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Kaupa v Aufa [2015] PGNC 262; N6130 (11 December 2015)

N6130

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 380 OF 2015

BETWEEN

BOB KAUPA
Plaintiff

AND

KALA AUFA
ACTING CLERK OF PARLIAMENT
First Defendant

AND

HON. THEO ZURENUOC, MP
SPEAKER OF PARLIAMENT
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2015: 04th & 11th December

JUDICIAL REVIEW – Review of decision to refuse to comply with decision of Public Services Commission – Jurisdiction of Public Services Commission to review personnel matter connected with Parliamentary Service – Constitution – Sections 132 & 188 – Public Services (Management) 2014 –Section 18 – Parliamentary Services Act – Sections 2 & 33.

Facts

This is an application for judicial review pursuant to Order 16 of the National Court Rules. The Plaintiff seeks review of the decision of the First and Second Defendants to refuse to comply with the Public Services Commission decision of 30th August 2011. The PSC decision annulled an earlier decision of the First and Second Defendants to dismiss the Plaintiff from the Parliamentary Service and reinstate him to his substantive position as a security officer with back payment of lost salaries and entitlements. He seeks an order in the nature of mandamus to compel the Defendants to comply with and implement the PSC decision.

Held:

1. Section 33 of the Parliamentary Service Act grants jurisdiction to the Public Services Commission to review a personnel matter connected with the Parliamentary Service. Aggrieved officers and employees of the Parliament have a right to seek review of decisions concerning their employment to the Public Services Commission and the review is conducted under Section 33. It is not done under Section 18 of the Public Services (Management) Act because that Act applies to officers in the National Public Service.

2. Under Section 33 of the Parliamentary Service Act the Public Services Commission only recommends the confirmation, variation or revocation of its decision to the Clerk of Parliament.

3. The First and Second Defendants were not bound to comply with the Public Services Commission decision to recommend reinstatement of the Plaintiff to his substantive position as a security officer with back payment of lost salaries and entitlements.

4. The application for judicial review is dismissed with costs, to be taxed, if not agreed.

Cases cited:
Doris Korowa v. Yori Yei Secretary General of PNG National Commissioner for UNESCO & The State: OS (JR) No 721 of 2013 (Unnumbered & Unreported Judgment of 06th November 2015)
National Agriculture & Inspection Authority v. Jerry Tetaga & Public Service Commission (2009) N4030

Counsel:

Mr. J. Napu, for Plaintiff
Mr. M. Boas, for First and Second Defendants
Mr. E. Bua, for Third Defendant

JUDGMENT

11th December, 2015

1. MAKAIL, J: This is an application for judicial review pursuant to Order 16 of the National Court Rules. The Plaintiff seeks review of the decision of the First and Second Defendants to refuse to comply with the Public Services Commission ("PSC") decision of 30th August 2011. The PSC decision annulled an earlier decision of the First and Second Defendants to dismiss the Plaintiff from the Parliamentary Service and reinstate him to his substantive position as a security officer with back payment of lost salaries and entitlements. He seeks an order in the nature of mandamus to compel the Defendants to comply with and implement the PSC decision.

2. From the affidavit of the Plaintiff sworn on 25th June and filed on 29th June 2015, the undisputed facts are, on 08th June 2005 the Plaintiff was dismissed for cause. On 05th May 2008 the Plaintiff applied to the PSC to review the decision to dismiss him from service. The application to review was out of time and the Plaintiff sought leave to extend time which was granted by the PSC on 07th April 2009. A review was conducted on 08th April 2010 but the PSC did not complete it within 90 days period prescribed by Section 18(3)(d)(1) of the Public Services Management Act 1995 which Act has been superseded by the Public Services Management Act 2014 ("PSM Act"). On 12th July 2011 the PSC on its own initiative extended time and completed the review. On 30th August 2011 it delivered its decision.

4. On 25th November 2011 Mr. Don Pandan who was the Clerk of Parliament at that time refused to comply with the decision. He gave two reasons. First, the decision was not made within the prescribed period of 60 days under the PSM Act. Secondly, the decision was not binding on the First and Second Defendants. On 29th June 2015 the Plaintiff instituted this proceeding.

5. The Plaintiff relied on four grounds to have the First and Second Defendants implement the PSC decision. They are:

(a) Unlawfulness or ultra vires;

(b) Unreasonableness;

(c) Unfairness of breach of natural justice; and

(d) Apprehension of bias.

