State v Permanent Secretary for Public Service Commission, Ex parte Matea [1998] FJHC 33; Hbj0021j.1996s (18 March 1998)

Fiji Islands - The State v The Permanent Secretary for the Public Service Commission, Ex parte Matea - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

JUDICIAL REVIEW

ACTION NO. HBJ0021 OF 1996

BETWEEN:

THE STATEn>

AND:

FOR PUBLIC SERVICE COMMISSION

(FIRST RESPONDENT)

AND:

THE PERMANENT SECRETARY FOR EDUCATION,

WOMEN AND CULTURE

(SECOND RESPONDENT)

EX-PARTE: LEPANI MATEA

Ms Volau for the Applicant

<1"> E. Walker for the Respondents

Dates of Hearing and Submissions: 7th October, 3rd, 11th November 1997

Date of Judgment: 18th March 1998

JUDGMENT

The Applicant at all relevant times was a school teacher in the Civil Ser On or about the 30th of Maof May 1996 he received a letter from the Second Respondent dated 30th May 1996 dismissing him from his employment in the civil service for having been convicted in the Nausori Magistrate's Court of causing death by dangerous driving contrary to Section 238 of the Penal Code Cap. 17 on the 11th of April 1995.

He was also charged with driving a motor vehicle of ss other than authorised to drive contrary to Sections 23(1 23(1) and 85 of the Traffic Act Cap. 176, both offences having occurred on the 1st of April 1995.

On the 11th of April 1995 the Applicant pleaded guilty to the charges where upon the Court convicted and sentenced him to nine months imprisonment suspended for two years on the 1st charge and fined him the sum of $500.00 in default four months imprisonment on the second charge. He was also disqualified from obtaining or being in possession of a driving licence for eighteen months.

The notice of dismissal gave as its grounds only the fact that the Applicant had been convicted of causing death by dangerous driving and stated that pursuant to Regulation 54 of the Public Service Commission (Constitution) Regulations 1990 the Applicant was dismissed from the Public Service forthwith.

On the 14th of November 1996 I gave the Applicant leave to apply foicial Review on two grounds namely:

(1) &nnbsp;;&nspp; wsp; whethe ethe penalty imposed on the Athe Applicant was too severe; or

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(2) &nbssp;&nnbsp;&nsp; wsp; whether before ing thng the penalty of dismissal the Respondents should have given the Applicant an opportunity to be heard on the qun of ty.

It is not disputed by the Respondents that the Applicant was given no such opportunity, the Respondents' case being that it was not obliged to do so under Regulation 54.

In the two affidavits the Applicant has filed and from the only affidavit filed on behalfhe Respondents the followinlowing facts emerge and are not in dispute:

The Applicant commenced his teaching career in January 1979 ande then has taught in various schools in Fiji. Prior to his his dismissal he was on temporary posting as a teacher from Rishikul Primary School, Nasinu where he had taught for one school term and two weeks to the Suva Muslim Primary School, Nabua.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> At the time ofdismissal he was the joint owner with his brother of a taxi.

That at about 6.00 a.m. on the 1st of April 1995 he drove the taxi o way home when he lost cont control of it and hit an old man now deceased.

He says that as a result of his dismissal he has lost his mof livelihood and was unable to maintain the payment of hisf his membership fees of the Fijian Teachers Association and premium payments to that Association's Credit Union and the Fijian Teachers Association Welfare Society as a result of which he was no longer a beneficiary of their respective benefits of medical, soft loans and family loans facilities.

In his second affidavit sworn on rd of November 1997 the Applicant states that the accident happened on a Saturday. It was nwas not during the course of his duty and that on the 12th of March 1997 he was re-employed as Head Teacher at the Waiqanake District School by the Second Respondent for the period 24th February to 28th November 1997 as an Acting Head Teacher and was to be paid the full acting allowance.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> When I firad the papers in this case my reaction was that at least prima facie the Applicant had been been treated too harshly by the Respondents given his length of service with them and I would need to receive very persuasive arguments from the Respondents as to why the Applicant should not be granted Judicial Review of the decision of dismissal. To some extent I consider these initial views have been supported by the latter evidence of the Applicant's re-employment by the Respondents, albeit in an acting capacity.

