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Yakapo v Chairman and Members of the Redundancy Monitoring Committee [2002] PNGLR 21 (29 April 2002)

[NATIONAL COURT OF JUSTICE]

DANIEL YAKAPO, PIUS TANI, JOSEPH TULO, TIGI HALUMA, WARAM SIKEGY, JOE WAIMA AND BILLY SARUFA

v

CHAIRMAN AND MEMBERS OF THE
REDUNDANCY MONITORING COMMITTEE; and
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

WAIGANI: DAVANI J

21 March; 29 April 2002

PREROGATIVE WRITS – Declaration and Certiorari – Statutory retrenchment – Retrenchment Agreement – Appeal procedure under Retrenchment Agreement exhausted – Plaintiff seeking wrong relief – Plaintiff must seek review of appeal procedure.

Facts

The plaintiffs are former employees of the Government Printing Office (GPO). They were retrenched allegedly pursuant to a retrenchment agreement between the National Government and their employee organization, the Public Employees Association of PNG. When the plaintiffs collected their retrenchment cheques and individual signed deeds of release, they were also served their retrenchment notices. The plaintiffs then lodged their appeals to a body called the Retrenchment Management Committee (RMC) in or about July 1999. The defendants failed to cause the RMC to meet and consider and determine the appeals so the plaintiffs went to the National Court and obtained orders on 10 May 2001, and forced the RMC to meet. The RMC convened the appeal hearings on 30 May 2001, and dismissed all appeals and confirmed their retrenchment. Rather then seeking to review the RMC decision, the plaintiffs now sought to obtain declaratory orders to the effect that the RMC's earlier decision on 22 June 1999, which decided to hold in abeyance the retrenchment exercise until further advise from the Prime Minister's department, be given effect.

Held

1. The plaintiffs are not asking the court to review the RMC decisions on their appeals but instead are in effect seeking orders to overturn their retrenchment. This court cannot interfere with the defendants role in implementing the retrenchment program but can assess and review the manner in which the RMC Appeal Committee decided as an administrative tribunal.

2. No matter how erroneous a decision of the RMC Appeal Committee may be, the court cannot step in and invalidate a decision of a properly appointed tribunal such as the RMC Appeals Committee, when that is not the remedy sought.

3. The court cannot issue orders which cannot possibly be enforced.

Other cases cited

Healy v Minister of Health [1995] 1 QB 221.

R v Electricity Commissioners [1924] 1 KB 171.

Counsel

D Liosi, for the plaintiffs.
J Palek, for the defendants.

29 April 2002

Davani J: The plaintiffs seek a judicial review of the second defendant's decision of 22 June 1999, when it made a decision to retrench employees of the Government Printing Office ('GPO'). The orders sought are:

"- A declaration that the decision of the second defendant made on 22 June 1999, is still valid for all intents and purposes;

- An order in the nature of certiorari quashing the undated decision of the Redundancy Monitoring Committee to retrench the plaintiffs on 12 July 1999;

- The plaintiffs are reinstated back to their positions without any loss of salary and entitlements;

- Any further orders as the court deems fit."

On a preliminary point, I note that the plaintiffs seek orders against the "second defendant", which relates to the "first defendant's" decision to retrench employees. I assume therefore that this is an error and that the relief sought should read; "A Declaration that the decision of the first defendant made on 22 June, is still valid for all intents and purposes."

Undisputed facts

The plaintiffs are former employees of the GPO. There is in existence a Retrenchment Agreement executed by the Public Services Commission (PSC) and the Public Employees Association of PNG (PEA) on 10 November 1982, (Retrenchment Agreement). The Retrenchment Agreement governs the retrenchment exercises between the National Government and the PEA of PNG. I need not set out the terms of the Retrenchment Agreement, as its terms are not disputed.

Following a declaration of a redundancy situation, a Redundancy Monitoring Committee meeting (RMC) was called on the 22 June 1999. The RMC is the first defendant. During that meeting, the committee discussed the retrenchment of all GPO staff including the plaintiffs herein. At that meeting it was agreed that the retrenchment of GPO staff will be held in abeyance pending receipt of further clarification from the employer's representative attached to the Prime Minister's department. It was agreed that this issue would be resolved at the next RMC meeting. It was also agreed that this next meeting would take place on 25 June 1999. But this meeting did not eventuate.

On 12 July 1999, all plaintiffs collected their retrenchment cheques and signed deeds of release. They also were issued retrenchment notices. They were given copies of these documents on 30 July 1999. The plaintiffs then lodged appeals to the RMC appealing against the decision to retrench them. Such appeal procedure is provided for in Clause 11 of the Retrenchment Agreement. When the RMC neglected, refused or failed to hear the appeals, the plaintiffs obtained an order from the National Court on 10 May 2001, ordering the RMC to hear their appeals within two (2) weeks. The RMC convened the appeal hearing on 30 May 2001, then dismissed the appeal, and confirmed the decision not to reinstate the plaintiffs.

The RMC has the power to alter its earlier recommendations. Clause 11(4) of the Retrenchment Agreement reads:

"Clause 11: Rights to Appeal

(4) The Redundancy Monitoring Committee shall consider and determine all appeals as soon as practicable and may alter its earlier recommendations."

Disputed facts

The plaintiffs argue that the defendants should not have proceeded to retrench without first complying with procedure set out in the Retrenchment Agreement and that these procedures were not complied with prior to retrenchment.

Grounds of review

As outlined above, the applicants seek various orders. I will deal with each ground separately.

Ground One. "A declaration that the decision of the first defendant made on the 22nd of June 1999 is still valid for all intents and purposes."

Firstly, the evidence before me is that the first defendant did not comply with procedure as set out in the Retrenchment Agreement, when it retrenched the plaintiffs. It ignored its own decision not to retrench the plaintiffs pending privatization by the GPO.

Does this court have the power to issue a declaration, under these circumstances? To answer that, I must consider the facts before me.

The first and second defendants' decision to retrench is as a result of the National Government's decision in 1999 to implement a major staff reduction exercise together with a major public sector reform. These directions were issued from the Office of the Acting Secretary, Department of Personnel Management to all Departmental Heads, Provincial Administrators and other heads of funded public authorities. It was issued in the form of a memo dated 6 December 1998, and is in evidence before me. It is titled "1999 Budget Directions – Public Sector Reform – Manpower/cost Reduction and Reorganization exercise." It reads in part:

"2. Declaration of a Redundancy situation in the Public Service Redundancy Agreement and General Order No. 19.

In accordance with the Government's directives and the requirements of the 1982 Redundancy Agreement, I declare that a Redundancy situation will exist in the Public Service from 1st January 1999, as a result of inadequate funding for wages and salaries and that the procedures under the 1982 Agreement and General Order No. 19 will be invoked in due course. All recruitment into the Public Service have been frozen with immediate effect.

3. Consultation with the Public Employees Association ('PEA').

The President of the PEA has been informed of the Redundancy situation in existence as a result of the 1999 Budget directives, in accordance with the 1982 Redundancy Agreement. Full consultation will be held with the PEA as the exercise proceeds. As soon as officers who are to be retired or retrenched as a result of the Redundancy situation have been identified, the Redundancy Monitoring Committee will be convened in conjunction with the PEA and line departments to confirm their status and authorize their terminations."

The minutes of the RMC meeting of 22 June 1999, reads:

"1.3(a) The privatization of the GPO will have to proceed in line with an earlier Cabinet directive. Staff levels will be reduced from 125 to 30.

...

1.7 In view of the fact that GPO was subject to a NEC decision for privatization, the meeting agreed to hold in abeyance the redeployment of GPO officers until further clarification was obtained." (my emphasis).

