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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS 454 OF 2004
Between:
ALLAN PINGGAH
-Plaintiff-
And:
MARGARET ELIAS as the SECRETARY
DEPARTMENT OF LABOUR & EMPLOYMENT
-First Defendant-
And:
PETER TSIAMALILI as the SECRETARY
DEPARTMENT OF PERSONNEL MANAGEMENT
-Second Defendant-
And:
THE PUBLIC SERVICE COMMISSION
-Third Defendant-
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fourth Defendant-
Waigani : Injia, DCJ
2005 : May 26th, June 22nd
JUDICIAL REVIEW – Decision of Public Services Commission to discontinue – administrative review of personnel matter – Officer re-deployed in Public Service after retrenchment – Whether officer entitled to invoke administrative review process in S.18 of Public Service Management Act 1995 (as amended by Act No. 24 of 2002).
STATUTORY INTERPRETATION – Review of personnel matter under S.18 of Public Service Management Act 1995 (as amended by Act No. 24 of 2002) – Whether Public Service Commission required to conduct a "hearing" before making a binding decision – Public Services Management Act (as amended by act No. 24 of 2002), S.18(3).
Cases cited in the judgment:
Richard Tau v Lindsay Lailai & the State [1995] PNGLR 396
Geno Gapi v National Judicial Staff Services & The State (2001) N2108.
Counsel:
T. Manjin for the Applicant
R. Awalua from the Respondents
22nd June 2005
INJIA, DCJ: This is an application for judicial review made under Order 16 of the National Court Rules. Leave was granted on 5 April 2005.
The application is for judicial review of the Third Defendant’s decision (Public Service Commission’s (PSC)) to discontinue a review into the Plaintiff’s complaint against his dismissal from the Public Service. He was dismissed by the First Defendant on advice from the Second Defendant.
The facts in brief are that the Applicant was employed by the First Defendant, the Department of Personnel Management (DPM) for some years. In May 1990, he was retrenched on voluntary basis under the Public Service Retrenchment Scheme. From 1992 to May 1994, he was employed on contract by PSC. Between 1995 – 1999, he was employed by the Ombudsman Commission. He left the Ombudsman Commission following an Organizational Restructure carried out by the Ombudsman Commission. On 17 December 2001, the Department of Labour and Employment (DLE) advertised the position of Regional Industrial Relations Officer, Grade 10. He applied for the position and he was shortlisted and appointed. He commenced duty on 21 June 2002. Later, DPM became aware of the Plaintiff’s re-deployment. Consequently, the Secretary, DPM advised the Secretary, DLE that the Plaintiff was "unlawfully" re-deployed after he was retrenched. On 7 November 2002, the Secretary, DLE dismissed the Plaintiff. On 12 March 2003, he sought an administrative review of this decision by PSC under s.18 of the Public Service Management Act ("the Act"). The PSC wrote to the Secretary for DLE inviting him to respond to the complaint. The Secretary, DLE did not respond. On 9 December 2002, PSC decided to endorse the decision of the Secretary, DLE and closed its file. The PSC gave a written decision.
The Plaintiff then filed an application for judicial review of the PSC decision on five (5) grounds as follows:
(i) The Third Defendant was wrong to arbitrarily discontinue the review of the termination of the Applicant as a personnel matter and close its file,
when
It is required under section 18(3) of the Public Services (Management) Act 2002 to summons-
(a) the Departmental Head of the First Defendant or his delegate; and
(b) the Departmental Head of the Second Defendant or his delegate; and
(c) the Applicant to appear before it.
(ii) The Third Defendant’s decision to discontinue the review and close its file, which action confirms the termination of the Applicant by the First Defendant on the advice of the Second Defendant is harsh and oppressive and is contrary to section 41 of the Constitution.
(iii) The First Defendant was wrong in law in terminating the Applicant on the advice of the Second Defendant on the basis that the Applicant was previously retrenched from the Public Service by placing reliance on Order 16.7 of the Public Service General Orders,
when
Order 16 is not a sub-ordinate legislation authorized by Section 70 of the Public Service (Management) Act 1995.
