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Mark v National Housing Corporation [1999] PGNC 99; N1924 (11 November 1999)

Unreported National Court Decisions

N1924

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 123 OF 1996
BETWEEN: JOHN MARK
PLAINTIFF
AND: NATIONAL HOUSING CORPORATION
FIRST RESPONDENT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND RESPONDENT

Mount Hagen

Hinchliffe J
11 November 1999

EMPLOYMENT - Plaintiff dismissed from employment — Public Service Commission recommended that the dismissal decision be reversed — Defendants refused the recommendation — Judicial Review.

Counsel

P. OUSI for the plaintiff.

H. POLUME-KIELE for the defendants.

11 November 1999

HINCHLIFFE J: The plaintiff was an employee of the Department of Housing, stationed at Arawa, when he was charged under Sec. 47 of the Public Services (Management) Act. The charge which was signed, “E.P. Titus, Secretary”, reads as follows:

“Take notice that you are hereby charged with the commission of an offence within the meaning of Section 45(1) of the Public Services (Management) Act in that you are guilty of improper conduct in your official capacity in that on or about July, 1986 you required Mrs. Betsie Torova to have a sexual relationship with you before you would process her application for allocation of a government house at Section 15 Allotment 58 Arawa.”

The plaintiff vigorously denied the charge but subsequently he was advised by way of Notice of Punishment that he had been guilty of improper conduct in his official capacity and was dismissed from the Public Service. That was back on 25th September, 1987. Ten days later the plaintiff lodged an Application to the Public Services Commission to review (pursuant to the said Act) the decision to dismiss him from the Public Service. Again he declared his innocence (see annexure “D” to the affidavit of the plaintiff dated 23rd February, 1996). For a number of years after that the plaintiff endeavoured to find out the result of his said application to review. Because of the troubles on Bouganville he shifted to Rabaul and subsequently found out the findings of the Public Services Commission (See annexure “E”) to the said affidavit. It is not really clear as to where the plaintiff was advised because dates seem to vary in the said affidavit. Needless to say the Public Services Commission wrote to the plaintiff on the 21st August, 1991 enclosing the “Advice of the Public Services Commission’s Recommendation Over a Review of a Personnel Matter.” That advice recommended as follows:

“RECOMMENDATIONS:

1. ҈ T60; That you revokr youn then Acting Secretary’s (Morris Alaluku) decision in adjudging Mr. Mark g as charged and dismissing him from the Public Service and have him immediately reinstated.ated.

2. ټ T60; That Mr. Mark’i period of dismissal be counted as period of service for all purposes of the Public Service (Management) Act.

This is particularly so in view of Ms Betsie’s denial to the Commission of such blackmail being attempted on her by Mr. Mark.

The commission also found that the house now occupied by Ms. Betsie was infact allocated to her by the Chairman of the Housing Allocation Committee, Mr. Malalu Angu, and not by Mr. Mark.

The Commission found therefore that Mr. Mark had been wrongly found guilty of the charge.

You are reminded that the Public Services Commission has the power only to recommend the variation, confirmation or revocation of a decision over a personnel Matter.

You are further advised that the Commission, as part of its Constitutional functions, will submit to the National Parliament as Annual Report covering, inter alia, the recommendations made by the Commission either to the National or Provincial Departments and the National Executive Council.

All queries should be made to the office of the Chairman of the Public Services Commission, PO Box 2335, Boroko.

E. AGE

Chairman.”

Because of the said recommendation the plaintiff then attempted to have himself reinstated back into his former position in the Public Service. In a letter dated the 26th September, 1991 the Managing Director of the National Housing Corporation said inter alia, “We wish to further advise that your services is (sic) not required by the National Housing Corporation.” Quite clearly the defendant’s did not intend to follow the said recommendations of the Public Services Commission.

For a number of years after the plaintiff attempted to get advice and assistance regarding his efforts to be reinstated and he eventually filed an Originating Summons on the 22nd March, 1996.

It reads as follows (as amended):

“The Plaintiff Claims:

1. &ـ T6at Leat Leave beve be granted to the Plaintiff to apply for judicial review of the action of the first and second Defendants in not considering properly the recommendation of the Pubervicmmisso reinsreinstate tate the Pthe Plaintiff to his position of Provincial Housing Officer.

2. An Order in the natfre otiCertiorari that the decision of the Department of Housing now the National Housing Corporation to disthe Piff fis ement whe fiespondent be brought to this Honourable Cble Court ourt and band be quae quashed.shed.

3. &#A60; de Orn t i natere ofre of Mandamus that the first and the second Respondents act in accordance to that recommendation made e Pubervicmmiss/p> <#160; That tpl applicpnt bant bent be reie reinstatnstated toed to his original position with the first Respondent.

5. The First andnSecosp Reentndents pay the total salary and wages and other entitlements owing to the Applicant back dated to the date of the Notice of Dismissal together with interest.

6. ҈ Further or in the athe alternative, the Second Respondent pay the Plaintiff’s entitlements and termination pay.

7. ټ&# Cof thof throcee.ocee.”

Leave to appl apply fory for Judi Judicial cial Review was granted on the 3rd May, 1996. This decision now is in relato thicial Review itself. The plaintiff claims that that the defe defendants “did not consider properly the recommendations of the Public Services Commission.” Even if that was so there is nothing before the Court to indicate that assertion. Quite often in Reviews of this nature the defendant files would be before the Court but on this occasion that is not so. Certainly the recommendations and reasons are before the Court but how can the Court say that they were not considered properly when there is no evidence to that affect. Just because the Public Services Commission recommended that the plaintiff be reinstated does not mean that the defendants are bound by that recommendation. After all it is only a recommendation. That is the only power that the Public Services Commission has on review. To my mind the said Commission is very aware of its limitations when it is stated in the said recommendations, as follows:

“You are reminded that the Public Services Commission has the power only to recommend the variation, confirmation or revocation of a decision over a personnel Matter.”

It would seem to me that although a recommendation has positive connotations, at the end of the day it is only a suggestion. Naturally one would expect the recommendations to be considered seriously in all cases otherwise there is no real reason for having the review process by the Public Services Commission. After having considered the recommendations it is then up to the defendants ( or whoever) to make a decision. I am of the view that even if the decision maker is satisfied with the reasons of the Public Services Commission it is still not bound to follow the recommendations. There may be other matters to be taken into account that the decision maker considers important. It must not be forgotten that it is only a recommendation it is not an Order or a Direction. If it was meant to be that way then the said Act would have clearly said so. It is a review, not an appeal to the Public Services Commission just as this Court has dealt with a Review, not an Appeal. The two are quite different. In a Review the court must be satisfied that there has been an error in the decision making process. As I have stated, I am unable to find in the evidence, any error in the decision making process. There is nothing to tell me that the defendants did not consider properly the recommendations of the Public Services Commission and in fact one could almost assume that recommendations coming from such an esteemed body would be considered not only properly but very carefully. After proper consideration and due deliberation the defendants decided not to follow the recommendations and I am satisfied that they are quite entitled to so act. The defendants could never be bound to follow a recommendation. The word itself is clear, there is no need to read anything into it, a recommendation is a recommendation and that is that.

Having said all of that I am of the view that I need not touch on any of the other matters raised by Counsel.

I order that the application to Review is dismissed.

Order accordingly.

Warner Shand - Lawyers for the plaintiff.

Solicitor General - Lawyer for the defendants.