Fiji Public Service Association v Public service Association [2009] FJET 24; ERT.D21.2008 (7 April 2009)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA

ERT/D21/2008

Fiji Public Service Association

Vs.

Public Service Association

Appearance

for the Fiji Public Service Association (FPSA) – Mr. D. Nair
for the Public Service Commission (PSC) - Mr. A. Maqbol

Before the Legal Member

Considering the employment dispute filed by the FPSA against the PSC on the

"decision to appoint Mr. Manasa Rayasidamu on re-grade from Health Promotions Officer, SS05 to Health Inspector, HW05. The FPSA's contention is that the post was not advertised and was in breach of Clauses 5(1) & 5(2) of the Public Service Regulations and as such the appointment should be rescinded forthwith and the post to be re-advertised in accordance with the said PSC Regulations;" (Terms of Reference).

Having heard the evidence of both sides;

Having examined the written submissions; and

Considering the facts of the case and the pleadings may be summed up as follows:

The FPSA

1.1 The Union argues that the Permanent Secretary for Public Service Commission acted unfairly, and in breach of Part 2- Appointments, Promotions and Transfers; Clause 5(1) and (2) of the Public Service Regulations, 1999 and section 140 of the Constitution of the Republic pf the Fiji Islands .

The genesis of this dispute could be traced to the letter dated 9th May 2007 written by one Mr. Ragha Nand to the FPSA complaining that the appointment was made without the post being advertised. The FPSA then took the matter up with the PSC when the General Secretary wrote on 13th June 2007 raising concern that the appointment was not consistent with the provisions of Regulations 5(1) and 5(2) of the PSC Regulations 1999.

1.2 That Regulation 5(1) reads as "The appointment or promotion of a person to an office pursuant to section 147(1) of the Constitution must be made on the basis of merit after an open, competitive selection process, and in accordance with section 140 of the Constitution". Clause 5(2) reads as " An appointment or promotion may only be made if –

• (a) the vacancy on the office............. was notified in a Public Service Official Circular.........."
  
• (b) .............................
  
• (c) .............................
  
• (d) .............................
  

1.3 The statutory requirements referred in paragraph 1.2 above, mandate all appointments to be made on the basis merit only after an open, competitive selection process.

1.4 The Association further states that since the vacant position was not processed in a fair and transparent manner, its members who posses the relevant and appropriate qualification for the position were denied the right to compete and be equally considered for the vacant position.

1.5 That the decision of the Permanent Secretary for Public Service Commission not to foster an open, competitive selection process was arbitrarily, unlawful, bias and inconsistent with its legislated policies and directives on appointments and promotions.

1.6 That the decision of the Permanent Secretary for Public Service to uphold and condone such unlawful and irrational decision of the Permanent Secretary for Health to arbitrary re-grade an officer to fill a vacant position without following the due process of appointments and promotions is in breach of the Public Service Values, Part 2 clause 4(1) (2) (6) (8) and (13) of the Public Service Act, 1999. This deprives the members of the Association as well as other employees' an equal opportunity for career development and advancement in the Public Service.

1.7 That the decision of the Public Service Commission to uphold the irregular and unlawful upgrading of Mr Rayasidamu from Health Promotion's Officer SS05 to Health Inspector HW05 that was made in breach of the appointment and promotion procedures is procedurally flawed and totally wrong in principle.

1.8 That the Association seeks an Order for the unlawful upgrading to be rescinded to allow for the position of Health Inspector to be advertised and processed pursuant to the stipulated procedures in the interest of justice, transparency and accountability.

The FPSA called two witnesses: Mr. Inia Tarai (Clericlal Officer – Industrial Relations) and Mr. Nirij Mudaliar (Economic Planning Officer – Ministry of Foreign Affairs).

Evidence of Mr. Inia Tarai

Mr. Tarai said that the case started when the FPSA was alerted to the appointment of Mr. Manasa Rayasidamu as Health Inspector Tailevu without the post being advertised and that the action of the Ministry of Health was not in accordance with accepted procedures. Correspondence between the FPSA and the Ministry of Health was copied to the PSC which wrote to the Ministry of Health on 15th August 2007 to rescind the appointment.

Mr. Tarai then referred to the letter dated 27th August 2007 from the Ministry of Health to Mr. Manasa Rayasidamu informing him that the PSC has decided that his appointment be rescinded and that the post would be advertised to enable other qualified officers be given an equal opportunity to apply for the post.

Mr. Tarai told the Tribunal that about five months down the line on 17th January 2008, the PSC wrote to the Ministry of Health directing that the appointment for the re-grading of Mr. Rayasidamu to remain and that the delayed response was due to the in-depth research taken on the matter. That prompted the witness to arrange a meeting with a Mr. Vilitati Mataitini of the PSC and who confirmed the PSC positions on the following:

- that re - grading is made to an employee from one position to another post which is compatible to the level of the previous one; and

- the salary level of the previous position should be similar to the re-graded position which the officer has been moved to.

The above were contained in the letter dated 29th May 2008 from the FPSA to the PSC signed by the witness. In the letter he made an important observation that this officer was re-graded to a position which was two levels higher than his substantive position and he asked the question why the PSC approved such an arrangement.

That was the final straw according to Mr. Tarai and the FPSA reported a dispute on 9th June 2008.

In cross examination, Mr. Maqbool asked Mr. Tarai whether he followed up on the letter to PSC dated 29th May 2008 with Mr. Mataitini and whether the letter reached PSC.

Mr. Tarai indicated that the letter was a confirmation of what transpired in their discussion and that he was certain that the letter has been received by the PSC.

On re-examination by the FPSA, Mr. Tarai reiterated that no comments were received from the PSC regarding the existence of the said letter.

Evidence of Mr. Nirij Mudaliar

Mr. Mudaliar worked at the Human Resources Division of the PSC during the period when these series of events were unfolding. His work involved promotion and disciplinary matters of all civil servants.

Mr. Mudaliar told the Tribunal that he was responsible for the letter dated 15th August 2007 to the Permanent Secretary for Health informing the Ministry to rescind the appointment of Mr. Rayasidamu and to advertise the post. The said letter was in response to the concern raised by the FPSA and its purpose was to tell the Ministry that the appointment was wrong and other qualified officers should be given equal opportunity to apply for the post.

When asked the reason for the letter dated 17th January 2008 which instructed the Ministry of Health to recognise the appointment on re-grading of Mr. Rayasidamu, Mr. Mudaliar explained that the writer one Luisa Kamokorewa was told to observe the status quo in the matter which meant that the affected officer's position should be the substantive one and not the appointment on re-grading.

In cross examination, Mr. Maqbool asked why the letter dated 15th August 2007 was not copied to FPSA. Mr. Mudaliar replied that a copy was made to the FPSA and that was not indicated on the original. On the delegation of powers, the witness agreed that the Permanent Secretary was empowered but the monitoring was always done by the PSC and that if an officer qualified for a post, it did not mean that he would get it as due process has to be followed.

Mr. Magbool asked whether the Monitoring Unit of the PSC pick the discrepancy up, to which the witness answered that the unit did not and that the matter was initiated by the FPSA.

On re-examination by the FPSA, the witness said that any personnel matter before the PSC will be brought to the monitoring unit. When asked whether delegation of power allowed due process to be observed, Mr. Mudaliar answered that was one of the fundamental requirements and that the Ministry for Health breached the procedures. The post was not a technical one and that equal employment opportunity principles should have been observed.

