Ka v Attorney-General [2002] CKCA 2; CA No 4 o f 2001 (18 December 2002)

IN THE COURT OF APPEAL OF COOK ISLANDS
HELD AT AUCKLAND, NEW ZEALAND
CA. 4/01

BETWEEN

JOSEPH KA
Appellant

AND

THE ATTORNEY-GENERAL FOR THE COOK ISLAND sued in respect of the PUBLIC SERVICE COMMISSIONER
Respondent

Hearing: 9 December 2002

Coram: Casey JA (Presiding)
Barker JA
Smellie JA

Appearances: Appellant in person
M C Mitchell for Respondent

Judgment: 18.12.2002

JUDGMENT OF THE COURT

Introduction

[1] This is an appeal against a decision of the Chief Justice delivered on the 15 May 2001. The appellant complains that having been lawfully appointed as a salaried employee for a term of five years, his salary was wrongly stopped, and he claimed the balance due to him for the period amounting to $78,525.54, and $9465.12 for annual leave entitlement. The judgment of the Chief Justice was to the effect that he had received constructive notice of termination of his employment by the stoppage of his salary, a situation which he had accepted. As a consequence the Chief Justice ordered that the appellant was entitled to judgment for salary unpaid to 23 January 1996 plus one week's salary in lieu of notice.

Was the appellant lawfully appointed in the first instance?

[2] Mr Mitchell submitted that it was argued in the Court below that the appellant's appointment was not lawful. The basis of that submission was that the appointment appears to have been promoted by Cabinet contrary to a freeze in appointments which had been imposed at an earlier stage. Be that as it may, however, the appellant received on 30 January 1995 a formal letter from the Public Service Commissioner appointing him pursuant to s 11 of the Public Service Act 1975 effective from 16 January 1995. There can be no argument therefore but that the appointment itself was valid.

Circumstances of dismissal

[3] In the course of the hearing, the crucial question became who in fact decided to dismiss the appellant. Mr Mitchell was pressed by the Court on this issue and properly conceded that the evidence adduced at the trial did not disclose specifically who in fact dismissed the appellant. It appears, however, that Mr Edward Drollet, Chief of Staff in the Prime Minister's office, had been deputed by Cabinet to check for and eliminate any "phantom" employees. It seems that because the appellant was not providing (and indeed was not required to provide) time-sheets, a decision was made by Mr Drollet that his position should be eliminated. It was under those circumstances that his salary was stopped. Mr Drollet said in evidence-in-chief that he had given the instruction and conveyed it to the Chief Executive Officer but it transpires that in fact it was not the Commissioner who dismissed nor was it anyone in the Commission's office which made the decision to terminate the appellant's salary.

[4] In the Court's view, since the appellant had been lawfully appointed by the Commissioner, only the Commissioner could lawfully dismiss him. That the Commissioner could have done so by means of constructive notice is accepted but the decision, to be lawful, had to be that of the Commissioner. However, as the evidence does not establish that the Commissioner did dismiss pursuant to s 11 of the Public Service Act, it follows that the dismissal was unlawful.

Consequences of unlawful dismissal

[5] The appellant was engaged as a temporary salaried employee, subject to one week's notice. It follows that an unlawful dismissal would entitle him to damages. But the damages inevitably would be modest since the tenure was limited to one week's notice. Damages for wrongful dismissal could not have been more than two or at the outside three months salary: even that may be overly generous.

[6] Additionally, on the evidence, it seems to the Court that acceptance of the constructive notice really did not occur until late April 1996. In addition, by then, the appellant had worked for in excess of a year and was entitled to 15 days salaried holiday leave per annum.

Resolution of the appeal

[7] A just outcome for this appeal is to vary the judgment of the Chief Justice to provide that the appellant is entitled to judgment for salary unpaid to the 30 April 1996 plus one week's salary in lieu of notice and holiday pay properly calculated over the period of his employment. This variation accords both with a just outcome on the basis of wrongful dismissal or alternatively an appropriate amendment to the judgment on the basis arrived at by the Chief Justice.

Addendum

[8] It is perhaps appropriate to comment briefly on the constitutional and statutory framework against which this case has been argued and upon which we have based our decision.

[9] In every Westminster Parliamentary jurisdiction, the appointment and dismissal of civil servants is invariably placed in the care of a senior civil servant such as the Public Service Commissioner in this case, who operates completely independent of elected representatives. The rationale for this separation is well-known. Civil servants should be free from either interference or pressure from politicians and be seen to be. In this case, although clearly Mr Ka's appointment was supported by the then Minister of Tourism, nonetheless his appointment was properly made by the Commissioner. It follows inevitably that pursuant to the provisions of s 11 of the Public Service Act 1975, he could only be dismissed also by the Commissioner. The evidence does not establish who precisely dismissed him but it does show on the balance of probabilities that it was not the Commissioner. That being so, the dismissal was unlawful and gives the appearance of having been effected by the Chief of Staff in the Prime Minister's Office, which of course is a negation of the independence from political interference which should prevail in such circumstances.

Costs

[10] Mr Ka appeared in person. He is awarded the costs of preparing the record and any reasonable out-of-pocket expenses in connection with this appeal. The Registrar is to fix these if the parties cannot agree.

Signed at Auckland at 8.15 am this 12 day of December 2002

Casey JA
Barker JA
Smellie JA