Mr. Tauna Kekei, the Acting First Assistant Secretary with the Division of Monitoring and Inspection, Department of Personnel Management, said in evidence for the defendants, that the scheduled RMC meeting for 26 June 1999, did not take place because during discussions between the DPM's senior management and PEA Representatives between the 22 June 1999 and 25 June 1999, the DPM was advised that the PEA was taking the Department to court over the issue (re GPO). That was why the Department of Personnel Management did not convene the 26 June 1999, meeting. Mr. Kekei also said in evidence that payments of retrenchment monies was made on 12 July 1999, because employees had become angry and frustrated and had then attended at the office of the DPM Secretary, Mr. Ravu Vagi and confronted him issuing loud threats and abuses, what Mr. Kekei termed as a "rowdy confrontation." They demanded immediate payment as they did not wish to wait for too long.

He also said that the DPM also could not serve the retrenchment notices within the prescribed periods (to each plaintiff) because of that confrontation. It was after that confrontation, that the DPM management then decided to pay out those listed for retrenchment including GPO staff.

The plaintiffs have a right of appeal (against the retrenchment). This they have exercised. The remedies the plaintiffs are now seeking i.e., the plaintiffs to be reinstated amongst others, was the subject of the appeal. All the materials I have before me on the RMC appeal and the decision of the Appeal Committee, is a document titled 'DECISION FROM, REDUNDANCY MONITORING COMMITTEE, 2000 RETRENCHMENT EXERCISE which is attached as an annexure to Charles Mandarips's affidavit, for the plaintiffs. This document reads:

"On the 30th day of May in its meeting, the RMC considered and decided that;

This meeting was convened in view of a court order made to hear appeal cases for GPO staff retrenched in 1999.

- 118 were retrenched;

- 7 took the matter to court and court ordered RMC to convene to hear their appeals;

- There was no RMC decision at that time.

RMC Decision:

- There was a Redundancy situation at that time

- 118 officers were declared redundant;

- There were no positions for redeployment;

- There was no funding;

- Accordingly, decision to retrench them is upheld.
- Appeals against retrenchment dismissed."

The RMC Appeal Committee reheard the case. The PEA employee representative was at the appeal hearing as he signed the minutes.

The plaintiffs are asking the court to issue a declaration on a decision the Appeal Committee has decided on already (my emphasis). If the Appeal Committee had not properly decided on the appeal by not considering material put before it by the plaintiffs and that I have elaborated on, then that should then be the subject of a review. The plaintiffs are not asking for a review of the RMC Appeal Committee's decision. This court cannot interfere with the DPM's role in carrying out the retrenchment exercise, but it can assess the manner in which the administrative tribunals (i.e RMC Appeal Committee) decision was reached. Again, that is not the remedy the plaintiffs seek. The plaintiffs are seeking a review of a decision that the appeal machinery within its own administrative framework has already dealt with.

The present law on administrative reviews that includes writers on administrative law and the courts, have long delved into the area of quasi-judicial cases, more specifically the subject matter to be reviewed and from where the decision emanates. It is the common law that "...a Declaration will lie when a decision is a nullity .... any defect which makes a decision ultra vires is in principle reviewable by means of a declaration .... A Declaration like Certioriari or Prohibition can expose the nullity of an existing or prospective decision and like mandamus, can declare that the authority has a duty to decide according to principles laid down by the court... However, the declaration will not lie in respect of matters that do not go to jurisdiction. This is because the decision is not a nullity and the declaration is not capable of quashing a decision...this rule is an aspect of the general notion that a declaration will not issue where it will serve no useful purpose..." ('Applications for Judicial Review, Law and Practice' by Graham Aldous and John Alder Butterworths 1985).

S.A. De Smith says on declaratory orders:

"The power of a Court to render a purely declaratory judgment is particularly valuable in cases where a legal dispute exists but no wrongful act entitling either party to seek coercive relief has been committed. By making an order declaratory of the rights of the parties the Court is able to settle the issue at a stage before the status quo has been disturbed..." ('Judicial Review of Administrative Action' (second edition) pp 493 – 494). (my emphasis).

