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Tepi v Iaibo [2012] PGNC 329; N5137 (24 August 2012)

N5137

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1049 OF 2002

BETWEEN:

TONY TEPI
Plaintiff

AND:

HUAI IAIBO, THE ADMINISTRATOR, SOUTHERN HIGHLANDS PROVINCIAL ADMINISTRATION
First Defendant

AND:

SOUTHERN HIGHLANDS PROVINCIAL ADMINISTRATION
Second Defendant

Goroka: Yagi J
2012: 12th July & 24th August

ASSESSMENT OF DAMAGES - public service employment – acting appointment - officer engaged from outside the public service – claim for special and general damages – plaintiff only entitled to 12 months salary - award of K14,105.43 in damages for unpaid salaries – no award of damages for general damages due to lack of evidence – order for interest and cost made.

Cases cited

Ernest Pokau v Gordon Wittie & Others (2010) N4086
Bob Kol v The Independent State of Papua New Guinea (2010) N3912
Martin Piaore v The Independent State of Papua New Guinea (2009) N3786
Pama Anio v Aho Baliki and Bank South Pacific (2004) N2719

Counsel:

Plaintiff in person
No appearance by the Defendants

JUDGMENT

24th August, 2012

1. YAGI, J: This is a trial for assessment of damages. The plaintiff commenced this action in August 2002 claiming special damages for unpaid salaries and entitlements. He also claims general damages for the hardship caused to him and his family.

2. On 23rd May 2003, the Court entered default judgment against the defendants "for damages, interest and costs to be assessed".

3. The trial was fixed during the call-over on 3rd July 2012. A notice of trial was served on the Office of the Southern Highlands Provincial Administration on 6th July 2012. An affidavit of service to this effect was sworn and filed by the plaintiff on 10th July 2012. Upon being satisfied that the notice of trial was properly given to the defendants, the trial proceeded ex parte.

4. The plaintiff had filed and served a number of affidavits in the proceedings. In the notice for trial he listed all these affidavits. There are seven affidavits in all. In the notice of trial he gave notice that he will rely on all the affidavits at trial. However, at trial, the plaintiff only relied upon one affidavit, and that is his own affidavit sworn and filed on 4th October 2011, document number 27 in the court file. This affidavit is listed as number 6 on the notice of trial.

5. In his affidavit evidence the plaintiff says that he is originally from Maia village, Pangia, Southern Highlands Province. However, he currently resides at Komiufa village, Goroka, Eastern Highlands Province.

6. The rest of the statement in the affidavit relates to the history and background of the proceedings and the negotiations made with a view to the parties settling the matter amicably. The plaintiff has also annexed considerable documents to his affidavit, most of which in my view are secondary evidence, hearsay, unreliable and/or irrelevant.

7. The evidence shows that the plaintiff was not a career public servant. He was recruited from outside the public service and appointed to the position of Village Court Inspector for the Southern Highlands Province by the Southern Highlands Provincial Administration on 23rd January 2001. His appointment was on acting basis. He performed the duties of his office accordingly; however, he was not paid his fortnight salary. He received only one fortnight salary on 13th August 2001 when he received K541.06, being the net fortnight salary. This was the first and the last fortnight salary payment he received from the Southern Highlands Provincial Administration. Despite the non payment of salary it appears he continued to perform his duties faithfully. The reason given for non payment of fortnight salary was that there were no funds. This went on for some time and in the end the plaintiff became frustrated and consequently filed this action on 19th August 2002. It is not clear whether the plaintiff's appointment was subsequently terminated. However, it would appear that the plaintiff ceased working for the Southern Highlands Provincial Administration on his own accord after failing to get the defendants to honour the obligation to pay his salary. There is no evidence as to the exact date on which the employment ceased.

8. For the present purposes, paragraphs 4 – 9 in the statement of claim are relevant. The plaintiff pleads his claim as follows:

"4. It is alleged that the Plaintiff had been and still is employed by the Defendants as acting Provincial Village Court Inspector commencing 23rd January 2001.

5. It is further alleged that since the commencement of employment, the Plaintiff has not been paid his salary and other entitlements except once on the 13th August 2001.

6. Since the payment mentioned immediately above, the Department had not paid any or further salaries despite the fact that the Plaintiff was and is still employed.

7. It is alleged that as at the date of this Writ of Summons, the Plaintiff had not been paid his salary and entitlements totalling K22,724.52.

8. Because of the Defendants refusal and or failure to pay the Plaintiff had suffered and continues to suffer loss and damage.

Particulars of Loss and Damage

(a) the Plaintiff is being denied the use of the lawfully earned money,

(b) the Plaintiff is going through hardship in sustaining himself and his family and expenses to recover his money.

9. The plaintiff also claims interest on all moneys found due and owing to it at such rate and for such period as the Court shall deem appropriate pursuant to Judicial Proceedings (Interest on Debts and Damages) Act."

9. In the prayer for relief, the plaintiff claims K22,724.52 as special damages, general damages, interest and cost.

10. The pleading implies that the plaintiff was properly appointed to the position of Village Court Inspector and therefore the defendants are legally obliged to pay his wages for performing and discharging the duties and responsibilities of the position.

11. It is now a well established principle that, notwithstanding the fact that default judgment is entered in his favour, the plaintiff nonetheless bears the onus of satisfying the Court that he has a valid claim in law that entitles him to damages. There are numerous decisions that upheld this principle. Some of the recent decisions include Ernest Pokau v Gordon Wittie & Others (2010) N4086; Bob Kol v The Independent State of Papua New Guinea (2010) N3912 and Martin Piaore v The Independent State of Papua New Guinea (2009) N3786.

12. In this case, the plaintiff claims that he is legally entitled to be paid wages for the period he was performing his duties. In order for the plaintiff to maintain this claim of right and hence damages resulting there from, the plaintiff must demonstrate by credible, reliable and admissible evidence that he was duly appointed and lawfully holding office.

13. This case concerns employment in the public service and is therefore governed by the Public Service (Management) Act 1995 ("the Act") and the General Orders made there under.

14. It would appear from the evidence that the appointment of the plaintiff maybe legally flawed because the legal procedures, processes and forms were not followed. There appears to be procedural irregularity and non compliance with the substantive appointment process.

15. However, the question of validity or regularity in appointment does not arise here. The fact that judgement was entered in favour of the plaintiff removes any issues of liability and in my view lends support to the presumption of regularity and validity in the appointment. Therefore I will proceed to assess damages on that basis.

16. It is clear from the pleadings that the plaintiff is suing for unpaid wages. This is the principal claim made by the plaintiff in this proceeding. He says that because he performed his duties following the appointment he is entitled to be paid. The right to be paid salaries and other benefits arising from the employment though is not expressly mentioned in the pleading in my opinion can be inferred. I have no difficulty in finding that this is the primary right pleaded in the statement of claim.

17. This right is clearly acknowledged and accorded by the law. Under s.48(1) of the Act, an officer in the public service has a right to sue to recover his salary. This provisions states:

"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) ......................................."

18. I am therefore satisfied that the plaintiff has a recognised cause of action in law which right was denied by the defendants that entitle him to recover damages.

19. The question is: what is the amount of damages payable by the defendants? I will now consider each of the heads of damages claimed by the plaintiff.

Unpaid Salary

20. The evidence is that his appointment took effect on 23rd January 2001. He issued the proceeding on 19th August 2002. He says that except for one fortnight period, he was not paid his normal fortnight salary from 23rd January 2001 to 19th August 2002. His claim is for a specific period and amount. The amount claimed by the plaintiff is K22,724.52 and is for a period of approximately 18 months.

21. The evidence is that a fortnight salary payment of K541.06 was paid to the plaintiff on 13th August 2001. The evidence also shows the position classification, grading and salary level payable on the position. In a letter dated 18th April 2001 to the Secretary of the Department of Personnel Management, the Acting Provincial Administrator in requesting for a new file number to the position, identified the position as SHLGPA – 009. A PGAS form prepared for the purposes of payment of salary disclosed the pertinent facts. The pay scale and salary point number for the position is 11.2 attracting a fortnight salary of K655.12. This form was prepared by a responsible officer on behalf of the defendants for the purposes of putting the plaintiff on the government payroll system. I find this evidence credible and reliable. I accept this evidence. This evidence will be used as the basis of calculating the plaintiff's loss of entitlement. As I said the plaintiff was paid K541.06 as fortnight salary. This is the net pay after tax as the gross fortnight salary is K655.12. I therefore accept that the fortnightly loss in terms of salary is K541.06.

22. I note however that the plaintiff was appointed in an acting capacity. The appointment is not substantive nor for a long term. Generally acting appointments are made as an interim measure for example where the substantive incumbent is on leave or promoted to a high position and position is awaiting a recruitment process.

23. In this case the evidence is that the incumbent officer has been promoted or transferred to another position. In a letter dated 09th February 2001 by the Acting Provincial Administrator, the plaintiff was advised that "the appointment is only on acting bases where you will be required to apply for the position once the position is advertised in the near future." What is the meaning and effect of this advice? Under the law (that is, the Act and the General Order), there is a stringent and elaborate process and procedure for engagement or recruitment of officers in the public service. This is necessary to ensure that officers are recruited on their own merits. It ensures that the right person with relevant and appropriate qualification, experience and skill is appointed and prevents abuses of power in terms of nepotism and other improper motives. It gives every person equal opportunity for consideration and does not discriminate against gender, religion, etc. It accords an even playing field for everyone who desires appointment. In my view this is the overriding objective of the recruitment process. This objective is clearly entrenched under the Public Service General Order. The General Orders are made pursuant to s. 70 of the Act and therefore have the force of the law. The relevant General Order is number 3.11 – 3.13. The objectives are stated as follows:

"Objectives

3.11 This General Order has been determined by the Secretary, Department of Personnel Management to ensure that the most suitable candidates are selected solely on their own merits, from those who have the required qualifications, abilities and job interests, and that no nepotism or political interests are allowed to influence the selection and appointment process.

3.12 Effective selection aims to choose the best available candidate for the position who will be capable of good performance in the short term, who will stay with the organisation, and has the potential for future development. The procedures enable recruitment to take place as quickly and efficiently as possible whilst maintaining proper standards of recruitment and selection.

3.13 The Government HR & Payroll Management System is to be utilised by Departments and Provincial Administrations for the purpose of maintaining establishment and staff on strength records which can be reconciled with the payroll information for the purpose of monitoring and audit both internal and external to the agency. The Department of Personnel Management shall facilitate proper training and instructions for compliance with the General Order."

24. Therefore the appointment of the plaintiff is only temporary or interim until the due process of selection and appointment is implemented and completed. The position is required to be advertised on an open market and plaintiff is eligible and competent to apply. There is no evidence that the position was advertised. What then is the effect of an acting appointment? The Act allows for acting appointments. This is provided under s.39 which states:

39. Acting appointments.

Where an officer other than a Departmental Head is absent from his office or unable to perform the duties of his office for purposes specified in Section 36(4) or when there is a vacancy in an office other than an office of Departmental Head, the Departmental Head concerned may, if he thinks fit, appoint another officer to act in the place of the officer during his absence for inability, or may appoint an officer to fill the vacancy temporarily." (my emphasis and underlining)

25. This is a general empowerment provision. It empowers a Departmental Head to make acting appointments. A detailed procedure for appointment is contained in the General Order. It is provided in section 4 of General Order 3. In general all appointments including acting appointments are subject to advertisement. Advertisement must first be made internally and failing that external advertisement should follow. This is the principle stated in Section 4.3.27 of General Order 3. Relevantly it states "All vacant positions must be advertised prior to any appointment being made."

