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Simoi v Secretary, Department of Lands [1998] PGNC 31; N1714 (14 May 1998)

Unreported National Court Decisions

N1714

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 503 OF 1996
MIRIA SIMOI - PLAINTIFF
V
SECRETARY, DEPARTMENT OF LANDS - DEFENDANT

Waigani

Woods J
23 March 1998
14 May 1998

JUDICIAL REVIEW - employment in public service – disciplinary proceedings dismissal – nature of recommendation of Public Services Commission – only a recommendation - powers of Departmental head under new legislation - different view of seriousness of the charge of being absent - history of absenteeism - no gross breach of procedures - nothing exceptional to warrant review.

Counsel

AD Lora for the plaintiff

Ms P Kiele for the Defendant

14 May 1998

WOODS J: This is an application to review the decision of the Head of the Department of Lands to dismiss the applicant from his employment with the Department of Lands.

The applicant was employed in the Department for many years however on 1^st November 1995 he was charged under Section 47 of the Public Services (Management) Act with a disciplinary offence namely being negligent or careless in the discharge of his duties in that he had absented himself from duty without prior approval and thereby was receiving full pay without performing official duties. On the 21^st November 1996 the plaintiff answered the charge and queried the nature of the charge and requested further particulars of the charge, namely the days of his absence. The Secretary for Lands then on the 15^th December 1995 ordered the plaintiff’s dismissal from the Public Service.

The Plaintiff thereupon on the 7^th February 1996 appealed to the Department of Personnel Management from that dismissal. It is noted that in his letter of appeal the plaintiff does not deny the charge of absenteeism, but suggests that the dismissal is too harsh a penalty. The Department of Personnel Management queried the Lands Department on the nature of the charge and recommended the plaintiff’s reinstatement. However the Secretary for Lands stood firmly by his decision to dismiss. The plaintiff then appealed to the Public Services Commission which also recommended the plaintiff’s reinstatement, and again the Secretary for Lands stood by its decision to dismiss.

The plaintiff is seeking judicial review which by its nature is a public law remedy, of his employment in the Public Service. This application is highlighting the fact that there is increasing use of review proceedings in employment cases where the aggrieved employee is a public servant under the Public Services (Management) Act. However the use of judicial review for the purpose of challenging the performance of managers and department heads carrying our their functions under legislation to enforce an efficient Public Service when the Act clearly intended the authority itself and the relevant department heads to be judges of fact risks debasing the remedy. Judicial review is a discretionary remedy. It should not be used to monitor or oversee the actions of Department Heads or authorities directly empowered and responsible for their own sphere other than in exceptional circumstances. Further this is a matter of the plaintiff’s employment which can only be a matter of a private nature, it can have no public law basis. The plaintiff is not a public law appointment. Whilst he is employed with the protection of the Public Services (Management) Act it is suggested that being a public servant he has public law rights of protection. Employment by a public body does not per se inject any element of public law. Whilst the Law may give the plaintiff as a public servant certain rights as to how his employment is dealt with and terminated, so long as these procedures are followed then it is not a matter for this court by way of judicial review to interfere unless there are special circumstances or glaring irregularities.

In this case the plaintiff was given the appropriate notice. He was given a chance to reply and he did reply. However the Secretary was satisfied that the plaintiff had a sufficient history of absenteeism for him to consider the punishment of dismissal. And it is noted that the plaintiff did not deny that he had been guilty of some absenteeism. However he suggests in his appeal to the Department of Personnel Management that absenteeism is not a serious charge. However it was apparent that the Secretary for Lands did in the circumstances feel that it was serious enough bearing in mind the applicant’s employment history. And of course we must always have in mind that the Departmental Head is responsible to the State for the efficient operation of his department.

It is noted that under the new Public Service legislation the Departmental Head does have a greater power than before of discipline over his officers and that whilst officers can appeal to the Public Service Commission, the Commission cannot order the Departmental Head to reinstate, it can only recommend, and the Departmental Head is not obliged to accept the recommendation. This new scheme must have been deliberately considered by the Parliament to give the Departmental Heads more control over the personnel in their departments.

The Head of the Department has the power. The charges were laid, the plaintiff answered, the Secretary was not satisfied, and there was a long history of absenteeism, so the Secretary persisted with the dismissal. There was opportunity to appeal for further consideration to be given to the dismissal and this was done but the Departmental Head after receiving the recommendation of the Public Services Commission still insisted with considered reasons on the termination, which he was entitled to do. There has been no gross breach of procedures. There is nothing exceptional here that warrants judicial review.

The application is dismissed.