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Melsul v Public Service Commission [2007] VUSC 56; Civil Case 156 of 2005 (29 May 2007)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 156 of 2005

BETWEEN:

JUDITH MELSUL
Claimant

AND:

PUBLIC SERVICE COMMISSION
Defendant

Coram: Justice C. N. Tuohy

Counsel: Mr. Sugden for Claimant

Date of Hearing: 13 March 2007
Date of Judgment: 29 May 2007

Reserved Judgment of Judge C N Tuohy

Introduction

1. This is an application for judicial review which went to trial on an undefended basis, the Commission’s defence having earlier been struck out and the Commission barred from further defending the proceeding by an order under R18.11.

2. The Claimant, who was Human Resources Manager in the Ministry of Health was dismissed from service by the Commission with effect from 20 May 2005 for serious misconduct pursuant to s. 29 (1) of the Public Service Act 1998. She seeks an order quashing the decision to dismiss her.

3. The grounds for the claim are that the Claimant was denied her statutory and other rights to natural justice, that the Commission erred in law in treating the employment issues as serious misconduct rather than a personality dispute or at most mere disciplinary offences, that the decision to dismiss was one which no reasonable decision maker could reach on the material available and that there was a failure to give adequate reasons for the decision.

Factual Background

4. The Claimant accepted that all sworn statements filed on either side were before the Court as evidence: R 11.7 (1). Civil Procedure Rules No. 49 of 2002; Dinh v Polar Holdings Ltd [2006] VUCA 24; CAC 16 of 2006.

5. The grounds given for the termination were:

1. Disobeying disregarding and making wilful default in carrying out lawful instructions given by your Director-General; and

2. Being negligent, careless and inefficient in the discharge of your duties.

As well as deciding to dismiss, the Commission also decided to consider the Claimant’s past performance as not exemplary (consequently no severance allowances were payable).

6. Although the broad grounds for the dismissal were provided, no detailed reasons were given by the Commission for concluding that those grounds were established.

7. The process adopted prior to dismissal appears from the evidence to be this. On 21 March 2005, the Director-General wrote a letter to the Claimant setting out matters of complaint. The Claimant replied by letter dated 31 March 2005. Then on 15 April 2005, the Claimant was given an Employee Discipline Report (PSC Form 6-1) setting out details of the alleged offences. This had 6 attachments to it. The Claimant wrote a detailed Response to Allegations dated 21 April 2005 which had 20 attachments to it.

8. The Commission then considered the case at its meeting on 19 May 2005 and made its decision to dismiss. The Claimant was not asked to and did not attend the meeting on 19 May 2005. The Minutes of the Meeting are not in evidence. The two skimpy sworn statements filed on behalf of the Commission say nothing about it. It is not entirely clear that all the attachments to the Employee Discipline Report and the Response were before the Commission. It does appear that the letter of 31 March 2005 was not although parts of it were referred to in the EDR. These deficiencies in evidence are the result of the Commission’s failure to comply with an order for disclosure, one of the failures which led to its defence being struck out.

Claimant’s Submissions

9. There were a number of different bases put forward to attack the decision which could be broadly classified under the headings of breach of natural justice and error of law. However as is often the case, they overlap.

It was a primary submission that the procedure violated the statutory provisions which are designed to ensure that public servants are accorded natural justice before being dismissed. There were separate failures relied upon.

10. First it was said that the nature of the various matters of complaint and the responses to them were such that the Commission could not possibly have decided that the Claimant was guilty of serous misconduct without an oral hearing or at the least some further enquiry. This was in breach of the obligation in s. 29 to act as a good employer. Linked with this was a submission that the rules of natural justice required the Commission in this case to give reasons for its finding in view of the numerous factual disputes in the material before it.

11. It was also submitted that no reasonable decision maker could view the complaints against the Claimant as serious misconduct. They were at most complaints of disciplinary offences which ought to have been heard by a Disciplinary Board under the provisions of ss. 37 and 38 of the Public Service Act. This would have given her a right to be personally present and represented by an advocate.

12. It was also submitted that there was a failure to comply with the Public Service Manual for dealing with discipline matters which resulted in the omission of any attempt to resolve the matter within the Department and a failure to refer the matter to a Disciplinary Board.

13. It was further submitted that there was a breach of the duty to be a good employer in that no account was taken of the obligation under s 50(3) of the Employment Act to consider whether the matter could have been dealt with in some other manner short of dismissal. It was submitted that the complaints in this case were not of a type where dismissal was necessarily required.

14. Finally, it was submitted that there was no basis in the material before the Commission for it to have reached the decision that the Claimant’s past performance was not exemplary.

Discussion

15. Section 29 (i) of the Public Service Act provides:

"(1) The Commission may dismiss an employee at any time for serious misconduct or inability but subject to its obligations to act as a good employer and subject to that employee having the right to have that decision reviewed in accordance with section 38 (i.e.by appeal to the Supreme Court).

(2) The Commission may when the past performance of the employee has been exemplary provide to the employee a redundancy payment as if the employee’s employment had been terminated under the Employment Act [Cap. 160]."

16. In Government of Vanuatu v Mathias [2006] VUCA 7; CAC 10 of 2006 (1 June 2006), the Court of Appeal held that s. 29 (1) does not preclude the application of s. 50 of the Employment Act to the exercise of the power to dismiss. Those protective provisions are s. 50 (2), (3), (4), and (5). The Court stated that they are consistent with the obligation in s. 29 "to act as a good employer".

17. Relevantly, s. 50 (3) of the Employment Act states that dismissal for serious misconduct may take place only where the employer cannot in good faith be expected to take any other course. Section 50 (4) requires that the employee be given adequate opportunity to answer any charges.

18. Section 29 (1) must also be read in the context of the other provisions of the Public Service Act, in particular Part VI which provides for a Dispute and Disciplinary Procedure under which Disciplinary Boards hear and determine disciplinary offences with rights of audience and appeal.

19. Disciplinary offences are defined at length in s. 36 and include when an employee:

"(b) in the course of his or her duties disobeys, disregards or makes wilful default in carrying out any lawful order or instruction given by any person having authority to give the order or instruction or by word or conduct displays insubordination;

(c) is negligent, careless, indolent, inefficient, or incompetent in the discharge of his or her duties;

(h) absents himself or herself from his or her office or from the official duties during hours of duty without leave or valid excuse, or is habitually irregular in the time of his or her arrival or departure from his or her place of employment

20. The Disciplinary Board considering the matter has a number of options available to it set out in s. 37 (9):

"(a) dismiss the notice; or
(b) issue a warning or reprimand to the offender; or
(c) demote the employee; or
(d) suspend the offender from the Public Service without pay; or
(e) order compulsory retirement; or
(f) dismiss the offender from the Public Service

21. As a matter of commonsense, it is clear that some conduct which comes within the definition of disciplinary offences under s. 36 could be so serious or so repeated that it also qualifies as serious misconduct or inability under s.29 (1) or would justify dismissal by a Board under s. 37 (9) (f).

22. On the other hand, it is obvious that the Act envisages a broad spectrum of failings by an employee less serious than would justify summary dismissal under s.29(1), which should properly be dealt with first, if possible, within the Department in accordance with Chapter 6 of the Public Service Manual, and then by a Disciplinary Board under Part VI of the Act.

23. When one reads the detail of the complaints against the Claimant and her response (both of which are too lengthy to reproduce here), it is clear that the complaints are almost entirely work performance issues which, even if sustained in totality, do not obviously require summary dismissal for serious misconduct as proven complaints of dishonesty or corruption, for example, would. This is particularly so when account is taken, as it must be, of s.50(3) which mandates that dismissal is only to be resorted to when other options such as transfer, demotion or retraining cannot in good faith be expected.

24. As well as that, many of the individual complaints are either wholly or partially denied or explained and justified in the response, in some cases by assertions that it was not the Claimant’s job or within her power to do what she was accused of not doing. The Commission has given no reasons for its overall findings so it is impossible to tell which complaints it considered were well founded and which (if any) not. Nor is it possible to tell whether the Commission gave any consideration to s 50(3) because it has not referred to the matters in it at all.

25. The Public Service Commission is not a Court and detailed reasons for its decisions will not always be required. But it is a body exercising the power to make decisions vitally affecting a very important aspect of a person’s life, that is, his or her career. Because of that it is required to abide by the rules of natural justice which in a case like this one requires some explanation of the reasons why it reached the decision it did.

26. It is also difficult in this case to see how the Commission could have decided the validity of some of the complaints purely on the papers before it given the level of factual dispute and the complexity of some of the organisational issues raised.

27. Although in Government of Vanuatu v Mathias, the Court of Appeal affirmed what it had said in Ben Garae v Public Service Commission [2005] VUCA 20, CAC 03 of 2006, (18 November 2005) "that s. 50 (4) does not, in terms, require an oral hearing to be given to an employee before a dismissal for serious misconduct", that does not mean it can be dispensed with in every case. As the Court said, what is an adequate opportunity to answer will depend on all the circumstances of the particular case. In this case, given the number and nature of the differences between complaint and response, it is difficult to see that the Commission could properly have determined where the rights and wrongs of some of the important ones were without either an oral hearing or at the least some further investigation.

28. The resulting perception that no proper consideration has been given to the validity of the complaints and the appropriate outcome is only strengthened by the lack of reasons given. This is compounded by the Commission’s failure to engage properly in this proceeding so no better explanation has been provided to the Court about these issues.

Conclusion

28. I am satisfied for the above reasons that the Claimant’s submissions are well founded and that the decision of the Commission to dismiss the Claimant should be quashed. No further or other order was sought apart from costs which are to be agreed or fixed by the Court on application made within 30 days.

Dated AT PORT VILA on 29 May 2007

BY THE COURT

C.N. TUOHY
Judge