6. In his written submission, counsel for the Plaintiff addressed all the grounds together so I will address them in that way. First, counsel submitted under Section 18(6) (b) of the 2014 PSM Act, the PSC decision is binding on the First and Second Defendants and must be complied with. The subject decision was delivered on 30th August 2011 and computing 30 days from there, it expired on 30th September 2011. The First and Second Defendants are bound by the subject decision and their failure to give effect to it within the limit of 30 days and thereafter, is unlawful. They have acted ultra vires their power under Section 18(6) (b) of the PSM Act.

7. Counsel relied on the case of Doris Korowa v. Yori Yei Secretary General of PNG National Commissioner for UNESCO & The State: OS (JR) No 721 of 2013 (Unnumbered & Unreported Judgment of 06th November 2015) where it was held that the effect of Section 18(6)(b) is that it is binding on the implementing agency. One reason the Court gave in forming this view is that the PSC is a Constitutional Office and performs an important function. Thus, its decision must be respected and given prominence.

8. Counsel further submitted that if the Defendants rely on Section 33 of the Parliamentary Service Act ("PS Act") to assert that the PSC decision is not binding on them, then there are a number of problems with this proposition. One of them is that there is a conflict between two legislations, the PSM Act saying a PSC decision is binding and the PS Act saying it is not – it is only a recommendation.

9. Where there is a conflict, the Court must apply the legislation that comprehensively sets out the procedure for the PSC to conduct a review of a personnel matter and in this case, the PSM Act is comprehensive than the PS Act and should be applied. The other reason is that, under Section 30 of the PS Act, the Clerk of Parliament recommends to the Speaker of the Parliament and the latter decides on the recommendation of the former to hire and fire an officer of Parliamentary Service. If it were intended that the PSC decision is a recommendation, then for logical and practical reasons, it would not make sense and contrary to the principles of natural justice under Section 59 of the Constitution for the same decision-makers to decide whether to implement the PSC decision.

10. Further, it would render the entire decision making process too cumbersome, convoluted and oppressive, thus denying justice to an officer aggrieved by a decision of the First and Second Defendants.

11. Counsel for the First and Second Defendants supported by counsel for the Third Defendant countered these submissions by submitting that the PSC decision is not binding on the First and Second Defendants because Section 18(6)(b) of the PSM Act does not apply to the Parliamentary Service. The First and Second Defendants are governed by Section 33 of the PS Act and according to this provision, a PSC decision is no more than a recommendation. Given this, the First and Second Defendants are not obliged to comply with it. They referred to the case of National Agriculture & Inspection Authority v. Jerry Tetaga & Public Service Commission (2009) N4030 and submitted this case support the proposition that the PSC decision is not binding on Defendants.

12. The arguments put forward by counsel for the parties raise the important question of application of relevant legislation concerning a review of a personnel matter connected with the Parliamentary Service by the PSC.

13. The Plaintiff is an officer of the Parliamentary Service, having being employed as a security officer until his dismissal from service in 2005. Section 188 of the Constitution provides for the establishment of State Services. It states:

"188. Establishment of the State Services.

(1) The following State Services are hereby established:—

(a) the National Public Service; and

(b) the Police Force; and

(c) the Papua New Guinea Defence Force; and

(d) the Parliamentary Service.

(2) Acts of the Parliament may make provision for or in respect of other State Services." (Emphasis added).

14. One of them is the Parliamentary Service. Section 2 of the PS Act states:

"2. Establishment of the Parliamentary Service.

(1) The Service, a State Service provided for under Section 132 of the Constitution, established by the repealed Act, is continued in establishment by this Act.

(2) The Service is subject to the direction and control of the Speaker and shall perform its functions impartially.

(3) The Service shall consist of—

(a) the Clerk; and

(b) the officers and employees of the Service.

(4) The Service is a separate State Service from other State Services and shall not be deemed to be a department of the Public Service for the purposes of an Act of Parliament."

15. Significantly, Section 2(4) separates the Parliamentary Service from other State Services and says that it is not a department of the Public Service for the purpose of the PS Act. In my view the intention of the Legislature is clearly expressed in this provision. It is a separate State Service. As a State Service, it is responsible for its officers and employees and the Clerk of Parliament is the Head of the Service subject to direction and control of the Speaker: Section 132 of the Constitution.

16. In any organization, there are staff and employment issues and the organization must have in place appropriate mechanisms to deal with them. No doubt, the Parliamentary Service has in place mechanisms to deal with these issues. One of them is the review of personnel matters. An officer aggrieved by a decision of the First and Second Defendants may seek review to the PSC. Section 33 of the PS Act sets out the procedure and how a review is conducted. The PSC is also given power to determine its own procedures. Section 33 states:

"33. Review of personnel matters.