The PSC

The PSC maintains its stance to re-grade Mr. Rayasidamu from Health Promotion Officer SS05, to Health Inspector HW05 on the grounds that:

2.1 the delegated powers of the Permanent Secretary of Health to appoint Mr. Rayasidamu as it is a departmental position;

2.2 Mr. Rayasidamu meets the minimum qualification requirement of the position of Health Inspector hence qualified to be re-graded;

2.3 The Ministry Staff Board considered it justified based on Mr. Rayasidamu's demonstrated abilities and competency in driving new initiatives into good health setting in particular to those in rural areas; and

2.4 To address and promote succession planning for officers retiring at 55 years of age.

Evidence of Ms. Losana Ugavule

Ms. Ugavule told the Tribunal that she had been with the Post Processing Unity of the Ministry of Health since 2002. She described the processes in filling vacant positions as involving the following processes:

- identification of posts;
- preparation of draft advertisements to PSC;
- applications called for and expiry in 21 days;
- preparation of biodatas of potential candidates; and
- preparation of staff board papers.

Ms. Ugavule confirmed to the proceeding that she prepared the staff board paper in respect of Mr. Rayasidamu and that she relied on the powers delegated to the Permanent Secretaries under Legal Notice 92/2002.

Ms. Ugavule recalled that the process was sort of stifled when the FPSA was informed by Mr. Raghwanand as a concerned member. PSC came into the picture and demanded all the relevant information pertaining to the case. As a result she was the author of a series of letters to the PSC explaining the Ministry's position. The witness referred to the letter dated 15th August 2007 from the PSC directing the Ministry to rescind the appointment and the letter dated 27/08/07 to Mr. Rayasidamu conveying the decision of the PSC.

Ms. Ugavule informed the Tribunal that immediately after that she was directed to arrange for the post to be advertised: it came out as Fiji Public Service Official Circular No. 18/2007 of 30/09/07.

Ms. Ugavule related to the Tribunal that on 24th September 2007, Mr. Rayasidamu appealed to the Permanent Secretary for Health and on 2nd October 2007 the Permanent Secretary for Health forwarded the appeal to the PSC with the recommendation to revert to the original position; the appointment on re-grade. The response from PSC came on 17th January 2008 with the decision that the appointment on re-grade from Health Promotion Officer, SS05 to Health Inspector HW05 to remain.

In cross examination, the witness told the Tribunal that the position was substantively vacant but was not advertised due to Legal Notice No. 92 of 2002 which delegated the powers of appointment to individual Permanent Secretaries. Mr. Nair asked the witness whether she was aware that the PSC Act and Regulations supercede the Legal Notice in terms of standing. Ms. Ugavule replied that she was not aware and that she did not seek any advice from the PSC.

Under cross examination, Ms. Ugavule admitted that the regrading of the officer was a promotion for him and that section 140 of the Constitution was breached when the post was not advertised. No interview was carried out due to advice from the PSC and there was no Gazette Notice regarding the rescindment of the regrading.

Mr. Nair asked whether the witness in view of the inconsistent directions given by the PSC asked for clarification. Ms. Ugavule replied that she did not although on hindsight she agreed that she should have asked for it.

Ms. Ugavule agreed that the officer met the minimum qualification requirements for the post and that she was not pressured in not advertising it and that the PSC Acts and Regulations were not complied with.

On re-examination by the PSC, the witness stated that the Permanent Secretary for Health did not abuse the Constitution and that he was rightfully empowered to regrade.

Considerations

1. The FPSA reported the dispute on 9th June 2008 against the PSC over the decision to appoint Mr. Manasa Rayasidamu on re-grade from Health Promotions Officer, SS05 to Health Inspector, HW05. The Association's contention is that the post was not advertised and was in breach of Clause 5(1) & 5(2) of the Public Service Regulations and as such the appointment should be rescinded forthwith and the post to be re-advertised in accordance with the said PSC Regulations.

The Tribunal heard the evidence of the three (3) witnesses and all referred to the letter from the PSC dated 15th August 2007 informing the Ministry of Health to rescind the appointment of the officer and advertise the post as there are other officers who fully meet the minimum qualification requirements and that it is only fair that all other officers in the Ministry be given equal opportunity to apply for the post.

Even the PSC witness reported to the Tribunal that soon after the receipt of that letter she was directed to advertise the post. The post came out in the Fiji Public Official Circular dated 30th September 2007.