The Rdents in their submissions deny that Regulation 54 gives the Applicant any right to be hear heard on the question of penalty and that in the light of my own decision in The State v. Attorney-General of Fiji, Ex-parte: Joseph Nainima HBJ0027 of 1995 - unreported judgment of 21st October 1997 and the House of Lords decision in Wiseman v. Borneman (1971) AC 297 it would be unjust for this Court to accede to the Applicant's submission.

Regulation 54 reads:

"Iofficer is convicted in any court of a criminal charge, the, the Commission may consider the relevant proceedings on such charge and if it is of the opinion that the officer ought to be dismissed or subjected to some lesser punishment in respect of the offence of which he has been convicted the Commission may thereupon dismiss or otherwise punish the officer without the institution of any disciplinary proceedings under these Regulations."

There is thus no doubt that in the case of a criminal offen charge the Respondents have a discretion on the question oion of penalty. In Nainima's case I refused Judicial Review on the ground that the Applicant had been given and had availed himself of every opportunity to present his case following his reduction in rank by the Education Department. The instant case is in my view altogether different.

Time after time the Courts have said where a person's employment, career or reputation are at stat stake it is important in the administration of justice that the authority concerned with adversely affecting such employment must be careful to observe the rules of natural justice and procedural fairness towards the person so affected.

In O'Reilly v. Mackman (1983) A.C. 237 at p.276 Lord Diplock said:

"But the requirement that a person who is charged with having done sone something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any civilised legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement."

At the beginning of his short judgment in Wiseman v. Borneman Lord Reid said:

"Natural justice requires that the procedure before any tribunaibunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

In the light of the Applicant's service with the Respondents of some seve years and the decision by n by the Respondents to re-employ him for the whole of school year of 1997 I remain firmly of the view that his dismissal was too harsh, and would follow the Court of Appeal decision in R. v. Barnsley Metropolitan Borough Council, Ex-parte: Hook (1976) 1 WLR 1052 and grant the order of certiorari sought by the Applicant to quash the decision to dismiss him.

In the circumstances in my judgment on the facts of this case the Respondents should have given the Applicant an opportunity to be heard on the question of penalty or imposed a lesser penalty than dismissal.

It follows that the Applicant is entitled to relie I therefore order:

(1) that certiora i goemo r inve into this Court and quash the decision of the First Respondent of the 28th of May 1996 purporting to dismiss the Applicant;

ass=Mmal s"margp: 1;in-bottom: 1">: 1">

(2) &nnsp;& tsp; thatAphe AppliApplicant be re-instated and paid all his entitlements as a Teacher (TE08) with effect from 28th May 1996 until the date of his re-instatement;

(3) &nnbsp;  p; spp; the Resnonderes are to p to pay the Applicant his costs of these proceedings.

ass=Msos=MsoNormoNormaNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> JOHN E. BYRNE

JUDGE

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Legislation and authorities referred to in judgment:

Education Act Cap. 262.

Public Service Commission (Constitution) Regulations, 1990.

O'Reilly v. Mackman (1983) A.C. 237.

State v. Attorney-General of Fiji - Ex-parte: Joseph Nainima HBJ0027 of 1995 - unreported judgment of Byrne J. dated 21st October 1997.

Wiseman v. Borneman (1971) A.C. 297.

The following additional cases were referred to in argument:

Fereti Dewa v. U.S.P. Judicial Review 0007 of 1994 - u4 - unreported judgment of Pathik J.

Fisher v. Keane [1878] UKLawRpCh 301; (1879) 11 Ch. D. 353.

Mahon v. Air New Zealand (1984) A.C. 808.

Hbj0021j.96s