N11704
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 42 OF 2024

BETWEEN:
BILL KAPEN – EXECUTIVE MANAGER, CORPORATE SERVICES DIVISION OF NATIONAL PROCUREMENT COMMISSION
Plaintiff

AND
JOE SAPA – ACTING CHIEF EXECUTIVE OFFICER OF NATIONAL PROCUREMENT COMMISSION
First Defendant

AND
NATIONAL PROCUREMENT COMMISSION
Second Defendant

Waigani: Wood J

2024: 21 June     
 2026: 17 February 

EMPLOYMENT LAW - Termination of employment of plaintiff by the National Procurement Commission – being aggrieved by his termination, the plaintiff commenced proceedings in the National Court seeking orders and declarations

PRACTICE AND PROCEDURE - Notice of Motion filed by the defendants seeking dismissal of the proceeding on the basis that the plaintiff, if aggrieved, should have commenced judicial review proceedings – the plaintiff argued that his contract was governed by private law principles and not public law principles and therefore he was not required to file a judicial review application 

Held

The relief sought by the plaintiff relates to public law matters and so the proceeding is an abuse of process and is dismissed

Cases cited

Attorney General v Tetaga, Chairman Public Service Commission [2005] N2900
Honk Kiap as Chairman of the Staff Appeal Tribunal & Anor v Frederick Kasper & Anor (2023) SC2435
Western Highlands Provincial Health Authority & Anor v Dr Kereme & others (2025) SC2791

Counsel

Mr Kombri for the plaintiff
Mr Tombiam for the defendants

JUDGMENT

1.	WOOD J: The matter before the Court related to the hearing of two Notices of Motion, namely:

a)	the defendant’s Notice of Motion filed on 3 May 2024; and
b)	the plaintiff’s Notice of Motion filed on 12 March 2024.

2.	The defendant’s Notice of Motion filed on 3 May 2024 seeks the dismissal of the proceeding pursuant to Order 12 Rule 40(1)(c) of the National Court Rules for being an abuse of process.

Background

3.	In the plaintiff’s affidavit filed on 12 March 2024, he deposes that he is a public servant and is employed with the National Procurement Commission, which is the second defendant.  The plaintiff says he commenced employment with the second defendant pursuant to a Performance Based Contract executed on 
17 April 2023 (the Contract of Employment).  The plaintiff claims that on 
14 December 2023, he was served with five ‘Notice of Disciplinary Charges under Section 25 of the Terms & Conditions of a Contract of Employment’, regarding certain alleged disciplinary offences.

4.	In his affidavit, the plaintiff says he wrote a letter to his employer dated 
19 December 2023 in which he requested to see copies of the documents and reports that were based on the charges against him.  He said whilst he waited to see a copy of those documents, the ‘first respondent’, whom I understand was a reference to the first defendant, proceeded to determine the charges against him and terminated his employment as the Executive Manager, Corporate Services Division of the National Procurement Commission and as a public servant, which decision is contained within the ‘Notice of Punishment under Section 52 of the Public (Services) Management Act’ dated 30 January 2024. 

5.	In the Originating Summons filed on 12 March 2024, the plaintiff seeks certain orders and declarations as detailed below:

‘The plaintiff claims the following reliefs: -

1.	A Declaration that the Plaintiff is the substantive office holder of the position of the Executive Manger, Corporate Services Division of the National Procurement Commission (Second Defendant) and a Public Servant pursuant to the Performance Based Contract of Employment executed on 17 April, 2023.

2.	A Declaration that pursuant to Schedule 3 (Termination Provisions- Grounds for Termination), clause 2 (e) of the Performance Based Contract of Employment executed on 17 April, 2023, parties in the contract should observe the principles of natural justice in the termination process of the contract.

3.	A Declaration that the Plaintiff was served with five (5) Notice of Disciplinary charges under Section 25 of the terms and Conditions of a Contract of Employment on 14th December, 2023 signed off by the First Defendant which charged the Plaintiff with four different disciplinary offences and suspended with full pay.

4.	A Declaration that the Five (5) Notice of Disciplinary Charges under Section 25 of the Terms and Conditions of a Contract of Employment on 14 December, 2023 had a Clause that allowed for the Plaintiff to request the First Defendant to sight the copies of the documents or reports based thereon by the First Defendant to charge him with the disciplinary offences.

5.	A Declaration that the Plaintiff was required by the five (5) Notice of Disciplinary Charges under Section 25 of the terms and Conditions of a Contract of Employment on 14th December, 2023 to respond to the charges within seven days.

6.	A Declaration that the Plaintiff, after receiving the Five (5) Notice of Disciplinary Charges under Section 25 of the terms and Conditions of a Contract of Employment on 14th December, 2023 wrote a letter on 19th of December, 2023  to the first Defendant requesting to sight copies of the documents or reports based thereon by the First Defendant  to charge the Plaintiff with the Four disciplinary offences.

7.	A Declaration that the First Defendant did not provide the copies of the documents or reports based thereon by the First Defendant to Charge the Plaintiff with Four disciplinary offences.

8.	A Declaration that the none provision of the copies of the documents or reports based thereon by the First Defendant to charge the Plaintiff with fourth disciplinary offences resulted in the Plaintiff not submitting his responses to the Four disciplinary that were laid against him.

9.	A Declaration that despite the none submission of the responses to the disciplinary charges by the Plaintiff, the Plaintiff was terminated as the Executive Manager, Corporate Services Division of the National Procurement Commission (Second Defendant) and a Public Servant. 

10.	An Order that the termination of the Plaintiff as the Executive Manager, Corporate Services Division of the National Procurement Commission (Second Defendant) and as a Public Servant was in breach of Schedule 3 (Termination Provisions- Grounds for  termination), Clause 2 (e) of the Performance Based Contract of Employment executed on 17 April 2023 and the clause in the Five (5) Notice of Disciplinary  Charges under Section 25 of the Terms and Conditions of a Contract  of Employment  on 14th December, 2023  in conjunction with  Section 59 of the Constitution.

11.	Consequently, an Order that:

(a)	The termination of the Plaintiff as the Executive Manager, Corporate Services Division of the National Procurement Commission (Second Defendant) and a Public Servant be nullified and set aside. 

(b)	The time for the Plaintiff to respond to the disciplinary charges be extended for another 14 days and after the grant of this Order; and 

(c)	The disciplinary process be continued in that the Defendants must provide the Plaintiff with copies of the documents or reports based thereon by the First Defendant to charge the Plaintiff with the fourth disciplinary offences within 7 days from the grant of this order.
 
12.	 An Interim Order restraining the Defendants from finalising the termination of employment of the Plaintiff as the Executive Manager, Corporate Services Division of the National Procurement Commission (Second Defendant) and as a Public Servant until the final determination of the substantive issues raised in this proceeding.

13.	 An Interim Order restraining the Plaintiff back into payroll until the final determination of the substantive issues raised in this proceeding.

14.	 An Order for costs incidental and accruing as a result of this proceeding to be paid by the Defendants to the Plaintiff.

15.	 Any other or further orders this Honourable Court deems fit.’

6.	The defendants seek the dismissal of the proceeding in their Notice of Motion filed on 3 May 2024 on the basis that they submit that because the plaintiff seeks to declare that he still holds the position of  Executive Manager, Corporate Service Division, despite having his employment terminated, the only way to challenge his termination by the Disciplinary Committee of the National Procurement Committee is by way of judicial review under Order 16 of the National Court Rules.  The defendants also submit that in order to challenge statutory decisions regarding the termination of employment, a plaintiff should follow the judicial review process.  

7.	The defendants relied on a number of authorities in support of their Notice of Motion, including the decision of The National Executive Council, the Attorney-General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264, which passage at page 2 of the decision was cited by the defendants, namely:

‘Order 16 does not make any distinction between declarations or injunctions as a remedy for infringement of a right protected under public law, as opposed to those under private law. The distinctions in O 16 relate to the nature of remedies set out in r 1(1), which provides judicial review as the exclusive procedure, and declaration or injunction under r 1(2) which provide for optional procedures.

An abuse of the process of the court may arise where, in an application for a remedy under O 16 r 1(1), a party can also obtain a declaration or injunction but does not do so and, subsequently, applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 and would, as well, constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis.’

8.	In addition, the defendants submitted that a party wishing to challenge the decision of a government body or public authority must use Order 16 of the National Court Rules if orders in the nature of prerogative writs are sought.  The defendants relied on a number of authorities, including the decision in Madang Timbers v Wasa [2021] SC2154, which held at paragraphs 14 to 18 as follows:

‘14. Order 16 Rules (1) and (2) of the National Court Rules provide that (emphasis ours):

“(1) An application for an order in the nature of mandamus, prohibition, 
certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.

(2) An application for a declaration or an injunction may be made by way of an 
application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if ...”

15. It is now well settled that a party wishing to challenge the decision of a 
governmental body or public authority must use Order 16 of the National Court Rules if orders in the nature of prerogative writs are sought. The requirement under Order 16(1) is mandatory. If only an injunction or declaration is sought, the plaintiff has a choice - Order 4 or Order 16 can be used: Michael Gene v. Hamidian Rad [1999] PNGLR 444; Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906.

16. As the Supreme Court made clear in the latter case at [128] to [131], the essential consideration in determining the proper mode of commencement is the substance or effect of the relief being sought:

“We do not consider that it is correct to say that whenever a person wishes to challenge the decision of a governmental body or public authority, the challenge must be made by using Order 16. It is a matter of considering the relief being sought and applying Order 16, Rule 1, to see whether Order 16 is mandatory (Rule 1(1)) or optional (Rule 1(2)).”

17.  If the substance or effect of the relief being sought is orders in the nature of declarations and injunctive orders then it is optional to use the judicial review procedure under O 16 r 1(2) or the procedure under O 4 r 3. If the substance or effect of the relief being sought is orders in the nature of prerogative orders, then proceedings must be brought pursuant to O 16 r (1).

18. In our view the relief sought in this case was in substance and effect orders in the nature of prerogative writs, namely certiorari quashing the decisions of the First and Second Respondents to register the Fourth Respondent’s title, and an order of mandamus compelling them to cancel the Fourth Respondent’s title. We agree therefore with the learned trial judge that the Appellant was seeking to achieve what should have been achieved by seeking orders pursuant to the judicial review process.’

