Mark v Western Highlands Provincial Government and The State [1990] PGNC 72; N929 (14 December 1990)

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WS 199 OF 1990
PIUS MARK
V
WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
1ST DEFENDANT
AND
THE STATE
2ND DEFENDANT

MASTER AND SERVANT - Public Servant - Action for wrongful dismissal - Permanancy of employment till 55 years - enforced retrenchment - measure of Damages.

WOODS J: The Plaintiff is suing for his wrongful dismissal as an Education Officer with the Public Service. The Plaintiff was employed as an assigned Public Servant in the field of Education assifrom the State to the Department of Western Highlands. In e In effect I am satisfied that the employing body is the Public Service of the National Government.

Up until 1984 the Plaintiff was employed and was working as an Education Officer and in 1984 was with the Division of Education Department of Western Highlands. In November 1984 he applied for and took 3 months leave without pay. When he went to resume his duties in February 1985 he was not reinstated to the payroll.

Over the next few months he made various representations to the relevant authorities to ascertain his position. At no time was he even served with any charges under the Public Service Act nor were any formal steps taken to secure his retrenchment. Instead nothing happened. He appealed to the Public Service Commission which in May 1988 after long delay recommended the Plaintiff be reinstated. However that did not assist the Plaintiff as nothing happened in spite of his requests to the Western Highlands Department of Education.

One can ask the question why did he take so long before he took action through the National Court. The Plaintiff was attempting to follow normal Public Service Procedures and when his appeal to the Commission was successful he naturally assumed he would be reinstated.

The State has offered no explanation merely highlighted the procedural problem where the officer is employed by the National Government but the actual control rests with the Provincial Authorities. Also it appear the ‘files’ relating to the Plaintiff are missing. It is practically conceded that the decision which caused this problem was made in the Western Highlands.

I am satisfied that the Plaintiff was unlawfully terminated and is entitled to damages. But what is the security or terms of employment in the Public Service. Is it in law permanent employment for one’s working life which means the measure of damages is for one’s working life. Or it is as the Defendants submit merely 2 weeks salary after the decision was made not to reinstate him after the Public Service Commission made its recommendation. The 2 weeks being based on the method of salary payment.

I am not satisfied that he is at law entitled to damages until the Public Service Retirement age of 55 years. On the other though it is not as if he could be arbitrarily terminated at any time and thus the mere 2 weeks salary in lieu of notice is not the measure.

Unfortunately I have not been referred to any law or authorities either way. Whilst the Public Service Legislation seems to imply a right to employment till 55 years I am not convinced that is absolute. Whilst I am not satisfied that termination can be arbitrary with a short period of notice other wise why would there be all the procedures in the Public Service Legislation for dismissal, but clearly the State must have some power to retrench. And of course it is common knowledge that the State has been doing that. Again I have been given no guidelines on how retrenchment payments are calculated.

I am satisfied that the Plaintiff was entitled to employment and salary up till the Public Service Commission dealt with the matter. Once the Department of Western Highlands refused to reinstate him he is entitled to be compensated for arbitrary termination on a similar principle to retrenchment.

He was put off the payroll on 23rd November 1984 although the 3 months from then was at his own request for leave without pay. He attended to resume duties after such leave on 23 February 1985 however he was never put back on the payroll. Therefore he is entitled to his salary from 23rd February 1985 to the time the Public Service Commission dealt with his Appeal on 10 May 1988.

Upon the failure to reinstate him following 10 may 1988 it must be deemed that he has been terminated and is entitled to compensation for that arbitrary action without following established procedures.

I allow interest on the above amountmounts at 4% from 23 February 1985 to the date of the writ totalling K3,925.92.

As from 10 May 1988 I must calculate a figure to compensate the Plaintiff for his arbitrary dismissal. As I have already indicated it is not his full salary until Public Service Retirement age. It is to be some sort of retrenchment figure which I have already noticed from another case before me is called by the State an exgratia payment, apparently for the early retrenchment. The Plaintiff was 46 years of age in 1988 which is an age at which he may have some difficulty getting another permanent job. The State has offered no assistance as to how the State calculates such exgratia payments on termination. I will calculate a Retrenchment figure based on one third of his salary at May 1988 capitalised for 9 years till he turns 55 years. This is an amount of K41.37 per week for 9 years capitalised @ 3% at a factor of 412 totals K17,044.

I would allow interest on the Past loss of earnings plus the above figure @ 8% from the date of issue of the writ which calculates to today being for 9 months at 2188.91.

23 Feb 1985 to 31/12/85	22 Fortnights @ K219.87	K4,837.14
01/01/86 to 31/12/86	26 Fortnights @ K229.46	K5,988.91
01/01/87 to 31/12/87	26 Fortnights @ K240.56	K6,289.06
01/01/88 to 10/05/88	9.3 Fortnights @ K248.24	K2,322.80
		K19,437.91

To Summarise:	Past Economic Loss	K19,437.91
	Interest @ 4%	3,925.92
	Payment for Future Loss	17,044.00
#160;	Interest from Date of Writ	2,188.91
	K42,596.74

It seems quite cleat eveer the current dent decentralisation process the Employing body is the Public Service of thof the National Government. It is not my concern as to which arm of Government is responsible for the situation, that is an internal matter for the Government. The Plaintiff is entitled to damages from the State so I am not concerned as to how the different arms of Government allocate the budget funds, in the end it is the State.

National Court of Papua New Guinea

Mark v Western Highlands Provincial Government and The State [1990] PGNC 72; N929 (14 December 1990)