N2407

PAPUA NEW GUINEA
[In the National Court of Justice]

WS No. 466 of 1996

BETWEEN

MATHEW MONONGA
-Plaintiff -

AND:

THE SECRETARY FOR HEALTH
-First Defendant -

THE DEPARTMENT OF HEALTH
-Second Defendant -

THE STATE
-Third Defendant -

MT HAGEN: GAVARA – NANU, J
2002: 13th December,

PUBLIC SERVICE INTERIM GENERAL ORDER NO. 16 – Public servant being retrenched – retrenchment benefits discussed.

Cases cited:
No cases cited.

Counsel:
K. Sino for the plaintiff
B. Ovia for the defendant 

GAVARA-NANU J: The plaintiff is claiming unpaid entitlements following his retrenchment from the Public Service on 7th May, 1992.

Brief factual back ground of the case are these - On 2nd April, 1967, the plaintiff was employed by the Department of Health as a casual employee until 16th November, 1970, when he was made permanent on a position of Storeman, Grade 1. Then from 9th March, 1985, he acted in a position of Senior Store Supervisor Grade 2, until his termination on 4th July, 1986. His termination was on disciplinary grounds. 

Following his termination, the plaintiff appealed to the Public Services Commission against the termination. The Public Services Commission recommended that the defendant reinstate the plaintiff. That was not implemented, so the plaintiff saw the Ombudsman Commission, which after looking into the matter also recommended that the plaintiff be either reinstated to his position or retrenched.

The recommendation by the Public Services Commission for the plaintiff’s reinstatement was made in a letter dated 17th March, 1987, and the Ombudsman Commission’s recommendation for the plaintiff to be either reinstated or retrenched seems to have been made on 29th November, 1991.

It nonetheless suffices to say that both the Public Services Commission and the Ombudsman Commission recommended the plaintiff’s reinstatement except that, in the case of the Ombudsman Commission it also recommended that the plaintiff be retrenched, if reinstatement was not possible.

The Secretary for Health who is the first defendant in this case, accepted the Ombudsman’s alternative recommendation and retrenched the plaintiff. Consequently on 7th May, 1992, the plaintiff was retrenched and was paid K 5,839.03 as his retrenchment pay. It is noted that the plaintiff never appealed against his retrenchment payment. He obviously opted to seek redress from the Court.

He instituted these proceedings on 7th May, 1996.

Following the failure by the defendants to file their defence to the plaintiff’s claims, the plaintiff obtained a default judgment.

The plaintiff is claiming unpaid entitlements from 4th July, 1986 which is the date of his termination to the date of his compulsory retiring age. He also claims his annual leave entitlements from 4th July, 1986 to the date of his compulsory retiring age and higher duties allowances from 9th March, 1985 to 4th July, 1986. This was the period when he was Acting Senior Store Supervisor Grade 2.

The Defendants deny these claims except for the HDA claim which they concede.

The plaintiff instituted these proceedings because, he is not satisfied with the retrenchment pay he received form the defendants. 

At the end of the trial on 14th November, 2002, I directed the defendants through their counsel to obtain the actual calculations used for the plaintiff’s retrenchment payment of K 5,839.03, on 7th May, 1992. This is because the retrenchment entitlements are paid in accordance with the special formulae provided under the General Orders. As the result of that direction, Mr Ovia on 27th November, 2002, filed in Court the defendants’ calculations based on the retrenchment payment formulae under Interim General Order No. 16. This was filed through Mr Ovia’s affidavit which was sworn on 26th November, 2002.

Annexure ‘B’ to Mr Ovia’s affidavit is a fax from Ms Matilda Kiwa of the Department of Personnel Management to Mr Ovia, which confirmed that the retrenchment payment made to the plaintiff in May, 1992, is correct. The faxed also confirmed that the payment was based on the formulae under General Order No. 16. According to that fax, the payment was for 19 years service for which under the ex gratia benefits schedule the plaintiff was entitled to claim for 351.5 days, which worked out to 35.1 fortnights. According to Ms Matilda Kiwa, that worked out to K 5,592.03 net. He was paid K 5,839.03, which means he as over paid by K 300.00.

I am not sure whether the plaintiff was given the Notification of Redundancy and Retrenchment by the Defendants upon his retrenchment but the calculations provided by Ms Matilda Kiwa do confirm that the calculation of K 5,839.03 were in accordance with the retrenchment formulae. Under the Retrenchment Notice, there is a reminder that the person or employee affected by the retrenchment can appeal to the Redundancy Monitoring Committee; to which the Plaintiff could have appealed. In this case, he obviously did not.

The plaintiff is not disputing the fact that he was retrenched. He has accepted his retrenchment. What he is complaining about is the pay he received. He is saying it was wrongly calculated which he says resulted in him being underpaid.

The plaintiff has calculated his entitlements to the amount of about K 37,500.00. It is clear that the plaintiff’s claims are not based on the retrenchment formulae. The plaintiff can only claim retrenchment benefits.

As noted, the plaintiff’s retrenchment was based on the recommendation made by the Ombudsman on 22nd November, 1991. The actual recommendation is contained in paragraph 11.1.3 of the recommendation, which reads: "Alternatively, if reinstatement is impossible, he (plaintiff) be considered for retrenchment and the period of his wrongful dismissal be taken into account in processing his retrenchment entitlements".

Then in a letter dated 7th May, 1992, the then Secretary for Health wrote to the Ombudsman Commission and advised that, the plaintiff would be retrenched and all his entitlements would be processed in due course.

The plaintiff’s retrenchment entitlements were calculated for 19 years service. This is from 1967 to 1986. This period includes the 3 years he was employed as a casual employee from 1967 to late 1970.

The Secretary for Health was under no legal duty to accept the recommendation by the Ombudsman Commission, but he did, and in the exercise of his discretion he decided against the plaintiff’s reinstatement but agreed to retrench the plaintiff. The reason is obvious, if he had agreed to reinstate the plaintiff, the defendant would have paid the unpaid salaries from 4th July, 1986 up to the date of reinstatement. But because, he agreed to retrench the plaintiff, he decided that the date of termination would be treated as the date of retrenchment i.e 4th July, 1986, and under the retrenchment benefits, the plaintiff was only entitled to claim for the years of service. That is, clear from Ms Matilda Kuwa’s fax to Mr Ovia. 

I am therefore of the firm view that the plaintiff can only claim retrenchment benefits up to 4th July, 1986. He cannot claim anything beyond that because, his retrenchment took effect on 4th July, 1986. He was not a public servant beyond that point. His compensation is in the retrenchment benefits.

As I said, because the plaintiff has accepted his retrenchment effective from 4th July, 1986, he is only entitled to the benefits up to that date.

His claims for entitlements from 4th July, 1986, to his compulsory retiring age have no basis in law. I therefore reject those claims.

According to the calculations produced by Mr Ovia, the plaintiff did not receive any payments for furlong leave. I am satisfied that he has sufficiently pleaded this in paragraph 13 of his Statement of Claim. He is therefore entitled to claim for furlong leave. He has claimed 
K 1,917.54 for furlong leave entitlements. I will award this amount to the plaintiff.

The defendants have conceded the amount claimed for HDA. I am also satisfied that this was not paid to the plaintiff when he was retrenched on 4th July, 1986. He has pleaded this in paragraph 13 of his Statement of Claim. He claims K 1, 219.12, I therefore award this amount to the plaintiff.

He has also claimed for distress. Again, I am satisfied that he has claimed that in paragraph 13 of the Statement of Claim. I think the charges laid against the plaintiff which led to his termination have merit. However, the defendants having agreed to retrench the plaintiff, they through the Secretary for Health, in effect disregarded the charges. On those basis, I am of the view that, the plaintiff should get some payment for mental distress. But, he is in my view not entirely blameless for those charges. For these reasons, I will award K 1,000.00 for distress. 

Total amount awarded is K 4,136.66. I will award 4 % interest per annum on this amount which is to be calculated from the date of the writ which is 7th May, 1996, to the date of judgment, which is today (13.12.02). 

Interest:

4 % of K 4,136.66 = K 165.47 per annum
K 165.47 x 6 = K 992.82
1 month = 165.47 ÷ 12 = K 13.79
7 months = K 13.79 x 7 = K 96.53

I calculate the interest at K 1,089.35. The plaintiff is therefore entitled to K 5,226.41 including interest.

The defendants will pay the plaintiff’s costs of these proceedings.

Lawyer for the Plaintiff	-	Paulus Dowa Lawyers
Lawyer for the Defendant	-	Solicitor General