9.	In reply, the plaintiff argues that it was appropriate that he could commence his proceeding by way of Originating Summons seeking declarations and orders, without the need to commence a judicial review proceeding.  In support of this submission, the plaintiff relied on the Supreme Court decision in 
Kiap v Kasper [2023] SC2435, in which the Court set out the following facts at pages 2 to 3, namely:
‘Facts
The first Respondent, Mr. Kasper was employed by the first Appellant, NCDC, as Council Manager for Moresby South Electorate under a contract of employment for a term of three years commencing 4th November 2008 and expiring on 04 November 2011. In May 2011, Mr. Kasper was charged with disciplinary offences for misconduct to which he responded. Having found his responses unsatisfactory, the first Appellant’s Staff Disciplinary Committee decided to terminate him on 27th September 2011, which Mr. Kasper appealed against to the NCDC Staff Appeals Tribunal on 14 August 2012. The Appeals Tribunal dismissed the appeal and upheld the decision to terminate. Consequently, Mr. Kasper on 19th July 2018, sought judicial review of that decision. He named only the chairman of the Appeals Tribunal and the NCDC. The trial court upheld the review application, quashed the decision of the Appeals Tribunal, and ordered Mr Kasper’s reinstatement to a position, Deputy Works Manager, which he did not hold or asked for and ordered damages with back dated salaries. In upholding the application, the trial judge held the Appellants failed to follow section 10 Part 4 of the first Appellants Staff Disciplinary Code. Also, his Honour quashed a decision of 12 January 2012 contrary to the pleading that the decision for termination was 20th February 2012.’
10.	 At paragraphs 22 to 35 of Kiap v Kasper (supra), Deputy Chief Kandakasi stated the following:

22.	‘A case closer to the present case is the matter of Tom B. Gesa v. Bernard Kipit & NCDC [2003] PNGLR 23. That was a case in which the applicant was employed by the NCDC as the Deputy City Manager, Community and Social Services under a written contract of employment. He was suspended from duties for alleged mismanagement, charged and eventually a decision was taken to terminate his service. He claimed, however, that following an appeal against the decision to the Full Board of the NCDC, the first defendant was directed to reinstate him, but he failed to do so. The applicant sought a review of the first defendant's failure to reinstate him. I applied the law as discussed and stated in Himsa v. Sikani (supra) and refused the plaintiff’s application for judicial review. In so doing I concluded:

“Ultimately therefore, I find that there is no provision in the contract allowing for the normal public service or the NCDC’s own disciplinary process to apply to the contract of employment in this case. Consequently, I find that the parties by agreement evidenced and contained in the written contract of employment decided to render Mr. Gesa’s employment with the NCDC as a private matter of contract and not something in the domain of public administrative law. Accordingly, I find that judicial review is not available as a remedy to the plaintiff.”
(Underlining supplied)

23.	Subsequent decisions of the Supreme Court affirmed the law as discussed and applied in the foregoing decisions. Relevant Supreme Court decisions include the decisions in Ereman Ragi v. Joseph Maingu
 (1994) SC459 and Young Wadau v. PNG Harbours Board (1995) SC489.

24.	In both cases, the employers, PNG Harbours Board (Harbours Board) and the Public Officer’s Superannuation Board (POSF) were creatures of statute. In respect of recruitment, terms and conditions of employment, discipline and termination the respective legislation was silent. The first of the two cases did not involve a written contract of employment. The employee, Mr. Maingu was employed from the public service. Subsequently, there was a restructure of the POSF. That saw advertisements going out for the various positions in the POSF. To his detriment, Mr. Maingu did not apply for any of the advertised positions, for reasons only known to himself. Despite that, he argued before the National Court in a judicial review application that he had a permanency of employment. He therefore claimed that he was entitled to judicial review of a decision to terminate him summarily and if successful be reinstated as a remedy for unlawful dismissal. The National Court decided in favour of Mr. Maingu and ordered his reinstatement.

25.	On appeal, the Supreme Court upheld the appeal, quashed the decision of the National Court and declared the termination of Mr. Maingu was proper and valid in law. In coming to that decision, the Supreme Court pointed out the difference between employment under public law and private law. Under the former, the process and procedure for employment, terms and conditions of employment and matters of discipline and termination are provided for and governed by the relevant statute. On the other hand, the Court explained employment under private law is based on the relevant contract and its terms. Applying the law to the case at hand, the Court held:

“The respondent here claimed his wrongful dismissal from employment was a matter of public law. In fact it is merely a matter of a private law nature, the right of an employer to control and deal with his own employees. There is no statutory duty here, there is no statutory protection which makes this a matter of public law. This is purely a matter of the relationship between a master and servant. Whilst the master here is a Board created by statute the employment of the staff of the Board is not a matter of statute, there are no provisions in the legislation setting up the Board which give terms and conditions of employment or other matters which have been raised in this case. Merely stating in the Act that the Board may employ staff does not by itself make that employment a matter of public law.”
(Underlining supplied)

26.	On the question of permanency of employment, the Court held:
“We find that there seems to have been some confusion over the use of the word ‘permanent’. The respondent asserted that he was a permanent officer but nowhere does he refer to any legislation or determination which explains or clarifies this term. He seems to be using the word permanent to support some long term tenure of employment although in submissions even counsel for the respondent notes that permanency does not mean life tenure. So what does it mean. We can only surmise that the respondent has confused the use of the word with the use of the word in staffing structures of the staffing establishment of a company or organisation. Thus in staffing structures the word permanent is used to show that the position will be a permanent one within the structure for planning and budgeting purposes as against the need for temporary staff at certain times. But just because the position is a permanent one in the establishment does not give the holder of that position any permanency. He would still be governed by the ordinary law of master and servant.
The respondent states that he was formerly a permanent public servant and that he took this status over with him to the Board. And the lawyer for the respondent submits that the respondent imported this public service norm to the Board, but nowhere has the court been referred to any legislation or Public Service Orders which creates this status. We note here that the respondent makes no claim to being employed under any contract of employment which gives him any special status. We therefore find that His Honour erred in finding that the respondent was a permanent officer.
...
There is nothing in the law that states that a public servant or any other employee has any claim to life employment. Public servant and other employees remain liable to termination for cause or for retrenchment upon due notice being accorded to them. Upon dismissal without opportunity to answer charges the usual assessment is made on the normal wages of the employee over a reasonable period. Under the Employment Act Ch 373 a reasonable period for a person who has been employed for 5 years or more is 4 weeks. This Act is stated to bind the State so even if it was argued that the Board is not a normal private employer because it is owned by the State, the employees still come under the Employment Act. The respondent did not have the benefit of any contract of employment which took him out of the general law.
(Underlining supplied)

27.	In Young Wadau’s case, he was terminated from his employment with the Harbours Board. That followed internal investigations, which were referred to a special investigation committee which reported its findings to the full Board. The Board resolved to terminate Mr. Wadau but before doing so, referred the Committee’s report to the Chairman for disciplinary action. He was charged under Part X of a determination made pursuant to the Papua New Guinea Harbours Board Ordinance, 1963-1969, namely, Determination No.1/1970 (Terms and Conditions of Employment) (Determinations 1970). The Ordinance has been adopted and consolidated in the Harbours Board Act, Ch 240. Mr Wadau was given the right to be heard by the Chairman and did reply. The Chairman recommended to the Board that Mr. Wadau’s services be terminated. Mr. Wadau had a right of appeal which could result in a confirmation, annulment or variation of the decision appealed against. A decision on any appeal would be final.

28.	It was difficult to categorise Mr Wadau’s employment because he argued that it was not by virtue of any contract of employment as there was no written contract of employment. He therefore argued that the procedure adopted by the Harbours Board and its Chairman in its deliberations must therefore fail. He also argued that the respondents had no power under the Harbours Boards Act, to employ persons. Yet the position he held per his own pleadings as legal officer, was not designated nor created by the Act or the Ordinance or elsewhere. The position he held was advertised by the Board, he applied for it and was successful. He was employed for a period and accepted salary on the strength of his appointment and worked at the direction of, the officers of the Board. Hence, the indicia of an employer and employee relationship clearly existed.

29.	The Supreme Court noted, Mr Wadau was not a person on a superior footing, he was not appointed to a public office, nor statutory authority or State instrumentality as was Robinson, in the case of Robinson v. The National Airlines Commission [1983] PNGLR 476. He was rather an employee subject to the usual incidents of an employer and employee relationship but varied in the circumstances, in that the Harbours Board has afforded him the rights accorded an officer under Part X of Determination 1970.

30.	Given these circumstances, the trial judge refused an application for leave for judicial review by Mr. Wadau. The court took the view that Mr. Wadau’s employment was under private law. Hence, the trial judge held that the decisions of the Board and its Chairman were not open for judicial review. That was despite the Board being established by its statute. Accordingly, Mr. Wadau’s application for leave for judicial review was dismissed.

31.	On appeal, Mr. Wadau claimed the trial judge erred because the court has inherent power to review actions of a public officials empowered by statute. He also claimed that the trial judge erred in ruling that the effect of proceedings under Determination 1970 was to cloth the actions of the Board as those within private law as opposed to public law, when the Determination was made pursuant to a public Act of Parliament.

32.	In dismissing the appeal, the Supreme Court reasoned amongst others:
“Order 16 of the National Court Rules cannot give rise to a cause of action. It relates to judicial review of administrative acts and in some circumstances, quasi judicial acts but only where there is a sufficient public interest.
...
There is nothing in the circumstances of this case, to give it any sufficient flavour of a public nature to justify this Court’s interference. A lawyer especially, may make his own arrangements for employment and the fact of his employment does not place his position in the public domain, to such an extent for instance, that a member of the public could demand an account of the appellant’s work at the Harbours Board. That is the sole prerogative of the employer, the Board and the Court has no business to enquire into the private arrangements made between these two parties. This highlights the distinction between public law and private law rights.

33.	The Court then cited its earlier decision in Ereman Ragi v. Joseph Maingu, (supra) summed up what it said there and held:

“We are of the view that the incidents of the appellant’s employment with the Harbours Board are of a private law nature and consequently not amenable to judicial review. Since the Board has embarked on procedures of a quasi judicial nature when dealing with Mr Wedau’s appeal against the conditions laid down for his continued employment, Mr Wedau’s argument that he consequently has the right of review by virtue of the nature of the tribunal (quasi judicial), cannot succeed in the face of the private law status of his employment arrangements.”

