Consuelo Padua v Public Service Commission [1997] FJHC 53; Hbj0010d.1996s (6 May 1997)

Fiji Islands - Consuelo Padua v Public Service Commission - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

an application by Consuelo Arceo Padua
for a judicial review of a decision of the
Public Service Commission made on 6th March 1996

Consuelo Arceo Padua

of Labasa Medical Officer

Applicant

AND:

Publivice Commission<

Respondent

Counsel: Mr. Kapand Mr. Ram for Applicant

Mr. Singh for Respondent

Hearing: 14th November 1996

Decision: 6th May 1997

DECISION OF PAIN J.

This is an application made pursuant to Order 53 rule 3 of the Court Rules for leave to apply for judicial review. It was was heard together with a similar application made by the Applicant's husband (Judicial Review No. 9 of 1996 Mario Nagales Padua v Public Service Commission). Both applications arise out of allied circumstances. Both the Applicant and her husband were employed as medical officers at Labasa Hospital under identical contracts which were both terminated on the same day. Both are seeking judicial review of that termination on the same basis and the same arguments have been presented for each of them. The decision delivered today in Mario Nagales Padua v Public Service Commission is to be read together with and deemed part of this decision.

By an undated agreement made with "The Secretary, Public Service ssion for and on behalf of f of the Government of the Republic of Fiji", the Applicant was employed as a "medical officer in the Ministry of Health" for a period of three years from 22nd March 1994. A copy of the Agreement (hereinafter called "the Agreement of Service") is annexure A to the affidavit of the Applicant dated 28th May 1996.

The Applicant was employea Medical Officer at Labasa Hospital, first in the Paediatric Unit and then in the General eral Outpatient Department.

On 20th March 1he Medical Superintendent of Labasa Hospital handed to the Applicant a letter dated 13th Math March 1996 from the Public Service Commission and signed by the Secretary for the Public Service. This letter advised the Applicant that the Commission at a meeting on 6th March 1996 had decided that her "appointment in the service be terminated forthwith"

The Applicant seeks leave to for judicial review of this decision of the Respondent made on the 6th March 1996. This isis is opposed by the Respondent and an affidavit from Meli Bainimarama, Secretary for the Public Service Commission has been filed in reply.

The same submissions made by cl in Mario Nagales Padua v Public Service Commission are relied upon for this application. ion. In brief, counsel for the Applicant submits, on the authority of Korovulavula v Public Service Commission (Court of Appeal, Civil Appeal No. 6 of 1994), that the Respondent, being a public authority, was under a duty to act fairly and in the public good. In arbitrarily dismissing the applicant it failed to do this and a sufficient case has been made out for leave to be granted to commence judicial review. Counsel for the Respondent relied on R v East Berkshire Health Authority, ex parte Walsh [1984] EWCA Civ 6; [1985] Q B 152 and submitted that the termination of the Applicant's employment was a matter of private law contract and judicial review does not lie.

I adopt and appe law as I have set it out in my contemporaneous decision in Mario Nagales Padua v PubliPublic Service Commission. The Court of Appeal decision in Korovulavula v Public Service Commission (supra) is binding on this Court. In terms of that decision, the Agreement of Service between the Applicant and the Respondent gives rise to public law rights in a limited way. It is not the actual decision to terminate that can be reviewed. What may be reviewable is the Respondent's exercise of its discretion to invoke the provisions of the Agreement of Service that provide for termination. That would be reviewable if the Respondent, in deciding to exercise those rights, failed to act "in good faith in accord with the general purposes of the statute for the public good". The Applicant must raise a sufficiently arguable case in this regard for leave to be granted.

The letter of 13tch 1996 advising termination of the Applicant's employment is annexure B to the Applicant'sant's affidavit. It states:

"TERMINATION OF APPOINTMENT

The Public Service Commission, after considering the complaints raised againagainst you for unsatisfactory performance has decided at its meeting of 06 March 1996 that your appointment in the service be terminated forthwith.

In accordance with Clause 8(b) of your Agreement of Service you will be paie paid one month salary in lieu of this notice."

This was clearly intended as a termination of the Agreement of Service pursuant to Paragraph 8(b) thereof. This provides that the Government may terminate the agreement at any time by giving one month's basic salary in lieu of notice.

In terms of the ment of Service, as a matter of contract, the employment can be terminated under Paragraph raph 8(b) without reason. However, the Respondent is a public authority and its decision to exercise its discretion to invoke that right must be made in good faith and for the public good. It is apparent from the letter of termination that this decision was made because of "unsatisfactory performance". The basis for that must be considered to see if that public duty was fulfilled. The evidence is to be found in the affidavit of Meli Bainimarama, Secretary for the Public Service Commission and particularly the two reports exhibited as A and B to that affidavit.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The first report is from the Medical Superintendent of Labasa Hospital dated 2nd March 1995. It first gives background details of the Applicants employment. It advises that the Applicant was recruited as a Paediatrician and was put in charge of the Paediatric Ward. However, it became obvious in a very short time that she "lacked the medical knowledge, whether theoretical or practical" expected of her. She was therefore transferred to the General Outpatient Department. The report then gives details of a complaint made to the Medical Superintendent on 5th July 1994 by the Sister-in-Charge of the General Outpatient Department. However, there is nothing to indicate that this referred to the Applicant. A further anonymous complaint (believed to have been written by a member of the hospital staff) was received by the Medical Superintendent in January 1995. The report gives comprehensive details of the Superintendent's interviews with three hospital doctors, the sister and nurse of the Outpatients Department and the Applicant (together with her husband Dr Mario Padua). The report also details numerous instances of inadequate, inappropriate and negligent medical treatment. However, very little of this refers directly to the Applicant. It mostly refers to "Dr Padua" which appears to be a reference to the Applicant's husband. Details are given of an interview with Dr Raj relating to "management of paediatric cases by Dr Paduas". The use of a plural surname may be intended as a reference to both the Applicant and her husband Dr Mario Padua. However, the report does not say which case of alleged mistreatment refers to which of them. Moreover, this section of the report makes reference to nurses being "unhappy about treatment prescribed by Dr Padua". The report makes a number of references to the Applicant as "Mrs Padua". The only complaints in the report that are specifically directed against her are the conservative treatment of a child with abdominal pain for one month before another doctor diagnosed a ruptured appendicitis and a reluctance on her part "about inserting IV drips or carrying out venipuncture". In his conclusion the Medical Superintendent states that "most of the complaints of malpractice are against Dr Mario Padua rather than Consuelo Padua". He finally makes several possible recommendations including an independent assessment of medical knowledge and skills, completion of the contract with demotion to a lower grade and possible termination of the contract. These recommendations are made generally in respect of both the Applicant and her husband.

