employment arrangements.”
(Underlining supplied)
“In terms of the issue in question 4, we note that, the issue has arisen in the light of the conflicting National Court decisions we have noted in paragraphs 6 and 7 above. The issue presented can be determined by reference to a determination of the more fundamental question of, can a Departmental Head or a senior public servant who is employed under a contract have it both ways in terms of the benefits under the terms of his contract and the normal public service terms and conditions of employment? The cases, Counsel for the Prime Minister and the State rely upon effectively say that, a Departmental Head cannot have it both ways. If he is employed under a contract of employment, it is to the terms of the contract that he must look to for his remedies and not by way of judicial review. The two Supreme Court decisions in Ereman Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Harbours Board (supra) support the proposition in the case of a public servant employed under a contract that, unless there is express provision for the application and continuation of a public servant’s rights and privileges including, the public service disciplinary process and the right to judicial review of decisions affecting them, they do not apply. There is no conflict in these two decisions of the Supreme Court.
In the case before us, there might well be conflicts in the decisions of the National Court as highlighted in the arguments of the parties before us and in the Court below. But that is no reason to say that, there has been much controversy in relation to the issue of appointment and revocation of Departmental Heads and other senior public servants. Though s. 193(1C) of the Constitution and ss. 28 and 31C of the Public Services (Management) Act, were not under consideration in the Ereman Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Harbours Board (supra), these decisions state the law as to when an employer-employee relationship is governed by public law and when it is not.”
(Underlining supplied)
' y
Public Services (Management) Act
NATIONAL PUBLIC SERVICE
PERFORMANCE BASED CONTRACT OF EMPLOYMENT
Made Between:
Mr. Bill Kapen
Executive Manager, Corporate Services Division National Procurement Commission
And:
Mr. Simon Bole, MBA, Chief Executive Officer,
National Procurement Commission
(Made pursuant to Section 41 of the
Public Services (Management) Act)
CONTENTS
The Employment Agreement: Contains the legal basis and the essential contract structure, including the effective date and duration.
Signature Page: To be executed by the Departmental Head and the Senior Officer and witnessed by the delegate of the Secretary, Department of Personnel Management and the Departmental Officer responsible for Human Resources Management functions
Schedule 1: Contains the Senior Officer's Performance Undertakings in the form of Matrix of Key Result Areas and Performance Indicators as established by the Departmental Head from time to time.
Schedule 2: Contains the Terms & Conditions of Employment including salaries and allowances, and references to the Standard Terms & Conditions of Employment and the General Orders conditions not covered in the Agreement.
Schedule 3: Contains the Termination Provisions, including termination for poor performance and for disciplinary reasons.
Schedule 4: Contains the National Public Service Code of Ethics and Conduct.
Job Description: Authorized by the Departmental Head, and subject to variation from time to time.
Public Services (Management) Act
SENIOR OFFICER PERFORMANCE BASED CONTRACT OF EMPLOYMENT
MR. BILL KAPEN
THIS AGREEMENT is made to be effective on and from 27th March, 2023.
BETWEEN: THE CHIEF EXECUTIVE OFFICER OF NATIONAL PROCUREMENT
COMMISSION, NPC, ("MR SIMON BOLE, MBA") for and on behalf of the
State of the one Part.
MR BILL KAPEN, Executive Manager, Corporate Services Division ("National Procurement Commission") of the other Part.
WHEREAS:
(A) Pursuant to the provisions of Section 41 of the Public Services (Management) Act ("the Act"), the Departmental Head wishes to employ the Senior Officer on Contract by virtue of the powers delegated by the Secretary, Department of Personnel Management.
and
(B) The Senior Officer has accepted an offer of continuing employment made by the Departmental Head, subject to the Senior Officer's continuing satisfactory performance, as hereinafter provided.
and
(C) The Parties have agreed to enter into a "Performance Based Employment Contract" ("the Contract"), containing performance standards against which the Senior Officer will be appraised by the Departmental Head from time to time.
NOW IT IS HEREBY AGREED as follows:
I. The Contract, comprising. the Agreement, the Standard Terms & Conditions and the General Orders made pursuant to the Act, is of three years in duration, subject to the termination provisions in Schedule 3 hereto.