(Underlining supplied)

34.	Later in Lupari v. Somare (2008) SC930, a 5-member Supreme Court on referral by Injia ACJ (as he then was) under s. 15 of the Supreme Court Act suggesting amongst others that there was a conflict in authority, held:

“In terms of the issue in question 4, we note that, the issue has arisen in the light of the conflicting National Court decisions we have noted in paragraphs 6 and 7 above. The issue presented can be determined by reference to a determination of the more fundamental question of, can a Departmental Head or a senior public servant who is employed under a contract have it both ways in terms of the benefits under the terms of his contract and the normal public service terms and conditions of employment? The cases, Counsel for the Prime Minister and the State rely upon effectively say that, a Departmental Head cannot have it both ways. If he is employed under a contract of employment, it is to the terms of the contract that he must look to for his remedies and not by way of judicial review. The two Supreme Court decisions in Ereman Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Harbours Board (supra) support the proposition in the case of a public servant employed under a contract that, unless there is express provision for the application and continuation of a public servant’s rights and privileges including, the public service disciplinary process and the right to judicial review of decisions affecting them, they do not apply. There is no conflict in these two decisions of the Supreme Court.

In the case before us, there might well be conflicts in the decisions of the National Court as highlighted in the arguments of the parties before us and in the Court below. But that is no reason to say that, there has been much controversy in relation to the issue of appointment and revocation of Departmental Heads and other senior public servants. Though s. 193(1C) of the Constitution and ss. 28 and 31C of the Public Services (Management) Act, were not under consideration in the Ereman Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Harbours Board (supra), these decisions state the law as to when an employer-employee relationship is governed by public law and when it is not.”
(Underlining supplied)

35.	The sum effect of the foregoing decisions of the Supreme and National Courts is clear. Where a person is employed in the public service or a public authority on a written contract, the terms of the contract determine whether the relationship is governed by public law or private law.’

11.	 The plaintiff also submits that clause 9 of his Contract of Employment, serves as the foundation for the ‘mode’ in which he commenced this proceeding.  The Employment Contract is annexed to the plaintiff’s affidavit filed on 12 March 2024.  For the sake of completeness, the Contract of Employment is detailed below, namely:

'	y
Public Services (Management) Act
NATIONAL PUBLIC SERVICE
PERFORMANCE BASED CONTRACT OF EMPLOYMENT
Made Between:
Mr. Bill Kapen
Executive Manager, Corporate Services Division National Procurement Commission
And:

Mr. Simon Bole, MBA, Chief Executive Officer,
National Procurement Commission

(Made pursuant to Section 41 of the
Public Services (Management) Act)

CONTENTS

The Employment Agreement: Contains the legal basis and the essential contract structure, including the effective date and duration.

Signature Page: To be executed by the Departmental Head and the Senior Officer and witnessed by the delegate of the Secretary, Department of Personnel Management and the Departmental Officer responsible for Human Resources Management functions

Schedule 1: Contains the Senior Officer's Performance Undertakings in the form of Matrix of Key Result Areas and Performance Indicators as established by the Departmental Head from time to time.

Schedule 2: Contains the Terms & Conditions of Employment including salaries and allowances, and references to the Standard Terms & Conditions of Employment and the General Orders conditions not covered in the Agreement.

Schedule 3: Contains the Termination Provisions, including termination for poor performance and for disciplinary reasons.
Schedule 4: Contains the National Public Service Code of Ethics and Conduct.

Job Description: Authorized by the Departmental Head, and subject to variation from time to time.

Public Services (Management) Act
SENIOR OFFICER PERFORMANCE BASED CONTRACT OF EMPLOYMENT
MR. BILL KAPEN

THIS AGREEMENT is made to be effective on and from 27th March, 2023.

BETWEEN: THE CHIEF EXECUTIVE OFFICER OF NATIONAL PROCUREMENT
COMMISSION, NPC, ("MR SIMON BOLE, MBA") for and on behalf of the
State of the one Part.

MR BILL KAPEN, Executive Manager,	Corporate Services	Division ("National Procurement Commission") of the other Part.

WHEREAS:

(A)	Pursuant to the provisions of Section 41 of the Public Services (Management) Act ("the Act"), the Departmental Head wishes to employ the Senior Officer on Contract by virtue of the powers delegated by the Secretary, Department of Personnel Management.
and
(B)	The Senior Officer has accepted an offer of continuing employment made by the Departmental Head, subject to the Senior Officer's continuing satisfactory performance, as hereinafter provided.
and

(C)	The Parties have agreed to enter into a "Performance Based Employment Contract" ("the Contract"), containing performance standards against which the Senior Officer will be appraised by the Departmental Head from time to time.

NOW IT IS HEREBY AGREED as follows:
I.  The Contract, comprising. the Agreement, the Standard Terms & Conditions and the General Orders made pursuant to the Act, is of three years in duration, subject to the termination provisions in Schedule 3 hereto.
2.	The Senior Officer undertakes to meet the Performance Commitments  listed 
Schedule 1 hereto, and shall at all times:

2

(a)	comply with the law and in particular with the Public Services (Management) Act and the Contract, and give honest and dedicated service to the public in accordance with his or her contracted position and rank and the Departmental Head's instructions from time to time;

(b)	skillfully and diligently perform all the duties within the scope of or incidental to the employment of a Senior Officer holding the position in accordance with Job Description or as may reasonably be regarded by the Departmental Head as being within the capabilities of a person engaged in such position from time to time;
(c)	obey and comply with all lawful orders and directions given by the Departmental Head or his delegates and senior officers of higher seniority and without limiting the generality of. this clause, shall work whatever hours may be necessary whenever instructed or required to do so in order to discharge the duties of his or her office;

(d)	make every endeavor to comply with Performance Undertakings made to the Departmental Head as provided herein, to enable the Departmental Head or his delegate to monitor the Senior Officer's performance from time to time;
(e)	observe and comply with all General Orders, rules, regulations and codes of conduct, including the Code of Ethics & Conduct of the National Public Service for the management and well being of the Department, its property and works and for the control, good conduct and well being of the staff;

(f)	disclose to the Departmental Head known or potential conflicts of interest which may arise from time to time in the discharge of his or her duties, which may be detrimental to the interest of the State and contrary to public interest;

(g)	not engage in any· activity at any time which may directly conflict with the duties described herein, or which may result in public reports injurious to the interests of the Department;

(h)	not hold political office as defined under the Organic Law and shall not engage in any activities which may be construed by the Departmental Head as holding a political office and shall not enter into any public correspondence which the Departmental Head may consider as being injurious to the interest of the Department;
(i)	not enter into any employment arrangement to supplement his or her income without the prior written approval of the Departmental Head, subject to the approval of the Secretary, Department of Personnel Management and the National Public Service shall remain the Senior Officer's sole employer.
G)  not at any time :during the continuance of or following the termination of employment, except by direction of the Departmental Head, divulge either directly or indirectly to any person any information related to Departmental business, other than as required by law.

3

3.	The Senior Officer's salary and other components of remuneration are as specified in Schedule 2, as amended from time to time in accordance with determinations of the Departmental Head, made in accordance with the General Orders.
4.	The Departmental Head is hereby authorized to make deductions from the Senior Officer's remuneration from time to tirrie in respect to any moneys that may become due to the State during the term of the Contract.

5.	The place for the Senior Officer's repatriation and recreation leave purposes shall be Jiwaka, Province.
6.	For the purpose of calculating continuous service with the National Public Service, the Senior Officer's employment commenced on 27th March, 2023, as determined by the Chief Executive Officer of the NPC Organization.

7.	The Senior Officer has read, understood and accepted the Contract terms and conditions, as determined from time to time by the Departmental Head, and this Contract supersedes any previously existing agreement(s) made between the Departmental Head and the Senior Officer, and all communications between the Parties for the purpose of interpreting the Contract shall be made in writing in the English language.

8.	The terms used throughout the Contract have the meanings described in the Act, the General Orders and this Agreement, and in the event that any meaning is unclear, the Secretary, Department of personnel Management or his delegate shall determine the matter.

9.	The Contract may be terminated only in accordance with its provisions, as described in the Agreement, by the giving of due notice, or payment in lieu thereto, or without notice in the event that termination is for cause.

10.	Under no circumstances shall the Contract be terminated by either Party contrary to law, so that on termination only the severance benefits specified in the Agreement, if any, shall be payable to the maximum limit specified therein, and under no circumstances shall an unrestricted termination payment be made by the Departmental Head for the un-expired period of the Contract.
11.	In the event that on termination of employment the Senior Officer is indebted to the National Public Service for any sum of money, however arising, the Departmental Head shall have the right to retain and set off against the amount of indebtedness, the whole or part of the moneys then or thereafter becoming due to the Senior Officer under the Contract and shall make all such deductions.

12  The Senior Officer warrants that the information furnished by him to the Departmental Head at the time of engagement, as to his record of abilities, health and other employment matters is materially true and correct and that the Senior Officer has not withheld any material information. If any such particular shall be found to be incorrect or if it be discovered that the Senior Officer has failed to disclose any material information, the Departmental Head may terminate the Contract without notice.

..........

4

13.	The Departmental Head make variations to the substantive terms of the Contract, in agreement with the Secretary, Department of Personnel Management, by the giving of three months notice, provided that the salaries, allowances and benefits contained m Schedule 2 shall not be reduced or varied to the disadvantage of the Senior Officer.
14.	In the event that the Contract terminates or is terminated on any grounds, the future employment of the Senior Officer shall be determined by the Departmental Head m accordance with the Public Services (Management) Act and the General Orders.

15.	The Senior Officer shall address requests for interpretation of the Contract to the Departmental Head, and such interpretation shall be made in agreement with the Secretary, Department of Personnel Management, and such interpretation shall be final and binding.

Schedule 1

SENIOR OFFICER'S PERFORMANCE UNDERTAKINGS

1.	Purpose and Objectives of the Performance Based Contract

1.1	The Contract enables the Departmental Head and the Senior Officer to develop a set of performance targets or indicators in accordance with the Job Description for the position and priorities set by the Departmental Head to which the Senior Officer is then committed and against which his or her performance can be measured through regular performance assessments.
1.3	The Contract enables the Departmental Head to identify specific weaknesses in the Senior Officer's competencies as outlined in the Job Description and to establish a remedial training and self-development program to improve upon those competencies which are weak.

