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Kavie v Matava [2018] PGNC 511; N7617 (18 December 2018)

N7617

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 639 OF 2018

BETWEEN:
JACK EMMANUEL KAVIE
Plaintiff

AND:
WILSON MATAVA, Provincial Administrator, East New Britain Provincial Administration
Defendant

Kokopo: Anis J
2018: 7 & 18 December

EMPLOYMENT LAW – public servant – termination – appeal to the Public Service Commission – Public Service Commission orders reinstatement to a position lower then position previously held – non-compliance with Public Service Commission order – Public Services (Management) Act 2014 - section 18(5) & (6) – backpay and entitlements, not ordered by Public Service Commission – whether Court can also order backpay

Facts

The plaintiff was a former public servant. He claimed that even though he had successfully appealed to the Public Service Commission against the decision of the defendant who had terminated him, the defendant has refused to reinstate him as a public servant. He asked the Court to order his reinstatement. He also asked the Court to grant him his backpay and entitlements.

Held

1. A decision of the Public Service Commission made under section 18(5)(b) of the Public Services (Management) Act 2014 shall become binding on the 31^st day and thereafter, from the date it is made.

Case followed: Gabriel Yer v. Peter Yama (2009) SC996

2. Evidence tendered proved that the defendant failed to reinstate the plaintiff as per the decision by the Public Service Commission that was made on 13 August 2015.

3. The plaintiff’s claim for back-pay and entitlements were not ordered by the Public Service Commission; but they were pleaded and were properly before the Court for consideration.

4. The declaratory relief were granted.

Cases cited:

Gabriel Yer v. Peter Yama (2009) SC996
Mision Akisi v. Manasupe Zurenuoc (2005) SC 797
Jomino Holee, Paula Vuvu and Gauealele Samuel v. Sem Vegogo, Pascoe Kase & the State (2013) N5101
Ambrose Vakina v. Thaddeus Kambanei (2004) N3094

Counsel:

Mrs N. Rainol, for the Plaintiff
No representation, for the Defendant

JUDGMENT

18^th December, 2018

1. ANIS J: This matter was dealt with in the absence of the defendant. The defendant’s counsel failed to appear in Court at the hearing date which was on 5 December 2018. I granted leave to the plaintiff to proceed ex-parte. Presentation of submission was later received on 7 December 2018. I reserved my ruling thereafter to a date to be advised.

2. This is my ruling.

BACKGROUND

3. The plaintiff is a former public servant and teacher. His former employer is the East New Britain Provincial Administration (ENBPA). Whilst he worked there, he held the position, Staff Clerk Grade 8 Officer. In 2013, he was charged with the offence, stealing. Later, or on 12 August 2013, he was convicted by the District Court and he was fined with K500. When the defendant learnt of his conviction, he terminated the plaintiff. The plaintiff appealed against his termination to the Public Service Commission (PSC). On 13 August 2015, the PSC upheld the plaintiff’s appeal. The PSC ordered the plaintiff to be reinstated to his former position but at a demoted rank, namely, Staff Clerk, Grade 7.

4. The plaintiff says that despite the said PSC decision, the defendant to date has not or has refused to reinstate him as a public servant.

ISSUE

5. There is one issue for determination here and that is, whether the plaintiff is entitled to all the relief that he is seeking. But before I consider them, let me firstly state the relevant law.

SECTION 18(5) & (6)

6. The relevant section under the Public Services (Management) Act 2014 (PSMA) is section 18, subsections 5 and 6. They read in part, and I quote:

(5) The Commission shall —

(a) consider all the facts relative to the matter, including —

(i) the views of the persons summonsed under Subsection (3); and

(ii) the personnel management policies of the National Public Service; and

(iii) the cost implications of any decision which it may make; and

(b) make a decision to uphold, vary or annul the decision, the subject of the complaint; and

(c) give immediate notification of its decision to the persons summonsed under Subsection (3).

(6) The decision of the Commission under Subsection (5)(b) —

(a) 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

(b) is binding after a period of 30 days from the date of the decision.

(Underlining are mine)

PSC DECISION

7. Let me now address the PSC decision. The plaintiff tendered his own affidavit. It was filed on 14 September 2018 and it was marked as Exhibit P1. In it, he attaches under annexure A, a copy of the PSC decision concerning his appeal. The decision is contained in a letter written by the PSC which is dated 13 August 2015. I read in part, at pages 1 and 2 of the letter as follows:

1. DECISION(S):
   

1.1 That the Commission annuls the decision of the East New Britain Provincial Administrator to terminate Mr. Jack Emmanuel Kavie from the position as the Staff Clerk, Gr 8, ENBPA. EDU 06 as it is too harsh a disciplinary penalty in the given circumstances.

1.2 That Mr. Jack Emmanuel Kavie be immediately reinstated back to a lower Gr. Position as the Staff Clerk Gr. 7 position no: ENBPA EDU 06 effective from the date of receipt of this advice.

1.3 That the East New Britain Provincial Administrator ensure that a copy of this decision is placed on Mr. Jack Emmanuel Kavie personnel and/staff file.

......

8. The decision of course and pursuant to section 18(6)(a) & (b) of the PSMA, is binding. See cases: Mision Akisi v. Manasupe Zurenuoc (2005) SC797, Jomino Holee, Paula Vuvu and Gauealele Samuel v. Sem Vegogo, Pascoe Kase & the State (2013) N5101 and Ambrose Vakinap v. Thaddeus Kambanei (2004) N3094. The plaintiff in this case, wants the Court to have the PSC decision converted into a Court Order, for possible enforcement against the defendant. See the case Gabriel Yer v. Peter Yama (2009) SC996.

9. There is evidence which shows that the defendant was aware of the decision of the PSC. In 2015, the defendant filed a judicial review proceeding, that is, OS (JR) 587 of 2015, to challenge the PSC decision. The judicial review proceeding was dismissed by this Court on 8 May 2017. There is also evidence disclosed by the plaintiff which shows that the defendant has not taken any steps to reinstate the plaintiff to this day. Therefore, and pursuant to section 18(6)(b) of the PSMA, the decision of the PSC became binding after the lapse of the 30^th day from 13 August 2015. If we compute time, the 30^th day has lapsed on or about 14 September 2015. So, it is now well over 3 years since the plaintiff was ordered by the PSC to be reinstated as a public servant.

10. I find that the plaintiff has established what the law states or means, regarding the decision of the PSC to re-instate him as a public servant.

RELIEF

11. Let me consider the relief that the plaintiff is seeking. They are, and I quote in part:

1. A declaration Order that the Public Service Commission’s Findings dated 13 August 2015, is valid and binding on the Defendant to be effected pursuant to Section 18(6)(b) of the Public Services (Management) Act 2014, which shall be enforced forthwith.
2. An Order directing the Defendant to reinstate the Plaintiff back to his position as the Staff Clerk, Grade 7 Position No. ENBP EDU 06, held with the Public Service to take effect within 21 days.
3. Alternatively, an order directing the Defendant to reinstate the Plaintiff to a Position equivalent to the Grade level available held in time and any time thereafter as at date of the Public Service Commission’s Findings dated 13 August 2015.
4. An Order directing the Defendant to calculate and pay all salaries and entitlements lost total gross in the sum of K101,247.06 as a consequence of his unlawful termination from the date of his termination to take effect within 21 days.

......

12. I take issue with the 4^th relief. Firstly, I note that the plaintiff did not provide any evidence to support this claim or his calculation of K101,247.06. Secondly, this relief was not expressly ordered by the PSC. These said, I ask myself this. “Can the plaintiff still make this claim?” My answer is, “yes he can”. Let me explain. The plaintiff has expressly pleaded his claim for back-pay and entitlements, as a relief in the originating summons. He requests that the Court grants this relief which, in my view, is consequential to the decision of the PSC. It is not uncommon for the PSC to also make an order for back-pay and entitlements, to be included in as part of its decision. In this case, however, no such regard was had and made by the PSC. The plaintiff obviously sees that and has therefore included it as a separate relief before this Court. Because the PSC has already found errors in the actions of the defendant and has ordered the plaintiff’s reinstatement into his position but at a demoted level of Grade 7, it means that the plaintiff should not have been terminated in the first place. If he is to be reinstated, obviously and in the normal course or in the public employment domain, he would be entitled to receive his backpay and other entitlements, that is, from the period which he has been kept out of work. In this case, the plaintiff was terminated on 17 October 2013. He was reinstated by the PSC in 13 August 2015. However, despite the PSC decision, to this day, he has not been reinstated.
13. I will say that I am inclined to make orders for relief 4 with qualifications. I will grant orders that will be limited to the plaintiff being entitled to receive his net backpay and entitlements generally, that is, from the date that he was terminated to the date of this judgment. I will also order that calculations of the net backpay and entitlements, shall be based on the Grade 7 level or a position that is equivalent to that. I will also further order that the defendant may take up to 35 days to calculate and pay the plaintiff his backpay and entitlements.

14. In summary, I am inclined to grant the relief sought by the plaintiff with variations based on my findings and ruling.

COST

15. Cost is discretionary. I will order cost to follow the event. Cost will therefore be awarded to the plaintiff to be paid by the defendant, on a party/party basis which may be taxed if not agreed.

REMARK

16. The conduct of the defendant’s counsel Mr Killian requires some attention. In this case, both counsel were present on 13 November 2018 and had fixed the hearing date of the matter. At the hearing date on 5 December 2018, the defendant’s counsel failed to appear in Court. No explanations were provided by counsel either to the plaintiff or to the Court, of why he was unable to attend the trial. Later and during the presentation of submissions hearing on 7 December 2018, counsel had attempted to appear and be heard. The Court denied counsel’s request.

17. As a result, the matter was undefended. I note that this is not the first-time that counsel has acted in this manner. I therefore find it appropriate to put counsel on notice that if such a conduct is repeated in the future, that this Court will take appropriate actions against the counsel personally.

THE ORDERS OF THE COURT

18. I make the following orders:

1. A declaration that the Public Service Commission’s findings dated 13 August 2015 is valid and binding on the Defendant to be effected pursuant to Section 18(6)(b) of the Public Services (Management) Act 2014, which shall be enforced forthwith.
   
2. The defendant shall reinstate the plaintiff back to his position as Staff Clerk, Grade 7 Position No. ENBP EDU 06, or to a position that is equivalent to Grade 7, held with the defendant or the Public Service, which shall take effect within 21 days from the date of the decision of this Court.
   
3. The plaintiff shall also be paid his net-backpay and entitlements, which shall be calculated based on the position of Grade 7 level, or based on a position that is equivalent to Grade 7 level, and the defendant shall calculate these as of 17 October 2013 to the date of this judgment, and shall pay the plaintiff accordingly within 35 days from the date of this judgment.
   
4. The defendant shall pay the plaintiff his cost of the proceeding on party/party basis which may be taxed if not agreed.
   
5. Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.
   

The Court orders accordingly.

______________________________________________________________
NatPhil & Associate Lawyers: Lawyer for the Plaintiff
In-House Counsel: Lawyer for the Defendant