(iv) The termination of the Applicant from the Public Service for the sole reason that he had been previously retrenched when he had satisfied all the requirements under section 35 of the Public Services (Management) Act 1995 to be selected for the position of Regional Industrial Relations Officer,
when
the Public Services (Management) Act 1995 is not a law that complies with section 38(1) of the Constitution to regulate or restrict the right to freedom of choice of employment conferred on every citizen by section 48 of the Constitution.
(v) The termination of the Appellant is wrongful especially when his recruitment under section 36 was pursuant to an advertisement in the Post-Courier which advertisement was an open invitation to the world at large and no specific restriction was made as required by section 36(2)(f) of the Public Services (Management) Act 1995, that persons previously retrenched need not apply.
The plaintiff filed affidavits supporting his application. In response, the Respondents filed affidavits from Acting Secretary, DLE Mr. David K.G. Tibu and PSC Commissioner Mr Tau Liu. At the hearing, both counsel presented written and oral submissions.
Three (3) main legal issues arise for determination. They relate to the meaning of s.18 and s.70 of the Public Services (Management) Act 1995 (as Amended by Act No. 24 of 2002) ("the Act") and Clause 16.7 of the (Interim) General Order No. 16 on Redundancy and Retrenchment in the Public Service ("General Order"). The issues are:
Grounds (ii) and (iv) raise different issues and they can be disposed of quickly. In relation to ground (ii), the unreasonableness of an action under a valid law under s.41 of the Constitution cannot be a proper ground to invoke the judicial review process. The appropriate procedure in judicial review to be invoked when challenging the unreasonableness of a decision is under the Wednesbury principle. This ground is misconceived and it is dismissed.
The argument advanced in support of ground (iv) is that because the qualification of rights under s.38 of the Constitution contained in the Act does not expressly restrict the Plaintiff’s right to employment given by s.48 of the Constitution, the Act or the General Orders made under s.70 of the Act cannot restrict his right to be re-deployed in the Public Service. General Order 16.7 which precludes his re-deployment is invalid because it restricts his right under s.48 of the Constitution.
I accept Mr. Awalua’s submission that a citizen’s right under s.48 of the Constitution is not automatic. As s.48(1) of the Constitution says, this right is subject to laws which prescribe job qualifications which a citizen must meet. Section 70 of the Act and General Order 16.7 prescribes those qualifications.
The question really is whether General Order 16.7 is authorized by s.70 of the Act. I deal with this issue when I deal with the first issue.
In relation to the first issue, s.70 provides:-
"S.70. General Orders
(1) The Departmental Head of the Department of Personnel Management may give to officers directions (to be known as "General Orders"), not inconsistent with this Act, as to any matter prescribed to be so provided for or that is necessary or desirable for the efficient management and control of the Public Service.
(2) In formulating General Orders under Subsection (1), the Departmental Head of the Department of Personnel Management shall give effect to any relevant decision on policy made by the National Executive Council."
Mr. Manjin submits the General Order is not a sub-ordinate legislation and therefore it is unenforceable. Even if it is a sub-ordinate legislation, General Order 16 is neither authorized by any provision of the Act nor does it relate to efficient management and control of the Public Service. Therefore, General Order 16 is unconstitutional and invalid.
Mr. Awalua submits the General Orders is a sub-ordinate legislation and the National Court lacks jurisdiction to invalidate a sub-ordinate legislation. He submits the General Order 16 comes within the meaning of measures taken by the Secretary for DPM to attain efficient management and control of the Public Service.
In my view, as I indicated to Plaintiff’s counsel during submissions, I have no difficulty in finding that General Order 16 is a sub-ordinate legislation made under s.70 of the Act. Even though the Act does not expressly provide for it, it is within the power of the Secretary, DPM to determine the appropriate policy guidelines and administrative procedures for the efficient management and control of the Public Service. The subject of retrenchment of officers clearly comes within the meaning of "efficient management and control of the Public Service". The Government and the Public Employees Association (PEA) which represents public servants, agreed that a public servant who is retrenched from the Public Service shall not be re-deployed in the Public Service. This agreement was given the force of law when the Secretary for DPM promulgated General Order 16 as authorized by s.70 of the Act. I find the General Orders 16 to be valid and enforceable. This General Order is binding on the State and its instrumentalities and its officers. In any case, as I indicated, it is not open for the Applicant who benefited under the same retrenchment scheme previously to approbate and reprobate the same Retrenchment Rules when it suits his convenience.