2. The PSC had directed the Ministry of Health through the letter dated 15th August 2007 as mentioned above and the Ministry had subsequently informed Mr. Rayasidamu to revert to his former position. The officer appealed the decision to the Permanent Secretary for Health which took up the issue with the PSC actually advocating the initial appointment to stay.

Instead of outlining reasons why due process was not followed, the Permanent Secretary for Health began to offer justification for the appointment of Mr. Rayasidamu. What we have here is a triangle of both truth and misrepresentations. Truth from the PSC to the Ministry advising the appropriate action to be taken under the circumstances, the Ministry to the officer relaying the position and the Ministry back to the PSC working on the outside of the accepted norms of filling vacancies either through regrading or promotion. From the evidence it is quite apparent that Mr. Rayasidamu was put in a very confusing situation.

First, he received the letter from the Ministry informing him to revert to the original post; he legitimately appealed the decision to the Ministry which instead of advising him of the true position referred the appeal to the PSC.

Second, the appeal to the PSC was supported by the Permanent Secretary for Health who at the same time had directed that the officer revert to the substantive post and that the vacancy be advertised.

Third, the PSC on 17th January 2008 confirmed to the Permanent Secretary for Health that the appointment on regarding be regularised.

This was an unsatisfactory state of affairs as other arrangements took over from the accepted norms of making appointments in the civil service and definitely against the principles of equal employment opportunities.

3. The FPSA through Mr. Tarai continued to pursue the case with the PSC which confirmed that regradings were normally to similar levels and on the same salaries. What happened here was exactly the opposite: the officer was regarded to a higher position and he actually jumped two (2) salary levels. This was confirmed by the PSC witness under cross examination that the regarding of the officer was a promotion and that section 140 of the Constitution was breached when the post was not advertised.

4. Section 140 of the Constitution stipulates the "recruitment and promotion policy" in the civil service or state services as stated in the Constitution must be based on the following principles:

(a) government policies should be carried out effectively and efficiently and with due economy;

(b) appointments and promotions should be on the basis of merit;

(c) men and women equally, and the members of all ethnic groups should have adequate and equal opportunities for training and advancement; and

(d) the composition of the state services at all levels should reflect as closely as possible the ethnic composition of the population, taking into account, when appropriate, of occupational preferences.

Clauses 5(1) and 5(2) of the Public Service Regulations put into operation the letters and spirit of section 140 of the Constitution by calling for applications through the Public Service Official Circular and facilitating an open, competitive selection process based on merit.

From the evidence, that did not happen.

5. What happened was that the PSC referred to the powers delegated to the Permanent Secretary for Health under section 16 of the Public Service Act 1999 ...which provides among other things that "the Public Service Commission may, in writing, delegate to a member or officer of the Commission, or the holder of a public office (within the meaning of the Constitution), any of its powers in relation to its statutory functions."

It rightly said that the Permanent Secretary for Health used this power but the Tribunal was not given evidence to show that his actions were in accordance with accepted procedures and all relevant written laws.

6. The relevant law is found in section 21 of the Act in particular sub – section 3 which provides that "if a service commission delegates to a chief executive officer its rights, duties and powers as an employer, title chief executive must, in exercising those rights and powers and performing those duties, comply with.....

(a) the requirements of section 140 of the Constitution;

(b) relevant provisions of the Public Finance Management Act 1999; and

(c) any applicable regulations.

The relevant laws referred to here all have the single purpose of ensuring that all the appointments of servants of the state must be done diligently and in accordance with due process.

That was not done as seen from the passage of time that has lapsed before this matter was accepted as an employment dispute.

DECISION

For the above reasons,

(i) the impugned decision must be annulled;
(ii) the appointment to be rescinded; and
(iii) the post be re-advertised in accordance with the PSC Regulations.

DATED at Suva this 7th day of April 2009

Sainivalati Kuruduadua
(Legal Member)