Schedule 1 hereto, and shall at all times:
2
(a) comply with the law and in particular with the Public Services (Management) Act and the Contract, and give honest and dedicated service to the public in accordance with his or her contracted position and rank and the Departmental Head's instructions from time to time;
(b) skillfully and diligently perform all the duties within the scope of or incidental to the employment of a Senior Officer holding the position in accordance with Job Description or as may reasonably be regarded by the Departmental Head as being within the capabilities of a person engaged in such position from time to time;
(c) obey and comply with all lawful orders and directions given by the Departmental Head or his delegates and senior officers of higher seniority and without limiting the generality of. this clause, shall work whatever hours may be necessary whenever instructed or required to do so in order to discharge the duties of his or her office;
(d) make every endeavor to comply with Performance Undertakings made to the Departmental Head as provided herein, to enable the Departmental Head or his delegate to monitor the Senior Officer's performance from time to time;
(e) observe and comply with all General Orders, rules, regulations and codes of conduct, including the Code of Ethics & Conduct of the National Public Service for the management and well being of the Department, its property and works and for the control, good conduct and well being of the staff;
(f) disclose to the Departmental Head known or potential conflicts of interest which may arise from time to time in the discharge of his or her duties, which may be detrimental to the interest of the State and contrary to public interest;
(g) not engage in any· activity at any time which may directly conflict with the duties described herein, or which may result in public reports injurious to the interests of the Department;
- (h) not hold political office as defined under the Organic Law and shall not engage in any activities which may be construed by the Departmental Head as holding a political office and shall not enter into any public correspondence which the Departmental Head may consider as being injurious to the interest of the Department;
(i) not enter into any employment arrangement to supplement his or her income without the prior written approval of the Departmental Head, subject to the approval of the Secretary, Department of Personnel Management and the National Public Service shall remain the Senior Officer's sole employer.
G) not at any time :during the continuance of or following the termination of employment, except by direction of the Departmental Head, divulge either directly or indirectly to any person any information related to Departmental business, other than as required by law.
3
12 The Senior Officer warrants that the information furnished by him to the Departmental Head at the time of engagement, as to his record of abilities, health and other employment matters is materially true and correct and that the Senior Officer has not withheld any material information. If any such particular shall be found to be incorrect or if it be discovered that the Senior Officer has failed to disclose any material information, the Departmental Head may terminate the Contract without notice.
..........
4
Schedule 1
SENIOR OFFICER'S PERFORMANCE UNDERTAKINGS
1.4 The Contract also enables the Departmental Head to determine whether or not to caution the Senior Officer for poor performance and as a result, to terminate the contract prior to renewal date in accordance with the laid down procedure.
'
Dependent upon the overall performance of the Senior Officer throughout the period of the Contract, the Departmental Head will determine in his or her sole discretion whether or not to renew the Contract.
2.5 The Performance Assessment shall note the areas of achievement and of under achievement and shall identify specific remedial action where necessary for agreement and sign off by the Senior Officer and the Departmental Head.
2
2.6 The Senior Officer shall bring to the Departmental Head's attention from time to time contingencies which affect his or her performance during the period under review and shall take such corrective action as is necessary to comply with the Performance Commitments.
2.7 Notwithstanding the above procedure, the Departmental Head may at any time give notice of termination on grounds of poor performance, in the event that the Senior Officer consistently fails to fulfill the Performance Commitments.
3.2 In the event that the Senior Officer consistently fails to fulfill the Performance Commitments over a 12-month period, the Departmental Head shall determine what remedial action must be taken to correct his or her poor performance.
3.3 The Departmental Head may give 3 months notice (or shorter period of not less than one month) to the Senior Officer to upgrade his or her performance to comply with the Performance Commitments.
3.4 In the event that following counseling and upon expiry of the notice period no significant improvement in performance is evidenced, then the Departmental Head may determine to terminate the Contract on grounds of poor performance.
4.-I No later than three months prior to expiry of the contract period, the Departmental Head shall undertake an overall assessment of the Senior Officer's performance against his or her Performance Commitments over the period of the Contract.
4.2 In the event that the Departmental Head in his sole discretion, determines that the Senior Officer has failed to comply with his or her Performance Commitments, then the Senior Officer may be informed by the Departmental Head that his or her contract shall not be renewed.
(Note that the Departmental Head may delegate any of the responsibilities listed above _toa Deputy Secretary/First Assistant Secretary, provided that any decision to renew or not to renew, or to terminate the contract shall be determined by the Departmental Head on the recommendation of a delegated officer, in consultation with the Department of Personnel Management.) •
Revision No.08'1' September, 2022
SCHEDULE 1
NAME- BILL KAPEN – POSITION: SENIOR AUDITOR INTERGRITY
& INVESTIGATIONS KEY RESULT AREAS AND PERFORMANCE COMMITMENTS
BUDGET YEAR – 2022 – (Revision No. – EFFECTIVE FROM -27TH MARCH 2023-
Performance Commitments for 2022/2023 (as amended from time to time by the Department Head)
| KEY RESULT AREAS
| PERFORMANCE INDICATOR
| PRIORTY OUTPUTS
|
Employment Contract/National Procurement Commission-Bill Kapen - Revision No.08th September ,2022
Approved by the Departmental Head: _________________________________Date: ________________
Agreed to as contractual commitment: _______________________________Date:________________
NB: The above list of Performance Commitment is not exhaustive and may be varied by the Departmental Head from time to time, and the Senior Offices shall comply with all performance standards and rules set by the Departmental Head.
Employment Contract/National Procurement Commission-Bill Kapen - Revision No.08th September ,2022
)
4.
