Paschal W Feria v Ben Lange, Hrd Adviser, Madang Province and Robert Yass, Acting Administrator, Madang Province and Secretary, Department of Personnel Management and The Independent State of Papua New Guinea (2009) N3574

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 January 2009
• Court: National Court
• Citation: (2009) N3574
• Docket Number: WS NO 1377 OF 2005
• Year: 2009
• Judgement Number: N3574

Full Title: WS NO 1377 OF 2005; Paschal W Feria v Ben Lange, Hrd Adviser, Madang Province and Robert Yass, Acting Administrator, Madang Province and Secretary, Department of Personnel Management and The Independent State of Papua New Guinea (2009) N3574

National Court: Cannings J

Judgment Delivered: 27 January 2009

N3574

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1377 OF 2005

PASCHAL W FERIA

Plaintiff

V

BEN LANGE, HRD ADVISER, MADANG PROVINCE

First Defendant

ROBERT YASS, ACTING ADMINISTRATOR

MADANG PROVINCE

Second Defendant

SECRETARY, DEPARTMENT OF PERSONNEL MANAGEMENT

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Madang: Cannings J

2008: 27 May, 9 September

2009: 27 January

JUDGMENT

ENTITLEMENTS ON COMPLETION OF PUBLIC EMPLOYMENT – damages – breach of separation procedures – Public Service General Orders.

A public servant reached the age of retirement but his employing department breached the procedures under the Public Service General Orders by failing to give him proper notice of his retirement. He kept working for more than a year beyond the age of retirement before being taken off the payroll. He was offered a retirement package but the calculation was not explained to him and he claimed that he was underpaid. He commenced court proceedings and obtained a summary judgment against the defendants. This is the trial on assessment of his entitlements and damages.

Held:

(1) The plaintiff claimed 11 categories of unpaid entitlements or damages. He was awarded a total sum of K112,455.08.

(2) In addition, interest of K35,985.63 is payable, making the total judgment K148,440.71.

Cases cited

The following cases are cited in the judgment:

Areng v National Housing Corporation (2008) N3469

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Abbreviations

The following abbreviations appear in the judgment:

HRD – human resource development

J – Justice

K – Kina

Ltd – Limited

MILOF – money in lieu of furlough

MILOL – money in lieu of leave

MILON – money in lieu of notice

N – National Court judgment

No – number

PNGLR – Papua New Guinea Law Reports

Pty – Proprietary

v – versus

WS – Writ of Summons

TRIAL

This is a trial on assessment of unpaid entitlements and damages.

Counsel

W Akuani, for the plaintiff

No appearance for the defendants

27 January, 2009

1. CANNINGS J: The plaintiff, Mr Paschal William Feria, was a long-serving public servant. For almost 40 years he worked for the Department of Agriculture or its affiliates, the last 30 years in Madang Province. He reached the age of retirement of 60 years in August 2003. But no action was taken by his employing department to ask or force him to retire. He continued to work until he was removed from the payroll in January 2005.

2. The Public Service General Orders contain detailed procedures about what should happen when a public servant reaches the age of retirement. Mr Feria claims that these procedures were breached in his case. He was eventually offered a retirement package but the sum offered to him was well below what he was expecting. The calculation was not explained to him and he claimed that he was underpaid. He commenced court proceedings and in November 2006 obtained a summary judgment against the defendants. The judgment determined the issue of liability, ie it established that the defendants are liable to Mr Feria for unpaid entitlements and damages. A trial has been held to assess the actual amounts payable.

3. Mr Feria is claiming 11 categories of payments, totalling approximately K500,000.00.

4. I am not satisfied that the first three defendants have been given proper notice of these proceedings. So I will only assess damages against the fourth defendant, the State.

1 MONEY IN LIEU OF NOTICE

5. Mr Feria claims that because he was not given a proper retirement notice, he should be paid three months money in lieu of notice, of K6,179.87.

6. I reject this claim. Though proper procedures were not followed, it should have been obvious to him that he had to retire when he turned 60.

2 MONEY IN LIEU OF LEAVE

7. Mr Feria has given evidence that he took no recreation leave after 1998. he claims K11,282.21.

8. This is a proper claim and I award the amount claimed.

3 MONEY IN LIEU OF FURLOUGH

9. Mr Feria has given evidence that he did not take any furlough leave during his entire public service career. He claims K46,177.67.

10. This is a proper claim and I award the amount claimed.

4 CONTRACT GRATUITY

11. Mr Feria claims gratuity for two contract periods: 31 January 1998 to 31 January 2001 and 31 January 2001 to 31 January 2004. He claims K21,727.74.

12. This is a proper claim and I award the amount claimed.

5 REPATRIATION COSTS

13. Mr Feria is from Rabundokum village in the Saussia area of East Sepik Province. He is claiming K3,267.46 under the repatriation provisions of the Public Service General Orders.

14. This is a proper claim and I award the amount claimed.

6 EX GRATIA

15. Mr Feria is claiming an ex gratia payment of K49,438.29. His counsel, Mr Akuani, has told the court that he is aware that there is no provision for this sort of payment in the Public Service General Orders. Nevertheless Mr Feria wants to persist with the claim as he has served the State with loyalty and dedication for 40 years and feels that it is only fair that he be given an ex gratia payment.

16. This is not a proper claim. This case is a determination of Mr Feria’s lawful entitlements. The court is in no position to award ex gratia amounts. There is provision for such payments under the Public Finances (Management) Act, which should only be made on a case-by-case basis following the careful and considered exercise of discretion by the Minister.

I reject this claim.

7 LOST SALARY

17. Mr Akuani submits that Mr Feria was wrongly taken off the payroll in January 2005. He should have remained on the payroll at least until July 2008. The sum of K110,268.34 is claimed.

18. I reject this claim. Though proper procedures were not followed, it should have been obvious to Mr Feria that he had to retire when he turned 60. He was paid for more than 12 months after he should have stopped work. After he was taken off the payroll in January 2005, he stopped working. He ought not to be paid salary for the period in which he was not working.

8 RECOVERY OF LEGAL COSTS

19. Legal costs of K25,000.00 are claimed.

20. This is not the correct part of the trial to seek or award costs. The question of costs is dealt with at the end of a trial, not jumbled together with other claims. I reject this claim.

9 DAMAGES FOR DEFAMATION, HARDSHIP AND SUFFERING

21. Mr Feria is claiming for two categories of damages. First, for defamation based on a letter the first defendant, Mr Lange, wrote to Mr Feria in December 2004, in which he stated, amongst other things: “Your final entitlements have already been paid”. The sum of K60,000.00 is claimed.

22. Secondly, for hardship and suffering he has endured in the period since he was taken off the payroll in January 2005. The sum of K80,000.00 is claimed.

23. As for the defamation claim, I fail to see any merit in the proposition that Mr Lange’s letter is defamatory. I reject this aspect of the damages claim.

24. As for hardship and suffering, I can appreciate how Mr Feria, who is now 65 years old, has suffered during the period since he was taken off the payroll in January 2005. No one has been communicating with him effectively. He has been denied the recognition and appreciation that should have been afforded to someone who served the Government for so long. He has been given shabby treatment. It is only fair that he be compensated for that.

25. I will award the same amount of damages for the distress and frustration endured on account of inefficiency, administrative incompetence and continued bureaucratic bungling, that I awarded in Areng v National Housing Corporation (2008) N3469.

I award the sum of K30,000.00.

10 LOSS OF FUTURE EARNINGS

26. Mr Feria is saying that if his retirement benefits had been worked out properly and if his time were not occupied with trying to sort out things with his former employer, he could have sought employment elsewhere or gone into business such as a PMV operation. He claims K68,500.00.

27. Given Mr Feria’s age, I do not think this is a reasonable claim. If he really wanted to devote his time and energies to further employment or a business venture, he could have done so. I refuse this claim.

11 EXEMPLARY DAMAGES

28. Mr Feria is seeking exemplary damages of K40,000.00, as a form of punishment of the defendants for their tardiness.

29. As the fourth defendant is the State and the other three defendants are agents of the State, all defendants have the protection of Section 12(1) of the Claims By and Against the State Act 1996, which states:

No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.

30. Mr Feria’s claim is not based on a breach of constitutional rights so nothing can be awarded for exemplary damages. I refuse this claim.

SUMMARY OF AMOUNTS CLAIMED AND AWARDED

No Category of claim Amount...