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Wakendui v Vagi [2020] PGNC 31; N8199 (14 February 2020)

N8199

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 171 of 2019

BETWEEN

WANE WAKENDUI

Plaintiff

AND

RAVU VAGI In his capacity as Acting Secretary for Department of

Labour and Industrial Relations

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Gavara-Nanu; J

2019: 11^th December

2020: 14^th February

JUDICIAL REVIEW – Termination of a Senior Public Servant by a Departmental Head – Aggrieved public servant – Application to Public Services Commission to review a personnel matter – Powers of the Public Services Commission to review – Annulment of the termination - Public Services Commission decision – Decision not reviewed within 30 days from the date of the decision - Public services Management Act, 2014; s. 18 (6) (b) – Whether Public Services Commission is decision binding.

JUDICIAL REVIEW – Public Services Commission – Review of a personnel matter – Public Services Commission decision – Public Services Management Act, 2014; s. 18 (6) (a) – Decision given outside of 90 days – Extension of time given – Whether decision valid and binding.

Cases Cited

Ambrose Vakinap v. Thaddeus Kambanei & The State (2004) N3094

Betty Palaso v. Dr Phillip Kereme & Ors (2019) N6638
John Andrias v. Dr. Philip Kereme and The State (OS (JR) 558 of 2018 - 13 December,
2018).

Marcella Hasifangu v. Mark Manludu & Ors (2019) N7953

Peter Bon v. Mark Nakgai [2001] PNGLR 18

Counsel

J.Napu, for the Plaintiff

M. Tukulia, for the Defendants

14^th February, 2020

1. GAVARA-NANU J: The plaintiff was a senior public servant, employed in the Department of Labour and Industrial Relations (Department of Labour) as Manager – Compliance Foreign Employment Division; in Popondetta Oro Province, until his termination by the then Secretary for Labour Mrs. Mary Morola on 19 September, 2017.
   
2. The plaintiff’s termination followed a number of serious disciplinary charges laid against him. After the charges were served on the plaintiff, he replied to the charges. The then Secretary for Labour, after considering the replies found the plaintiff guilty of a number of the charges and terminated him.
   
3. The plaintiff subsequently applied to the Public Services Commission (PSC) to review his termination. In the review, the PSC found the plaintiff’s termination invalid and annulled the termination and ordered his re-instatement to his previous substantive position with full entitlements. The PSC decision was made on 23 October, 2018, it was conveyed in writing to the then Secretary for Labour. On 6 November, 2018, the then Secretary for Labour wrote to the Chairman of the PSC advising him that she rejected the PSC decision, thus maintaining her decision to terminate the plaintiff.
   
4. On 8 February, 2019, the first defendant wrote to the plaintiff advising him that he had decided to maintain and up-hold the decision of his predecessor. He reasoned that the disciplinary charges were serious, thus it was in the interest of the State and the Department of Labour that the termination remained.
   
5. The defendants initially raised two principal issues in their defence. First issue relates to the then Secretary for Labour not being summoned to appear at the PSC hearing of the plaintiff’s complaint. The defendants claimed the Secretary was not summoned for the hearing as required under s. 18 (3) of the Public Services Management Act 2014. However, this issue does not arise anymore for determination because it was abandoned at the hearing. Second issue relates to an alleged failure by the PSC to make its decision within 90 days from the date of its receipt of the complaint as required under s. 18 (6) (a) of the Public Services Management Act. This is the only issue the Court has to determine.
   
6. Notably, s. 18 (6) (a) also provides that the PSC may extend the period beyond 90 days if the delay in giving its decision within the required 90 days was beyond its control. The PSC in its written decision which is Annexure “A” to the first defendant’s affidavit at paragraph 2.1 (o) stated that it approved an extension beyond the 90 day period to give its decision. This has not been denied or disputed by the defendants, they only claimed the PSC failed to deliver its decision within 90 days. I do not accept this argument by the defendants for a number of reasons. The argument ignores the evidence that the PSC had pursuant to the powers conferred on it by s. 18 (6) (a) approved an extension for it to make its decision outside of the 90 day period. Given that the extension was authorised by law, the PSC decision although made outside the 90 day period was valid. The proper way for the defendants to challenge the extension is to show that it was not beyond the control of the PSC to give its decision within the 90 day period, which is a condition precedent to a valid extension under s. 18 (6) (a). They did not do that, they only claimed that the PSC failed to give its decision within 90 days. To me, this amounted to an error of law. See, Betty Palaso v. Dr Phillip Kereme & Ors (2019) N6638.
   
7. It is noted that, on 6 November, 2018, the then Secretary for Labour also wrote to the Solicitor General requesting its assistance to institute judicial review proceedings against the decision of the PSC. The Office of the Solicitor General has hitherto not brought any judicial review proceedings against the PSC decision.
   
8. There is no legal basis for the defendants not complying with the PSC decision. Their defiance of the PSC decision was in breach of s. 18 (6) (a) of the Public Services Management Act. The PSC decision became legally binding on them after 30 days from the date of the decision. The defendants' acted ultra vires in refusing to comply with the PSC decision. See, Ambrose Vakinap v. Thaddeus Kambanei & The State (2004) N3094.
   
9. The plaintiff argued that it should be granted the relief he is seeking, which is to reinstate him to his previous substantive position with full entitlements.
   
10. Having considered all the materials before me, including submissions by counsel, I have come to a firm view that the plaintiff is entitled to the relief he is seeking. I also accept the plaintiff's argument that the defendants had no legal basis for not complying with the PSC decision, and they acted to their own peril by not challenging the decision of the PSC. See, Marcella Hasifangu v. Mark Manludu & Ors (2019) N7953 and John Andrias v. Dr. Philip Kereme and The State (OS (JR) 558 of 2018 - 13 December, 2018).
    
11. Consequently, I grant the relief sought in paragraphs 1 and 2 of the Notice of Motion filed pursuant to Order 16 r 5 (1) of the National Court Rules, and declare that the decision of the PSC made on or about 23 October, 2018, is legally binding on the defendants. I also order by way of mandamus that the defendants comply forthwith with the decision of the PSC and reinstate the plaintiff to his previous substantive position of Manager-Compliance Foreign Employment Division of the Department of Labour. In the event that the plaintiff's previous substantive position is now occupied by another officer, the plaintiff is to be reinstated to a position equivalent to his said previous substantive position with corresponding Grade in the Public Service. I make these Orders given that defendants had no basis at all for not complying with the decision of the PSC. See, Marcella Hasifangu v. Mark Mandulu & Ors (supra); Peter Bon v. Mark Nakgai [2001] PNGLR 18 and Betty Palaso v. Dr Phillip Kereme & Ors (2017) N6816. I further order that the plaintiff be reimbursed fully with all his lost salaries, entitlements and emoluments, which are to be calculated from the date of his termination, which is 19 September, 2017 to 11 December, 2019, which is the date of trial.
    
12. In regard to the claim for general damages, the claim is refused for two reasons. First, the decision of the court is based purely on a point of law, it is not based on findings of fact relating to the validity or otherwise of the plaintiff's termination. Second, a main requirement under Order 16 r 7 of the National Court Rules, pursuant to which a claim of general damages may be made, is that the court must be satisfied that had the plaintiff brought his action by way of a writ, he could have been entitled to damages. In this case it is difficult for me to form such a view that the plaintiff has met that criteria. If the plaintiff still wanted to seek damages, he is at liberty to issue separate civil proceedings.
    
13. Thus the Orders of the Court are:
    
    1. The decision of the PSC made on 23 October, 2017 is legally binding on the defendants.
    2. The defendants are to reinstate the plaintiff to his previous substantive position of Manager-Compliance Foreign Employment Division of the Department of Labour, forthwith.
    3. In the event that the plaintiff's previous substantive position is now occupied by another officer, the plaintiff is to be reinstated to an equivalent position with corresponding Grade in the Public Service.
    4. The plaintiff be fully reimbursed with all his lost salaries, entitlements and emoluments calculated from the date of his termination which is 19 September, 2017 to 11 December, 2019, which is the date of trial.
    5. The parties to discuss and agree on the amounts of lost salaries, entitlements and emoluments to be paid to the plaintiff for the above period. The parties are also to discuss and agree on the schedule and the manner of payment of such lost salaries, entitlement and emoluments to the plaintiff. If the plaintiff has already been paid some money as a result of his termination, then those amounts are to be taken into account.
    6. The claim for general damages is refused.
    7. The defendants will pay the plaintiff's costs of and incidental to the proceeding, which are to be taxed, if not agreed.
       

Orders accordingly.
________________________________________________________
Napu & Co. Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendants