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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO 415 OF 2012
PAPUA NEW GUINEA SPORTS FOUNDATION
Plaintiff
V
PUBLIC SERVICES COMMISSION
First Defendant
PETER AGLUA
Second Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Cannings J
2013: 24 April, 28 June
JUDICIAL REVIEW – whether decision of Public Services Commission on review of a personnel matter was in excess of jurisdiction – Public Services (Management) Act 1995, Section 18 – Constitution, Section 191
The Public Services Commission, acting on complaint by the second defendant who had been dismissed from employment by the plaintiff, the Papua New Guinea Sports Foundation, decided that the second defendant’s dismissal was annulled and he be reinstated to his substantive position and paid salaries and entitlements lost as a direct result of his unlawful dismissal. The plaintiff applied for judicial review of the Commission’s decision, arguing that it was: (1) in excess of jurisdiction (contrary to time limits in the Public Services (Management) Act); (2) wrong in law as there was a failure to take into account relevant considerations; (3) wrong in law under the Constitution; and (4) so unreasonable no reasonable decision-making authority could have made it.
Held:
(1) The second defendant complained to the Public Services Commission 54 days after the date of dismissal, within the 60-day period allowed by Section 18(2)(b) of the Public Services (Management) Act. There was no excess of jurisdiction in that regard.
(2) There was no failure to take account of relevant considerations as the decisions of the plaintiff’s CEO to charge the second defendant with a disciplinary offence, to find him guilty and to dismiss him from the Public Service took effect after the date of his purported resignation.
(3) Section 191 (functions of the Commission) of the Constitution makes the Public Services Commission responsible for review of personnel matters connected with the National Public Service. Its investigation and determination of the complaint was a legitimate discharge of that constitutional function.
(4) The decision of the Commission was not so unreasonable that no reasonable decision-maker could have made it.
(5) All grounds of review were dismissed, the application for judicial review failed and costs were awarded to the second defendant.
Cases cited
The following cases are cited in the judgment:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746
Michael Anis Winmarang v David Ericho (2006) N3040
Paul Dopsie v Jerry Tetaga (2009) N3720
Paul Saboko v Commissioner of Police (2006) N2975
Tau Kamuta v David Sode (2006) N3067
JUDICIAL REVIEW
This was a review of a decision of the Public Services Commission to uphold a complaint on a personnel matter connected with the National Public Service.
Counsel
G M Konjib, for the plaintiff
R Uware, for the second defendant
28th June, 2013
1. CANNINGS J: The Papua New Guinea Sports Foundation applies for judicial review of the decision of the Public Services Commission to uphold a complaint by Peter Aglua that he was unlawfully dismissed from the Public Service. Mr Aglua was an athletics development officer with the Foundation. He was found guilty of a disciplinary offence relating to his failure to report for duty after his return from the 2008 Paralympic Games. The Foundation is a statutory authority established by the Papua New Guinea Sports Foundation Act 2006. It is aggrieved by the decision of the Public Services Commission dated 7 March 2012 which was that Mr Aglua’s dismissal was annulled, he be reinstated to his substantive position and he be paid salaries and entitlements lost as a direct result of his unlawful dismissal.
2. The Foundation seeks by notice of motion filed on 1 October 2012 a declaration that the decision of the Commission was illegal, unlawful and void and consequential orders including an order in the nature of certiorari quashing the Commission’s decision. The Foundation relies on four grounds of review, arguing that the Commission’s decision was:
(1) made without jurisdiction (contrary to time limits in the Public Services (Management) Act);
(2) wrong in law as there was a failure to take into account relevant considerations;
(3) wrong in law under the Constitution; and
(4) so unreasonable no reasonable decision-making authority could have made it.
GROUND 1: LACK OF JURISDICTION
3. The Foundation argues that the Commission lacked jurisdiction to deal with Mr Aglua’s complaint because it was made more than 60 days after the date of the decision he wanted reviewed contrary to Section 18(2)(a) of the Public Services (Management) Act. To appreciate this argument it is necessary to set out the facts in more detail.
