Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 439
N762
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
LANGFORD
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Lae & Waigani
Hinchliffe J
5 April 1989
10 October 1989
16 October 1989
STATES SERVICES - Public servants - Remuneration and salaries - Higher Duties Allowance - Contract of employment - Legal officer class 3 - Entry on duty in class 5 position - Position occupied 17 months - Public Service General Orders implied into contract - Position occupied on “temporary basis” - Once duties satisfactorily performed Higher Duties Allowance payable - Public Service General Orders, 6.17, 6.21, 6.25.
The Terms and Conditions of a contract of employment between a lawyer and the State provided that the “employee shall be eligible for Higher Duties Allowance (HDA) when required to act in a position at a higher salary level”.
The Public Service General Orders relevantly provided for “Higher Duties Allowance (HDA)” as follows:
“6.17.  This allowance is payable where an officer is appointed to act in an office of a higher classification than the office he occupies due to the absence of the officer normally occupying that higher office for whatever reason.
6.21.   Where an office becomes vacant for an indefinite period, (e.g. through a promotion) the Department should attempt to fill that office through the selection process. If an officer is required to act in the vacant position it will be strictly on a temporary basis.
6.22.   When an officer is acting in a higher office, he may receive an amount of Higher Duties Allowance as determined by his Departmental Head.
6.25.   If the Departmental Head is satisfied that the officer is satisfactorily performing all the duties of the higher office he may ... award full HDA for that officer.”
The lawyer, who was recruited as a legal officer class 3, entered on duties in the position of a legal officer class 5, which position he occupied for some 17 months. The lawyer claimed entitlement to Higher Duties Allowance for the full period of 17 months under the Terms and Conditions of the contract of employment.
Held
(1)      The Public Service General Orders were by implication to be construed as part of the contract of employment.
(2)      General Order 6.17 was only relevant to an appointment “due to the absence of an officer normally occupying” the higher position and could not apply in the circumstances where the higher position was vacant when occupied.
(3)      In the circumstances, the lawyer was to be treated as having entered into the class 5 position on a “temporary basis” pursuant to General Order 6.21 and once it was established that he was “satisfactorily performing all the duties of the higher office” he was, under General Order 6.25, entitled to Higher Duties Allowance.
(4)      In the circumstances, it was proper that the Higher Duties Allowance be paid from a point of time three months after occupying the higher position.
Action
These were proceedings in which the plaintiff sought entitlement to Higher Duties Allowance under a contract of employment with the State.
Counsel
The plaintiff in person.
D Lambu, for the defendant.
Cur adv vult
10 October 1989
HINCHLIFFE J: The plaintiff is a lawyer and was recruited from Melbourne, Australia, by the defendant to be a legal officer class 3. A contract of employment was executed and was dated 3 December 1986.
A dispute has arisen between the parties hereto because the plaintiff, although a legal officer class 3, claims that for nearly the whole of the time he has been in the employment of the defendant he has been in a position that normally attracts the salary of a legal officer class 5. The plaintiff claims that, from 12 January 1987 to 16 June 1988, he was entitled, under the terms of the contract of employment, to a Higher Duty Allowance (hereinafter referred to as “HDA”).
On the other hand, the defendant says that the plaintiff was never appointed to act as a legal officer class 5 by the Secretary for Justice between the said dates and therefore he is not entitled to the HDA.
The contract of employment at cl 9.1 reads:
“The Employee acknowledges that the terms and conditions of his employment hereunder shall be those set out in the Terms and Conditions and that he is bound to comply with such Terms and Conditions.”
Number 7(ii) of the said Terms and Conditions reads:
“(ii)     Higher Duties Allowance
Employees will be eligible for payment of Higher Duties Allowance (HDA) when required to act in a position at a higher salary level. However the maximum amount of HDA that will be paid is 75 per cent of the difference between the employee’s substantive salary and the salary level of the higher position. HDA is not payable for a period of less than one week.
Higher Duties Allowance earned during the contract period will be included in ‘salary’ when calculating the amount of gratuity payable to an employee.”
The plaintiff relies on No 7(ii) of the Terms and Conditions because soon after he arrived in Papua New Guinea he was placed as the Officer-in-Charge of the Public Prosecutor’s Office in Lae. The defendant submitted that the said position in Lae was not necessarily held by a legal officer class 5, but I do not accept the submission. I say that because in a memorandum from the Acting Public Prosecutor, Mr Noka, to the Acting Secretary for Justice, Mr Baker, dated 9 January 1987, Mr Noka said, inter alia, the following:
“Additionally, I make a further recommendation that Mr Ian Langford who is going to be Officer-In-Charge be placed against a Legal Officer Class 5. This has been a funded but a vacant position.”
In reply, Mr Baker said: “I believe this is too soon — Mr Langford has only been here a very short while.” Mr Noka’s statement and Mr Baker’s reply indicate to me that the position of Officer-In-Charge of Prosecutions in Lae is certainly classified as a legal officer class 5.
Mr Langford argued that because of the wording of No 7(ii) of the Terms and Conditions he was entitled to the HDA when he commenced officially in the position on 12 January 1987. But the defendant argued that it was not so simple and that before the plaintiff was entitled to HDA there must be compliance with the Public Service General Orders. The plaintiff argued against that submission and said that the contract of employment that he signed did not include the said General Orders.
At p 52 of the General Orders, it is headed “Higher Duties Allowance (HDA)”. It states:
“6.17.  This allowance is payable where an officer is appointed to act in an office of a higher classification than the office he occupies due to the absence of the officer normally occupying that higher office for whatever reason.
6.18.   Application for HDA must be made on Form 6.1 at the end of this General Order and must be approved by the Departmental Head.
6.21.   Where an office becomes vacant for an indefinite period, (e.g. through a promotion) the Department should attempt to fill that office through the selection process. If an officer is required to act in the vacant position it will be strictly on a temporary basis.
6.22.   When an officer is acting in a higher office, he may receive an amount of Higher Duties Allowance as determined by his Departmental Head.
6.25.   If the Departmental Head is satisfied that the officer is satisfactorily performing all the duties of the higher office he may subject to paragraph 6.23 above award full HDA for that officer.”
Before I refer further to those General Orders, I say that I am satisfied that they do form part of the said Terms and Conditions of the said contract of employment and therefore I do not accept Mr Langford’s submission on that point. It seems to me that it is implied that the said General Orders are a part of the said contract and in all it makes common sense. Clearly the said Form No 7(ii) refers to HDA in the Terms and Conditions but it would not be workable without the rules and regulations which in fact are what the General Orders are.
Therefore I now return to the General Orders.
General Order 6.17: I am of the view that this clause is not relevant even though the defendant submitted that the plaintiff was never appointed to act. This clause only seems relevant where someone is acting “due to the absence of the officer normally occupying that higher office”. In this case the position was vacant. The previous incumbent had been promoted and had taken up another position in Port Moresby.
It follows that General Order 6.21 is relevant. It provides for the holder of the vacant position. I note with interest the words “... in the vacant position it will be strictly on a temporary basis”. To my mind, on that point the defendant is in breach of the General Orders. It could not be argued that the plaintiff was there on a “temporary basis”. He had filled the position for some 17 months before he went on to HDA. I am of the view that General Order 6.21 is there to ensure that what, in fact, did occur with the plaintiff should not occur. Otherwise the defendant might be accused of employing “cheap labour”.
Clearly the General Orders give the Departmental Head some discretion as to the payment of HDA but it seems to me that once it is established that the person is “satisfactorily performing all the duties of the higher office” (6.25), then he is entitled to HDA.
In this case, that decision was not made for 17 months. I am of the view that that was wrong and that the Acting Public Prosecutor was at fault. He should have made an application about three months after 12 January 1987. I say that because in early January 1987, the Acting Secretary for Justice said it was too early for such an application. He was entitled to say that because of the General Order 6.25 and I agree with him. Needless to say, the Acting Public Prosecutor should have pursued the application regarding HDA for the plaintiff but he did not do so until June of the following year. The evidence indicates that the plaintiff was carrying out his duties properly from the start and that should have been noted by the Acting Public Prosecutor. After all, it was clear that the plaintiff was not just out of Law School. He had been in practice for some time and was of mature years. He had had considerable experience and that was known to the Acting Public Prosecutor. The fact that he (the plaintiff) worked competently in the position of Officer-In-Charge should have been of no surprise to the Acting Public Prosecutor. It was clear to me in February 1987 when I was on the Lae circuit that the plaintiff was well experienced and carried out his work in a very professional manner. A three-months observation of the plaintiff would have given the Acting Public Prosecutor more than ample time to assess the plaintiff and then make application for HDA to the Secretary for Justice.
It was argued that because there was no application on form 6.18 of the General Orders, the plaintiff’s claim must fail. I disagree with that. The application is made by the Acting Public Prosecutor and as I have stated, I am of the view that he failed in his duty. The plaintiff should not suffer for the mistakes of the Acting Public Prosecutor. The least the Acting Public Prosecutor could have done when he eventually did make the application would have been to ask the Secretary to back date the HDA to at least April 1987.
I am satisfied that on the evidence before me the plaintiff is entitled to full HDA on and from 12 April 1987 up until 14 June 1988. I therefore order that there be judgment for the plaintiff to be assessed.
16 October 1989
Further to my order of 10 October 1989, I now order by consent that the defendant is to pay to the plaintiff the sum of K3,616.09 made up as follows:
Higher Duties Allowance from 12 April 1987 to 14 June 1988	K2,205.42	
Gratuity thereon	997.55	
Interest accrued	363.12	
Fee on issue of writ	50.00	
 	K3,616.09	
Judgment for the plaintiff for K3,616.09.
Lawyer for the defendant: Moses J J Jalina, Acting State Solicitor.