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Holland v Nauga [2015] PGNC 218; N6116 (16 November 2015)

N6116

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 163 OF 2015

THOMAS HOLLAND
First Plaintiff

PETER SIPERAU
Second Plaintiff

GABRIEL KOH
Third Plaintiff

V

PHILIP NAUGA, AUDITOR-GENERAL OF PAPUA NEW GUINEA
First Defendant

AUDITOR-GENERAL'S OFFICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2015: 10, 16 November

CONSTITUTIONAL LAW – Public Services Commission – review of personnel matters in the Public Service – whether a decision of the Public Services Commission to annul the decision of the Auditor-General to terminate an officer's employment is enforceable in the National Court – whether Auditor-General has discretion to refuse to comply with decision.

Facts

The plaintiffs were senior officers of the Office of Auditor-General. They were charged with disciplinary offences. They responded to the charges but the Auditor-General found them guilty and terminated their employment. They applied for review of those decisions by the Public Services Commission. It upheld their applications and decided to (1) annul the decision of the Auditor-General to dismiss them; (2) reinstate them; and (3) pay them lost salaries and entitlements. The Auditor-General did not comply with the Public Services Commission decision, regarding it as a recommendation, which he declined to implement on the grounds that it was flawed. The plaintiffs applied to the National Court by originating summons, seeking declarations and injunctions, which, if granted, would have the effect of requiring the Auditor-General to implement the decisions of the Public Services Commission.

Held:

(1) A decision of the Public Services Commission, following a complaint on a personnel matter, becomes, by virtue of Section 18(3)(d)(ii) of the Public Services (Management) Act 1995, "binding", 30 days after the date of the decision.

(2) Because a decision of the Public Services Commission is "binding": (a) it is not a mere recommendation; (b) it must be immediately implemented by the person to whom it is directed; (c) it is similar to a Court order, in that it is the duty of the person to whom it is directed to comply with it, even if it is genuinely thought that the decision is wrong in law or fact or made without jurisdiction, unless and until the decision is stayed or set aside or otherwise rendered ineffective by an order of a Court or some other body authorised by law to do so.

(3) Here, the decisions of the Public Services Commission were not stayed or annulled by the order of a Court or any other body. Therefore the decisions are binding on the Auditor-General.

(4) Declarations and injunctions were granted accordingly: the National Court ordered reinstatement of the plaintiffs and payment to them of their lost salaries and entitlements.

Cases cited

The following cases are cited in the judgment:

Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850
Christine Gawi v Public Services Commission & Elizabeth Mandus Wukawa (2014) N5473
Elizabeth Wukawa v Christine Gawi (2015) N6024
Elizabeth Wukawa v Christine Gawi (2015) N6058
Henry Bailasi v Rigo Lua (2013) N5145
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Paul Dopsie v Jerry Tetaga, Chairman, Public Services Commission (2009) N3720
Paul Dopsie v Jerry Tetaga, Chairman, Public Services Commission (2009) N3722

ORIGINATING SUMMONS

This was an application for enforcement of three decisions of the Public Services Commission to annul decisions of the Auditor-General, to reinstate the plaintiffs and pay their lost salaries and entitlements.

Counsel

B Koae, for the Plaintiffs

16th November, 2015

1. CANNINGS J: The plaintiffs, Thomas Holland, Peter Siperau and Gabriel Koh, apply for enforcement of decisions of the Public Services Commission regarding their employment.

2. They were senior officers of the Office of Auditor-General. The first defendant, the Auditor-General, Philip Nauga, charged them with disciplinary offences. They responded to the charges but Mr Nauga found them guilty and terminated their employment. They complained to the Public Services Commission, which investigated their complaints and on 6 January 2015 made this decision in respect of each plaintiff:

1:1 That the Commission annuls the decision of the Auditor-General dated 16 December 2013 to dismiss [the plaintiff] from the Public Service;

1:2 That [the plaintiff] be reinstated to his substantive position he occupied immediately prior to his unlawful dismissal; and

1:3 That [the plaintiff] be paid all lost fortnightly salaries and entitlements as a result of his dismissal.

3. Mr Nauga did not comply with the Public Services Commission's decisions. He explained his position in detailed letters to the Commission dated 20 January 2015, stating, amongst other things:

Unfortunately, I am reluctant to comply with your recommendations because:

(a) of non-compliance of mandatory provisions of Section 18(3)(d) of the Public Services (Management) Act;

(b) of flaws in your decision on matters of both law and fact;

(c) non-availability of positions. ...

The PSC has acted ultra vires in dealing with this review outside of the mandated period of 90 days. Further PSC has not demonstrated any visible error on my part on processes and practices employed in my decision to terminate the officer concerned. Consequently, I advise that I reject your recommendation in its entirety and will not accept the officer back into the organisation.

4. The plaintiffs sought legal advice. Their lawyers wrote to Mr Nauga asking him to reconsider his position. He replied that he did not intend to do so.

COURT PROCEEDINGS

5. On 27 March 2015 the plaintiffs commenced the present proceedings by originating summons in the National Court. They seek declarations and injunctions, which, if granted, would have the effect of requiring the Auditor-General to implement the decisions of the Public Services Commission.

6. The originating summons and supporting affidavits were served on the defendants on the day of commencement of the proceedings. The Solicitor-General on 27 July 2015 filed a notice of intention to defend on behalf of the defendants, but that is the only step taken by any of the defendants including Mr Nauga to defend the case. There has been no appearance for the defendants at any of the pre-trial hearings. They did not appear at the trial, which was conducted on 10 November 2015. They were served with a notice of trial on 24 September 2015.

ISSUES

7. Only two issues need to be determined:

1 What is the status of a "decision" of the Public Services Commission?

2 What orders should the Court make?

1 WHAT IS THE STATUS OF A "DECISION" OF THE PUBLIC SERVICES COMMISSION?

8. The decisions of the Public Services Commission were made under Section 18 (review of personnel matters in relation to appointment, selection or discipline) of the Public Services (Management) Act, which states:

(1) The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, 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 was made, but the Chairman 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 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;

(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 Service; and

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

(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);

(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) shall become binding after a period of 30 days from the date of the decision. [Emphasis added.]

9. The present Section 18 has profoundly changed the status of decisions of the Public Services Commission, which previously were expressed as "recommendations" (Mision Asiki v Manasupe Zurenuoc (2005) SC797). Section 18 was enacted by the Public Services (Management) (Amendment) Act No 24 of 2002, which commenced operation on 1 June 2002. It is reinforced by Constitutional Amendment No 25, The State Services, which commenced operation on 11 August 2003 (Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850).

10. A "decision" of the Public Services Commission, following a complaint on a personnel matter, becomes, by virtue of Section 18(3)(d)(ii) of the Public Services (Management) Act 1995, "binding", 30 days after the date of the decision. The binding status of a decision of the Public Services Commission has the following consequences:

(a) it is not a mere recommendation;

(b) the decision must be immediately implemented by the person to whom it is directed;

(c) the decision is similar to a Court order, in that it is the duty of the person to whom it is directed to comply with it, even if it is genuinely thought that the decision is wrong in law or fact or made without jurisdiction, unless and until the decision is stayed or set aside or otherwise rendered ineffective by an order of a Court or some other body authorised by law to do so.

11. Examples of cases in which the original decision-maker has been granted a stay, by the National Court, of the decision of the Public Services Commission and successfully applied for judicial review, resulting in the Commission's decision being quashed include Paul Dopsie v Jerry Tetaga, Chairman, Public Services Commission (2009) N3722 and Henry Bailasi v Rigo Lua (2013) N5145. Cases in which the original decision-maker has been unsuccessful and the Commission's decision has been affirmed by the Court include Paul Dopsie v Jerry Tetaga, Chairman, Public Services Commission (2009) N3720 and Christine Gawi v Public Services Commission & Elizabeth Mandus Wukawa (2014) N5473.

2 WHAT ORDERS SHOULD THE COURT MAKE?

12. Here, the decisions of the Public Services Commission were not stayed or annulled by the order of a Court or any other body. No attempt appears to have been made by Mr Nauga to ask the Court to intervene. Therefore the decisions are binding on the Auditor-General in the sense referred to above. Declarations and injunctions will be granted accordingly. In drafting the orders of the Court, I will, as in Christine Gawi v Public Services Commission & Elizabeth Mandus Wukawa (2014) N5473, take into account the practicalities of enforcing decisions as soon as practicable and set a timetable for implementation of the decisions.

13. If it proves practically difficult for the Auditor-General to reinstate the plaintiffs, due to an organisational restructure or any other reason, it is a practical difficulty which he must resolve. The decision of the Public Services Commission is in effect being transformed into an order of the National Court, breach of which will expose the person who breaches the order to the risk of being charged with contempt of court (Elizabeth Wukawa v Christine Gawi (2015) N6024, Elizabeth Wukawa v Christine Gawi (2015) N6058). Costs will follow the event.

ORDER

(1) The application for enforcement of the decisions of the Public Services Commission is granted.

(2) The decisions of the Public Services Commission dated 6 January 2015 are binding and shall be complied with as soon as practicable, which means that the first defendant shall reinstate the plaintiffs to their former positions by 16 December 2015 and the first defendant shall reimburse their lost salaries and entitlements by 18 January 2016.

(3) The defendants shall pay the plaintiffs' costs on a party-party basis which shall if not agreed be taxed.

Judgment accordingly.
________________________________________________________________
Eda Legal Services: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants