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Appa v Wama, Secretary, Department of Western Highlands [1992] PGNC 70; [1992] PNGLR 395; N1083 (24 July 1992)

N1083

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CHRISTOPHER APPA

V

PETER WAMA, SECRETARY, DEPARTMENT OF WESTERN HIGHLANDS AND THE STATE

Mount Hagen
Woods J

24 June 1992
24 July 1992

JUDICIAL REVIEW - Dismissal from public service - Nature of employment in the public service - No life tenure in public service - Employment Act applied - No reinstatement - Damages for wrongful dismissal.

MASTER AND SERVANT - Wrongful dismissal - Measurement of damages.

DAMAGES - Contract of employment - Breach of - Assessment of.

PRACTICE AND PROCEDURE - Action against the state as employer- Joinder of departmental head.

Facts

The applicant sought a review of the decision of the first defendant, Secretary of the Department of Western Highlands, to suspend and then dismiss him from the public service. The application was the officer in charge of the pathological section of the Mount Hagen Hospital and was employed by the state since 1966. He was first served with a notice of charge which was unclear as to the charge, and was suspended from duty. He replied to the notice. Four months after, he was served with a notice of dismissal on the ground that he had been convicted of a criminal offence. The judge found that he had a power to interfere because the procedure to terminate the applicant's employment was irregular and, therefore, wrongful, and the departmental head had committed a breach of natural justice. However, in response to the claim for re-instatement, the learned judge made the following decision.

Held

1. It is a general rule that the employee wrongfully dismissed can recover damage, for pecuniary loss resulting from wrongful termination to the equivalent of the appropriate notice.

2. In the usual case, damages will be equivalent to wages for the period of proper notice. Rarely could an employee claim for other damages.

3. It is only where there is a breach of a fixed-term contract, which is not subject to determination by notice, that damages will be awarded for the equivalent of the salary over the entire period of the contract. Rooney v Forest Industries Council [1990] PNGLR 407.

Cases Cited

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.
Robinson v National Airlines Commission [1983] PNGLR 476.
Rooney v Forest Industries Council [1990] PNGLR 407.

Counsel

S Norum, for the plaintiff.

24 July 1992

WOODS J: The applicant is seeking a review of the decision of the first respondent as Secretary of the Department of Western Highlands (hereafter Secretary) to suspend and then dismiss the applicant from the public service on 31 May 1991.

Unfortunately, the State has not appeared in this review to assist the court to understand various aspects of employment within the public service.

The applicant was a scientific officer employed by the State in the Department of Health attached to the pathology services section at the Mount Hagen General Hospital. The applicant is aged about 49 years and had been employed by the State since 1966. At the time of his dismissal, he was the officer in charge of the pathology section.

The applicant states that on 9 January 1991 he was served with notice of a charge under s 47 of the Public Service (Management) Act. However, he says that the notice so served did not clearly set out the nature of the charge. He was also served with a notice of suspension from duty. I note that these notices, although served on 9 January, were dated 11 January. Whilst these notices did not spell out the charge, there was an amount of material with the notices which related to complaints by medical staff about the operation of the pathology section during 1989 and 1990.

The applicant replied to the notices by letter to the Secretary on 15 January. The Secretary on 31 May 1991 signed a notice of dismissal of the applicant from the public service on the ground that he had been convicted of a criminal offence.

The applicant submits that the action to dismiss him was wrongful and is seeking reinstatement and damages for the wrongful termination.

What is the court's role in a master and servant relationship in the public service. Unfortunately, I have not been supplied with nor referred to the legislation which determines the terms and conditions of employment which secure the applicant's employment in the public service. I am surprised that the applicant's union association, the Public Employees Association, has not assisted the court in this regard. However, having regard to the General Orders under the Public Service (Management) Act, I note that there are procedures to be followed in disciplinary matters, and the way the applicant was terminated seems to have been under these General Orders. So, was the applicant dealt with properly under those General Orders? The applicant has submitted that the original notice of charge did not state the actual charge that was being made. It had to be inferred from the material with the notice of charge that it may have been related to the standard of performance of his work as the officer in charge of the pathology section. Then, when he was terminated, it was made by reference to some criminal conviction. So, it is submitted that his termination was wrongful, and I must agree with that.

Having found that the procedure to terminate was irregular and, therefore, wrongful, what is the role of this Court? It is quite clear on the established principles of judicial review as set out by Kapi DCJ in Kekedo v Burns Philp [1988-89] PNGLR 122 that the decision-making authority here, namely, the departmental head, has committed an error of law in the manner in which he terminated the applicant and has committed a breach of natural justice. Therefore, I have the power to interfere. However, what relief can I give? The applicant is seeking reinstatement. However, the law is quite clear that the court will not compel either a master or a servant to continue a personal relationship which has become noxious to either one of them, and the remedy for an employee who has been wrongfully terminated is damages for wrongful dismissal. See Andrew J in Robinson v National Airlines Commission [1983] PNGLR 476. I have been referred to no legislation or terms of conditions which give the applicant security of employment in the public service, nor does the applicant have any benefit of a contract of employment for a specific term. Therefore, I must assume that the terms and conditions of employment are no better nor more favorable than those set out in the Employment Act Ch 373, which is stated to be an act binding on the State. I find I am unable to order re-instatement, and the applicant is, therefore, only able to claim damages for wrongful dismissal.

It is a general rule that the employee wrongfully dismissed can recover damages for pecuniary loss resulting from wrongful termination to the equivalent of appropriate notice. In the usual case, damages will be equivalent to wages for the period of proper notice. Rarely can an employee claim for other damages. Only in a fixed-term contract that is not subject to determination by notice will damages be awarded for the equivalent of the salary over the entire period of contract, if the dismissal was a breach of the contract, as in Rooney v Forest Industries Council [1990] PNGLR 407. The Employment Act Ch 373 is an example and guideline as to notice on dismissal. It provides for notice of 4 weeks or payment of 4 weeks salary in lieu thereof, if an employee has been employed for 5 years or more. It would appear this is what Parliament considers an appropriate and proper notice to an employee whose services are to be brought to an end.

I have been presented with no evidence of the salary received by the applicant and the procedures followed on his termination, so I am unable to assess whether any damages are payable. In the circumstances, therefore, I must adjourn the final resolution of this matter pending further evidence to assist me to assess any damages for wrongful dismissal.

I note that this action was against the State, as the employer of the applicant, and a named person as the department head. In the absence of any evidence of malice against the second respondent, the Secretary of the Department of Western Highlands, I find there can be no claim against the second respondent. The claim for damages for wrongful dismissal, therefore, lies against the State.

__________________

Lawyer for the applicant: J Mek Teine.