1.4	The Contract also enables the Departmental Head to determine whether or not to caution the Senior Officer for poor performance and as a result, to terminate the contract prior to renewal date in accordance with the laid down procedure.

1.5	
'

Dependent upon the overall performance of the Senior Officer throughout the period of the Contract, the Departmental Head will determine in his or her sole discretion whether or not to renew the Contract.

2.	Performance Commitments and Performance Assessment
2.1	The Departmental Head has defined the Performance Commitments, to be achieved from time to time in the form of Key Result Areas and Performance Indicators, shown in the attached matrix.
2.2	Throughout the Contract period, subject to review by the Departmental Head from time to time, the Performance Commitments are a binding condition of the Contract.

2.3	The Departmental .Head shall determine the progress achieved by the Senior Officer in complying with the Performance Commitments at regular intervals.

2.4	The views of the Senior Officer as to his or her success or otherwise in complying with the Performance Commitments shall be taken into account by the Departmental Head in a Performance Assessment process.

2.5	The Performance Assessment shall note the areas of achievement and of under achievement and shall identify specific remedial action where necessary for agreement and sign off by the Senior Officer and the Departmental Head.

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2.6	The Senior Officer shall bring to the Departmental Head's attention from time to time contingencies which affect his or her performance during the period under review and shall take such corrective action as is necessary to comply with the Performance Commitments.
2.7	Notwithstanding the above procedure, the Departmental Head may at any time give notice of termination on grounds of poor performance, in the event that the Senior Officer consistently fails to fulfill the Performance Commitments.
3.	Performance Rating, Remuneration Incentives and Penalties
3.1	Dependent upon the Senior Officer's Performance Assessment, the Departmental Head may increase the Senior Officer's Base Salary from time to time through the performance review process described in the General Orders.

3.2	In the event that the Senior Officer consistently fails to fulfill the Performance Commitments over a 12-month period, the Departmental Head shall determine what remedial action must be taken to correct his or her poor performance.
3.3	The Departmental Head may give 3 months notice (or shorter period of not less than one month) to the Senior Officer to upgrade his or her performance to comply with the Performance Commitments.

3.4	In the event that following counseling and upon expiry of the notice period no significant improvement in performance is evidenced, then the Departmental Head may determine to terminate the Contract on grounds of poor performance.

4.	Performance and Renewal of Contract on the Due Date.

4.-I  No later than three months prior to expiry of the contract period, the Departmental Head shall undertake an overall assessment of the Senior Officer's performance against his or her Performance Commitments over the period of the Contract.

4.2  In the event that the Departmental Head in his sole discretion, determines that the Senior Officer has failed to comply with his or her Performance Commitments, then the Senior Officer may be informed by the Departmental Head that his or her contract shall not be renewed.
(Note that the Departmental Head may delegate any of the responsibilities listed above _toa Deputy Secretary/First Assistant Secretary, provided that any decision to renew or not to renew, or to terminate the contract shall be determined by the Departmental Head on the recommendation of a delegated officer, in consultation with the Department of Personnel Management.)	•

Revision No.08'1' September, 2022

SCHEDULE 1 

NAME- BILL KAPEN – POSITION: SENIOR AUDITOR INTERGRITY
 & INVESTIGATIONS KEY RESULT AREAS AND PERFORMANCE COMMITMENTS
 		BUDGET YEAR – 2022 – (Revision No. – EFFECTIVE FROM -27TH MARCH 2023-

Performance Commitments for 2022/2023 (as amended from time to time by the Department Head)

KEY RESULT AREAS

1.	The Executive Manager, Corporate Services is responsible for providing high level advise to the CEO on corporate governance and internal affairs matters.
2.	Establishing relations with other Government agencies and stakeholders.
3.	Is required to assist and contribute in the development of special projects to support governance, reviewing of systems, process and structure such as organization structure, policy etc.
4.	Is required to assist in the development or reviewing of strategic plan, annual plan and divisional as well as unit plans.
5.	Is required to assist in the development of policies, manuals, standard operating procedures etc.
6.	All leadership and supervision of all corporate affairs of the organization, including the corporate affairs.

PERFORMANCE INDICATOR 

1.	Develop skills and knowledge in financial, business and HR Services plan.
2.	Develop appropriate plans and work schedules that priorities activities of both staff and resources to ensure work objective and targets are achieved.
3.	Conduct internal administration audits to ensure compliance of established legislation, policies and manuals.
4.	Conduct and assist in Payroll and HR audits into fraudulent activities within the organization and proved report to the CEO for appropriate action.
5.	Provide compliance quality assurance checks on procurement process.
6.	Provide Quality Budget review reports and annual performance reports.
7.	Establish sound relations with compliance agencies to jointly promote governance including, review of systems, policies, manuals and process, structure etc.
8.	Work on other special projects to promote governance including, review of systems, policies, manuals and process, structure etc.
9.	Leadership and oversight int he implementation of the NPC restructure program.	
PRIORTY OUTPUTS

1.	Implementing the audit plan in line with internal audit charter.
2.	Implementation appropriate plans, work schedules, activities.
3.	Implementation of all the internal financial systems, HR systems, IT systems, and all procurement systems in operations.
4.	Ensure all internal divisional reports systems and process weakness and failures are produced with recommendations to CEO to take corrective actions to achieve good governance.
5.	Produce quality assurance advice to CEO for appropriation actions on administrative matters.
6.	Produce 4x Quarterly Budget reports, monthly financial reports.
7.	Establish relations with other compliance agencies to push for corporate government at higher level
8.	Contribute in the development of special projects to support governance, reviewing of systems, process and structures such as organization structure, policy etc.
9.	 Ensure that the NPC Restructures is implemented according to the implementation plan/schedule.
10.	Ensure Implementation of Auditors General’s recommendation on their letter through NPC Management  	

Employment Contract/National Procurement Commission-Bill Kapen	-		 Revision No.08th September ,2022

Approved by the Departmental Head: _________________________________Date: ________________

Agreed to as contractual commitment: _______________________________Date:________________

NB: The above list of Performance Commitment is not exhaustive and may be varied by the Departmental Head from time to time, and the Senior Offices shall comply with all performance standards and rules set by the Departmental Head.

Employment Contract/National Procurement Commission-Bill Kapen	-		 Revision No.08th September ,2022
)

4.

SCHEDULE 2

SALARY, ALLOWANCES AND BENEFITS APPLICABLE TO MR. BILL KAPEN, EXECUTIVE MANAGER, CORPORATE SERVICES DIVISION EFFECTIVE ON AND FROM 27™MARCH, 2023. AS VARIED BY AGREEMENT BETWEEN THE PARTIES FROM TIME TO TIME) TO BE READ TOGETHER WITH THE STANDARD TERMS & CONDITIONS FOR THE EMPLOYMENT OF SENIOR OFFICERS OF THE NATIONAL PUBLIC SERVICE

1.	Contract Period 3 (three) years effective on and from 27th MARCH, 2023.
2.	Continuous Employment with the National Public Service Commenced engagement plus any recognized public sector service.
3.	Normal hours of work are in accordance with the General Orders.
4.	Salary and Allowances per Contract Category •�	pay Grade 18.1 Executive Manager: Contract Category
Contract Component	Gross Value
PGK/p.a.

Base Salary (PS18: Step 1)
Contract Gratuity @ 25% Base Salary Accommodation Allowance 
Vehicle Allowance 
�	
Domestic Market Allowance
TOTALSALARY PLUS ALLOWANCES

5.	The Senior Officer shall contribute to the Public Officers Superannuation Fund in respect to statutory Superannuation provisions and the Department shall make contributions to the Fund on behalf of the Senior Officer as follows:

•	Employee contribution @ 6% of Base Salary
•	Employer contribution@ 8.4% of Base Salary
7.	Contract Gratuity is payable in respect to all paid hours of work and for all periods of paid leave, at intervals of 12 months from commencement of the Contract, subject to the Senior Officer's performance and the termination provisions of the contract.
8.	Leave provisions applied utilizing the General Orders, include:

•	Three weeks Annual Leave, with leave fares (where applicable) on a two-yearly basis to point of origin for himself and authorized dependants.
•	Ten days Sickness Leave.

Employment Contract/National Procurement Commission> Bill Kapen>	Revision No.081h September, 2022
5

•	Three weeks Annual Leave, with leave fares (where applicable) on a two-yearly basis to point of origin for himself and authorized dependants.
•	Ten days Sickness Leave.
•	Standard accrual of Long Service Leave.

9.	All other terms and conditions of employment are determined in accordance with the
Contract, including the Standard terms & Conditions and the General Orders. In the event that the Contract is silent on any terms and conditions the Departmental Head
shall determine the matter in accordance with Standard Terms and Conditions and the General Orders.

10.	Other Allowances may be payable from time to time in respect to working conditions and application of specific skills, as detailed in the General Orders from time to time.

11.	Taxation provisions applicable to the Contract are subject to variations that may be made to the Income Tax Act from time to time, and the Contract does not provide a guarantee on net income derived thereto. All taxation matters are as determined by a Departmental Head on the advice of the Internal Revenue Commission.

12.	For purposes of dependant benefits due to the Senior Officer (if applicable), his/her authorized lawful dependants are named with their dates of birth as his lawful Spouse and natural children under the age of 19 years. (The Senior Officer is not entitled to benefits in respect to any child of age 19 years and above)

Schedule 3

TERMINATION PROVISIONS

Grounds for Termination

1.	The grounds on which the Departmental Head may terminate the Contract, subject to the conditions in Clause 2 are: -

(a)	legislative amendments affecting the continued employment of the Senior Officer or other grounds resulting in redundancy of the Senior Officer's position; or

(b)	for poor performance by the Senior Officer, following a failure to improve performance over a reasonable period of time, following a formal written warning by the Departmental Head; or

(c)	as a result of non-renewal of the Contract by the Departmental Head as a result of poor performance and/or misconduct recorded during the Contract period;

9.5

(d)	for Cause as a result of breach of Contract by the Senior Officer, as determined by the Departmental Head following disciplinary action; or

(e)	on grounds of ill health, as advised by a medical officer appointed by the Departmental Head; or
(f)	as a result of Retirement as determined by the Departmental Head pursuant to the Act;
(g)	on resignation by the Senior Officer, as accepted by the Departmental Head; or
(h)	in the best interest of the State as determined by the National Executive Council.
2.	Grounds for termination shall at all times be determined in the interest of the National Public Service, and the validity of grounds for termination in this regard, shall comply with the following rules:
(a)	termination will be legal in terms of the grounds provided by the Contract and will not breach any law;
(b)	the Department will not become exposed to any unnecessary financial or legal liability resulting from the termination, and any monies payable to the Senior Officer shall not exceed those specified in the Contract as a result of such termination;

(c)	termination will in fact advance the interests of the Department, as determined by the Departmental Head, in consultation with the Secretary, Department of Personnel Management;

(d)	termination is not motivated by regional or by personal interests and grounds for termination shall demonstrably be one of the grounds listed in the Contract;·

(e)	the principles of natural justice as referenced in the Constitution of Papua New Guinea shall be adhered to by the Parties.

