Fiji Public Service Association v Public Service Commission [2007] FJAT 43; Award 45 of 2007 (26 July 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 45 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

PUBLIC SERVICE COMMISSION

FPSA: Mr N Tofinga
P S C: Mr J Mainavukea

DECISION

This is a dispute between the Fiji Public Service Association (the Association) and the Public Service Commission (the Employer) concerning the manner in which the Employer conducted disciplinary proceedings against Isikeli Leqeleqe (the Grievor).

A trade dispute was reported by the Association on 13 November 2005. The report was accepted on 9 January 2006 by the Chief Executive Officer who referred the Dispute to a Disputes Committee.

As a consensus decision was not reached the Minister authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 5A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 18 August 2006 with the following terms of reference:

"- - - for settlement over the undue delay and/or failure of the Commission to determine the truth of the disciplinary charges that were laid against Mr Isikeli Leqeleqe on 1 November 2001 within a reasonable time. The Association contends that the undue delay and/or failure by the Commission to determine the truth of the disciplinary charges is not consistent with fair labour practices, is not consistent with the principles of natural justice, is inhumane, is harsh and that the member should be re-instated without loss of pay and/or benefit from 15 February 2002 (the date the member was suspended from official duties on 40% salary) with immediate effect."

The Dispute was listed for a preliminary hearing on 1 September 2006. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 29 September 2006.

The Employer filed its preliminary submissions on 13 September and the Association did so on 29 September 2006.

As neither party had served its submissions, the Tribunal directed that they do so within seven days and the Dispute was relisted for mention on 27 October 2006. The Dispute was then listed for special mention on 30 October, 10 November 15 November and 24 November 2006 on the directions of the Tribunal. The purpose of these mentions was to enable the Tribunal to be updated on the progress of related High Court proceedings in Lautoka and for the parties to provide the Tribunal with copies of the relevant documents relating to the proceedings being conducted by the Employer.

The Dispute was then listed for mention on 19 January, 23 January and 23 March 2007. The Dispute was then fixed for hearing on 3 July 2007.

As a result of correspondence dated 16 April 2007 from the Employer, the Dispute was listed for mention on 27 April and 21 May 2007. On that day the hearing dates which had been allocated were vacated and the Dispute was relisted for mention on 22 June 2007. The Dispute was then listed for a hearing by way of the presentation of oral submissions on 9 July 2007 on the question of compensation. The Union indicated that the Grievor was seeking compensation in the form of his full salary for part of the time between the date of suspension and the date of termination. Neither party called evidence and the parties relied on the documents filed with their preliminary submissions and those subsequently filed with the Tribunal.

By letter dated 13 February 2002 the Grievor was informed by the Employer that he was to be suspended from official duties on 40% salary with effect from 15 February 2002. The decision to suspend the Grievor had been taken by the Employer as a result of a report submitted by the Chief Registrar of the High Court. The report dealt with allegations concerning the misappropriation of Government funds.

It would also appear that before sending his report to the Employer, the Chief Registrar had also formally charged the Grievor with three offences under various sub-sections of section 6 of the Public Service Act 1999.

The offences were alleged to have occurred between May 1999 and August 2001. The Grievor acknowledged receipt of the charge sheet on 31 December 2001.

It should be noted that in the same document the Grievor was requested to state in writing within 14 days from receipt of the charges whether he admitted or denied the charges. He was also invited to provide, at the same time, such explanations which would enable a proper consideration of the charges.

It appears from the material that although the Grievor denied the charges, he did not provide any explanation or request further information.

It should also be noted at this stage that the matter was reported to the Police. The Grievor was charged by the Director of Public Prosecutions with 21 offences under the Penal Code. Although the proceedings were commenced in the Magistrate Court, the matter came before the High Court on 10 December 2003. The trial itself did not commence until 18 January 2005. The transcript did not reveal any delay on the part of the Prosecution. The Grievor pleaded not guilty to all charges. The three assessors unanimously found the Grievor not guilty on all charges. Judgment to that effect was formally entered on 27 January 2005.

By a writ of summons issued out of the High Court at Lautoka on 23 August 2005 the Grievor sought relief in the form of (amongst other things) re-instatement with effect from 15 February 2002 and restoration of the balance of his wages which had not been paid to him since his suspension. It would appear that the Grievor based his claim on the ground that the Employer (and the other Defendants) had breached the rules and/or principles of natural justice. On 21 November 2006 the High Court made consent orders setting aside a default Judgment and granting leave to the Defendants to file Statements of Defence out of time. The present position of this action was not revealed to the Tribunal.

By letter dated 13 November 2006 from the Employer, the Grievor was advised (amongst other things) that:

"The Public Service Commission, at its meeting held on 09th November 2006 decided to withdraw the three disciplinary charges laid against you by the Chief Executive Officer, Justice on 01st November 2001.

Furthermore, the Commission also decided to proceed to hear the disciplinary charges laid against you by the Chief Executive Officer Justice on 30/06/2006 on 22nd November 2006 at 10.15am at the Chairman’s Conference Room, Public Service Commission, Berkley Crescent, Suva.