In relation to the second issue, Clause 16.7 of the General Order states:
"16.7 An officer who has been retrenched from the Public Service previously shall not be re-appointed or re-deployed back into the Public Service either in a line position or in short term contract employment under any circumstances"
This provision is very clear. Simply put, a retrenched officer cannot be re-deployed under any circumstance. This rule invalidates the entire recruitment process including job advertisement, application, short-listing and appointment of a retrenched officer to any position in the Public Service. It is immaterial that the Plaintiff disclosed or failed to disclose his retrenched status to DLE or DPM at the time of his recruitment or re-deployment. It renders the Plaintiff’s re-deployment by the DLE unlawful or invalid. DPM, which is responsible for the overall management of the Public Service reached the correct view that his re-deployment was wrong and unlawful. The Plaintiff’s case however is based on his assertion that General Order is invalid. I have found that the General Order is valid. It follows that grounds (iii), (iv), and (v) must fail. I dismiss these grounds of review.
The third issue is a substantive one. Prior to 2002, s.18 of the Act empowered the PSC to conduct a review of a personnel matter and make a recommendation only, to the Departmental Head concerned. In 2002, s.18 of the Act was repealed and replaced by the following:
"PART III. REVIEW OF PERSONNEL MATTERS.
"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 –
(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 complaint; and
(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the complaint.
"(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 complaint, who may at his request and at his own costs, 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".
The effect of the amendment to s.18, is that it gave the PSC the power to actually make a binding decision. Such decision by PSC has serious policy, legal and administrative implications and consequences for the National Public Service, the Department of DPM, the employing Department and the officer concerned. Because of this, the PSC’s decision-making process or procedure in s.18 is carefully worded and expressed in clear and mandatory terms. The procedure is this. Upon receipt of a written complaint from the officer, PSC is required to "summons" the Departmental Head of DPM, the Departmental Head of the department which employed the officer and the officer concerned, to "make themselves available to appear before the Commission" within 14 days of the date of the summons. The two (2) departmental heads are required to "appear" before PSC to give their views. The officer concerned is also required to "appear" before PSC to give his views. He or she may be represented by an industrial organization of which he is a member or by a lawyer. The PSC having considered the views expressed by those summoned together with any personnel management policies of the Public Service and costs implications, then makes a "decision to uphold, vary or annul the decision the subject of the complaint." The decision is immediately communicated to the Secretary for DPM and Secretary for the employing Department. The decision becomes binding after thirty (30) days.
Section 18(c) does not expressly say if PSC is required to conduct a "hearing" involving oral representations from the three persons appearing on summons before it makes its decision. The question is whether a hearing is implied in this provision. This issue has not been judicially considered previously.
I accept Mr. Manjin’s submission that some kind of "hearing" is implied in s.18(3). In my view, the procedural scheme in subs.(3)(c) clearly implies a hearing before the PSC. The purpose of "summonsing" the two Departmental heads and the officer concerned is to require their "attendance" for the purpose of a hearing which will take place on a date, time and venue, which are fixed in the "summons" issued by the PSC. The form of "Summons" is not provided in the amendment. The PSC may devise an appropriate form of summons. In the alternative, a letter from the PSC issued to the parties may suffice. The summons or letter should be addressed to the three (3) parties and it should fix a date, time and venue for the hearing to take place within 14 days. It should contain a concise statement of the complaint and require the parties to attend the hearing to give their "views" or explanation on the complaint.
A "hearing" of some kind before the PSC is clearly implied in the notions of "summons" in subs.(3)(a), "shall make themselves available to appear" in subsection (3)(b) and "expression of views of the persons summonsed" in subs.(3)(c). At this hearing, all those persons summonsed to appear and are in attendance are given an opportunity to be heard on the matter or to express their "views". In other words, the two departmental heads and the officer all have a right to be heard on the matter before the PSC makes a decision. The "right to be heard" is implicit in subs.(3). Insofar as the officer is concerned, the right to be heard in subs.(3) is an extension of the right to be heard recognized by common law principles of natural justice adopted in s.59 of the Constitution. Insofar as the two departmental heads are concerned, such right is not part of the common law principles of natural justice, but such right is one of the fundamentals of good administration. It also comes with the duty to act fairly and be seen to be acting fairly, imposed on the PSC, by s.59 of the Constitution. The two departmental heads are obliged to give their views on the complaint and they have a right to be heard - to express their views on the complaint, at the hearing.
The procedure to be followed by PSC in convening a hearing is not set out in subs.(3). I would think the PSC is given the discretion to decide the appropriate procedure. The hearing will no doubt involve oral representations from the parties in attendance. It may occur that prior to the hearing, the two departmental heads and the officer or his or her representative may provide the PSC written explanation or submissions on the matter. But written statements or submissions by parties submitted to PSC prior to the hearing are no substitutes for a "hearing" involving oral representation, made face to face, with the PSC. An oral hearing is fundamental pre-requisite to the right to be heard. The hearing process must be sufficiently flexible to allow each party to present their own case and to respond to the case of the opposing party and if necessary, to ask questions. In an appropriate case, it may involve calling of witnesses by a party and questions being asked of the witnesses by the opposing party or the PSC. I do not however think these provisions imply a formal hearing involving adherence to some fixed and rigid technical rules of procedure and evidence such as those of employed by the Courts, quasi-judicial tribunals or other statutory tribunals. The purpose of the hearing is to give all parties an opportunity to present their views to enable the PSC to make an informed and binding decision. Generally, the decision given by the PSC should be in writing. Reasons for decision and good reasons for decision must be given.
The issue is whether PSC complied with the procedure set out in subs.(3) in dealing with the complaint in this case. There is no dispute that the Plaintiff lodged a written complaint with PSC. But I am satisfied that the procedure for summoning of the two departmental heads and the Plaintiff was not followed. The evidence is that on 16 October 2003, PSC wrote to Secretary, DLE, requesting a written response on the complaint and documents relating to the disciplinary process adopted in dismissing the Plaintiff. The Commission gave him 14 days to respond. No date, time and venue for a "hearing" was fixed in the letter. No mention was made of a "hearing". There is no evidence of a similar letter being issued to Secretary, DPM or the Plaintiff. None of the parties were given notice of any "hearing". The Plaintiff’s lawyer wrote to the PSC but he was not advised of any "hearing". The PSC’s decision was based on findings as a result of its own investigation.
I note that neither the two Departmental heads nor the Plaintiff requested the PSC to convene a "hearing". However, that does not relieve the PSC of the duty to convene a "hearing". The PSC was under a duty to convene an oral hearing after issuing summonses. It was required to give all parties an opportunity to be heard orally and to present relevant documents and if necessary, call witnesses. To the PSC, it may be that the case for the officer as presented in the written complaint and responded to in writing by the Departmental head prior to the hearing, may lack merit or appear so hopeless that a hearing is not warranted. But the PSC’s consideration of written complaint of the officer and further written representations made by him or his lawyer, and any written response received from the two departmental heads, does not constitute a hearing as required in s.18(3). The officer and the two Departmental Heads summoned have a right to be present at the hearing to express their views. Only after such an opportunity is given, will the PSC would be in a good position to make a decision under subs.4. I am satisfied that the Plaintiff and the two Departmental Heads were denied of their right to be present and to be heard orally before a decision was made.
In the present case, the Respondent’s case is not based on subs.(3) but on subs.(1). That is, because the Plaintiff was re-deployed in breach of Clause 16.7, he is not an officer of the Public Service within the meaning of subs.(1) and the review procedure in s.18 is not available to him. This raises a different issue.