4. On 24 September 2008 Mr Aglua returned from Beijing triumphant as the athlete that he coached, Francis Kompaon, had won PNG’s first Olympic-level medal. However Mr Aglua did not return to work at the National Sports Institute at Goroka as he was aggrieved that his outstanding retrenchment application (he had spent 20 years in the Public Service as a teacher before nine years with the Foundation or its predecessor the PNG Sports Commission and in late 2007 had applied for retrenchment) and an application for furlough leave had not been determined. He was carrying an injury and felt that he had not received proper recognition for the role he played in securing PNG’s first Olympic-level medal. On 17 December 2008 he had a meeting with the Acting Director of the National Sports Institute Mr Edris Kumbruwah to discuss his failure to return to work. Mr Aglua followed up that meeting with a letter to Mr Kumbruwah dated 7 January 2009 setting out his grievances. On 4 February 2009 Mr Kumbruwah wrote to the Executive Director (the chief executive officer) of the Foundation Mrs Iammo Launa recommending that Mr Aglua be charged with a disciplinary offence for absconding from duty. The next day 5 February 2009 Mr Aglua wrote a letter of resignation to Mrs Launa and asked if his applications for retrenchment or furlough could still be considered and he could be advised when his final entitlements would be available for collection.
5. Despite Mr Aglua’s apparent resignation (which had not been accepted) Mrs Launa proceeded to lay a disciplinary charge against him dated 4 March 2009, which stated:
TAKE NOTICE that you are hereby charged with committing an offence within the meaning of Section 50 of the Public Services (Management) Act, namely:
Facts: You were released by the Acting Director for the National Sports Institute to assist with the PNG Paralympic team for the Beijing Paralympic Games. Whilst knowing that you were required to return for duties upon returning from Beijing you decided in your own wisdom not to do so and have continued to abscond yourself from duty without approval. Your action has amounted to a breach of the Public Services (Management) Act and General Orders which in itself is an offence (under the Public Services (Management) Act and General Orders).
6. On 17 March 2009 the charge was served on Mr Aglua. He was given seven days to respond. He was the same day suspended without pay. He responded to the charge in writing on 20 March 2009. When Mrs Launa determined the charge some months later she stated that he had not replied to the charge. I am unable to see any basis for that statement. The evidence is clear that Mr Aglua did respond in writing and that his response was received in the office of the Executive Director on 20 March 2009.
7. On 26 May 2009 Mrs Launa wrote to Mr Aglua, not mentioning the disciplinary charge but – and this is quite baffling – acknowledging his resignation letter of 5 February 2009 and advising that she accepted his resignation (but not stating the effective date of resignation). She even thanked him for his contributions towards sport and its development in the country and wished him every success in his future.
8. Ten days later, on 5 June 2009, Mrs Launa wrote a letter, served on Mr Aglua on the same day, headed “NOTICE OF PUNISHMENT” to Mr Aglua which stated:
I refer to the disciplinary charges served on you on 17 March 2009.
You have not responded to the disciplinary charges laid against you within the required period of seven (7) working days. Even after having given you extension I have not received any response. I have therefore concluded that you are guilty of an offence. I want to inform you that the charge against you in relation to Abscondment is sustained.
Take notice that you have wilfully disobeyed instructions given to you by the Acting Director for National Sports Institute. Furthermore, you have continued to receive your salary even though you were not at work. Such a behaviour is totally unacceptable and portrays a bad image of one's self and sets a very bad precedence if unpunished. I have given serious thought to this attitude.
I am forced to exercise my powers under Section 52 subsection 5(e) of the Public Services (Management) Act. Take notice that you are dismissed from the Public Service effective from 5 June 2009.
You forfeit all your entitlements except that of your furlough leave and Nambawan Super Fund refunds. Liaise with the Human Resources Development Branch if you need assistance.
9. Also served on Mr Aglua was a notice of punishment under Section 52 of the Public Services (Management) Act, which stated that the charge laid against him was sustained and the punishment was that he was dismissed from the Public Service. The notice, signed by Mrs Launa, concluded:
AND TAKE FURTHER NOTICE that in accordance with Section 18 of the Public Services (Management) Act I hereby notify you that you have a right of review of my decision by the Public Services Commission.
10. On 29 July 2009 Mr Aglua complained (in a letter dated 24 July 2009) to the Public Services Commission about the way he had been treated by the Foundation, in particular the decision to find him guilty of a disciplinary offence and to dismiss him from the Public Service. The Commission reviewed the matter and conducted a hearing in Goroka in May 2010. Then after a long delay (the significance of which is commented on later) on 7 March 2012 the Commission wrote to the Executive Director of the Foundation, conveying its decision in the following terms:
The Commission annuls the decision dated 5 June 2009 by you to terminate Mr Peter Aglua from the Public Service.
That Mr Aglua be reinstated to his substantive position immediately prior to his unlawful dismissal.