- - "

By letter dated 30 June 2006 from the then Chief Executive Officer Justice, the Grievor had been advised that he was to be charged with an offence under section 6 (2) of the Public Service Act 1999. This section requires an employee to act with care and diligence in the course of his public service employment. The charge alleged a failure to act with care and diligence which resulted in a deficit of maintenance payments to recipients totaling $8,582.76.

It should be noted that charge 3 of the disciplinary charges set out in the memorandum dated 1 November 2001 which was received by the Grievor on 31 December 2001 also alleged an offence against section 6 (2) of the Public Service Act 1999. The allegation in that charge was less detailed in that it alleged that between May 1999 and August 2001 the Grievor did not act with care and diligence in the course of his public service employment.

The Tribunal did not consider that the charge set out in the letter dated 30 June 2006 was a new charge. It appears to be the same charge as the initial charge 3 except that it is more detailed than the first. It sets out the particulars of the charge.

Although the Grievor was requested to respond within 14 days of receipt by him of the letter setting out the charge, it would appear that there was no response.

The effect of the Employer’s letter dated 13 November 2006 was that the charges under section 6 (8) relating to misappropriation and the charge under section 6 (1) relating to failing to behave honestly were both withdrawn. In effect the Grievor was being recharged for the alleged offence under section 6 (2). As a result the Grievor was required to answer only one of the initial three charges.

It would appear that a hearing took place on 25 January 2007. By letter dated 22 March 2007 from the Employer the Grievor was advised that his employment had been terminated with effect from 22 March 2007. The same letter advised the Grievor of his right to appeal to the Public Service Appeals Board under section 25 of the Public Service Act. The Tribunal was not informed whether the Grievor had exercised his right of appeal.

The issue for the Tribunal as the matter now stands is to determine whether there has been undue delay in determining the charges. The Reference puts the issue in the alternative as whether the Employer determined the charges within a reasonable time.

The initial charges were dated 1 November 2001. They related to incidents which allegedly occurred between May 1999 and August 2001. The charge sheet was served on the Grievor on 31 December 2001. The Grievor was given 14 days to respond and explain. The Grievor was then suspended on 40% of pay from 15 February 2002. He remained suspended and continued to receive 40% of his wages until 22 March 2007 being the date of termination of his employment.

The Employer ultimately proceeded against the Grievor in respect of only one charge which was amended on 30 June 2006 to provide further particulars.

Suspension from duty is provided for by Regulation 23 of the Public Service (General) Regulations 1999 which so far as is relevant to this Dispute provides :

"23 (1) The Commission may suspend an employee from duty if the Commissions believes that:

a) the employee has breached the Public Service Code of Conduct; and

b) the proper management of the employee’s Ministry or department may be prejudiced if the employee is not suspended.

(2) - - -

(3) An employee suspended from duty under sub-regulation (i) is not entitled to remuneration for the period of suspension.

(4) The Commission may decide that an employee who is suspended from duty is entitled to all or part of the remuneration payable for all or part of the period of suspension.."

Presumably, pursuant to the discretion given to it under Regulation 23 (4) the Employer had decided to suspend the Grievor on 40% of his pay.

The purpose of the suspension was to ensure the proper management of the Ministry of Justice.

The Employer is required to conduct its disciplinary proceedings in accordance with the principles of natural justice. Regulation 22 (2) states:

"In deciding whether an employee has breached the Public Service Code of Conduct and if so what disciplinary action should be taken against the employee, the Commission must comply with the principles of natural justice".

Apart from the matters listed in Regulations 22 (3) the Employer was also required to determine the matter within a reasonable time and without undue delay. This requirement is re-inforced in section 29 (3) of the Constitution.

Even allowing for the prolonged criminal proceedings in the High Court at Lautoka, the Tribunal is satisfied that the one charge which the Employer decided to proceed with was not dealt with and determined within a reasonable time.

However that delay has worked, in one sense, in favour of the Grievor. Throughout the period he has continued to receive 40% of his wages.

If the Employer had proceeded to deal with and determine the charge under section 6 (2) of the Public Service Act 1999 in accordance with the procedures set in its Circular No 17/2005 dated 31 March 2005, then the Grievor’s employment would have been terminated a great deal earlier than 22 March 2007.

If the Employer had proceeded to deal with and determine the one charge within a reasonable time from the date the Grievor was served with the charge sheet on 31 December 2001, the Grievor’s employment would have been terminated even earlier.

In either case the Grievor would have ceased to receive the 40% of his wages upon the termination of his employment.

Under the circumstances the Tribunal does not consider it appropriate to award any further compensation to the Grievor in respect of the time taken by the Employer to determine the charge under section 6 (2) of the Act.

AWARD

Although the charge under section 6(2) of the Public Service Act 1999 was not determined within a reasonable time, the delay has worked to the advantage of the Grievor who continued to receive 40% of his wages from 15 February 2002 to 22 March 2007 when his employment was terminated.

DATED at Suva this 26 day of July 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL