Supreme Court dismisses commission’s appeal on decision

By KARO JESSE
THE Supreme Court has dismissed an appeal by the chairman of the Public Service Commission (PSC) Dr Philip Kereme against a decision of the National Court which granted an application for judicial review of a decision of the commission.
The appeal came after the then-secretary for the Department of Justice and Attorney-General Dr Lawrence Kalinoe (first respondent) was granted a judicial review of a decision by PSC to reinstate an officer of the department dismissed from the service over a disciplinary offence.
The appeal was dismissed and ordered the National Court decision made on July 17, 2018, to be affirmed.
The National Court, on a later date, annulled the commission’s decision, ruling that the officer was not employed under a contract and that she had been properly charged, found guilty and dismissed from the service under Part XIV of the Public Services (Management) Act.
Justice David Cannings delivered the decision on appeal on behalf of a panel that included Justices Royal Thompson and John Alexander Logan.
The decision was two against one, Justices Cannings and Thompson ruled that the National Court did not err in its decision in finding that the PSC erred and ordered that the commission’s decision be quashed.
Justice Logan dissented, saying that the National Court erred in law in finding that the PSC had erred in law.
The issue was whether the National Court erred in finding that Jubilee Tindiwi, a former acting solicitor-general (second respondent), was not employed under contract of employment.
It was agreed that Tindiwi was appointed acting solicitor-general in Feb 2013.
No instrument of renewal of the contract or a replacement contract was executed after her contract expired in 2014.
There were no performance review in the period of the contract.
In Oct 2014, Dr Kalinoe directed Tindiwi to take up the senior position at the Kokopo branch of the Office of Solicitor-General but she failed to comply with the direction.
In December 2014, she failed to comply with directives of the new offer.
In March 2015, she again refused to comply with directives from the department head to relocate to Kokopo.
Dr Kalinoe, in June 2015, suspended Tindiwi from duty and charged her with disciplinary offences under Part XIV of the Public Service Management Act.
The commission decided that Dr Kalinoe wrongly applied the provisions of Part XIV (discipline) of the Public Services Management Act instead of applying the provisions of the contract under which Tindiwi was employed, in accordance with s 41(3) of the Act.
On May 30, 2016, the commission annulled Dr Kalinoe’s decision and decided to reinstate Tindiwi without loss of salaries and entitlements.
The National Court when granting judicial review to Kalinoe, quashed the commission’s decision and ruled that Tindiwi was not employed under a contract of employment and that she had been properly charged, found guilty and dismissed from the national public service under Part XIV of the Public Services (Management) Act.