Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital, Laura Martin, Acting Chairperson, Wewak Hospital Management and Dr Puka Temu, Secretary, Department of Health (2001) N2123

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2001) PNGLR 18
• Date: 29 May 2001
• Year: 2001

Full Title: Peter Bon v Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital, Laura Martin, Acting Chairperson, Wewak Hospital Management and Dr Puka Temu, Secretary, Department of Health (2001) N2123

National Court: Gavara–Nanu J

Judgment Delivered: 28 or 29 May 2001

1 PRACTICE AND PROCEDURE—Judicial review—Public Services (Management) Act 1995, s52(2), s52(3), s52(4), s52(5) and s52(6)—Disciplinary charges—Defective if not laid by the Departmental Head, or an officer authorised by the Departmental Head to lay charges—Suspension—Unlawful if not imposed by the Department Head, or an officer authorised by the Departmental Head to lay charges and where there is no emergency—Termination—Unlawful if imposed by an authority other than the Departmental Head, or an officer having delegated powers.

2 PRACTICE AND PROCEDURE—Judicial review—Public Services (Management) Act 1995, s13, s18—Constitution, s191—Powers of the Public Services Commission to collect evidence to review a personnel matter—Discretionary powers of the Public Services Commission—Recommendations by the Public Services Commission bear Constitutional force—Authority refusing to implement recommendations by the Public Services Commission must have valid reasons.

3 PRACTICE AND PROCEDURE—Judicial review—Public Services (Management) Act 1995, s23—Delegated powers from a Departmental Head must be specified in writing—Authority with delegated powers cannot subdelegate those powers—Authority claiming delegated powers has the onus to prove them on the balance of probabilities.

4 ADMINISTRATIVE LAW—Judicial review—Principle of fair and adequate remedy—Powers to reinstate where termination is clearly unlawful and where reinstatement is to give effect to the Public Services Commission recommendation and is the fair and adequate remedy—Inherent powers of the Court—Constitution, s155(4)—Long service and special qualifications of the terminated officer constitute exceptional circumstances warranting reinstatement—Where remedy is in damages, the terminated officer may be treated as having been retired or retrenched and be compensated accordingly under the Public Services General Orders—Where there are no exceptional circumstances, the Court to determine an appropriate period for which the officer should be compensated based on the officer's entitlements—Employment Act (Ch373) is inapplicable.

5 ADMINISTRATIVE LAW—Judicial review—Delay—O16 r4 of the National Court Rules—Delay is a substantive issue which must be decided objectively on the overall evidence before the Court.

6 MASTER AND SERVANT—Principles of pure master and servant and simple employer/employee do not apply to public servants—Public Services Management Act 1995 protects and governs the terms and conditions of employments for public servants.

7 Kekedo v Burns Philp (PNG) Ltd (1988–89] PNGLR 122, Godfrey Niggints v Henry Tokam (1993] PNGLR 66, Kandu Busu v Post and Telecommunication Corporation (1993] PNGLR 321, Ex parte Application of Eric Gurupa (1990) N856, Avia Aihi v The State (No 1) (1981] PNGLR 81, Steven Pupune v Aita Ivarato (1997) N1539, Davis v Pitzz (1988–89] PNGLR 143, Pochon Lili v Joseph Gabut (1995) N13944, NTN Pty Ltd v Post and Telecommunication Corporation (1987] PNGLR 70, Wata Potenge v Boski Tony and Others (Unreported and Unnumbered judgment of Los J dated 9 June 2000), Christopher Appa v Peter Wama (1992] PNGLR 395 and Malloch v Aberdeen Corporation (1971] 2 All ER 1278 referred to

Facts:

The Plaintiff, a Pharmacist by profession was the Officer–In–Charge of the Wewak General Hospital Dispensary Unit. He was terminated by the Hospital Management for chewing betel nuts on the hospital grounds after the hospital management issued Circulars to the staff stopping them from chewing betel nuts and smoking on the hospital grounds. He was charged and suspended by an officer other than the Departmental Head or an officer authorised by the Departmental Head to lay charges, under s52(2) of the Public Services (Management) Act 1995. The Plaintiff was eventually terminated by the hospital management. The notice of punishment under s52(6) of the Public Services (Management) Act 1995 was issued by an officer claiming to have the delegated powers from the Departmental Head, but no evidence was produced to prove such claim. After reviewing the Plaintiff's complaint, the Public Services Commission recommended that the Plaintiff be reinstated without any loss in salary and service entitlements, but the recommendation was rejected on the basis that the Commission did not seek the views of the officer who issued the notice of punishment to the Plaintiff. At the time of his termination, the Plaintiff had been working for the Department of Health for 22 years. The Plaintiff sought declarations that his termination was harsh and oppressive and an order in the nature of certiorari to quash his termination and the notice of punishment. He did not specifically seek reinstatement but sought such other Orders as the Court deemed fit.

Held:

1. The disciplinary charges laid against the Plaintiff by an officer other than the Departmental Head, or an officer authorised by the Departmental Head to lay charges contravened s52(2)(a) of the Public Services (Management) Act 1995.

2. The suspension imposed by an officer other than the Departmental Head, or an officer authorised by the Departmental Head to lay charges, when there was no emergency, contravened s52(2)(b)(ii) of the Public Services (Management) Act 1995.

3. The Wewak General Hospital Management had no power to terminate the Plaintiff. The power to terminate is vested solely in the Departmental Head under s52(5) of the Public Services (Management) Act 1995.

4. The officer claiming to have delegated powers from the Departmental Head to impose the punishment under s52(5) of the Public Services Management Act, had the onus to prove that he did in fact have such powers.

5. An officer having delegated powers under s23 of the Public Services (Management) Act 1995, cannot sub delegate those powers.

6. Recommendations by the Public Services Commission under s18(2)(c) of the Public Services (Management) Act 1995, also have the force and weight of the Constitution; therefore, they cannot be refused without valid reasons.

7. Where the termination of an officer is clearly unlawful, the Court should readily exercise its equitable supervisory jurisdiction to order reinstatement, unless the requirements of O16 r4 of the National Court Rules render the reinstatement impossible, in which case, the officer should be treated as having been made redundant or retrenched and compensated accordingly under the Public Services General Orders, but where there are no exceptional circumstances, the Court can in its discretion determine an appropriate period for which the officer should be compensated based on the officer's entitlements; guiding principle being to grant a remedy that is fair and adequate to the officer. Employment Act (Ch373) is inapplicable in such cases.

Christopher Appa v Peter Wama (1992] PNGLR 395 not followed.

8. Common law principles of pure master and servant do not apply to the public servants because of the public character of their employments and the statutory protection given to them by the Public Services Management Act which governs their terms and conditions.

9. Professional qualifications of the terminated officer and the long service in the Public Service are exceptional circumstances, which would warrant reinstatement, subject to O16 r4 of the National Court Rules.

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Gavara–Nanu J: The Plaintiff seeks a declaration that the notice of punishment issued to him by the First Defendant on 30 March 1999, which effected his termination on 26 March 1999, is excessive, harsh and oppressive and seeks further Orders in the nature of certiorari to remove into this Court and quash the notice of punishment and the decision by the First Defendant to terminate him from his employment as a public servant. He also...