Mr. Awalua relied on the principles enunciated by Salika J in Richard Tau v Lindsay Lailai & the State [1995] PNGLR 396 at 400, which were adopted and applied by Salika J in Geno Gapi v National Judicial Staff Services & The State (2001) N2108. In Richard Tau’s case, the plaintiff was hand-picked by the Secretary of Department of Information and Communication, to act as Deputy Secretary in the Department. He was a temporary employee. He was not appointed through the normal selection process set out in the General Orders or the Act. Upon his dismissal by the Secretary of the Department on allegation of improper conduct, he sought judicial review on the grounds that the disciplinary procedure in the Act was not followed. His Honour held that where a person is appointed to a position in the public service in contravention of the selection process in General Order 9.5, his appointment is not made under s.35(1) of the Act. It follows that by virtue of s.18(1) of the Act he is not an officer of the Public Service, to whom the Act and General Orders apply. Therefore the review process under s.18 is not available to him.
In that case, the definition of the words "officer" and "employee" in s.1 of the Act were not considered.
An "officer" is defined as follows:-
"Officer" means an officer in the Public Service, but does not include –
(a) an employee; and
(b) a person employed in an honorary capacity; or
(c) a person remunerated by fees, allowances or commission only."
An "employee" is defined as:
"a person employed to render temporary assistance in the public service, but does not include a person in an honorary capacity or a person remunerated by fees, allowances or commission only".
His Honour’s reasoning is consistent with the definition of these two (2) words. In that case, the Plaintiff’s appointment came under the definition of "employee" because his was a temporary appointment made by the Secretary, to fill a temporary vacancy. He was not an "officer" of the Public Service within the meaning of "officer" in subs.(1) and the disciplinary process under the Act and the review process under subs.(2), (3) and (4) were not available to him.
The facts of the present case are however different. The plaintiff was recruited under the normal recruitment process in the Act and the General Orders. He was appointed to a permanent position in the DLE. He became a salaried officer. Therefore, rightly or wrongly, he became an "officer" of the Public Service, for which he was entitled to be dealt with under the disciplinary process set out in the Act and the General Orders. The issue before me is whether the review process under subs.(2) and subs.(3) was available to him. I have no hesitation in concluding that it was available to him. I have already determined that the PSC failed to comply with the procedure under subs.3.
For these reasons, I find that an error of law was committed by the PSC. I quash the decision on this basis.
The question arises as to the appropriateness of the relief. This is a discretionary matter. The discretion is given by Order 16 rule 4(1) of the National Court Rules.
The issue is whether the matter should be referred back to the PSC for a re-hearing. This is a discretionary matter. A re-hearing is normally ordered where there is a procedural error or blunder committed by the decision-maker and if the matter were to be re-heard following proper procedures, it would be open as a matter of law, for the decision-maker to arrive at different results. In my view, in the present case, it is not appropriate to do so. Even if the PSC conducted an oral hearing, as a matter of law, the PSC would still arrive at the same decision. That is, the Plaintiff cannot be re-deployed in the Public Service after he was retrenched. It would serve no purpose and therefore detrimental to the good administration of the Public Service for the matter to be referred back to the PSC for re-hearing, when the principal relief sought by the Plaintiff is not open in law.
The plaintiff has sought re-instatement. In my view, as a matter of law, re-instatement is not open by virtue of General Order 16.7. It would be detrimental to good administration of the Public Service to require DPM and DLE re-deploy a retrenched officer contrary to Clause 16.7 of General Order 16.
He has also sought payment of his entitlements to be calculated from date of dismissal to the date of judgment. In my view, he is not entitled to this payment because his dismissal was proper in law and he was not entitled to be re-deployed. In any case, he has not been performing on the job since his dismissal. If he had been performing his duties up to this day, he could be compensated on a quantum meruit basis. It would be detrimental to good administration of the Public Service for a retrenched officer who is wrongly re-deployed to be paid back-dated entitlements for un-performed work.
The only relief he might be entitled to is general damages for denial of his right to be heard under s.18 of the Act. But he has not claimed general damages in the statement filed under Order 16 Rule 3 of the National Court Rules. He also did not pursue damages at the hearing. The Court cannot grant a relief which has not claimed and pursued at the hearing.
However, I award costs of the proceedings to the Plaintiff.
The formal orders of the Court are:
____________________________________________________________
Lawyer for the Applicant : Ketan Lawyers
Lawyer for the Defendants : Paraka Lawyers
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