Employment in the National Public Service Following Termination
3.	In the event of termination of the Contract pursuant to Clauses l(a), (b) or (c), the Departmental Head may �-ither:
(a)	retain the services of the Senior Officer in the Department in another position, which may entail demotion to a lower grade in agreement of the Senior Officer; or
(b)	terminate the services of the Senior Officer dependent upon the grounds under Clauses l(a), (b) or (c), in accordance with the termination procedures described· below.

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4.	In the event of termination of the Contract pursuant to Clauses 1(d), (e) (f) (g) or (h), the Senior Officer's employment in the Department shall cease in accordance with the termination procedures described below.
Termination Procedures

5.	Employment under the Contract, shall be terminated by a decision of the Departmental Head in the following manner: -

(a) pursuant to Clause 1 (a), (b), (c), (e) (f) and (h), by:
(i)	giving to the Senior Officer not less than three calendar months' notice in writing, or, in the event that the Senior Officer is terminated from the Department, or by:

(ii)	paying to the Senior Officer salary and allowances, listed under Schedule 2, calculated up to the expiration of three calendar months in 1ieu of such notice, in which event the Contract will terminate on the date stipulated in such notice; or

(b) pursuant to Clause 1 (d), for Cause, with or without 3 months notice or payment in lieu of notice, as determined by the Departmental Head.

6.	Upon termination of employment, all accrued benefits calculated under provisions of Schedule 2, including any Ex-Gratia Termination Benefit which may be payable as a result of retrenchment hereunder, subject to any penalties, shall become due and payable to the Senior Officer.
Resignation by the Senior Officer
7.	The Senior Officer may resign at any time for any reason by the giving of three months-notice in writing to the Departmental Head, unless a shorter period has been approved by the Departmental Head. In the event of a failure to give the required notice in accordance with this Clause, the Departmental Head may deduct from any accrued benefits payable to the Senior Officer, a sum of money equivalent to Base Salary which would have been paid to the Senior Officer in respect of the notice period.
Senior Officer's Unsatisfactory Work Performance

8.	Pursuant to Clause l(b), in the event that the Departmental Head becomes concerned about consistently poor work performance by the Departmental Head, the Departmental Head shall, issue a warning in writing to the Senior Officer to improve his/her performance and/or to overcome weakness in conduct within a reasonable period as determined by the Departmental Head
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9.	In the event that there has been no improvement in performance over the prescribed period, the Senior Officer shall provide a written explanation of his/her failure to improve performance and the Departmental Head may in his sole discretion terminate the Contract on grounds of poor performance and not as a disciplinary matter.

I
10.	No payments of benefit are to be made in respect to ex-gratia provisions or gratuity provisions, and any accrued benefits under these headings are to be forfeited to the Authority. Payment of money in lieu of notice and normal service-related benefits shall be payable, subject to any surcharge arrangements that may be in place to recover monies owed to the Authority.
Termination for Cause
11.	Pursuant to termination under Clause l(d), in the event that credible evidence has been provided to the Departmental Head to demonstrate that the Senior Officer allegedly:
(a)	committed a breach of the provisions of the Constitution, any Act, Regulation, Rule, or of this Contract;
(b)	divulged without authority from the Departmental Head any information concerning public business, whether in relation to the Authority or otherwise, adversely affecting the interests of the Authority;
(c)	willfully disobeyed or disregarded a lawful order of the Departmental Head or his delegate;
(d)	was negligent in the discharge of the duties specified by the Departmental Head;
(e)	attended work with impaired capabilities and judgment following the consumption of alcohol or un-prescribed drugs;

(f)	solicited or accepted a fee or gift in connection with the discharge of official duties;

(g)	was guilty of any disgraceful or improper conduct in the discharge of official duties or otherwise;

(h)	was continually absent from- work without proper authority or good reason; and/or

(i)	was convicted of a criminal offence,
then the Departmental Head shall initiate the suspension procedure hereunder for the purposes of conducting an official investigation.

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12.	Thereafter, the Departmental Head shall invoke the disciplinary procedure hereunder, and charge the Senior Officer with a disciplinary offence, and having considered the Senior Officer's response to the allegations, having found the Senior Officer guilty of an offence, may terminate the Contract for cause.
13.	In the event that the Contract is terminated for cause, no payments are to be made in respect to ex-gratia benefits or gratuities which are to be forfeited to the State. Dependent upon the seriousness of the offence, the Departmental Head shall determine whether or not payment of money in lieu of notice and normal service-related benefits shall be made to the Senior Officer on termination, subject also to any surcharge arrangements that may be in place to recover monies owed to the State.

Disciplinary Suspension for Investigatory Purposes
14.	In the event that evidence is presented to the Departmental Head of serious misconduct by the Senior Officer, which may require the laying of disciplinary charges, the Departmental Head shall determine whether or not grounds for suspension exist.

15.	Grounds for suspension relate to allegations of serious offences listed under Clause 11, "Termination for Cause", and having determined such grounds, the Departmental Head may suspend the Senior Officer on full pay and shall expedite an investigation of the allegations in the shortest possible time.

16.	In the event that the allegations are found to have substance, supported by credible evidence, then the Departmental Head shall invoke the disciplinary procedure hereunder.

(a)	Where the Senior. Officer is alleged to have committed a serious offence as defined under Clause 11, the Departmental Head shall establish a Disciplinary Committee and the Chairman of the said Committee shall formally charge the Senior Officer in writing with the offence(s) allegedly committed and thereby enable the Senior Officer to reply.
(b)	The Senior Officer shall formally respond to the charge(s) by writing to the Chairman of the Disciplinary Committee within 10 days of the charge(s) being laid and the Chairman shall seek legal advice on the contractual position and shall make a recommendation to the Departmental Head as to the guilt of the Senior Officer or otherwise;
(c)	The Departmental Head having considered the recommendation of the Disciplinary Committee, and the Senior Officer's response and having verified his legal position shall determine whether or not to terminate the Contract.

(d)	The decision of the Departmental Head under the Contract shall be final, and the Senior Officer may seek redress through the Papua New Guinea Courts of Law in the event he considers the disciplinary action to have been applied improperly or unfairly.

Employment Contract/National Procurement Commission> Bill Kapen>	Revision No.08111 September, 2022

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(e)	Notwithstanding the above procedure, on a recommendation of the Disciplinary Committee, the Departmental Head may at any stage conclude the disciplinary proceedings and impose a penalty short of termination, by way of a warning for the Senior Officer to improve future performance.

Ex-Gratia Termination Benefits on Retrenchment

17.	In the event that the Departmental Head, with the approval of the Secretary, Department of Personnel Management determines that the Senior Officer is to be retrenched pursuant to Clause l(a) or l(h) only, the Senior Officer shall be entitled to payment of an Ex-Gratia Termination Benefit equivalent to Base Salary and Allowances for the unexpired period of the Contract, subject to a maximum period of six months, in addition to all Gratuity, Long Service Leave, and Recreation Leave accrued to the date of termination, together with benefits payable under any other law.

18.	Under no circumstances shall Ex-Gratia Termination Benefits be paid to the Senior Officer in the event that termination has been affected for poor performance under Clause l(b), or for Cause under Clause 1(d), or as a result of resignation.

19.	Payments made to the Senior Officer hereunder constitute the maximum entitlement payable by the Department to the Senior Officer on termination of the Contract, under all circumstances, pursuant to Schedule  1.

Public (Services) Management Act 1995
 
12.	 On the basis that the Contract of Employment states it is made pursuant to section 41 of the Public (Services) Management Act (the Act), it is necessary to consider the relevant provisions of the Act.  Section 18 of the Act provides as follows:

‘PART III. – REVIEW OF PERSONNEL MATTERS.

18. REVIEW OF PERSONNEL MATTERS CONNECTED WITH THE NATIONAL PUBLIC SERVICE.
 (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 compliant; and
(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the compliant.
(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 compliant, who may at his request and at his own cost, 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.

13.	 Sections 41 to 49 of the Act provide as follows:

‘41. CONTRACTS OF EMPLOYMENT.
(1) An officer appointed to a senior management office shall be employed under, and shall hold office in accordance with, the terms and conditions of a contract of employment with the State, made subject to the Salaries and Conditions Monitoring Committee Act 1988.

(2) A contract of employment under Subsection (1) shall be executed on behalf of the State by–
(a) in respect of appointees under Section 40(2)(a)–the Head of State; and
(b) in respect of appointees under Section 40(2)(b)–the Departmental Head of the Department of Personnel Management,
and by the appointee.

(3) Notwithstanding the provisions of this Act relating to discipline of officers, a contract of employment under Subsection (1) shall make specific provision for discipline and an officer employed under a contract of employment under Subsection (1) is exempted from the provisions of Part XIV.

(4) Notwithstanding the provisions of this Act relating to promotion and appointment, where–
(a) a contract of employment under Subsection (1) terminates or is terminated and is not subsequently renewed; and
(b) the appointee under that contract of employment is not re-appointed to another office under this Act,
his employment in the Public Service is terminated.

(5) The provisions of this Act shall apply to an officer employed on a contract of employment under this section only in so far as they are not inconsistent with the terms and conditions of the contract of employment.

(my emphasis)

42. EMPLOYMENT UNDER CONTRACT TO CONSTITUTE SERVICE.
Employment under contract under this Part shall constitute service in the Public Service for all purposes.

