Gawi v Public Services Commission [2014] PGNC 1; N5473 (22 January 2014)

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CHRISTINE GAWI
CHIEF EXECUTIVE OFFICER, MODILON GENERAL HOSPITAL
Plaintiff

JUDICIAL REVIEW – whether decision of Public Services Commission on review of a personnel matter was made unlawfully – whether Public Services Commission denied natural justice to person affected by decision, committed error of law, was biased, made unreasonable decision – Public Services (Management) Act 1995, Section 18.

HEALTH ADMINISTRATION – whether Chief Executive Officer of a public hospital has power to discipline staff of hospital – whether disciplinary powers lawfully delegated to Chief Executive Officer – Public Services (Management) Act, Section 23 (delegation by departmental head), Part XIV (discipline) – Public Hospitals Act 1994, Sections 22, 23, 28.

The Public Services Commission (PSC), acting on complaint by the second defendant, a nurse at a public hospital, who had been dismissed from employment by the plaintiff, the Chief Executive Officer of the Hospital, decided that the second defendant's dismissal was annulled and she be reinstated to her substantive position and reimbursed all her lost salaries and entitlements. The plaintiff applied for judicial review of the PSC's decision, on four grounds: (1) denial of natural justice; (2) error of law; (3) bias; and (4) unreasonableness.

Application by Herman Joseph Leahy (2006) SC981
John Mua Nilkare v Ombudsman Commission (1996) SC 498
Kwame Okyere Boateng v The State [1990] PNGLR 342
Paul Dopsie v Jerry Tetaga (2009) N3720
Paul Saboko v Commissioner of Police (2006) N2975
Sela Gipe v The State [2000] PNGLR 271
Tau Kamuta v David Sode (2006) N3067

JUDICIAL REVIEW
This was a review of a decision of the Public Services Commission to uphold a complaint on a personnel matter connected with the National Public Service.

1. CANNINGS J: The plaintiff Christine Gawi is the Chief Executive Officer of Modilon General Hospital, Madang. She applies for judicial review of the decision of the first defendant, the Public Services Commission (the PSC), to uphold a complaint by the second defendant, Elizabeth Mandus Wukawa, concerning Ms Wukawa's dismissal from the Public Service.

2. Ms Wukawa was a specialist midwifery nurse at the Hospital. The plaintiff on 7 November 2011 charged her with a serious disciplinary offence relating to alleged involvement in unlawful industrial action at the Hospital. The plaintiff on 12 December 2011 found her guilty and imposed the penalty of dismissal.

3. Ms Wukawa complained to the PSC, which reviewed the matter and made a decision dated 14 August 2013 in the following terms:

1.1 That the Commission annuls the decision of the Chief Executive Officer of Modilon General Hospital to dismiss ELIZABETH MANDUS WUKAWA from the Public Service.

1.2 That the applicant is reinstated to her substantive position as Specialist Midwifery Nurse, Grade 04, with Modilon General Hospital.

1.3 The applicant be reimbursed all her lost salaries and entitlements due to her as a result of the decision.

5. The PSC's decision has not yet been complied with. This Court on 2 October 2013 granted leave to the plaintiff to seek judicial review of that decision, and stayed the PSC decision pending determination of the judicial review. By a notice of motion filed on 25 October 2013 the plaintiff seeks:

7. Mr Mapiso, for the plaintiff, submitted that the PSC was obliged by Section 18(3)(a)(ii) of the Public Services (Management) Act to give the plaintiff: (a) notice of the hearing of the review of Ms Wukawa's complaint and (b) the opportunity to defend her decision. He submitted that the PSC did neither of those things, which amounts to a denial of natural justice.

8. It is correct that the PSC has natural justice obligations imposed on it by Section 18(3). This is the provision of the Act that sets out the procedure that must be followed by the PSC when it is reviewing a decision on a personnel matter relating to discipline of an officer. Section 18(3) states:

(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 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;

(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);

(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.