That you effect payment [of] Mr Aglua’s lost fortnightly salaries and entitlements as a direct result of his unlawful dismissal.
11. It is that decision of 7 March 2012 which is the subject of the application for judicial review. The Commission gave three reasons for its decision. First the disciplinary charge was defective as it failed to specify the offence in Section 50 of the Public Services (Management) Act allegedly committed by Mr Aglua. He could not properly respond to the charge as he was not informed of the exact nature of the offence being alleged against him. Secondly the Executive Director misled the Commission by stating that Mr Aglua did not respond to the charge as there was evidence that his response was received on 20 March 2009, which was within the seven-day period given to respond. Thirdly the Executive Director did not notify Mr Aglua of the decision on the charge until 54 working days after the date of his reply. This was contrary to General Order No 15.35 which provides that a charged officer must be notified of the decision on the charge within 21 working days, failing which the charge is deemed null and void.
12. The Foundation’s jurisdictional argument is based on Sections 18(1) and (2) (review of personnel matters in relation to appointment, selection or discipline) of the Public Services (Management) Act, which states:
(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.
13. Mr Konjib for the Foundation submitted that the key date for determining the Commission’s jurisdiction was the date of Mr Aglua’s resignation, 5 February 2009. He had 60 days to complain but did not complain until more than five months or approximately 150 days later, on 24 July 2009. There was no waiver of the 60-day time limit by the Chairman of the Commission. Therefore the Commission lacked jurisdiction.
14. That submission is flawed. The 60-day period referred to in Section 18(2)(b) relates to the decision which the officer wants reviewed. It was the decision to find him guilty of a disciplinary offence and to dismiss him from the Public Service – not his resignation – that Mr Aglua was complaining about. And it is that decision which, as Mrs Launa explained in the notice of punishment, Mr Aglua had a right to have reviewed. That decision was dated 5 June 2009. Mr Aglua complained, thereby seeking review of it, 54 days later, on 29 July 2009, clearly within the 60-day period allowed by Section 18(2)(b). The Commission did not lack jurisdiction. Ground 1 of the judicial review is dismissed.
GROUND 2: FAILURE TO TAKE ACCOUNT OF RELEVANT CONSIDERATIONS
15. The Foundation argues that the Commission failed to take into account two relevant considerations:
16. I find no merit in these arguments. The question of whether Mr Aglua actually absconded from duty was not decided as it was not necessary to decide it, as the Commission determined that the charge was defective from the outset. It was an irrelevant consideration.
17. As to the resignation notice it is true that Mr Aglua gave notice of his resignation on 5 February 2009. However I find nothing in the notice or the General Orders to support the proposition that he was giving four weeks notice or that his resignation became effective as a matter of law on 5 March 2009. A number of things happened after 5 February 2009:
18. It was confusing to say the least to have a disciplinary charge served on an officer who had just given a notice of resignation. It was doubly confusing to accept the resignation after the officer had responded to the charge. And it was extremely perplexing that the Executive Director, having accepted the resignation, proceeded to find the officer guilty and to dismiss him. In these circumstances I consider that the laying of the charge, its service on Mr Aglua, his response to the charge and the determination by the Executive Director that he was guilty and that he was dismissed from the Public Service superseded his purported resignation and any acceptance of it. His purported resignation became irrelevant to the primary subject matter of Mr Aglua’s complaint which was his dismissal from the Public Service. I find no error on the part of the Commission due to its alleged failure to take into account relevant considerations. Ground 2 is dismissed.
GROUND 3: ERROR OF LAW UNDER THE CONSTITUTION
19. I have found this ground of review quite difficult to appreciate. It states:
The second defendant [Mr Aglua] was not an officer and or public servant after resignation and late lodgment of his complaint 5 months later ... the second defendant has tendered his resignation and on the 05.03.2009 his resignation was accepted and formalised by way of completion of the separation advice on Form PAT 4.13 therefore the second defendant was no longer an officer and the first defendant [the Commission] had erred under Section 195 of the Constitution to consider the complaint as a personal matter. [sic]
20. The argument appears to be that Mr Aglua tendered his resignation and it became effective on 5 March 2009 so he was no longer an officer of the Public Service, so there was no personnel matter for the Commission to review. The argument is a rehash of parts of grounds 1 and 2 and must suffer the same fate as it is based on the proposition that Mr Aglua’s resignation became effective and he ceased to be an officer of the Public Service on 5 March 2009. I have already rejected that proposition. If it were correct why was Mr Aglua served with a disciplinary charge on 17 March 2009? Why was he found guilty and dismissed from the Public Service on 5 June 2009? The actions of the Executive Director superseded any purported resignation and acceptance of it, and Mr Aglua remained an officer of the Public Service until he was dismissed on 5 June 2009. If the Foundation’s argument were upheld it would seem to follow that whenever an officer of the Public Service was dismissed the Commission would be deprived of jurisdiction. That would be an absurd consequence and is clearly not how the laws conferring jurisdiction on the Commission should be interpreted.
