[1998] PNGLR 596

PAPUA NEW GUINEA

[supreme court of justice]

MARTIN BALTAZAR

v

THE INDEPENDENT STATE OF PAPUA NEW GUINEA.

waigani: amet cj, kapi dcj, injia j
19 September 1996, 13 June 1997

appeal – Dismissal by Departmental Head – Appeal to the Public Services Commission – Whether Departmental Head has power to reinstate an officer before the Public Services Commission makes a recommendation.

Facts

The appellant who was employed as an Assistant Commissioner (Education and Training) with the Department of Correctional Services was accused of having sexual affairs with a female employee in an office located at its Department Headquarters in Bomana. Following an internal investigation into the allegations the appellant was subsequently dismissed. The appellant appealed to the Public Service Commission against his dismissal. The Acting Commissioner, Mr Gesa purportedly reinstated the appellant pending the appeal to the Public Service Commission.

Held

1.	It is clear that s 17 of the Public Service (Management) Act 1995 (Section 17 and Public Service General Order 1) intended that there be a substantive review by the Public Service Commission and that review process is to be completed before the Departmental Head exercises his discretion.

2.	This is an important part of the review system, which must be completed before the Department Head can exercise his/her power to dismiss or reinstate. To hold otherwise is to render the review procedure before the Public Service Commission meaningless.

Counsel

M Murray, for the appellant.
J Kumura, for the respondent.

13 June 1997

By the court. This is an appeal from a decision of the National Court. The appellant claimed damages for wrongful dismissal. The trial judge dismissed the claim and the appellant has appealed against the decision.

In order to appreciate the issues raised by this appeal, it is necessary to set out the chronology of the relevant events. 

The appellant was formerly employed as Assistant Commissioner (Education and Training) with the Department of Correctional Services. A complaint was made against the appellant that on 9 November 1989 he had sexual intercourse with a female employee in an office located at the Departmental Headquarters in Bomana. Mr P. Kerepia, who was then the Commissioner, directed that an investigation be carried out into the allegation. Between 9 November and 20 December 1989, Mr. Nivo carried out an investigation. A report was presented to the Commissioner. This report made the following recommendations:

"1.	The both Mr M Balthasar and Mrs M Solien should be separated away from their working locations through transfers etc.

2.	Since both parties denied this allegation through my investigation therefore

2.a	Engage outside investigation team/commission of enquiries etc

2.b	the 2.a should determine what cause of action should be taken against both/or one of them.

3.	Otherwise disregard recommendation 2.a & b and impose severe reprimand to both parties."

No disciplinary charges were laid as a result of the report.

On 20 December 1989, Commissioner Kerepia was suspended and in his place Mr. Mondia was appointed A/Commissioner. On 9 March 1990, the A/Commissioner directed Mr. Silva to carry out another investigation into the same complaint against the appellant. During the course of this investigation, the appellant confronted Mr Silva and during a verbal argument over the phone, the appellant called Mr Silva an "idiot". As a result of this incident, the then A/Deputy Commissioner, Gabriel Wai suspended the appellant.

On 5 April 1990, Mr. Silva presented a confidential report to the A/Commissioner Mondia on investigations carried out into the conduct of the appellant.

On 12 April 1990, A/Commissioner Mondia formally laid charges against the appellant for disgraceful conduct in that he had sexual intercourse with a female employee of the Department in an office located at the Departmental Headquarters at Bomana. 

A/Commissioner Mondia found the appellant guilty of misconduct and dismissed him on 18 May 1990.

On 23 May 1990, A/Commissioner Mondia was suspended.

On 24 May 1990 Mr. Gesa was appointed A/Commissioner.

On 25 May 1990, the appellant appealed to the Public Services Commission against his dismissal.

On 6 June 1990, A/Commissioner Gesa reinstated the appellant to his position while the appeal to the PSC was still waiting to be dealt with.

On 24 December 1990, A/Commissioner Gesa was suspended and Mr. H. Tokam was appointed Commissioner. 

Commissioner Tokam considered that reinstatement of the appellant was illegal and informed the appellant that his dismissal was still effective and directed not to perform any more duties as from 8 February 1991. 

Subsequently, Commissioner Tokam received the recommendations dated 12 February 1991 from the PSC. The Commission made the following recommendations:

"(1)	The Public Services Commission recommends the revocation of the decision of the former Acting Commissioner M Mondia to dismiss Mr Martin Balthasar from the CIS and

(2)	The Commissioner CIS immediately reinstate the applicant Mr Martin Balthasar to his substantive position without any loss of salary and other entitlements."

On 25 March 1991, Commissioner Tokam responded to the recommendation of the PSC in a letter dated 25 March 1991. In this letter he carefully considered the basis of the finding of misconduct on the part of the appellant and the appropriateness of the penalty of dismissal. He gave the most detailed and careful consideration of all the relevant matters in an eleven page letter and reached his decision in the following words:

"I have considered the facts in issue, and your recommendations very carefully bearing in mind the fact that both appellants are senior public servants and married officers.

I have examined the evidence against the (2) appellants very carefully. The evidence in isolation (Peter Luga’s statement) and in its totality weighs heavily against both appellants and I am satisfied in my own mind that both officers (first and second appellants) were guilty of gross misconduct when they indulged in sexual intercourse in the office of the first appellant on 9th November 1989.

In dismissing their appeals and upholding the decision of dismissal, I have also taken into account Determination No. 31 of NEC Decision No. 39/91 at its Meeting No. 8/91 of March 1991.

This decision directs the a/Commissioner of CIS to place strong emphasis on any breach of discipline, which must be punishable with dismissal from the Service.