9. Specifically, there are two obligations imposed on the PSC under Section 18(3), in relation to the person who made the decision that is under review. It must:

10. I reject Mr Mapiso's submission that the PSC was obliged to give the plaintiff notice of the "hearing" of the complaint. There does not have to be a hearing in the sense of an oral hearing in which the complaint is presented, evidence is called and submissions are made. The Act does not use the word "hearing". The obligation of the PSC is to summon the Departmental Head (or his or her delegate) to "appear" before it. Once that is done the person summoned is obliged to appear. That is the occasion on which that person has the right to put his or her views on the matter to the PSC, which the PSC is obliged to take into account.

11. The pertinent question is whether the PSC summoned the plaintiff to appear before it, thereby giving her the opportunity to put her views to it and defend her position. The evidence on this question of fact is not clear. The plaintiff's affidavit does not state that she was not summoned. As to her oral testimony, she conceded that she was summoned by the PSC to appear before the Chairman of the Commission, Dr Kereme, in Madang in 2012. But this, she said, related to the general matter of industrial unrest at the Hospital. She was unable to recall being summoned specifically in relation to Ms Wukawa's complaint.

12. I find that evidence unconvincing. Bearing in mind that it is the plaintiff who bears the onus of proof, I am not persuaded that the plaintiff was not summoned. Nor am I persuaded that she was denied the opportunity of presenting her views on the matter or that she was not given the opportunity to defend her decision. Ground 1 of the judicial review is dismissed.

13. Mr Mapiso submitted that the PSC decision was made in ignorance of the law concerning the disciplinary powers of the CEO of Modilon General Hospital. He agreed that these powers are not conferred on the plaintiff by the Public Hospitals Act 1994. The plaintiff was appointed under Section 22 (chief executive officers) of that Act, and is empowered by Section 23 (functions of chief executive officers) amongst other things to "manage and direct" the affairs of the Hospital. Section 28(2)(c) (regulations for the service of public hospitals) provides for the making of regulations that prescribe disciplinary procedures. But no such regulations have been made.

14. Mr Mapiso submitted, however, that the plaintiff was by virtue of two laws a "deemed Departmental Head" and that, in addition, the Secretary for Personnel Management had delegated to her the disciplinary powers of the Secretary under Part XIV (discipline) of the Public Services (Management) Act. The plaintiff was therefore the proper authority to lay and determine disciplinary charges concerning officers of Modilon General Hospital, not the Secretary for Health.

15. The two laws referred to by Mr Mapiso are the Public Service General Orders and the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. I find in neither of them support for the proposition that the CEO of Modilon General Hospital is a deemed Departmental Head.

16. The Public Service General Orders are made by the Secretary for Personnel Management under Section 70 (general orders) of the Public Services (Management) Act. Mr Mapiso referred to the 2007 edition of the General Orders but did not cite the particular order that supports the proposition and did not provide the Court with a copy. I have through my own devices tried to locate an order that is on point but could find none. What I did find, however, was that the Public Service General Orders are not published in the two usually up-to-date electronic repositories of information on the laws of Papua New Guinea, the pngInLaw database published by Niu Media Pacific Pty Ltd (www.niumedia.com) and the PacLII website (www.paclii.org) maintained by the Pacific Islands Legal Information Institute. I also discovered that the Department of Personnel Management has a website – www.dpm.gov.pg – on which is posted a copy of the Public Service General Orders. Alas, it is not the 2007 edition referred to by Mr Mapiso. It is the 2012 edition. Does it contain an order to support the proposition that the CEO of Modilon General Hospital is a deemed Departmental Head? Not to my knowledge.

17. What about the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004? I was not provided with a copy of it by counsel, but thankfully it is easier to locate than the elusive Public Service General Orders. It is not a very long Act, consisting of only 15 sections, and a perusal of it results in the conclusion that it says nothing about the CEO of Modilon General Hospital or any Public Hospital being a deemed Departmental Head.

18. That leaves Mr Mapiso's proposition that the plaintiff is the proper disciplinary authority dependent on the delegation by the Secretary for Personnel Management. There is in fact an instrument of delegation. It was admitted into evidence. It is dated 5 November 2007 and signed by the then Secretary for Personnel Management Mrs Margaret Elias. It states:

I Margaret Elias, MPS, MBE, Secretary for the Department of Personnel Management, by virtue of powers conferred by Section 23 of the Public Services (Management) Act and all other powers enabling me, hereby delegate (except the power of delegation under this section) to the offices of the heads of Government Agencies specified in Column 1 and all the powers, responsibilities and limitations specified in Columns 2 and 3 of the schedule below.

(1) OFFICES	(2) POWERS & RESPONSIBILITIES	(3) LIMITATIONS
... Chief Executive Officer, Modilon General Hospital	... PART XIV – DISCIPLINE Section 50. Disciplinary Offences Section 51. Dealing With Minor Disciplinary Offences Section 52. Dealing With Serious Disciplinary Offences ...	(1) Up to Deputy Secretary and Deputy Provincial Administrator levels only. (2) Consistent with parameters established in corresponding General Orders. *(3) Consistent with the provisions of the Public Services (Management) Act* 1995 as stipulated in column 2. ...**

19. The PSC did not mention this delegation in its decision. It seems to have been unaware of it. But the question remains: did the Secretary for Personnel Management, by this instrument of delegation, lawfully delegate to the plaintiff the power to lay disciplinary charges against nurses of Modilon General Hospital? I uphold the submission of Mr Wadau, for Ms Wukawa, that the answer to this question is no.

20. The Secretary for Personnel Management was purporting to delegate to the CEO of Modilon General Hospital disciplinary powers and responsibilities under Part XIV of the Public Services (Management) Act that were not vested in her. The instrument refers to Sections 50, 51 and 52, which state:

(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

(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—

(n) in the case of an officer other than a Departmental Head—under this Part.

(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. [Underlining added]

(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.

(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—

(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.

(i) to reply promptly in writing, stating whether he admits or denies the truth of the charge; and

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

(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

(6) The Departmental Head shall notify an officer of a punishment imposed or recommendation made by him under Subsection (5). [Underlining added]

21. I have underlined the parts of these provisions that confer powers or responsibilities on "the" or "his" Departmental Head. By focussing on those parts of the provisions it becomes clear that the Departmental Head being referred to is the Head of the Department in which the person being charged is an officer. The term "Departmental Head" is not a reference to the Secretary for Personnel Management. The term is defined by Section 2 (interpretation) of the Act to mean, unless the contrary intention appears:

The Head of a Department of the Public Service and includes the persons referred to in Section 75 [eg the Commissioner General of Internal Revenue, the Auditor-General and Provincial Administrators] and any person deemed to be a Departmental Head under any other Act.

22. There is no contrary intention appearing in Sections 50, 51 or 52, so that definition makes it even clearer that the powers and responsibilities in those sections are conferred on particular Departmental Heads, not on the Secretary for Personnel Management. The only disciplinary powers and responsibilities conferred on the Secretary for Personnel Management by Sections 50, 51 and 52 are those to be exercised in relation to officers of the Department of Personnel Management.

23. The provision of the Act on which the Secretary for Personnel Management based the purported delegation of disciplinary powers was Section 23 (delegation by departmental head), which states:

A Departmental Head (including the Departmental head of the Department of Personnel Management) may, in respect of an officer or employee or employees included in a class of officers or employees, by writing under his hand delegate to a person all or any of his powers and functions under this Act (except this power of delegation).

24. I uphold Mr Wadau's submission that Section 23 only allows the Secretary for Personnel Management to delegate powers and responsibilities vested in the Secretary for Personnel Management. It does not allow her to delegate powers and responsibilities vested in other Departmental Heads.

25. The Public Service General Orders (the 2012 edition) also support Mr Wadau's submission by stating in Order 15.5:

The Public Services (Management) Act makes each Departmental Head responsible for discipline within his or her Department. A Departmental Head may delegate to another senior officer in writing, the following disciplinary responsibilities:

Note that an acting Departmental Head on relief basis may set up the processes hereunder, but may not make final decisions on termination until formally appointed by the Head of State.

26. It appears that the 5 November 2007 instrument of delegation was executed by the Secretary for Personnel Management with the intention of conferring disciplinary powers and responsibilities on CEOs of public hospitals in relation to nurses and other officers of the public hospital concerned. The plaintiff gave evidence that this delegation was part of a series of Public Service efficiency reforms in 2007 and that she has exercised the delegated powers in a number of cases. There is no reason to doubt the plaintiff's evidence. The policy at the heart of the 2007 delegation seems sound: to allow CEOs of public hospitals to exercise disciplinary powers directly over their own staff. There is no reason to think that the plaintiff exercised in bad faith the disciplinary powers that she thought, on reasonable, but mistaken, grounds, she possessed.

27. The 5 November 2007 delegation of powers was ineffective at law. If disciplinary powers and responsibilities are to be lawfully delegated to the CEO of a public hospital, those powers and responsibilities must be delegated by the person in whom, by the Public Services (Management) Act, they are vested: the Secretary for Health. On the basis of the evidence before the Court, it must be inferred that no such lawful delegation has occurred.

28. This means that the CEO of Modilon General Hospital has no disciplinary powers or responsibilities. The PSC made no error of law in deciding that:

29. The ground of bias is based on the alleged failure of the PSC to give notice to the plaintiff of its hearing and its alleged failure to consult the Department of Personnel Management to confirm whether the CEO of Modilon General Hospital had disciplinary powers and responsibilities. Similar allegations are made in ground 1 and I found them to be unsupported by the evidence.

30. Even if it were proven that, in fact, the PSC had not given the plaintiff notice of its hearing and not summoned her to give her views and not consulted the Department of Personnel Management it would not necessarily follow that the PSC was biased. To establish bias as a ground of judicial review it must be proven that the decision-maker was actually biased or that a reasonable apprehension of bias would arise in the mind of a reasonable person with knowledge of the relevant facts and circumstances (Kwame Okyere Boateng v The State [1990] PNGLR 342, John Mua Nilkare v Ombudsman Commission (1996) SC 498, Sela Gipe v The State [2000] PNGLR 271, Application by Herman Joseph Leahy (2006) SC981).

31. There is no evidence that the PSC was guilty of actual bias and the plaintiff has fallen well short of proving any reasonable apprehension of bias. Ground 3 is dismissed.

32. The argument that an administrative decision is unreasonable is based on the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The test to apply is:

33. If the answer is yes the decision involves an error of law, the decision-maker will have exceeded its jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail. The decision will be lawful unless it is infected by some other errors of law or procedure.

34. Mr Mapiso submitted that the PSC failed to consider all the facts relevant to the matter as it failed to summon the plaintiff to elicit her views, failed to consider the personnel management policies of the National Public Service, failed to consider the cost implications of its decision, failed to conduct the hearing within a reasonable time and failed to give immediate notification of its decision to the plaintiff. Its failure to consider all these matters made its decision unreasonable in that no reasonable tribunal could have come up with such a decision.

35. I find this submission misconceived as it is clear that, as a matter of law, the PSC decision was not unreasonable or absurd. It was not irrational for the PSC to say that the plaintiff erred by exercising disciplinary powers that she did not have. That in fact was the law. The PSC drew that conclusion in ignorance of the 2007 instrument of delegation. It should have been more diligent in finding out about such an instrument. It should have known about such an important document. But if it had known about it and interpreted it properly, it would have made the same decision that it made. Ground 4 is dismissed.

36. None of the grounds of review has succeeded. Therefore the application for judicial review must be dismissed. The PSC decision must be given effect. However, to cater for the likelihood that its immediate implementation would be logistically difficult, I will allow a grace period of 14 days for the second defendant's reinstatement and a further period of one month for the reimbursement of her entitlements to be effected. There is no reason to depart from the rule of thumb that costs follow the event: the party that loses pays the costs of the winning party. The plaintiff will therefore pay the second defendant's costs. The PSC has not assisted the Court and will not be awarded costs.

Judgment accordingly.
__________________________________________________________
Lakakit & Associates Lawyers: Lawyers for the Plaintiff
Young Wadau Lawyers: Lawyers for the Second Defendant

National Court of Papua New Guinea

Gawi v Public Services Commission [2014] PGNC 1; N5473 (22 January 2014)