(1) The Commission shall review a personnel matter connected with the Service following a complaint by an officer of the Service to the Commission where that officer has been affected by a decision in relation to that personnel matter.

(2) The Commission shall—

(a) complete the review of a personnel matter within 60 days of the making of the complaint to the Commission under Subsection (1); and

(b) shall consider whether the decision in relation to the personnel matter was an appropriate decision having regard to the nature of the decision and the views of the officer and of the Clerk; and

(c) recommend the confirmation variation or revocation of the decision in relation to the personnel matter in writing to the Clerk.

(3) In carrying out a review of a personnel matter, the Commission shall determine its own procedures but shall ensure that the views of the officer affected by the decision are put before it in relation to the personnel matter either in writing or orally." (Emphasis added).

17. In my view Section 33 grants jurisdiction to the PSC to review a personnel matter connected with the Parliamentary Service. Aggrieved officers and employees of the Parliament have a right to seek review of decisions concerning their employment to the PSC and the review is conducted under Section 33. It is not done under Section 18 of the PSM Act because that Act applies to officers in the National Public Service. Significantly, after the PSC completes a review it recommends the confirmation, variation or revocation of the decision to the Clerk of Parliament. (Emphasis added).

18. Given this, I come to the conclusion that the applicable legislation is the PS Act and the First and Second Defendants are correct in relying on it to deal with the personnel matter concerning the Plaintiff in this case. The fundamental difference between a review by the PSC under Section 33 of the PS Act and a review by the PSC under Section 18 of the PSM Act is this, the PSC decision is only a recommendation.

19. In my view a recommendation gives the First and Second Defendants discretion to either comply with the recommendation or reject it. It follows that Plaintiff's submission that the PSC decision is binding on the First and Second Defendants is misconceived. Likewise, the Plaintiff's submission that it is contrary to the principles of natural justice that the First and Second Defendants are obliged to reconsider their decision is misconceived. This submission fails to take into account the fact that the First and Second Defendants were the decision-makers and the PSC decision must be referred to them to reconsider their position.

20. The PSC decision was referred to the then Clerk of Parliament Mr. Pandan and he advised the PSC that the decision would not be implemented. Unlike Section 18(2)(a)&(b) of the PSM Act, Section 33 of the PS Act does not give the PSC discretion to extend time to conduct its review beyond 60 days. In my view this explains why Mr. Pandan took the position he did.

21. From what I can see, on 05th May 2008 the Plaintiff applied to the PSC to review his dismissal. Calculating 60 days from there, it would have expired on 05th July 2008. The PSC did not complete its review within that time. Apparently, it assumed that it had discretion to extend time and it extended it on 12th July 2011. This was 3 years after the review was lodged with it. On 30th August 2011 it delivered its decision. All up, the delay was 3 years and 1 month.

22. The Plaintiff seeks an order in the nature of mandamus to compel the First and Second Defendants to comply with the PSC decision and reinstate him. Delay is a relevant consideration in the exercise of discretion. His counsel submitted that delay should not be held against him and he be denied right to reinstatement. The Plaintiff is an officer down the rank and file in the Parliament, he submitted that his reinstatement would not be adverse to the operation and running of the Parliament. As counsel eloquently put it, "the Plaintiff's reinstatement would not cause a ripple in the pool" so to speak.

23. That may be so, but I cannot rule out the possibility that an institution such as the Parliament would need to fill in any vacancy within its staff structure and operations when created or exist. His dismissal certainly had created a vacancy and a need to have it filled. I do not know if the Plaintiff's former position is still vacant because there is no evidence to that effect. A further reason which persuades me to form a contrary view to the Plaintiff's is that he was a security officer and any security issues concerning security of the Parliament must not be left unattended. Otherwise, it exposes the Parliament to security risks. And so, while I acknowledge counsel's plea that delay is not adverse to the operations of Parliament, equally, it would be down playing the issue of security which should be given top priority. And so, it is unlikely that the Plaintiff's position would still be vacant after all these years.

24. In the circumstances, I am not satisfied that the position taken by the First and Second Defendants in not complying with the PSC decision cannot be described as unreasonable.

25. The application for judicial review is dismissed with costs, to be taxed, if not agreed.

Judgment and Orders accordingly.

_______________________________________________________________
Napu & Co Lawyers : Lawyer for the Plaintiff
Kuman Lawyers : Lawyers for the First and Second Defendants
Acting Solicitor-General : Lawyers for the Third Defendant