SCHEDULE 2
SALARY, ALLOWANCES AND BENEFITS APPLICABLE TO MR. BILL KAPEN, EXECUTIVE MANAGER, CORPORATE SERVICES DIVISION EFFECTIVE ON AND FROM 27™MARCH, 2023. AS VARIED BY AGREEMENT BETWEEN THE PARTIES FROM TIME TO TIME) TO BE READ TOGETHER WITH THE STANDARD TERMS & CONDITIONS FOR THE EMPLOYMENT OF SENIOR OFFICERS OF THE NATIONAL PUBLIC SERVICE
Contract Component Gross Value
PGK/p.a.
Base Salary (PS18: Step 1)
Contract Gratuity @ 25% Base Salary Accommodation Allowance
Vehicle Allowance
�
Domestic Market Allowance
TOTALSALARY PLUS ALLOWANCES
Employment Contract/National Procurement Commission> Bill Kapen> Revision No.081h September, 2022
5
Contract, including the Standard terms & Conditions and the General Orders. In the event that the Contract is silent on any terms and conditions the Departmental Head
shall determine the matter in accordance with Standard Terms and Conditions and the General Orders.
Schedule 3
TERMINATION PROVISIONS
Grounds for Termination
(c) as a result of non-renewal of the Contract by the Departmental Head as a result of poor performance and/or misconduct recorded during the Contract period;
9.5
(d) for Cause as a result of breach of Contract by the Senior Officer, as determined by the Departmental Head following disciplinary action; or
(e) on grounds of ill health, as advised by a medical officer appointed by the Departmental Head; or
(f) as a result of Retirement as determined by the Departmental Head pursuant to the Act;
(g) on resignation by the Senior Officer, as accepted by the Departmental Head; or
(h) in the best interest of the State as determined by the National Executive Council.
Employment in the National Public Service Following Termination
(b) terminate the services of the Senior Officer dependent upon the grounds under Clauses l(a), (b) or (c), in accordance with the termination procedures described· below.
7
Termination Procedures
(a) pursuant to Clause 1 (a), (b), (c), (e) (f) and (h), by:
(i) giving to the Senior Officer not less than three calendar months' notice in writing, or, in the event that the Senior Officer is terminated from the Department, or by:
(ii) paying to the Senior Officer salary and allowances, listed under Schedule 2, calculated up to the expiration of three calendar months in 1ieu of such notice, in which event the Contract will terminate on the date stipulated in such notice; or
(b) pursuant to Clause 1 (d), for Cause, with or without 3 months notice or payment in lieu of notice, as determined by the Departmental Head.
Resignation by the Senior Officer
Senior Officer's Unsatisfactory Work Performance
8
I
Termination for Cause
(b) divulged without authority from the Departmental Head any information concerning public business, whether in relation to the Authority or otherwise, adversely affecting the interests of the Authority;
(c) willfully disobeyed or disregarded a lawful order of the Departmental Head or his delegate;
(d) was negligent in the discharge of the duties specified by the Departmental Head;
(e) attended work with impaired capabilities and judgment following the consumption of alcohol or un-prescribed drugs;
(f) solicited or accepted a fee or gift in connection with the discharge of official duties;
(g) was guilty of any disgraceful or improper conduct in the discharge of official duties or otherwise;
(h) was continually absent from- work without proper authority or good reason; and/or
(i) was convicted of a criminal offence,
then the Departmental Head shall initiate the suspension procedure hereunder for the purposes of conducting an official investigation.
-- 9
Disciplinary Suspension for Investigatory Purposes
(b) The Senior Officer shall formally respond to the charge(s) by writing to the Chairman of the Disciplinary Committee within 10 days of the charge(s) being laid and the Chairman shall seek legal advice on the contractual position and shall make a recommendation to the Departmental Head as to the guilt of the Senior Officer or otherwise;
- (c) The Departmental Head having considered the recommendation of the Disciplinary Committee, and the Senior Officer's response and having verified his legal position shall determine whether or not to terminate the Contract.
(d) The decision of the Departmental Head under the Contract shall be final, and the Senior Officer may seek redress through the Papua New Guinea Courts of Law in the event he considers the disciplinary action to have been applied improperly or unfairly.
Employment Contract/National Procurement Commission> Bill Kapen> Revision No.08111 September, 2022
10
(e) Notwithstanding the above procedure, on a recommendation of the Disciplinary Committee, the Departmental Head may at any stage conclude the disciplinary proceedings and impose a penalty short of termination, by way of a warning for the Senior Officer to improve future performance.
Ex-Gratia Termination Benefits on Retrenchment
Public (Services) Management Act 1995
‘PART III. – REVIEW OF PERSONNEL MATTERS.
18. REVIEW OF PERSONNEL MATTERS CONNECTED WITH THE NATIONAL PUBLIC SERVICE.
(1) The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision.
(2) A complaint referred to in Subsection (1) shall be –
(a) in writing; and
(b) made to the Commission by the officer within 60 days of the date on which the decision was made, but the Chairman may waive the
time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the compliant; and
(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the compliant.
(3) The procedure to be followed in a review under this section is as follows: –
(a) the Commission shall summons –
(i) the Departmental Head of the Department of Personnel Management or his delegate; and
(ii) the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department;
and
(iii) the officer making the compliant, who may at his request and at his own cost, be represented by an industrial organization of
which he is a member, or by a lawyer;
(b) the persons summonsed under Paragraph (a) shall make themselves available to appear before the Commission within 14 days of the
date of summons;
(c) the Commission shall –
(i) consider all the facts relative to the matter, including –
(A) the views of the persons summonsed under Paragraph (a); and
(B) the personnel management policies of the National Public Service; and
(C) the cost implications of any decision which it may make; and
(ii) make a decision to uphold, vary or annul the decision the subject of the complaint; and
(iii) give immediate notification of its decision to the persons summonsed under Paragraph (a);
(d) the decision of the Commission under Paragraph (c)(ii) –
(i) shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the
Commission where the reason for the delay is beyond the control of the Commission; and
(ii) shall become binding after a period of 30 days from the date of the decision.
‘41. CONTRACTS OF EMPLOYMENT.
(1) An officer appointed to a senior management office shall be employed under, and shall hold office in accordance with, the terms
and conditions of a contract of employment with the State, made subject to the Salaries and Conditions Monitoring Committee Act 1988.
(2) A contract of employment under Subsection (1) shall be executed 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,
and by the appointee.
(3) Notwithstanding the provisions of this Act relating to discipline of officers, a contract of employment under Subsection (1) shall
make specific provision for discipline and an officer employed under a contract of employment under Subsection (1) is exempted from
the provisions of Part XIV.
(4) Notwithstanding the provisions of this Act relating to promotion and appointment, where–
(a) a contract of employment under Subsection (1) 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,
his employment in the Public Service is terminated.
(5) The provisions of this Act shall apply to an officer employed on a contract of employment under this section only in so far as they are not inconsistent with the terms and conditions of the contract of employment.
(my emphasis)
42. EMPLOYMENT UNDER CONTRACT TO CONSTITUTE SERVICE.
Employment under contract under this Part shall constitute service in the Public Service for all purposes.
43. ADMINISTRATION OF CONTRACTS.
(1) The Departmental Head of the Department of Personnel Management shall, on behalf of the State, interpret any contract of employment made under this Part.
(2) An amendment to be made to a contract of employment under this Part–
(a) by reason of a directive of the National Executive Council; or
(b) to accord with General Orders; or
(c) for administrative purposes,
shall be authorized–
(d) in respect of contracts of employment to which Section 40(2)(a) refers–by the Minister; or
(e) in respect of contracts of employment to which Section 40(2)(b) refers–by the Departmental Head of the Department of Personnel
Management.
(1) The Departmental Head of the Department of Personnel Management is responsible for initiating and co-ordinating manpower, career and training plans for the Public Service.
(2) A Departmental Head is responsible for–
(a) producing manpower, career and training plans for the Department of which he is Departmental Head; and
(b) submitting by 31 March of each year to the Departmental Head of the Department of Personnel Management plans produced under Paragraph
(a).
(3) Any request for training, whether local or overseas, by or on behalf of an officer shall be consistent with the manpower, career and training plans of the Department of which he is an officer.
(4) An officer who is sent on study leave for promotion to a higher office shall, on successful completion of that study, be promoted to that higher office.
(5) An officer on a senior national contract who proceeds on study leave of more than three months shall forfeit all entitlements to the office for which he is contracted except–
(a) the substantive salary; and
(b) if he is not living in a State rent-free house, the housing allowance.
PART XIII. – SALARIES AND ALLOWANCES.
(1) Offices shall be given such classifications as are fixed by the Departmental Head of the Department of Personnel Management.
(2) A classification under Subsection (1) may provide for a rate of annual salary or a scale of rates of annual salary.
(3) In fixing classifications under this section, the Departmental Head of the Department of Personnel Management shall comply with
any general directions of the National Executive Council.
Officers may be paid such allowances in such cases as are specified in the General Orders.
47. DEDUCTIONS FROM OFFICERS’ ENTITLEMENTS.
Deductions may be made from the entitlement of officers and employees as specified in the General Orders, or as determined by the
Minister, in relation to an officer or class of officer, or employee or class of employee for any service provided by the State or
as a service to the officer or employee by the State.
48. RECOVERY OF SALARY AND ALLOWANCES.
(1) All amounts of salary and allowances payable to an officer may be recovered by the officer as a debt in any court of competent jurisdiction.
(2) The State may, with the consent of an officer, effect deductions from the salary of an officer to recover debts due by the officer
to the State.
Subject to Section 48, where an officer has been suspended in connection with a charge of an offence under this Act, he is entitled
to receive his pay during the period of suspension, unless he absconds or the Departmental Head of the Department of Personnel Management,
after receiving a report from the Departmental Head, orders otherwise.