43. ADMINISTRATION OF CONTRACTS.
(1) The Departmental Head of the Department of Personnel Management shall, on behalf of the State, interpret any contract of employment made under this Part.
(2) An amendment to be made to a contract of employment under this Part–
(a) by reason of a directive of the National Executive Council; or
(b) to accord with General Orders; or
(c) for administrative purposes,
shall be authorized–
(d) in respect of contracts of employment to which Section 40(2)(a) refers–by the Minister; or
(e) in respect of contracts of employment to which Section 40(2)(b) refers–by the Departmental Head of the Department of Personnel Management.

PART XII. – TRAINING.

44. TRAINING.
(1) The Departmental Head of the Department of Personnel Management is responsible for initiating and co-ordinating manpower, career and training plans for the Public Service.
(2) A Departmental Head is responsible for–
(a) producing manpower, career and training plans for the Department of which he is Departmental Head; and
(b) submitting by 31 March of each year to the Departmental Head of the Department of Personnel Management plans produced under Paragraph (a).
(3) Any request for training, whether local or overseas, by or on behalf of an officer shall be consistent with the manpower, career and training plans of the Department of which he is an officer.
(4) An officer who is sent on study leave for promotion to a higher office shall, on successful completion of that study, be promoted to that higher office.
(5) An officer on a senior national contract who proceeds on study leave of more than three months shall forfeit all entitlements to the office for which he is contracted except–
(a) the substantive salary; and
(b) if he is not living in a State rent-free house, the housing allowance.

PART XIII. – SALARIES AND ALLOWANCES.

45. SALARY CLASSIFICATIONS.
(1) Offices shall be given such classifications as are fixed by the Departmental Head of the Department of Personnel Management.
(2) A classification under Subsection (1) may provide for a rate of annual salary or a scale of rates of annual salary.
(3) In fixing classifications under this section, the Departmental Head of the Department of Personnel Management shall comply with any general directions of the National Executive Council.

46. ALLOWANCES.
Officers may be paid such allowances in such cases as are specified in the General Orders.

47. DEDUCTIONS FROM OFFICERS’ ENTITLEMENTS.
Deductions may be made from the entitlement of officers and employees as specified in the General Orders, or as determined by the Minister, in relation to an officer or class of officer, or employee or class of employee for any service provided by the State or as a service to the officer or employee by the State.

48. RECOVERY OF SALARY AND ALLOWANCES.
(1) All amounts of salary and allowances payable to an officer may be recovered by the officer as a debt in any court of competent jurisdiction.
(2) The State may, with the consent of an officer, effect deductions from the salary of an officer to recover debts due by the officer to the State.

49. PAY DURING SUSPENSION.
Subject to Section 48, where an officer has been suspended in connection with a charge of an offence under this Act, he is entitled to receive his pay during the period of suspension, unless he absconds or the Departmental Head of the Department of Personnel Management, after receiving a report from the Departmental Head, orders otherwise.

Other authorities regarding employment contracts 

14.	 In the National Court decision of Francis Damen v Jerry Tetaga [2005] N2900, his Honour Injia DCJ stated the following at pages 8 to 12 as follows:

‘The disciplinary process under the PSM Act and Clause 25 of the Contract is a two-phase process. The first phase of the disciplinary process is the primary disciplinary process which is provided in Part XIV of the PSM Act in respect of non-contract officers and in respect of contract officers, the Contract should provided for it. For instance, in the case of the Solicitor-General, it is Clause 25(1)(a), (b) and (c) of the Contract. The parties agree that Mr. Gelu was dealt with under the primary disciplinary procedure in the Contract and not under Part XIV of the PSM Act. I accept this position as correct and consistent with s.41(3) and (5) of the PSM Act.

The second phase is the review process. There are two avenues for review open to an officer aggrieved by a disciplinary action. The first is an administrative review by the PSC under s.18 of the PSM Act. There is no question that this avenue is available to all officers of the Public Service, including non-contract officers of the Solicitors-General’s office who are dealt with under Part XIV of the PSM Act.

Section 18 of the PSM Act, as amended by Act No. 25 of 2000 provides:

"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—
o	(i) the Departmental Head of the Department of Personnel Management or his delegate; and
o	(ii) the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department; and
o	(iii) the officer making the complaint, who may at his request and at his own cost, be represented by an industrial organization of which he is a member, or by a lawyer;
•	(b) the persons summonsed under Paragraph (2) shall make themselves available to appear before the Commission within 14 days of the date of summons:
•	(c) the Commission shall—
o	(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 that National Public Service; and
•	(C) the cost implications of any decision which it may make; and
o	(ii) make a decision to uphold, vary or annul the decision the subject of the complaint; and
o	(iii) give immediate notification of its decision to the persons summonsed under Paragraph (a);
•	(d) the decision of the Commission under Paragraph (c)(ii)—
o	(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
o	(ii) shall become binding after a period of 30 days from the date of the decision."

The second avenue is the Courts. The usual procedure is by application for judicial review under Order 16 of the National Court Rules. A non-contract officer dealt with under Part XIV of the PSM Act would have to exhaust the administrative review process in s.18 of the PSM Act before applying for leave for judicial review: see Order 16 Rule 3(6) of the National Court Rules.

In relation to a contract officer, such as the Solicitor-General, in view of the wording of Clause 25.1(d) of the Contract, the question is whether the officer may invoke the administrative review procedure under s.18 of the PSM Act. Mr. Andrew for the PSC put the same issue in another way – Does Clause 25.1(d) of the Contract oust the jurisdiction of the PSC under s.18 of the PSM Act?

Mr. Kuman for Mr. Damem submits that Clause 25.1(d) of the Contract expressly says the decision of the Secretary, DPM is final and the Solicitor-General may only seek a review of that decision in the Courts. He cannot seek an administrative review under s.18 of the PSM Act. A similar procedure was employed in David Nelson v NEC (2003) N2440. The complaint made to PSC by Mr. Gelu was therefore in error and invalid. Consequently, the PSC wrongly assumed jurisdiction to "review" Mr. Gelu’s application as it lacked jurisdiction to deal with the matter. Therefore, the whole process before the PSC was invalid and Mr. Damem correctly refused to implement the decision of the PSC.

Mr. Baniyamai for Mr. Gelu submits the PSC has jurisdiction to entertain the complaint under s.18 because this provision empowers the PSC to review any personnel matter following a complaint lodged by an "officer7" of the Public Service. The Solicitor-General, in this case Mr. Gelu, is an officer of the Public Service within the meaning of "officer" in s.1 and s.42 of the PSM Act and s.10 of the A-G Act. Mr. Baniyamai submits the PSC is established by the Constitution and one of its powers is given by s.18 of the PSM Act. The Contract cannot take away that jurisdiction given by statute. He submits Clause 25.1(d) of the Contract does not expressly oust the jurisdiction of the PSC conferred by s.18(1) of the PSM Act and the Constitution. In any case Clause 25.1(d) of the Contract must be read subject to s.191 of the Constitution and s.18 of the PSM Act.

Mr. Andrew submits disciplinary action taken by the Departmental head is a "personnel matter" which comes within s.18(1) of the PSM Act. The power given expressly by statute cannot be taken away by agreement of the parties; only an Act of Parliament may do so. To the extent that Clause 25.1(d) of the Contract does so, it is inconsistent with s.18(1) of the PSM Act and s.191 of the Constitution, and it must be struck down.

Mr. Andrew also submits s.41(3) and General Order 19.18 (Third edition) expressly exempts contract officers from the primary phase of the disciplinary process under Part XIV of the PSM Act but not the review process under s.18. Therefore, the PSC had jurisdiction to receive Mr. Gelu’s complaint and deal with it. He distinguishes David Nelson’s case from the present case in that Mr. Nelson came straight to court after termination of employment under a Contract entered into under a different statute (Forestry Act).

In my view, the answer to the issue raised is to be found on a proper construction of s.18(1), s.41(3) & (5) and Clause 25.1.(d) of the Contract. The former are statutory provisions and of great importance and they require careful consideration. The latter is an agreement between parties and it does not have the same force as statutory provisions. However, because the Contract is founded on statutory provisions, the terms of the Contract are equally important and the Court must give careful consideration to the terms of the Contract. Those terms must however be reflective of and consistent with the empowering statutory provisions. If the terms of the Contract are inconsistent with the provisions of the empowering statutory provisions, then they may be struck down, to render consistency with the statutory provisions.

I start with s.18(1) of the PSM Act. Once a complaint is made to the PSC by an officer aggrieved by a decision on a disciplinary matter, the PSC assumes jurisdiction and it is required to "review the decision" in accordance with the procedure set out in Subs (3). It is not contested that Mr. Gelu is an officer of the National Public Service who was affected by DPM to terminate his employment. It is not disputed that he lodged a complaint against the PSC in writing, against his dismissal, as required by Subs (2). It is also not disputed that his dismissal was on disciplinary grounds and he was dealt with under the primary disciplinary procedure under Clause 25.1(a), (b) and (c) of the Contract. In the circumstances, I am satisfied that the actions of Mr. Gelu and the PSC are in accordance with s.18(1) of the PSM Act. The only real issue therefore is whether Clause 25.1(d) of the Contract ousts the jurisdiction of the PSC under s.18 of the PSM Act.

As I stated earlier, there are two phases in the disciplinary process – the primary disciplinary phase which results in the disciplinary action taken and the second phase which is the review process. They are two distinct and independent processes and they should not be mixed up. The PSM Act in fact treats them separately under two separate Parts – s.18 in Part III (Review of Organizational Matter), and ss.50 – 54 in Part XIV (Discipline). Section 41(3) expressly makes reference to "discipline of an officer employed under a Contract of Employment". The disciplinary process under a Contract referred to here must mean the primary disciplinary process, which is the equivalent of Part XIV of the PSM Act. Section 41(3) exempts a Contract Officer from the primary disciplinary process for the reason that the Contract provides for that primary disciplinary process. I do not think Parliament intended to exempt contract officers from the review process under Part III of the PSM Act (s.18). If Parliament intended that a Contract officer should be exempted from application of the review process in s.18, it should have expressly said so in s.41(3) or s.18. Also if Parliament intended that the Contract should also provide for a review process of the primary disciplinary process outside of s.18, it should have expressly said so in s.41(3) or s.18. By not expressly providing so, Parliament intended that Contract officers who are disciplined under the primary disciplinary process set out in the Contract were entitled to invoke the review process under s.18 of the PSM Act. I also consider that Parliament did not intend that a Contract officer who is disciplined under the primary process in Clause 25.1(a)(b) and (c) of the Contract would only resort to the Court to challenge the primary disciplinary decision.