The d report dated 30th November 1995 is from the Permanent Secretary for Health to the Secretacretary for Public Service. It relates to both the Applicant and her husband Dr Mario Padua. However, predominant reference is made to Dr Mario Padua particularly in relation to a complaint of "sexual molestation" made against him by a female patient. The only references to the Applicant in this report are:

"Dr Mario Padua, a Chief Medical Officer and Dr Consuelo Arceo Padua are a wife and husband team."

"Unsatisfactory performance in case of Dr Consuelo Padua was detectetected as early as April 1994 immediately after the date of her appointment which led to her de-ployment from Paediatric Unit to the General Outpatient Department in Labasa Hospital where she performed slightly better but not to the standard required of her position."

"Their performance were closely monitored but very little improvements wets were noticed. Assessment of their overall performance highlighted several complaints and irregularities."

"It came e stage where the management could ill afford to keep him [him [Dr Mario Padua] employed in the service. The same goes for his wife because of her unsatisfactory performance."

"In view of the foregoing we strorecommend that the Public Slic Service Commission approves the .................. termination of Dr (Mrs) Consuelo Arceo Padua's appointment in accordance with the provision of clause 8 of her service."

It was on the basis of the above information containedhe two reports that the Respondent decided to exercise its its discretion to invoke the termination provision of the Applicant's Agreement of Service. The question to be decided is whether, on these facts, it is arguable that the decision was not made in good faith for the public good.

The Respondent had a duty to maintain the integrity and skill of hospital medical staff and to e that proper care and trea treatment was given to patients. However, it would not be acting in good faith and for the public good if it contemplated termination of the Applicant's employment without first being satisfied that there were sufficient grounds for this. The Respondent may have been acting on a general recommendation from the Permanent Secretary for Health relating to the Applicant's work performance. However, the public interest requires that there should be proper grounds for that recommendation. Moreover, the Respondent, as the contracting party, must exercise its own discretion in the public interest.

It is apparent from tports that most of the complaints of inadequate medical knowledge, skill and treatment were were in respect of the Applicant's husband Mario Padua. This culminated in the complaint of "sexual molestation" of a hospital patient which added "to a long list of complaints against him". In contrast apart from some general references to the Applicant's "unsatisfactory performance", the reports identify only two specific complaints alleged against her. Those are a failure to diagnose a patient's ruptured appendix and a reluctance to carry out a particular intra-venous procedure. The second report begins by describing the Applicant and Dr Mario Padua as a "wife and husband team". These total circumstances could give rise to the possibility that the decision to consider termination of the Applicant's employment was influenced by the very serious complaints and allegations against her husband. It might be that there were overwhelming grounds for termination of his employment and, as his wife, the Applicant was automatically included. That, of course, would not be a proper exercise of discretion. The Applicant had a separate Agreement of Service and was entitled separate consideration.

The matter is finely balanced. However, in the absen more specific information of the Applicant's "unsatissatisfactory performance", it is arguable that the Respondent did not exercise its discretion to invoke the dismissal provisions of her Agreement of Service in accordance with its duties as a public authority. Proper consideration may not have been given to her individual performance of her duties and/or the Respondent may have wrongly taken into account or been influenced by the serious medical misconduct of her husband Dr Mario Padua. It would not be in the public interest for the Respondent to dismiss a medical officer whose work was adequate and the evidence of the Respondent's knowledge on this matter is inclusive.

On this basis, the Applicant has made out a case for the granting of leave to commjudicial review proceedingsdings. I am not saying that such proceedings will inevitably be successful. The Applicant has merely met the threshold requirement of raising a sufficiently arguable case to warrant a full investigation of these matters at a substantive hearing.

The Applicant has also applied for orders staying the Respondent's decision to terminate the Agreement of Service and reinstating her to her position under the Agreement. Counsel for the Applicant made written and oral submissions in support of these applications. Counsel for the Respondent made no submissions in opposition. The Court has jurisdiction to grant a stay. In the circumstances there is no reason why this should not be done.

Accordingly I make the following orders:

1.  p;&nssp; Leave is granted to the Aphe Applicant cant to apply in terms of the application dated 28th May 1996 for judicial review of the decision made by the Respondent on the 6th March 1996 to terminate the Applicant's contract of employment.

2. Tce den sioe badthe esponespondent on the 6th March 1996 to terminate the Applicant's contract of employment is stayed and the Applicant sbe par salnd otse betled l benefits and be b be bound ound by alby all obll obligatiigations cons contained in the said contract.

JusD.B. Pain

Hbj0010d.96s