Other authorities regarding employment contracts
‘The disciplinary process under the PSM Act and Clause 25 of the Contract is a two-phase process. The first phase of the disciplinary
process is the primary disciplinary process which is provided in Part XIV of the PSM Act in respect of non-contract officers and
in respect of contract officers, the Contract should provided for it. For instance, in the case of the Solicitor-General, it is Clause
25(1)(a), (b) and (c) of the Contract. The parties agree that Mr. Gelu was dealt with under the primary disciplinary procedure in
the Contract and not under Part XIV of the PSM Act. I accept this position as correct and consistent with s.41(3) and (5) of the
PSM Act.
The second phase is the review process. There are two avenues for review open to an officer aggrieved by a disciplinary action. The first is an administrative review by the PSC under s.18 of the PSM Act. There is no question that this avenue is available to all officers of the Public Service, including non-contract officers of the Solicitors-General’s office who are dealt with under Part XIV of the PSM Act.
Section 18 of the PSM Act, as amended by Act No. 25 of 2000 provides:
"18. Review of Personnel Matters in Relation to Appointment, Selection or Discipline.
(1) The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision
on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer
has been affected by the decision.
(2) A complaint referred to in Subsection (1) shall be—
(3) The procedure to be followed in a review under this section is as follows:--
The second avenue is the Courts. The usual procedure is by application for judicial review under Order 16 of the National Court Rules. A non-contract officer dealt with under Part XIV of the PSM Act would have to exhaust the administrative review process in s.18 of the PSM Act before applying for leave for judicial review: see Order 16 Rule 3(6) of the National Court Rules.
In relation to a contract officer, such as the Solicitor-General, in view of the wording of Clause 25.1(d) of the Contract, the question
is whether the officer may invoke the administrative review procedure under s.18 of the PSM Act. Mr. Andrew for the PSC put the same
issue in another way – Does Clause 25.1(d) of the Contract oust the jurisdiction of the PSC under s.18 of the PSM Act?
Mr. Kuman for Mr. Damem submits that Clause 25.1(d) of the Contract expressly says the decision of the Secretary, DPM is final and the Solicitor-General may only seek a review of that decision in the Courts. He cannot seek an administrative review under s.18 of the PSM Act. A similar procedure was employed in David Nelson v NEC (2003) N2440. The complaint made to PSC by Mr. Gelu was therefore in error and invalid. Consequently, the PSC wrongly assumed jurisdiction to "review" Mr. Gelu’s application as it lacked jurisdiction to deal with the matter. Therefore, the whole process before the PSC was invalid and Mr. Damem correctly refused to implement the decision of the PSC.
Mr. Baniyamai for Mr. Gelu submits the PSC has jurisdiction to entertain the complaint under s.18 because this provision empowers
the PSC to review any personnel matter following a complaint lodged by an "officer7" of the Public Service. The Solicitor-General,
in this case Mr. Gelu, is an officer of the Public Service within the meaning of "officer" in s.1 and s.42 of the PSM Act and s.10
of the A-G Act. Mr. Baniyamai submits the PSC is established by the Constitution and one of its powers is given by s.18 of the PSM
Act. The Contract cannot take away that jurisdiction given by statute. He submits Clause 25.1(d) of the Contract does not expressly
oust the jurisdiction of the PSC conferred by s.18(1) of the PSM Act and the Constitution. In any case Clause 25.1(d) of the Contract
must be read subject to s.191 of the Constitution and s.18 of the PSM Act.
Mr. Andrew submits disciplinary action taken by the Departmental head is a "personnel matter" which comes within s.18(1) of the PSM Act. The power given expressly by statute cannot be taken away by agreement of the parties; only an Act of Parliament may do so. To the extent that Clause 25.1(d) of the Contract does so, it is inconsistent with s.18(1) of the PSM Act and s.191 of the Constitution, and it must be struck down.
Mr. Andrew also submits s.41(3) and General Order 19.18 (Third edition) expressly exempts contract officers from the primary phase
of the disciplinary process under Part XIV of the PSM Act but not the review process under s.18. Therefore, the PSC had jurisdiction
to receive Mr. Gelu’s complaint and deal with it. He distinguishes David Nelson’s case from the present case in that
Mr. Nelson came straight to court after termination of employment under a Contract entered into under a different statute (Forestry
Act).
In my view, the answer to the issue raised is to be found on a proper construction of s.18(1), s.41(3) & (5) and Clause 25.1.(d)
of the Contract. The former are statutory provisions and of great importance and they require careful consideration. The latter is
an agreement between parties and it does not have the same force as statutory provisions. However, because the Contract is founded
on statutory provisions, the terms of the Contract are equally important and the Court must give careful consideration to the terms
of the Contract. Those terms must however be reflective of and consistent with the empowering statutory provisions. If the terms
of the Contract are inconsistent with the provisions of the empowering statutory provisions, then they may be struck down, to render
consistency with the statutory provisions.
I start with s.18(1) of the PSM Act. Once a complaint is made to the PSC by an officer aggrieved by a decision on a disciplinary matter, the PSC assumes jurisdiction and it is required to "review the decision" in accordance with the procedure set out in Subs (3). It is not contested that Mr. Gelu is an officer of the National Public Service who was affected by DPM to terminate his employment. It is not disputed that he lodged a complaint against the PSC in writing, against his dismissal, as required by Subs (2). It is also not disputed that his dismissal was on disciplinary grounds and he was dealt with under the primary disciplinary procedure under Clause 25.1(a), (b) and (c) of the Contract. In the circumstances, I am satisfied that the actions of Mr. Gelu and the PSC are in accordance with s.18(1) of the PSM Act. The only real issue therefore is whether Clause 25.1(d) of the Contract ousts the jurisdiction of the PSC under s.18 of the PSM Act.
As I stated earlier, there are two phases in the disciplinary process – the primary disciplinary phase which results in the disciplinary action taken and the second phase which is the review process. They are two distinct and independent processes and they should not be mixed up. The PSM Act in fact treats them separately under two separate Parts – s.18 in Part III (Review of Organizational Matter), and ss.50 – 54 in Part XIV (Discipline). Section 41(3) expressly makes reference to "discipline of an officer employed under a Contract of Employment". The disciplinary process under a Contract referred to here must mean the primary disciplinary process, which is the equivalent of Part XIV of the PSM Act. Section 41(3) exempts a Contract Officer from the primary disciplinary process for the reason that the Contract provides for that primary disciplinary process. I do not think Parliament intended to exempt contract officers from the review process under Part III of the PSM Act (s.18). If Parliament intended that a Contract officer should be exempted from application of the review process in s.18, it should have expressly said so in s.41(3) or s.18. Also if Parliament intended that the Contract should also provide for a review process of the primary disciplinary process outside of s.18, it should have expressly said so in s.41(3) or s.18. By not expressly providing so, Parliament intended that Contract officers who are disciplined under the primary disciplinary process set out in the Contract were entitled to invoke the review process under s.18 of the PSM Act. I also consider that Parliament did not intend that a Contract officer who is disciplined under the primary process in Clause 25.1(a)(b) and (c) of the Contract would only resort to the Court to challenge the primary disciplinary decision.
I consider there is nothing in s.41(3) which authorizes contracting parties to include a review process in the Contract. Section 41(5) cannot be read to confer on contracting parties rights which are not available to them under the PSM Act. For instance, whilst s.41(3) expressly authorizes the Contract to provide for the primary disciplinary process equivalent to Part XIV only, it does not expressly authorize the Contract to create a procedure for review. For this Court to interpret s.41(3) and (5) to permit parties to do so, is to insert a new provision in the Act, which is beyond the powers of this Court.
Clause 25.1(d) of the Contract says the decision of Secretary, DPM is final and the officer "may" seek redress in the Courts. In my view, Clause 25.1(d) does not in any way oust the review jurisdiction of the PSC under s.18 of the PSM Act. All it says is that the decision is final insofar as the initial disciplinary process is concerned. By the use of the word "may" in Clause 25.1(d), the officer is given an option of seeking a judicial review in the Courts. In any case, if Clause 25.1(d) purports to or were intended by the parties to the Contract to oust the review jurisdiction of PSC on disciplinary matters, then to that extent, this Clause is inconsistent with s.18(1) of the PSM Act and cannot be given effect to or enforced by the Courts.
For these reasons, I conclude that Clause 25.1(d) of the Contract is consistent with s.18(1) of the PSM Act in that it does not oust the jurisdiction of PSC to review personnel matters relating to discipline in respect of a Contract officer, who is dealt with under Clause 25.1(a), (b) and (c) of the Contract. Such an officer is entitled to invoke the administrative review jurisdiction of the PSC under s.18 of the PSM Act. Upon lodgment of a complaint, the PSC assumes jurisdiction over the matter and it must conduct an inquiry in accordance with the procedure set out in s.18(3).
I also conclude that pursuant to Clause 25.1(d) of the Contract, the Solicitor-General may seek judicial review of the decision by the Secretary of DPM, in the Courts under Order 16 of the National Court Rules, instead of seeking a review by the PSC but the National Court may require the officer to first exhaust the administrative review process under s.18 of the PSM Act by virtue of Order 16 Rule 3(6) of the National Court Rule. Also see Burns Philp (New Guinea) Ltd –v- Kekedo [1988 – 89] PNGLR 122, and The Independent State of Papua New Guinea –v- Phillip Kapal [1987] PNGLR 417 at 421 – 422.
Applying these principles to the facts of this case, I find that Mr. Gelu’s complaint lodged with the PSC was proper and valid
for all purposes and the PSC properly assumed jurisdiction over the complaint dealt with it. The question of whether the PSC complied
with the procedure in s.18(3)(a), (b),
(c) in dealing with the complaint is a separate matter.’
‘ADMINISTRATIVE LAW – Appeal against decision of National Court dismissing application for judicial review of decision of the Public Services Commission – where National Court held that Public Services Commission had jurisdiction to review termination of senior contract employee of first appellant – where Part XIV of the Public Services Management Act excluded in relation to senior contract employees – operation of General Orders – whether s 41 of Public Services Management Act excludes ability of Public Services Commission to review decisions of public service bodies – whether termination of employment of third respondent solely within terms of his contract – not in dispute that the third respondent was a member of the public service – whether primary Judge conducted merits review of Public Services Commission review
The first appellant terminated the employment of the third respondent. The third respondent sought a review by the second respondent of his termination of employment. The second respondent found that the employment of the third respondent was not properly terminated and determined that the third respondent should be reinstated. The appellants applied to the National Court for judicial review of the second respondent’s decision. The National Court upheld the second respondent’s decision.
Held
The Public Services Management Act does not exclude the jurisdiction of the Public Services Commission to review decisions related
to personnel matters in the National Public Service, including in respect of senior contract officers. Comments of the primary Judge
in respect of the lawfulness of the termination were obiter dicta.’
42. EMPLOYMENT UNDER CONTRACT TO CONSTITUTE SERVICE.
Employment under contract under this Part shall constitute service in the Public Service for all purposes.
(5) The provisions of this Act shall apply to an officer employed on a contract of employment under this section only in so far as
they are not inconsistent with the terms and conditions of the contract of employment.
50. DISCIPLINARY OFFENCES.
An officer who -
(a) commits a breach of this Act; or
(b) except as authorized in the course of official duty, does or divulges, directly or indirectly, any confidential information concerning public business or any matters of which he has official knowledge; or
(c) except with the consent of the Head of State, acting on advice, or of an officer authorized for the purpose by the Head of State, acting on advice, publicly comments on administrative action or the administration of a Department; or
(d) wilfully disobeys or disregards a lawful order made or given by a person having authority to make or give it; or
(e) is negligent or careless in the discharge of his duties; or
(f) is inefficient or incompetent from causes within his own control; or
(g) uses intoxicating liquors or drugs to excess; or
(h) solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his official duties (other than his official remuneration); or
(i) is guilty of disgraceful or improper conduct in his official capacity or otherwise; or
(j) having taken an oath or made an affirmation in the form in Schedule 1, does or says anything in violation of it; or
(k) seeks the influence or interest of any person in order to gain promotion, transfer or other advantage; or
(l) supplies to another officer, for use for any purpose referred to in Paragraph (k), a certificate or testimonial relating to official capacity or the performance of official duties,
is guilty of a disciplinary offence and is liable to be dealt with and punished -
(m) in the case of a Departmental Head - under Part VI; and
(n) in the case of an officer other than a Departmental Head - under this Part.
51. DEALING WITH MINOR DISCIPLINARY OFFENCES.
(1) If the Departmental Head, or an officer authorized by the Departmental Head to deal with minor offences, has reason to believe that an officer other than a Departmental Head has
committed a disciplinary offence that, in his opinion, would properly be dealt with under this section, he may call on the officer for an explanation as to the alleged offence, and if, on consideration of the explanation, he is of the opinion that the offence has been committed, he may caution or reprimand the offending officer.
(2) A caution or reprimand by an officer other than the Departmental Head shall be immediately reported to the Departmental Head.
52. DEALING WITH SERIOUS DISCIPLINARY OFFENCES.
(1) Where there is reason to believe that an officer other than a Departmental Head has committed a disciplinary offence other than an offence that may be dealt with under Section 51, the
provisions of this section apply.
(2) The officer may -
(a) be charged by his Departmental Head or an officer authorized by the Departmental Head to lay charges under this Division; and
(b) if it is considered that the charge is of such a serious nature that the charged officer should not continue in the performance of his duty, be suspended by -
(i) his Departmental Head; or
(ii) in case of emergency - an officer authorized by the Departmental Head to lay charges under this Division.
(3) Suspension may be effected before, at the time of or after the laying of the charge, and may be removed at any time by the Departmental Head concerned pending determination of the
charge, and where the charge has not been sustained shall be lifted immediately on a finding to that effect.
(4) On a charge being laid against an officer, he shall -
(a) promptly be given a copy of the charge; and
(b) be directed -
(i) to reply promptly in writing, stating whether he admits or denies the truth of the charge; and
(ii) to give any explanation that he desires to give in regard to it, and if a reply is not given by the officer within seven days after his receipt of the charge he may be deemed to have admitted the truth of the charge.
(5) If, after considering reports relating to the offence and charge, the reply and explanation (if any) of the officer charged and any further report that he thinks necessary, the Departmental Head
concerned is of the opinion that the charge has been sustained, he may -
(a) fine the officer a sum not exceeding 20% of the officer’s gross fortnightly pay; or
(b) reduce the officer’s pay; or
(c) reduce the officer to an office having a lower classification, and to a salary within that classification; or
(d) in addition to or instead of imposing a punishment specified in Paragraph (a), (b) or (c), transfer the officer to some other office or locality; or
(e) dismiss the officer from the Public Service.
(6) The Departmental Head shall notify an officer of a punishment imposed or recommendation made by him under Subsection (5).
53. OFFICER CHARGED WITH CRIMINAL OFFENCE.
(1) Where an officer other than a Departmental Head is charged by Police with having committed a criminal offence he shall -
(a) where the criminal offence relates to the duties of his office - be suspended without pay by his Departmental Head; or
(b) where the offence does not relate to the duties of his office - be suspended on full pay by his Departmental Head.
(2) Where the officer is convicted of an offence which relates to the duties of his office by a court of competent jurisdiction, he shall be dismissed from the Public Service by the Departmental
Head.
(3) Where the officer is convicted of an offence which does not relate to the duties of his office by a court of competent jurisdiction, he shall be dismissed by the Departmental Head, unless the
Departmental Head otherwise determines.
54. STRIKES.
(1) An officer who aids, abets, forments or takes part in a strike that -
(a) interferes with or prevents; or
(b) is intended or calculated to interfere with or prevent,
the carrying on of any part of the public services or utilities of the country, or who attempts to do so, is deemed to have committed an illegal action against the peace and good order of the country.
(2) Any officer adjudged by the Departmental Head, 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 procedure prescribed in this Act for dealing with disciplinary offence.’
‘As I stated earlier, there are two phases in the disciplinary process – the primary disciplinary phase which results in the disciplinary action taken and the second phase which is the review process. They are two distinct and independent processes and they should not be mixed up. The PSM Act in fact treats them separately under two separate Parts – s.18 in Part III (Review of Organizational Matter), and ss.50 – 54 in Part XIV (Discipline). Section 41(3) expressly makes reference to "discipline of an officer employed under a Contract of Employment". The disciplinary process under a Contract referred to here must mean the primary disciplinary process, which is the equivalent of Part XIV of the PSM Act. Section 41(3) exempts a Contract Officer from the primary disciplinary process for the reason that the Contract provides for that primary disciplinary process. I do not think Parliament intended to exempt contract officers from the review process under Part III of the PSM Act (s.18). If Parliament intended that a Contract officer should be exempted from application of the review process in s.18, it should have expressly said so in s.41(3) or s.18. Also if Parliament intended that the Contract should also provide for a review process of the primary disciplinary process outside of s.18, it should have expressly said so in s.41(3) or s.18. By not expressly providing so, Parliament intended that Contract officers who are disciplined under the primary disciplinary process set out in the Contract were entitled to invoke the review process under s.18 of the PSM Act. I also consider that Parliament did not intend that a Contract officer who is disciplined under the primary process in Clause 25.1(a)(b) and (c) of the Contract would only resort to the Court to challenge the primary disciplinary decision.
I consider there is nothing in s.41(3) which authorizes contracting parties to include a review process in the Contract. Section 41(5) cannot be read to confer on contracting parties rights which are not available to them under the PSM Act. For instance, whilst s.41(3) expressly authorizes the Contract to provide for the primary disciplinary process equivalent to Part XIV only, it does not expressly authorize the Contract to create a procedure for review. For this Court to interpret s.41(3) and (5) to permit parties to do so, is to insert a new provision in the Act, which is beyond the powers of this Court.
Clause 25.1(d) of the Contract says the decision of Secretary, DPM is final and the officer "may" seek redress in the Courts. In my view, Clause 25.1(d) does not in any way oust the review jurisdiction of the PSC under s.18 of the PSM Act. All it says is that the decision is final insofar as the initial disciplinary process is concerned. By the use of the word "may" in Clause 25.1(d), the officer is given an option of seeking a judicial review in the Courts. In any case, if Clause 25.1(d) purports to or were intended by the parties to the Contract to oust the review jurisdiction of PSC on disciplinary matters, then to that extent, this Clause is inconsistent with s.18(1) of the PSM Act and cannot be given effect to or enforced by the Courts.
For these reasons, I conclude that Clause 25.1(d) of the Contract is consistent with s.18(1) of the PSM Act in that it does not oust the jurisdiction of PSC to review personnel matters relating to discipline in respect of a Contract officer, who is dealt with under Clause 25.1(a), (b) and (c) of the Contract. Such an officer is entitled to invoke the administrative review jurisdiction of the PSC under s.18 of the PSM Act. Upon lodgment of a complaint, the PSC assumes jurisdiction over the matter and it must conduct an inquiry in accordance with the procedure set out in s.18(3).
I also conclude that pursuant to Clause 25.1(d) of the Contract, the Solicitor-General may seek judicial review of the decision by the Secretary of DPM, in the Courts under Order 16 of the National Court Rules, instead of seeking a review by the PSC but the National Court may require the officer to first exhaust the administrative review process under s.18 of the PSM Act by virtue of Order 16 Rule 3(6) of the National Court Rule. Also see Burns Philp (New Guinea) Ltd –v- Kekedo [1988 – 89] PNGLR 122, and The Independent State of Papua New Guinea –v- Phillip Kapal [1987] PNGLR 417 at 421 – 422.’
Lawyers for the plaintiff: Kombri & Associates
Lawyers for the defendant: ACE Lawyers
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URL: http://www.paclii.org/pg/cases/PGNC/2026/21.html