I consider there is nothing in s.41(3) which authorizes contracting parties to include a review process in the Contract. Section 41(5) cannot be read to confer on contracting parties rights which are not available to them under the PSM Act. For instance, whilst s.41(3) expressly authorizes the Contract to provide for the primary disciplinary process equivalent to Part XIV only, it does not expressly authorize the Contract to create a procedure for review. For this Court to interpret s.41(3) and (5) to permit parties to do so, is to insert a new provision in the Act, which is beyond the powers of this Court.

Clause 25.1(d) of the Contract says the decision of Secretary, DPM is final and the officer "may" seek redress in the Courts. In my view, Clause 25.1(d) does not in any way oust the review jurisdiction of the PSC under s.18 of the PSM Act. All it says is that the decision is final insofar as the initial disciplinary process is concerned. By the use of the word "may" in Clause 25.1(d), the officer is given an option of seeking a judicial review in the Courts. In any case, if Clause 25.1(d) purports to or were intended by the parties to the Contract to oust the review jurisdiction of PSC on disciplinary matters, then to that extent, this Clause is inconsistent with s.18(1) of the PSM Act and cannot be given effect to or enforced by the Courts.

For these reasons, I conclude that Clause 25.1(d) of the Contract is consistent with s.18(1) of the PSM Act in that it does not oust the jurisdiction of PSC to review personnel matters relating to discipline in respect of a Contract officer, who is dealt with under Clause 25.1(a), (b) and (c) of the Contract. Such an officer is entitled to invoke the administrative review jurisdiction of the PSC under s.18 of the PSM Act. Upon lodgment of a complaint, the PSC assumes jurisdiction over the matter and it must conduct an inquiry in accordance with the procedure set out in s.18(3).

I also conclude that pursuant to Clause 25.1(d) of the Contract, the Solicitor-General may seek judicial review of the decision by the Secretary of DPM, in the Courts under Order 16 of the National Court Rules, instead of seeking a review by the PSC but the National Court may require the officer to first exhaust the administrative review process under s.18 of the PSM Act by virtue of Order 16 Rule 3(6) of the National Court Rule. Also see Burns Philp (New Guinea) Ltd –v- Kekedo [1988 – 89] PNGLR 122, and The Independent State of Papua New Guinea –v- Phillip Kapal [1987] PNGLR 417 at 421 – 422.

Applying these principles to the facts of this case, I find that Mr. Gelu’s complaint lodged with the PSC was proper and valid for all purposes and the PSC properly assumed jurisdiction over the complaint dealt with it. The question of whether the PSC complied with the procedure in s.18(3)(a), (b), 
(c) in dealing with the complaint is a separate matter.’

15.	 In the Supreme Court decision of Western Highlands Provincial Health Authority & Anor v Dr Kereme & Others [2025] SC2791, Justice Collier, Justice Anis and Justice Kaumi stated the following in the preamble:
‘ADMINISTRATIVE LAW – Appeal against decision of National Court dismissing application for judicial review of decision of the Public Services Commission – where National Court held that Public Services Commission had jurisdiction to review termination of senior contract employee of first appellant – where Part XIV of the Public Services Management Act excluded in relation to senior contract employees – operation of General Orders – whether s 41 of Public Services Management Act excludes ability of Public Services Commission to review decisions of public service bodies – whether termination of employment of third respondent solely within terms of his contract – not in dispute that the third respondent was a member of the public service – whether primary Judge conducted merits review of Public Services Commission review
The first appellant terminated the employment of the third respondent. The third respondent sought a review by the second respondent of his termination of employment. The second respondent found that the employment of the third respondent was not properly terminated and determined that the third respondent should be reinstated. The appellants applied to the National Court for judicial review of the second respondent’s decision. The National Court upheld the second respondent’s decision.
Held
The Public Services Management Act does not exclude the jurisdiction of the Public Services Commission to review decisions related to personnel matters in the National Public Service, including in respect of senior contract officers. Comments of the primary Judge in respect of the lawfulness of the termination were obiter dicta.’
16.	 In the Western Highlands Provincial Health Authority case (supra), the appeal determined matters relating to the third respondent (Mr Francis Wau) who had been employed by the Western Highlands Provincial Health Authority.  The Court stated the following at paragraphs 94 to 104 of its decision:

94.	The appellants contended that Damem was wrongly decided, that s 41(3) of the PSMA permits a contract to establish its own manner of appeal from a termination under the contract, and a contract is a matter of private law and not public law. The appellants further submitted that, in any event, Damem was distinguishable on the basis that the contract officer in that case was employed by a Department, rather than an Authority, and in this regard relied on the later decision of Injia CJ in National Agriculture Quarantine & Inspection Authority v Tetega [2009] PGNC 220; N4030.

95.	In Tetega, Injia CJ did find that the PSC did not have jurisdiction to review a decision of the authority there because neither the PSMA, nor the statute creating the Quarantine Authority, prescribed that the PSC had jurisdiction in relation to that Authority’s decisions. Without commentating on the specific facts in Tetega, we cannot arrive at the same conclusion in respect of the Health Authority as his Honour did in Tetega. The terms of s 18 of the PSMA are clear. The PSC has jurisdiction to review a decision on a personnel matter “connected to the National Public Service” where an officer of the Public Service was affected by the decision. As previously noted, Counsel for the appellants did not dispute that Mr Wau was an officer of the public service.

96.	We further note the terms of s 42 of the PSMA which provide:

42. EMPLOYMENT UNDER CONTRACT TO CONSTITUTE SERVICE.
Employment under contract under this Part shall constitute service in the Public Service for all purposes.

97.	Further, the contract also expressly acknowledged that the PSMA applied to it.

98.	It follows that the PSC’s jurisdiction is enlivened directly by s 18 of the PSMA. It is unnecessary for the Act which created the Health Authority to also enliven that jurisdiction. We now turn to whether that jurisdiction was excluded by operation of the PSMA or the employment contract.

99.	We are satisfied that the PSC’s review of the Termination Letter was within its jurisdiction and not excluded by statute or contract for the following reasons.

100.	First, s 41(3) of the PSMA does exclude Part XIV of the PSMA in relation to contract officers. It follows that, insofar as the PSMA applies, any disciplinary process in relation to Mr Wau would not be subject to Part XIV of the PSMA. Rather, it follows that any disciplinary action against Mr Wau would be as prescribed by his contract.
101.	That, however, is where the exclusion of the PSMA ends. Section 18 of the PSMA sits under Part III of the PSMA, not Part XIV. As Injia DCJ found in Damem, a clear distinction exists between the disciplinary process (which was to be governed by the contract) and the review process (governed by the PSMA). We respectfully agree with the conclusion of his Honour in Damem that if Parliament had intended to exclude the right of contract officers to seek review of decisions through the PSC, it would have expressly excluded Part III of the PSMA. Absent such express exclusion, we do not consider it appropriate for us to reach that conclusion.

102.	Second, we are not persuaded that the PSC’s review jurisdiction under s 18 of the PSMA was excluded by the contract. In this regard, we note s 41(5) of the PSMA which provides that:

(5) The provisions of this Act shall apply to an officer employed on a contract of employment under this section only in so far as they are not inconsistent with the terms and conditions of the contract of employment.

103.	Schedule 3, clause 16 of the contract provided that the officer “may seek redress through the Courts”. Counsel for the appellants submitted at the hearing that, by operation of s 41(5), sch 3 cl 16 of the contract prohibited Mr Wau seeking review through the PSC.

104.	We hold reservations as to whether a private contract can exclude the review mechanism of a public body which is established pursuant to s 191 of the Constitution. However, it is unnecessary to decide this point, as we are not persuaded that the contract excludes review of a personnel decision through s 18 of the PSMA. The use of the word “may” in cl 16 makes that phrase a permissive one. It means simply that Mr Wau could, if he so chose, seek redress through the Courts. In order to exclude a statutory mode of review, founded in the Constitution of Papua New Guinea, far more explicit and clear phrasing would have had to be used in the contract and relevant legislation. Accordingly, we are not persuaded that s 41(5) of the PSMA operated to exclude the PSC’s jurisdiction to review the Termination Decision.’

17.	  In the present case, the plaintiff was employed pursuant to the Contract of Employment in the role of Executive Manager, Corporate Services Division of the National Procurement Commission.  He was a contract officer appointed to a senior management role in the Public Service.  The Contract of Employment states that it is made pursuant to section 41 of the Act and that it comprises ‘…the Agreement, the Standard Terms & Conditions and the General Orders made pursuant to the Act, is of three years in duration, subject to the termination provisions in Schedule 3 hereto.’
 
18.	  I have reviewed Schedule 3 of the Contract of Employment and I note it is not in dispute that the plaintiff’s employment was terminated following a disciplinary process, which included him receiving five disciplinary charges.   

19.	 Notwithstanding that the plaintiff submits that clause 9 of his Contract of Employment, serves as the foundation for the ‘mode’ in which he commenced this proceeding, that claim requires careful analysis.  For this purpose, it is necessary to consider section 41of the Act, which is extracted in paragraph 13 above.

20.	 In this case, the effect of section 41(3) of the Act, is that the plaintiff’s Contract of Employment made specific provision for any disciplinary issues and exempted  the Contract of  Employment from the provisions of Part XIV of the Act.

21.	 Part XIV of the Act contains sections 50 to 54, which provide as follows:

‘PART XIV. - DISCIPLINE.
 
50.              DISCIPLINARY OFFENCES.
An officer who -
(a)   commits a breach of this Act; or
(b)   except as authorized in the course of official duty, does or divulges, directly or indirectly, any confidential information concerning public business or any matters of which he has official knowledge; or
(c)   except with the consent of the Head of State, acting on advice, or of an officer authorized for the purpose by the Head of State, acting on advice, publicly comments on administrative action or the administration of a Department; or
(d)   wilfully disobeys or disregards a lawful order made or given by a person having authority to make or give it; or
(e)   is negligent or careless in the discharge of his duties; or
(f)     is inefficient or incompetent from causes within his own control; or
(g)   uses intoxicating liquors or drugs to excess; or
(h)   solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his official duties (other than his official remuneration); or
(i)     is guilty of disgraceful or improper conduct in his official capacity or otherwise; or
(j)     having taken an oath or made an affirmation in the form in Schedule 1, does or says anything in violation of it; or
(k)   seeks the influence or interest of any person in order to gain promotion, transfer or other advantage; or
(l)     supplies to another officer, for use for any purpose referred to in Paragraph (k), a certificate or testimonial relating to official capacity or the performance of official duties,
is guilty of a disciplinary offence and is liable to be dealt with and punished -
(m) in the case of a Departmental Head - under Part VI; and 
(n)   in the case of an officer other than a Departmental Head - under this Part.
 
