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Kiage v Meketa [2023] PGNC 230; N10315 (20 April 2023)

N10315

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 103 OF 2022

BETWEEN:
REBECCA OGANN KIAGE
Plaintiff

AND:
RONALD MEKETA in his capacity as ACTING MANAGING DIRECTOR OF NATIONAL ENERGY AUTHORITY
First Respondent

AND:
JOSEPH GABUT in his capacity as CHAIRMAN OF THE NATIONAL ENERGY AUTHORITY BOARD
Second Respondent

AND:
NATIONAL ENERGY AUTHORITY
Third Respondent

AND:
NATIONAL ENERGY AUTHORITY BOARD
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Dingake J
2023: 17^th & 20^th February, 23^rd March, 11^th, 13^th, 17^th & 20^th April

ADMINISTRATIVE REVIEW – failure to afford a party adversely affected by a decision or hearing – decision reviewed and set aside – Plaintiff reinstated – requirements for reinstatement outlined.

Cases Cited:
Isaac Lupari v Sir Michael Somare (2008) N3476
Mission Asiki v Manasupre Zerenuoc (2004) SC797

Counsel:
Mr. John Napu, for the Plaintiff
Mr. Douglas Dupre, for the Respondents

20^th April, 2023

1. DINGAKE J: The Plaintiff seeks to review and set aside two decisions of the First Respondent taken on the 21^st of February and 1^st of July, 2022 respectively, in terms of which she was demoted from the position of Executive Manager – Policy, Planning and Research for the National Energy Authority to the position of Manager – Policy and the subsequent revocation of appointment as Acting Manager – Policy.
   
2. The Plaintiff relies on four (4) grounds to challenge the above decisions. These grounds are:
   
   1. Ulta-vires
   2. Error of law on the face of the record
   100. Breach of natural justice
   4. Unreasonableness
      

BACKGROUND

3. Sometime in July 2021, the National Energy Authority Act 2021 (NEA Act) was enacted by the government. The Act established the National Energy Authority. The Plaintiff was transferred to the National Energy Authority from the Department of Petroleum and Energy upon the establishment of the National Energy Authority.
   
4. By internal Circular dated 10^th January, 2022, the Plaintiff was appointed Acting Executive Manager, Policy and Planning Division. The Circular made it clear the appointments in terms of the said Circular were “Senior Executive Management Levels.”
   
5. It would seem that at the time of the transition referred to earlier the Plaintiff had a subsisting three (3) year contract that is still pending. Her contract referred to her as a “senior officer”.
   
6. It is common cause that the Plaintiff was demoted on the 21^st of February, 2022, through a WhatsApp message (annexure “I” of the Affidavit of the Plaintiff filed on the 5^th of December, 2022).
   
7. It is also common cause that on the 1^st of July, 2022, the Plaintiff’s contract was revoked.
   
8. The ordinary English language meaning of the term to ‘revoke’ is to recall or withdraw. In my mind, in an employment setting the word “revoke” has the same effect as to terminate. It is plainly an adverse decision as it ends the employment relationship that was before then in existence. The First Respondent avers that the revocation was on account of the Plaintiff’s insubordination towards superior officers.
   
9. With respect to demotion, the First Respondent contends that the Plaintiff’s acting appointment as Acting Executive Manager – Policy and Planning was illegal ab initio as the Board did not approve the appointment contrary to Section 14 (1)(c) of the NEA Act. The First Respondent also argues that the NEA Act does not provide for staff disciplinary processes.
   
10. The First Respondent also denies that the Plaintiff was a “Senior Manager” and that accordingly, she can be dismissed and or her appointment revoked by the First Respondent.
    
11. The First Respondent also denies that it breached any law and or that it acted unreasonably in the Wednesbury sense.
    
12. With respect to natural justice, the First Respondent argues that the Plaintiff has no basis to complain because she was notified of both decisions and the reasons why those decisions were taken.
    
13. On the issue of the appropriate remedy, the First Respondent prays that the application be dismissed, alternatively, that if judicial review is upheld, an Order for damages be made instead of reinstatement.
    
14. The issue that falls for determination concerns the demotion and dismissal or revocation of the Appellant’s appointment, not the legality of her appointment.
    

CONSIDERATION

15. I have considered the submissions of the parties (both oral and written).
    
16. I have considered the provisions of Section 14 (1)(c) of the National Energy Authority Act 2021. Section 14 (1)(c) provides as follows:
    

“14. FUNCTIONS OF THE BOARD

(1) The Board must –

(c) appoint and terminate senior management of the Authority;”

17. It is plain from the above section that the power to terminate appointment of members of senior management is vested on the National Energy Authority Board. The Act does not define who constitutes “senior management”, the Plaintiff was clearly regarded as part of senior management. Additionally, the Plaintiff was a manager dealing with policy issues of the organization. On the totality of the evidence before me, I am satisfied that the Plaintiff was part of senior management and her employment only terminable by the Board. It therefore follows that the termination of employment by the Managing Director was unlawful.
    
18. In any event, in the event I am wrong to hold as I do that the Plaintiff’s revocation or termination was the responsibility of the Board, I would still review and set aside the two (2) decisions sought to be imposed on the basis that the Plaintiff was not afforded a hearing before she was demoted and or her appointment revoked. It is not clear to me what was the basis of the demotion. The evidence is clear that her appointment was revoked because of insubordination. The Plaintiff was not afforded an opportunity to state her side of the story with respect to the decision to demote and revoke her appointment.
    
