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Ative v Bomana [1998] PGNC 28; N1713 (12 May 1998)

Unreported National Court Decisions

N1713

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 535 OF 1996
ROGER ATIVE
PLAINTIFF
V
COMMANDER C.I.S. BOMANA
FIRST DEFENDANT
CORRECTIONAL SERVICE
SECOND DEFENDANT
THE STATE
THIRD DEFENDANT

Waigani

Woods J
23 April 1998
12 May 1998

JUDICIAL REVIEW - Employment – Correctional Service – disciplinary offence – change of duties - no change of substantive rank – no demotion – not a matter reviewable by the court.

Counsel

F Alua for the Plaintiff

Ms H Polume for the Defendants

12 May 1998

WOODS J: The applicant comes by way of Judicial Review to seek orders quashing the decision of the Commander of the CIS Bomana in demoting him from his position of OIC Reception and Discharge to performing general duties at the CIS Bomana.

The applicant was on the 29th August 1996 charged with a disciplinary offence in failing to conduct a proper roll-call at the remand section on an evening when a prisoner escaped unnoticed. He states that in relation to the charge he was not given any opportunity to respond to the charge although he did make a report of what happened that night. The charge was subsequently dismissed by the CIS Disciplinary Board. However in spite of the dismissal of the Charge the applicant was removed from his position as OIC Reception and Discharge and placed on general duties. This has resulted in him losing certain allowances for that former position by way of higher duties allowances and higher skills allowances.

It is clear however that at all times the applicant held the substantive position of a Corporal in the Service and he is still holding and being paid as a Corporal. So it seems that what he has lost is any advantages he has been obtaining through being placed in a position of higher duties. If the applicant had been found guilty of a serious disciplinary charge one of the punishments that could have been imposed is as per Section 44 of the CIS Act reduction to a rank having a lower classification. However the applicant has not been reduced in rank. The different rankings in the CIS service which are above and below the rank of corporal are Sergeant, and Lance-Corporal. Before the incident the applicant was not a sergeant, and now he has not been reduced to a Lance-Corporal, he is and always has been a Corporal. So there has been no change in rank.

So how is the position and removal from higher duties positions reviewable by a Court. The Commissioner of the CIS and a Gaol Commander has the duty and the obligation under Section 67 of the CIS Act for the management and security and good order of the institution, and under Section 68 an officer is subject to the direction of the commanding officer of that institution. It must go without saying that it is the duty and responsibility of the commanding officer to allocate duties to the staff within an institution. And part of this allocation may involve staff doing duties with higher skills involvement. And quite apart from whether any disciplinary offences may have occurred a commanding officer must be free to allocate and move staff within an institution for the good management and security of that institution. This court cannot dictate to commanding officers where staff should be employed, that is a matter within the internal administration and powers of the commanding officer. It may be different if a person loses a substantive rank without good cause but even then a court can only reinstate the ranking, not the exact duties that a person should perform.

The applicant’s rank was a corporal, and his rank is still that of a corporal. It is merely the duties he has been allocated or ordered to perform are different. I find that this matter is not a matter that should be reviewable by this court.

I dismiss the application.