As stated earlier from the facts before me, I am satisfied that both appellants have been in breach of a serious disciplinary lapse.

I fail to see any mitigatory circumstances or contradictory evidence which can lead me to revoke the order of dismissal, or give a lesser punishment."

On 28 March 1991, the appellant filed a writ of summons claiming damages for wrongful dismissal. In the statement of claim the appellant challenged the decision by Commissioner Tokam on 8/2/91 which directed that the appellant remain to be dismissed and that he should cease performing any duties until a review was conducted by the PSC. 

Salika J. heard the matter. He dismissed the action. His Honour dealt with the issue in the following passage:

"The plaintiff alleges that the actions of Mr Tokam to dismiss the plaintiff on the 8/2/91 was done on erroneous grounds. I think the dismissal effected by Mr Tokam on the 8/2/91 has been misconstrued to mean the final dismissal. The final dismissal by Mr Tokam was effected on the plaintiff on the 26th March 1991. The dismissal on the 8/2/91 was effected because Mr Gesa had reinstated the plaintiff on the 6/6/90 while a review by the Public Services Commission on his dismissal was still being carried out. I find it improper on the part of Mr Gesa to arbitrarily reinstate the plaintiff in the manner he did. We have a public review system in place. That system was at work when Mr Gesa interfered with it. Mr Gesa would have been well advised to await the Public Service Commission review and recommendations to effect reinstatement. It is my view that Mr Tokam’s actions to reinstate dismissal on the plaintiff on the 8/2/91 were not erroneous. Being an experienced administrator he is, I am sure and was aware of the procedures involved and he set out to correct the error Mr Gesa had made. By that stage there was no requirement for Mr Tokam to hear the plaintiff. There was no breach of the principles of natural justice by Mr Tokam when he reinstated the dismissal orders on the plaintiff on the 8/2/91."

The appellant has appealed against this decision. The central issue we need to determine is:

Whether Commissioner Tokam was wrong in treating the appellant's dismissal by A/Commissioner Mondia as still continuing? This necessarily raises the question, whether the decision by Mr. Gesa to reinstate the appellant was a valid decision under the provisions of Public Services (Management) Act and the General Orders?

Therefore the issue before us is a narrow one. It does not deal with the dismissal by A/Commissioner Mondia nor does it deal with the decision by Commissioner Tokam in confirming the dismissal of the appellant after receiving the recommendations of the PSC.

Validity of Mr Gesa's Decision

Counsel for the appellant has submitted that in a case where a public servant has appealed to the PSC in accordance with s 17 of the Public Services (Management) Act, there is no provision which deals with the power of a Department Head to reinstate such a public servant while waiting for the PSC to deal with the appeal. Therefore, he further submitted that as there is a gap in the law, the reinstatement by Mr Gesa was valid.

On the other hand, counsel for the respondent submitted that while there is an appeal waiting to be dealt with by the PSC, a Departmental Head has no power to deal with the dismissed public servant until the PSC makes its recommendation. 

The nature of what Commissioner Tokam did is clearly set out in the letter dated 8/2/91 addressed to the appellant. This letter is fully reproduced in the trial judge’s decision. In this letter the Commissioner stated:

"You were subsequently dismissed from the Corrective Institutions Service.

The dismissal made against you as a way of penalty was not, according to our file, challenged or reviewed in any way. Therefore, the dismissal remains effective against you.

Having considered all the facts and circumstances in your case, I am of the opinion that your dismissal remains in force."

It is clear from this that he did not dismiss the appellant. He simply restored the dismissal of the appellant by A/Commissioner Mondia.

The question then arises; was the reinstatement by A/Commissioner Gesa valid under the Public Service (Management) Act? There is no express provision in the Act or General Orders as to the powers of a Department Head while a review is waiting to be dealt with by the PSC. We are of the opinion that the trial judge was correct in coming to the conclusion that the decision by A/Commissioner Gesa to reinstate was beyond his powers and therefore invalid. 

By reading the provisions of the Act and the General Orders together, we infer that where there is a review before the PSC, the Departmental Head must not act until the review process is completed. 

Where a public servant is not happy with a decision of a Departmental Head in respect of personal matter he has a right to seek a review of that decision by the PSC (s 17 of the Act). The Commission may review the decision and may make a recommendation for confirmation, variation or revocation of the decision being reviewed (s 17(2)(b) and (c) of the Act). This recommendation is required to be in writing to the Departmental Head. 

General Order 1 of the Public Service General Orders set out the procedure for reviewing personal matters. It is not necessary to set out the whole of this order. For the purposes of the issue before us, we need to set out General Order 1.6 only:

"The Public Services Commission can only make recommendations in relation to a personal matter. A Departmental Head does not have to adopt the recommendations. However, their recommendations should not be treated lightly. Their importance is demonstrated by the fact that they can be included in a report to Parliament."

It is clear to us that both the Act and the General Orders intended that there be a substantive scheme of review by the PSC. That it is intended that the review process is to be completed before the Departmental Head exercises his discretion. Even though the decision by the PSC is in the form of a recommendation, we consider that this is an important part of the review system, which must be completed before the Departmental Head can exercise his/her powers. To hold otherwise is to render the review procedure before the PSC meaningless. 

We have reached the conclusion that A/Commissioner Gesa was acting beyond his powers when he purported to reinstate the appellant on 6 June 1990 before the PSC made its recommendations. We would dismiss this ground of appeal.

The formal order of the Court is that the appeal is dismissed with costs.

Lawyers for the appellant: Murray and Associates.
Lawyers for the respondent: Solicitor-General.