21. Even if the Foundation’s proposition that Mr Aglua ceased to be an officer on 5 March 2009 is correct, the fact is that the Executive Director made a decision on 5 June 2009 to find him guilty of a disciplinary offence and to dismiss him from the Public Service. That was the decision that the Commission reviewed. It was, to use the words of Section 18(1) of the Public Services (Management) Act, “a decision on a personnel matter relating to .... discipline connected with the National Public Service” which Mr Aglua was entitled to complain about and which the Commission was obliged to review. One of the Commission’s primary functions under Section 191(1)(a) (functions of the Commission) of the Constitution is to “be responsible, in accordance with an Act of the Parliament, for ... the review of personnel matters connected with the National Public Service”. I find that the Commission was legitimately discharging one of its primary constitutional functions. The ground of review actually refers to Section 195 (organisation etc of the State Services) of the Constitution, which I presume is an error as Section 195 has no relevance to this case. There was no error of law in the manner contended for by the Foundation. Ground 3 is dismissed.
GROUND 4: UNREASONABLENESS
22. The argument that an administrative decision is unreasonable under the Wednesbury principles is based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The test to apply is:
23. If the answer is yes the decision involves an error of law, the decision-maker will have exceeded his jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail. The decision will be lawful unless it is infected by some other errors of law or procedure.
24. I consider that the test is not satisfied in this case. I uphold the submission of Mr Uware for Mr Aglua that the Commission’s decision to annul the Executive Director’s decision (that Mr Aglua was guilty of a disciplinary offence and that he was dismissed) and that Mr Aglua be reinstated to his substantive position and paid salaries and entitlements lost as a direct result of his unlawful dismissal cannot be regarded as unreasonable or absurd, let alone so unreasonable or absurd that no reasonable decision maker in its position could have made it. The Commission’s reasoning was logical and coherent. I agree in particular with its assessment of the disciplinary charge as being seriously defective. The charge was poorly drafted, vague and confusing and it failed to meet the requirements of natural justice which dictate that a disciplinary (or criminal) charge must be drafted in the language of the law creating it (Michael Anis Winmarang v David Ericho (2006) N3040, Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746). The conclusions drawn by the Commission about reinstatement and payment of back-pay are unremarkable, not unprecedented or outlandish. It is not for the Court to step in here and substitute its opinion on whether Mr Aglua deserves what appears to be a windfall gain after not working for the Foundation for more than four years. Such matters lie within the discretion of the Commission. Ground 4 is dismissed.
CONCLUSION
25. As none of the grounds of review succeeded the application for judicial review must be dismissed. There is no reason to depart from the rule of thumb that costs follow the event: the party that loses pays the costs of the winning party. The plaintiff will therefore pay the second defendant’s costs.
26. It is noted that the Foundation did not include amongst its grounds of review a jurisdictional argument based on the apparent failure of the Commission to comply with the time limit under the Public Services (Management) Act for it to uphold, vary or annul the decision the subject of complaint. Section 18(3)(d)(i) provides that the Commission’s decision “shall be made within 90 days from the date of the 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”. Mr Aglua’s complaint was received by the Commission on 29 July 2009. There appears to have been no extension of the 90-day period. It appears that the Commission should have made its decision by 28 October 2009. It did not make its decision until 7 March 2012, which was two years, four months and one week after the expiry of the 90-day period (and it did not serve its decision on the Foundation for several weeks afterwards, on 2 April 2012). The Court did not receive argument on any of those issues.
ORDER
(1) The application for judicial review is refused.
(2) All relief sought in the notice of motion filed on 1 October 2012 is refused.
(3) The decision of the first defendant dated 7 March 2012 is binding and shall be complied with forthwith.
(4) The plaintiff shall pay the second defendant’s costs on a party-party basis which shall if not agreed be taxed.
Judgment accordingly.
______________________________________________
Konjib & Associates Lawyers: Lawyers for the Plaintiff
Public Solicitor: Lawyer for the Second Defendant
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