James Amuna v Rapila Manase

• Jurisdiction: Papua New Guinea
• Judge: Nablu, AJ
• Judgment Date: 13 August 2015
• Citation: (2015) N6065
• Court: National Court
• Year: 2015
• Judgement Number: N6065

Full : OS (JR) NO. 199 OF 2013; James Amuna v Rapila Manase as Acting Administrator of Central Provincial Government and Central Provincial Government and The Independent State of Papua New Guinea (2015) N6065

National Court: Nablu, AJ

Judgment Delivered: 13 August 2015

N6065

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 199 OF 2013

BETWEEN:

JAMES AMUNA

Plaintiff

AND:

RAPILA MANASE as Acting Administrator of Central

Provincial Government

First Defendant

AND:

CENTRAL PROVINCIAL GOVERNMENT

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Nablu, AJ

2015: 1st July and 13th August

JUDICIAL REVIEW – Refusal by the Provincial Administrator to implement Public Services Commission’s Decision – Section 18(3)(d) of the Public Services (Management) Act 1995 – Decision binding if made within 90 days - Evidence – Appropriateness of Relief – Mandamus – Discretionary – Position no longer exists – Unattached officer at time of dismissal – Mandamus would cause administrative hardship and detrimental to good administration of the Provincial Administration – Mandamus refused.

Cases cited:

Ambrose Vakinap v. Thaddeus Kambanei (2004) N3094

Attorney General v. Tetega [2005] N2900

Bau Waulas v. Veronica Jigede (2009) N3781

Dannie Taka v. Dr Samson Amean (2006) N3070

Holee v. Vegogo [2013] N5101

Lawrence Sausau v. Joseph Kumgal (2006) N3253

Mandui v. The Commissioner [1996] PNGLR 187

Mision Asiki v. Manasupe Zurenouc (2005) SC 797

Ombudsman Commission v. Peter Yama (2004) SC 747

Paul Mond v. Honk Kiap (2013) N5356

Tau Kamuta v. David Sode (2006) N3067

Counsel:

N. Gimaia ,for the Plaintiff

V. Hampaleke, for the First and Second Defendant

13th August, 2015

1. NABLU, AJ: The plaintiff was granted leave on 23rd April 2013 seeking an order in the nature of mandamus to compel the Acting Provincial Administrator, the first defendant to comply with the Public Services Commission’s decision made on 15th April 2009 to reinstate him and pay all his lost salaries and entitlements backdated to the date he was dismissed from the Public Service.

2. The plaintiff was employed as a Community Health Worker with the Central Provincial Government. In 2006 he was dismissed from the Public Service. He appealed to the Public Services Commission. The Public Service Commission after reviewing his personnel matter and finding irregularities in the disciplinary process, quashed the decision of the first defendant and directed that the first defendant reinstate the plaintiff and back pay all his lost salaries and entitlements on 15th April 2009. The plaintiff then engaged his lawyers to write to the first defendant seeking to enforce the decision. The lawyers wrote to the Provincial Administrator on 29th April 2009. On 11th September 2009, the Public Services Commission also wrote to the defendants informing the first defendant that the Public Services Commission’s decision was binding. On 2nd March 2012, the plaintiff followed up on his matter and requested for the compliance of the Commission’s Decision. To date, the defendants have not responded to the plaintiff.

3. The plaintiff relied on his affidavit filed on 19th April 2013. In response the first and second defendant filed the affidavit of Bala Kapa on 14th June 2014.

4. The plaintiff seeks review of the decision or lack of a decision by the first and second defendant’s on the following grounds:

1. The first defendant’s failure to comply with the PSC decision was unlawful and contrary to Section 18 (3)(d)(ii) of the Public Services (Management) Act 1995;

2. The first defendant did not give any reasons for the refusal to comply with the decision of the Public Services Commission which resulted in denial of the plaintiff’s right to natural justice, as guaranteed by Section 59 of the Constitution; and

3. The failure of the first and second defendants’ to comply with the Public Services Commission decision was unreasonable within the Wednesbury principles of unreasonableness.

5. There are five legal issues before the Court for determination, they are provided for in the Statement of Agreed and Disputed Facts. They are;

1. Whether or not by operation of Section 18 (3)(d)(ii) of Public Services (Management) Act 1995, the Public Services Commission’s Decision is binding on the second defendant after thirty (30) days?

2. Whether or not the Decision of Public Service Commission is enforceable when the Position No. CENDAH 028 Gr.5, Abau Health, was abolished in 1999 by Department of Personnel Management?

3. What was the plaintiff’s substantive position at the time immediately prior to his termination?

4. Whether or not the Public Service Commission has set down the hearing of the review within ninety (90) days period pursuant to Section 18 (3)(d)(i) of the Public Services (Management) Act 1995?

5. Whether or not the Writ of Mandamus would cause administrative hardships to the second defendant and whether there are other alternative remedies?

6. The terms and conditions of employment of officers in the Public Service is catered for under the Public Services (Management) Act 1995. It should be noted that this Act of Parliament was repealed and a new law was enacted and came into force in October 2014. However, the applicable law for this case, is the Public Services (Management) Act 1995. The provision which relates to the review of personnel matters is provided for in Section 18 of the Public Services (Management) Act 1995 which states that:

1) The commission shall, following a complaint made be an officer to the Commission in accordance with Subsection (2), review any decision on a personnel matter relating to appointment or section of discipline connected with the National Public Services, 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 is made, but the Chairperson 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 –

(i) the Departmental Head of the Department of Personnel Management of 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 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 (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 Services; and

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

i. make a decision to uphold, vary or annul the decision, the subject of complaint; and

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

7. Since this provision was amended, the National Court has construed Section 18 of the Public Services (Management) Act in a number of cases.

8. Clearly the intent of Parliament was that the departmental head does not have the power to refuse to comply with the Public Services Commission’s decision; Ambrose Vakinap v. Thaddeus Kambanei (2004) N3094. If the departmental head is of the view that the decision is unreasonable and so absurd that no lawful authority would arrive at that decision, the departmental heads’ remedy lies in judicial review. The departmental head if aggrieved, should apply to the National Court to review the PSC decision.

9. The PSC is a constitutional body whose function interalia, is to review and control the decisions of the executive arm of Government, namely, departmental heads, in relation to the decisions they make with respect to their employees.

10. The wording of Section 18, leaves little or no room for the departmental head to refuse to comply with the PSC decision. But in the case where the departmental head is of the view that the decision of the PSC was erroneous, unlawful or unreasonable, the departmental head must inform the plaintiff of its decision to refuse to comply with the decision and provide sufficient and cogent reasons for refusing to implement the...