N2927

PAPUA NEW GUINEA

[National Court of Justice]

OS 316 OF 2005

BETWEEN

PAUL MURIKI
Plaintiff

AND

GEI ILAGI,
SECRETARY DEPTY OF PROVINCIAL
AND LOCAL GOVERNMENT AFFAIRS
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani	:	Los, J
2005	:	21st September
10 November

Counsel:
P Liskia, for Plaintiff
Z Varimo, for Defendants

The Plaintiff was a legal officer employed at the Department of Provincial Affairs in Port Moresby. There were some preliminary matters were raised. They seemed not new to me.

In the background information, the court was told that the applicant was a senior legal officer who was terminated by the Department on 2nd June 2003. The charge laid against him was for absconding. He was reinstated by (PSC?). The Plaintiff was again terminated by the new secretary of the Department, Mr G. Ilagi. The reason for so doing was that he had obtained his entitlement consisting of POSF contribution and termination entitlement.

The issue is whether by virtue of him recovering his contribution to POSF and termination entitlement he had accepted his termination. From the actions on both sides there does not seem to be a clear position. On continuing employment would he breach a legislation if so what is that legislation? I have not been shown any legislation against it, excepting that there is a difficulty. That is, if the employment continues with the similar conditions of entitlements namely contribution to POSF and any other termination benefit, whether he would be entitled to a second or double benefit or that the new entitlement would be limited to the day of his resumption thereby any double benefit may be avoided.

There was a slant claim that he was not qualified to ‘practice’ as a lawyer. I am sure if this issue and others were properly raised following the process and procedures provided by sections 50 and 55 of the Act a proper decision would have been made in accordance with the provisions of those sections plus complying with natural right aspects – the process and procedures.

Some questions of delay had been raised but were answered by the applicant. The plaintiff had written to the Public Services Commission and the response was that failure to respond was unjustified as well as the termination of the second time was unjustified.

I accept these responses and rule that the second terminations was unjustified. But let me say this that the plaintiff had received his termination payment and whether he would be entitled to a second termination payment is another issue to address when the time comes. Further, whether the applicant would harmoniously fit back into the service is another question. Both of these have little to do with whether he was unlawfully or otherwise dismissed from the service.

After considering some f the issues I addressed, I rule that the applicant’s termination was unlawful.
______________________________________________________________
Lawyers for the Plaintiff	:	Stevens Lawyers
Lawyers for the Defendants	:	Lawyer for Department of Provincial & Local
					Level Government Affairs