26. A person on acting appointment cannot act for an indefinite period. On appointment he or she is deemed a probationary officer because under General Order 3.3.5 appointment to a vacant position can happen only in 3 ways; as a probationary officer or senior officer on contract or as a short term contract employee. Obviously the plaintiff's appointment in this case does not fall into the two latter situations. There is limitation placed on the period for an acting position. In principle an acting appointment should not extend beyond 12 months. However, where there is a special or exceptional circumstance, a Departmental Head may extend an acting appointment beyond the 12 months period but not longer than 18 months. This is clear from a reading of General Order 4 Section 1.4.7.

27. In applying the principles and requirements under the General Order it is clear in my view that the plaintiff is only entitled to unpaid salary for 12 months. I maintain this view on the basis that there is no evidence indicating that the process and procedure for appointment, which I alluded to earlier, had been instituted. Furthermore, there is no evidence whether the Departmental Head of the Southern Highlands Provincial Administration had extended the period of acting appointment nor is there evidence of special or exceptional circumstances demonstrated before the Court. Even if such evidence is available in my opinion the Court does not have any power to determine the issue. This is a discretionary power to be exercised administratively. It belongs to the Departmental Head of the Southern Highlands Provincial Administration.

28. For these reasons I calculate the loss of salary as follows:

K541.06 per fortnight x 26.07 fortnights per year equals K14,105.43.

General Damages

29. This claim is pleaded in paragraph 8(b) of the statement of claim. The plaintiff claims damages for the "hardship in sustaining himself and his family and expenses to recover his money." As regards this pleading I find no evidence indicating the hardships faced and the expenses incurred during the relevant period. There is no evidence showing, for example, how the plaintiff and his family suffered from loss of or displacement in accommodation (if any).

30. In Pama Anio v Aho Baliki and Bank South Pacific (2004) N2719 Justice Kandakasi expressed the view that award of damages for distress, frustration and humiliation in employment cases should not be made unless there is clear evidence that termination was unlawful resulting in damage being suffered. This is what His Honour said:

"I am of the view that, the law should only compensate those caused to suffer by the very mode of termination adopted by an employer that is clearly unlawful and does result in some proven damage or negative mental and physical impact on the dismissed employee, supported by appropriate medical or such other evidence. I do not consider it is right for there to be awards of damages for distress and frustration just because a dismissed employee claims it. For there is the danger that, by so doing, the Court might circumvent the long established principles of law that recognizes the right of an employer to hire and fire at will except as may be modified by statute or the free agreement of the parties. Not only that, it will also re-write, without good cause, the law requiring proof of ones loss before any damages or an award could be made by a Court of law."

31. I agree with his Honours view. There must be basis in terms of evidence on which the Court can act upon in awarding compensation. In this case, there is no evidence that the plaintiff was terminated from employment rather it is a case of voluntary resignation. The evidence appear to suggest that plaintiff by his own conduct brought about an end to his employment. Even if this was not the case, his acting appointment would have been determined as a matter of law. In either of these situations it cannot amount to unlawful termination. Be that as it may I find absolutely no evidence of physical or mental impact or loss suffered by the plaintiff let alone his family.

32. Accordingly I decline to make any award for general damages.

Summary

33. In summary I award to the plaintiff damages in the sum of K14,105.43 plus 8% interest and costs.

Order

34. Accordingly the following orders are made:

1. The second defendant shall pay the plaintiff K14,105.43 in damages.

2. The second defendant shall also pay the plaintiff interest on damages at the rate of 8% per annum from the date of filing (19th August 2002) to date (24th August 2012).

3. The second defendant shall also pay the plaintiff's costs in the proceedings.

Orders accordingly.
________________________________________________________________
Plaintiff in Person
Lawyers for the Defendants: Nil