Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kologo v Henao [2008] PGNC 87; N3378 (26 May 2008)

N3378

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 884 OF 2007 (JR)

BETWEEN:

ROBERT KOLOGO
Plaintiff

AND:

LOANI HENAO, CHAIRMAN, NATIONAL BROADCASTING
CORPORATION BOARD OF DIRECTORS
First Defendant

MARGARET ELIAS, SECRETARY, DEPARTMENT OF
PERSONNEL MANAGEMENT
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Injia, DCJ
2008: 26 May

JUDICIAL REVIEW- Application for mandamus- To compel statutory Board to verify appeal documents lodged with Redundancy Monitoring Committee- Appeal by public servant against public servant - Appeal lodged under provisions of agreements entered into between Public Service Association and State – Mandamus issued.

Cases cited:
Port Moresby City Council v The Sheriff of Papua New Guinea ex parte Port Moresby City Council [1981] PNGLR 477.

Counsel:
L Yandeken, for the plaintiff
No appearance for the defendants

26 May, 2008

1. INJIA, DCJ: The plaintiff is a former employee of the National Broadcasting Corporation (NBC) and a public servant. He was employed as a security officer. In 2002, NBC retrenched him from the public service. He appealed against his retrenchment to the Board of NBC. The Board referred his appeal to the Redundancy Monitoring Committee (RMC) of the Department of Personnel Management (DPM). DPM sent the appeal back to the NBC board to verify it and resubmit it with further information. The plaintiff says his appeal is pending determination by either of these public bodies.

2. The plaintiff applies for an order in the nature of mandamus compelling either the NBC Board or the RMC to determine the appeal. Leave to apply for judicial review was granted and a Notice of Motion under O 16 r 5 of the National Court Rules has been filed. It is supported by two affidavits of the plaintiff. In addition, the plaintiff’s counsel tendered from the bar table a copy of an Agreement made between the Public Services Commission (PSC) and the Public Employees Association (PEA) dated 10th November 1982 which was made under the Public Service Conciliation and Arbitration Act. This agreement contains appeal provisions in respect of public servants retrenched under the retrenchment scheme. It provides procedures whereby a person aggrieved by a decision to retrench him or her from the public service may appeal to the RMC. I am also furnished with a copy of Memorandum of Agreement on Redundancy and Retrenchment in the Public Service made under the Public Service Management Act (PSM Act) dated 1st January 2000 entered into between PEA and DPM. This agreement also contains similar appeal provisions. He also tendered a minute from Mr Ronald Kutapae, Industrial advocate of PEA, which explains the current status of RMC as a functioning body.

3. The application and notice of hearing was served on the defendants but they made no appearance at the hearing. I granted leave to the plaintiff to proceed ex parte.

4. Mr Yandeken orally presented written submissions which he filed. I have considered them.

5. A grant of an order in the nature of mandamus is discretionary. It lies against a public authority which fails or refuses to perform a public duty bestowed by statutory law. An applicant for an order mandamus must show that the public body has the power or duty imposed by statute to perform that duty, that the applicant has demanded the performance of that duty and the public body has failed or refused to perform that duty. The Court will refuse to grant mandamus if another legal remedy which is "equally beneficial, convenient and effective" is available to the plaintiff: Port Moresby City Council v The Sheriff of Papua New Guinea ex parte Port Moresby City Council [1981] PNGLR 477.

6. On the evidence before me, I make findings of fact as follows:

1. The plaintiff is a member of the Public Service. He was employed as a security supervisor with NBC. He was retrenched on 23rd April 2002 under a restructure exercise carried out by NBC under direction from the government to reduce its manpower. The plaintiff was paid K31,075.00 in severance entitlements.
   
2. On 24th February 2003, he appealed against his retrenchment in writing to the Board of NBC. On 17 March 2003 the Board declined jurisdiction to hear the appeal and referred the appeal to RMC. There is no evidence the NBC board forwarded the appeal to RMC.
   
3. On 31 March 2003, the plaintiff re-lodged the appeal with RMC. On 21 October 2003, DPM acknowledged the appeal from the plaintiff and advised the plaintiff "that you are required to re-submit your appeal through your former employing agency for verification and endorsement before further action can be taken". There is no evidence to show DPM directly requested NBC board to provide this information. On 9th December 2003 the plaintiff provided further documents to DPM and requested that RMC consider and determine the appeal based on these information. There is no evidence to show RMC determined the appeal as requested.
   
4. Instead of following up on DPM’s request, on 11th October 2004 and on 13th April 2005 the plaintiff and his lawyer requested NBC Board to determine the appeal. On 13th May 2005 NBC Board denied liability saying "Mr Kolongo voluntarily asked for his retrenchment and dues were paid forthwith upon his request accordingly Mr Kolongo cannot say he is unlawfully retrenched when his retrenchment was done upon his request". It is questionable whether this decision had the effect of determining the appeal or whether the board simply reiterated its official position that it denied liability on his claim. Since then a number of letters have been sent by the plaintiff to NBC Board protesting the decision.
   

7. Based on these findings of fact, I reach conclusions as follows:

1. There is no provision in the NBC Act for an appeal against a retrenchment decision to the Board of NBC. The provisions of the two agreements between PEA and DPM referred to above, apply. Both agreements provide for an appeal to RMC.
   
2. The plaintiff correctly lodged his appeal with RMC through DPM. RMC correctly requested verification of the appeal documents by the Board of NBC in accordance with its own established procedures.
   
3. The plaintiff and his lawyer wrongly requested the NBC Board to determine the appeal because it lacked jurisdiction. They should have requested the NBC board to respond to RMC’s request to verify the appeal documents so that RMC would then proceed to determine the appeal.
   
4. To the extent that NBC board purported to determine the appeal, it acted without jurisdiction.
   
5. In the circumstances I find that RMC has not failed or refused to exercise jurisdiction. That jurisdiction will be exercised when the NBC board submits the information requested by it. If there is any one of the two bodies to be compelled by an order of mandamus, it is the NBC board that should be compelled to verify the appeal documents and submit the same to RMC as requested in its letter to the plaintiff dated 17th March 2003. I am satisfied it is within the lawful functions of the NBC Board under the NBC Act to verify the appeal documents.
   
6. In order to avoid further delay, it is necessary to stipulate a time period for RMC to determine the appeal once the verified appeal documents are received from the Board of NBC.
   

8. For these reasons I refuse to issue an order of mandamus against DPM or RMC. I do issue an order of mandamus compelling the Board of NBC to submit the verified appeal documents to RMC, within 30 days from today. I award costs of the proceedings against the defendants in favour of the plaintiff on a party-party basis.

9. The formal orders of the Court are:

1. The application for judicial review is granted.
   
2. An order of mandamus is issued compelling the Board of NBC to submit the information requested by the Redundancy Monitoring Committee through the Department of Personnel Management by letter dated 17th March 2003 which was addressed to the plaintiff, within 30 days.
   
3. The Redundancy Monitoring Committee shall determine the appeal within 60 days from the date of receipt of the said information.
   
4. The defendants shall pay the plaintiff’s costs of these proceedings.
   
5. The time for entry of this order is abridged to the time of settlement by the Registrar which shall take place forthwith.
   

Powes Parkop Lawyers: Lawyers for the Plaintiff