In this case, the status quo i.e., the decision to retrench on 22 June 1999, and the ultimate retrenchment of the GPO staff, was challenged. An appeal was heard and decided that the retrenchments will proceed. In other words, the plaintiffs remain retrenched, as per the RMC Appeal Committee's decision of 30 May 2001. No matter how erroneous it may be, the Court cannot step in and invalidate the decision of the properly appointed tribunal, in this case the RMC Appeal Committee, when that is not the remedy sought.

De Smith again in 'Judicial Review of Administrative Action' (supra) confirms this contention by saying further:

"...If the plaintiff were to ask not for a Declaration that the decision was invalid but for a declaration of his legal rights, he would be met with the preliminary objection that the appointed tribunal had already determined his rights and that it was not for the Courts to arrogate to itself an appellate or quasi-original jurisdiction and make a new determination inconsistent with a binding (though possibly erroneous) determination of the appointed tribunal ... such a Declaration would be useless unless the Tribunal had power to rescind or vary its original determination, unless the Declaration would effectively prelude the tribunal from acting upon that determination or another person from acting upon it. The latter objection would have no less force if the plaintiff were instead to ask merely for a Declaration that the decision of the appointed tribunal was wrong in law." S.A. De Smith (supra) (pp 539 – 540).

These principles were upheld in the case Healy v Minister of Health [1995] 1 Q.B. 221, where the plaintiff did not plead that the Minister was wrong relying only on his pleaded action for a Declaration that he was a Mental Health Officer within the meaning of the relevant statutory regulations which concerned entitlement to superannuation benefits. However, this matter went one step further when the Minister, as required by statute, deliberated and decided against the plaintiff. The court held that as the question had already been determined by the Minister (to whom it had been committed by statute) adversely to the plaintiff, the court had no jurisdiction to entertain this action.

In that case, the plaintiff did not plead that the Minister's determination was wrong in law. Note also, and as was held in Healy v Minister of Health (supra), that there is no reason of principle for arguing that the decision of the court on the question of its jurisdiction to entertain the action ought to have been different if he had so pleaded.

This is similar to what is pleaded by the plaintiff in this case. He is asking for a declaration on a matter that has already been decided on by the RMC's appeal tribunal. He should be asking for a review of the RMC Appeal Committee's decision of 30 May 2001. I will dismiss this ground for the reasons expounded above.

Ground Two - "An order in the nature of certiorari quashing the undated decision of the RMC to retrench the plaintiffs on 12th July 1999."

Grounds for awarding certiorari are:

1. Lack of jurisdiction;
2. Breach of rules of Natural Justice;
3. Error of law on the face of the record;
4. Fraud or collusion.

I would accept arguments under this part if the plaintiffs' arguments were based on any one of the grounds raised above. Certiorari will issue "... whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority" (R v Electricity Commissioners [1924] 1 KB 171 at 204-205).

What is in issue is the first defendant's undated decision to retrench the plaintiffs, and that has already been decided by a properly constituted appeal tribunal. The plaintiffs, in asking for certiorari are questioning the manner in which the RMC decided on the retrenchment exercise of the GPO staff. That is acceptable. However, that decision was appealed against and the RMC Appeal Committee's decision of 30 May 2001, is on foot. But that is not the decision the plaintiffs are challenging in this application. It is the undated decision they are challenging. This undated decision was the subject of the appeal by the plaintiffs to the RMC Appeal Committee. I rely on the same reasons as raised in the first ground. Furthermore, hypothetically speaking, if the undated decision is quashed, the RMC Appeal Committee's decision still stands. The order sought then does not serve any useful purpose. The court cannot issue orders that cannot possibly be enforced. They cannot "put the cart before the horse" and expect the court to hand down a fair decision. This ground will be dismissed.

Grounds 3 and 4. It follows that because the first two grounds are dismissed, that these two remaining ground should be dismissed as well.

Costs

I order that each party pay their own costs considering the history of this case and the eventual filing of this action.

Lawyer for plaintiffs: Liosi Lawyers.
Lawyer for defendants: Solicitor-General..