19. It is trite law that where a public body is empowered to take an adverse decision against a party, it is bound to act fairly by affording the person affected by the adverse decision an opportunity to be heard. This the First Respondent failed to do.
    
20. In my mind, where a statute under which a decision is taken is silent on the principles of natural justice, the Court will read into that statute the requirement to abide by the principles of natural justice. Compliance with the principles of natural justice is required by Section 59 of the Constitution of Papua New Guinea (PNG).
    
21. Section 59 of the Constitution provides that:
    

“(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.”

22. With respect to the appropriate remedy, once the Court has upheld some or all of the grounds of review, it does not follow that because Plaintiff is successful, that he/she must be reinstated.
    
23. The grant of a remedy is not automatic. It is a matter of the discretion of the Court – and the justice of each case would determine whether reinstatement is granted or refused. (See Isaac Lupari v Sir Michael Somare (2008) N3475; Mission Asiki v Manasupre Zurenuoc (2004) SC797.
    
24. Having concluded that the decision of the First Respondent is liable to be reviewed and set aside the question that remains to be answered is whether the remedy of reinstatement that the Plaintiff has asked for should be granted.
    
25. The Respondents are opposed to the reinstatement of the Plaintiff. They argue that it is not in the interest of justice to reinstate her and that damages should be ordered instead.
    
26. It is trite law that the remedy of reinstatement is discretionary. It is usually granted where the Court is persuaded that the interest of justice requires that the Plaintiff be reinstated.
    
27. The National Court, in Isaac Lupari v Sir Michael Somare (2008) N3476, discussed the issue of reinstatement and stated that “the Court must be persuaded that “the interest of justice requires reinstatement.”
    
28. The National Court referred to the Supreme Court decision in Mission Asiki v Manasupe Zurenuoc (2004) SC797, which stated the same principle.
    
29. The National Court in Lupari v Somare (supra) also stated that, “The case authorities, both common law cases and our own cases show that whether an employee is reinstated depends on a proper consideration of ... several important principles and associated factors, which in my view have direct correlation to the twin-test in O 16 r 1 (2).”
    
30. The National Court identified the following principles as being applicable:
    
    • (1) The first is that in a case where the relationship between the employer and the employee prior to and subsequent to the dismissal has completely or seriously broken down to such an extent that mutual trust required of each other no longer exists or that their relationship has become noxious to either one of them, mandatory injunction will not be granted to compel either the master or the servant or both to continue a personal relationship.
      
    • (2) The second principle follows the first. Damages, rather than specific performance or mandatory injunction or reinstatement, is usually the appropriate remedy for breach of contract for personal services.
      
    • (3) The third principle is that reinstatement or mandatory injunction particularly in a judicial review matter is an equitable relief and its grant must be consistent with or in furtherance of principles of equity.
      
    • (4) The fourth principle relates to public interest, whether it justifies the Appellant’s reinstatement.
    • (5) The fifth principle is the fact that the position that the Plaintiff once occupied is available or vacant at the time of trial to be filled by an acting or substantive appointment, is a relevant consideration but it is not an important consideration.
      
31. I have considered all the above principles, including that the Plaintiff has a subsisting contract and that there is no evidence that her relationship with the employer has broken down irretrievably or to such an extent that mutual trust required of each other no longer exist. I have considered that the violation of law was glaring.
    
32. In this case, I am of the view that the Plaintiff was treated most unfairly by the Respondents and that reinstatement would best serve the ends of justice.
    
33. In the result, it is ordered as follows:
    
    1. An Order in the Nature of Prerogative Writ of Certiorari, to remove into Court the following two (2) decisions by the First Respondent, and to quash them:
       
       1. The decision by the First Respondent to demote the Plaintiff from the position of Interim Executive Manager – Policy and Planning to Manager Policy – National Energy Authority dated 21^st of February 2022.
          
       2. The decision by the First Respondent to terminate or revoke the employment of the Plaintiff as Manager – Policy, National Energy Authority dated 21^st of July, 2022.
          
    2. A consequential Order in the Nature of Declaration that the above two (2) decisions, subject of this Judicial Review proceedings are void ab initio.
       
    3. An Order in the Nature of Mandamus to compel the Second Respondent to exercise its powers under s.14 (1)(c) of the National Energy Authority Act 2021, to reinstate the Plaintiff to the position of Executive Manager – Policy and Planning, National Energy Authority; with backdated salaries and entitlements from the date of her demotion; and subsequent termination of employment to the time of the settlement of the judgment debt.
       
    4. Damages to be assessed by way of pleadings and affidavit, at trial, on the issue of quantum alone; pursuant to Order 16, Rule 7 of the National Court Rules, on a date to be fixed by the Court.
       
    5. Costs are awarded to the Plaintiff – such costs to be taxed, if not agreed.
       
    6. Time be abridged to the date of settlement by the Registrar which shall take place forthwith.

_______________________________________________________________
Napu & Company Lawyers: Lawyers for the Appellants
Jema Lawyers: Lawyers for the Respondents