51.              DEALING WITH MINOR DISCIPLINARY OFFENCES.
(1)   If the Departmental Head, or an officer authorized by the Departmental Head to deal with minor offences, has reason to believe that an officer other than a Departmental Head has
committed a disciplinary offence that, in his opinion, would properly be dealt with under this section, he may call on the officer for an explanation as to the alleged offence, and if, on consideration of the explanation,  he is of the opinion that the offence has been committed, he may caution or reprimand the offending officer.
 
(2)   A caution or reprimand by an officer other than the Departmental Head shall be immediately reported to the Departmental Head.
 
52.              DEALING WITH SERIOUS DISCIPLINARY OFFENCES.
(1)   Where there is reason to believe that an officer other than a Departmental Head has committed a disciplinary offence other than an offence that may be dealt with under Section 51, the
provisions of this section apply.
 
(2)   The officer may -
(a)   be charged by his Departmental Head or an officer authorized by the Departmental Head to lay charges under this Division; and 
(b)   if it is considered that the charge is of such a serious nature that the charged officer should not continue in the performance of his duty, be suspended by -        
(i)     his Departmental Head; or
(ii)  in case of emergency - an officer authorized by the Departmental Head to lay charges under this Division.
 
(3)   Suspension may be effected before, at the time of or after the laying of the charge, and may be removed at any time by the Departmental Head concerned pending determination of the
charge, and where the charge has not been sustained shall be lifted immediately on a finding to that effect.
 
(4)   On a charge being laid against an officer, he shall -          
(a)   promptly be given a copy of the charge; and
(b)   be directed -  
(i)     to reply promptly in writing, stating whether he admits or denies the truth of the charge; and
(ii)  to give any explanation that he desires to give in regard to it, and if a reply is not given by the officer within seven days after his receipt of the charge he may be deemed to have admitted the truth of the charge.
 
(5)   If, after considering reports relating to the offence and charge, the reply and explanation (if any) of the officer charged and any further report that he thinks necessary, the Departmental Head
concerned is of the opinion that the charge has been sustained, he may -
(a)   fine the officer a sum not exceeding 20% of the officer’s gross fortnightly pay; or
(b)   reduce the officer’s pay; or
(c)   reduce the officer to an office having a lower classification, and to a salary within    that classification; or
(d)   in addition to or instead of imposing a punishment specified in Paragraph (a), (b) or (c), transfer the officer to some other office or locality; or  
(e)   dismiss the officer from the Public Service.
 
(6)   The Departmental Head shall notify an officer of a punishment imposed or recommendation made by him under Subsection (5).
 
53.              OFFICER CHARGED WITH CRIMINAL OFFENCE.
(1)   Where an officer other than a Departmental Head is charged by Police with having committed a criminal offence he shall -
(a)   where the criminal offence relates to the duties of his office - be suspended without pay by his Departmental Head; or
(b)   where the offence does not relate to the duties of his office - be suspended on full pay by his Departmental Head.
 
(2)   Where the officer is convicted of an offence which relates to the duties of his office by a court of competent jurisdiction, he shall be dismissed from the Public Service by the Departmental
Head.
 
(3)   Where the officer is convicted of an offence which does not relate to the duties of his office by a court of competent jurisdiction, he shall be dismissed by the Departmental Head, unless the
Departmental Head otherwise determines.
 
54.              STRIKES.
(1)   An officer who aids, abets, forments or takes part in a strike that -        
(a)   interferes with or prevents; or
(b)   is intended or calculated to interfere with or prevent,
the carrying on of any part of the public services or utilities of the country, or who attempts to do so, is deemed to have committed an illegal action against the peace and good order of the country.
 
(2)   Any officer adjudged by the Departmental Head, after investigation and hearing, to be guilty of any action referred to in Subsection (1) may be summarily dismissed by the Departmental
Head from the Public Service, without regard to the procedure prescribed in this Act for dealing with disciplinary offence.’

22.	 In other words, while the plaintiff’s Contract of Employment was permitted under section 41(3) of the Act to make specific provision for any ‘disciplinary issues’, which it did, including at clauses 9, 10 and Schedule 3 of the Contract of Employment, the same issue (or exemption) does not arise regarding the ‘review’ of personnel matters in relation to the appointment, selection or discipline of employees.  This is because neither section 18 of the Act (which is extracted in paragraph 12 above), nor any other provision of the Act provides that an officer employed under section 41(1) of the Act is exempted from the review process that is prescribed in section 18 of the Act. 

23.	 My opinion on the above matter is reinforced by the reasoning in Francis Damen v Jerry Tetaga (supra), with which reasoning I agree.  For the sake of completeness, I consider it necessary to recite the reasoning of Injia DCJ (as he was then), which summarises the two phases to the disciplinary process, namely:

‘As I stated earlier, there are two phases in the disciplinary process – the primary disciplinary phase which results in the disciplinary action taken and the second phase which is the review process. They are two distinct and independent processes and they should not be mixed up. The PSM Act in fact treats them separately under two separate Parts – s.18 in Part III (Review of Organizational Matter), and ss.50 – 54 in Part XIV (Discipline). Section 41(3) expressly makes reference to "discipline of an officer employed under a Contract of Employment". The disciplinary process under a Contract referred to here must mean the primary disciplinary process, which is the equivalent of Part XIV of the PSM Act. Section 41(3) exempts a Contract Officer from the primary disciplinary process for the reason that the Contract provides for that primary disciplinary process. I do not think Parliament intended to exempt contract officers from the review process under Part III of the PSM Act (s.18). If Parliament intended that a Contract officer should be exempted from application of the review process in s.18, it should have expressly said so in s.41(3) or s.18. Also if Parliament intended that the Contract should also provide for a review process of the primary disciplinary process outside of s.18, it should have expressly said so in s.41(3) or s.18. By not expressly providing so, Parliament intended that Contract officers who are disciplined under the primary disciplinary process set out in the Contract were entitled to invoke the review process under s.18 of the PSM Act. I also consider that Parliament did not intend that a Contract officer who is disciplined under the primary process in Clause 25.1(a)(b) and (c) of the Contract would only resort to the Court to challenge the primary disciplinary decision.

I consider there is nothing in s.41(3) which authorizes contracting parties to include a review process in the Contract. Section 41(5) cannot be read to confer on contracting parties rights which are not available to them under the PSM Act. For instance, whilst s.41(3) expressly authorizes the Contract to provide for the primary disciplinary process equivalent to Part XIV only, it does not expressly authorize the Contract to create a procedure for review. For this Court to interpret s.41(3) and (5) to permit parties to do so, is to insert a new provision in the Act, which is beyond the powers of this Court.

Clause 25.1(d) of the Contract says the decision of Secretary, DPM is final and the officer "may" seek redress in the Courts. In my view, Clause 25.1(d) does not in any way oust the review jurisdiction of the PSC under s.18 of the PSM Act. All it says is that the decision is final insofar as the initial disciplinary process is concerned. By the use of the word "may" in Clause 25.1(d), the officer is given an option of seeking a judicial review in the Courts. In any case, if Clause 25.1(d) purports to or were intended by the parties to the Contract to oust the review jurisdiction of PSC on disciplinary matters, then to that extent, this Clause is inconsistent with s.18(1) of the PSM Act and cannot be given effect to or enforced by the Courts.

For these reasons, I conclude that Clause 25.1(d) of the Contract is consistent with s.18(1) of the PSM Act in that it does not oust the jurisdiction of PSC to review personnel matters relating to discipline in respect of a Contract officer, who is dealt with under Clause 25.1(a), (b) and (c) of the Contract. Such an officer is entitled to invoke the administrative review jurisdiction of the PSC under s.18 of the PSM Act. Upon lodgment of a complaint, the PSC assumes jurisdiction over the matter and it must conduct an inquiry in accordance with the procedure set out in s.18(3).

I also conclude that pursuant to Clause 25.1(d) of the Contract, the Solicitor-General may seek judicial review of the decision by the Secretary of DPM, in the Courts under Order 16 of the National Court Rules, instead of seeking a review by the PSC but the National Court may require the officer to first exhaust the administrative review process under s.18 of the PSM Act by virtue of Order 16 Rule 3(6) of the National Court Rule. Also see Burns Philp (New Guinea) Ltd –v- Kekedo [1988 – 89] PNGLR 122, and The Independent State of Papua New Guinea –v- Phillip Kapal [1987] PNGLR 417 at 421 – 422.’

24.	 In support of my reasoning, I also agree with the above cited extracts from the judgment of the Supreme Court in Western Highlands Provincial Health Authority & Anor v Dr Kereme & Others (supra), including at paragraphs 100 to 104 of that judgment. 

Summary

25.	 Based on the above matters, I consider that if the plaintiff was aggrieved by the termination of his employment, he was required to exhaust the process which is prescribed in section 18 of the Act.  He did not do so.  Furthermore, if a decision was made by the Public Services Commission (the PSC) with which the plaintiff did not agree, his remedy (if there was one), would have been to commence a judicial review proceeding under Order 16 of the National Court Rules to challenge the decision of the PSC.  Accordingly, I consider the proceeding is an abuse of process and so I uphold the relief sought in the defendants’ Notice of Motion filed on 3 May 2024, whereby the proceeding is dismissed.  For the sake of completeness, and for the reasons given above, I also dismiss the plaintiff’s Notice of Motion filed on 12 March 2024.  

Orders

26.	      In the circumstances, I make the following orders:	

1.	The proceeding is dismissed.

2.	The plaintiff shall pay the defendants’ costs of the proceeding on a party/ party basis, to be taxed if not agreed. 

3.	The terms of these Orders are abridged to the date of settlement by the Court.

Lawyers for the plaintiff: Kombri & Associates
Lawyers for the defendant: ACE Lawyers