About the applicant
The applicant was employed with the Public Works Department from 1976 until his termination commencing as tallyman, then storeman
and clerk. His employment was terminated by the said Memorandum effective from 16 July 1998. The applicant was absent from work as
follows as stated by the Acting DEN: 25.6.98 to 30.6.98 (4 days), 1.7.98 (1 day), 2.7.98 to 3.7.98 (2 days), 7.7.98 to 9.7.98 (3
days), 10.7.98 (1 day) and 13.7.98 to 15.7.98 (3 days). This makes a total of 14 days absence from work allegedly without sick sheet.
Copies of sick sheets were produced to DEN all on 30.7.98. The applicant's own affidavit states that he was also absent from 17 July
to 24 July.
The applicant says that he was very sick and after obtaining medical certificates he had either sent them to the Public Works Department,
Seaqaqa or taken them himself.
The applicant sets out in the motion herein for judicial review the steps he took in seeing to the delivery of the medical certificates
and in his letter of 30 July 1998 (copy whereof is not available to Court) he alleges that he explained to DEN the circumstances
relating to the delivery of the sick certificates.
Relief sought
The relief sought by the applicant are as follows:-
(a) AN ORDER OF CERTIORARI to remove the said decision made by the ACTING DIVISIONAL ENGINEER NORTHERN on or about the 30th day of July, 1998 into this Honourable Court and that the same be quashed.
(b) AN ORDER that the Termination of Service be set aside.
(c) A DECLARATION (in any event) that the ACTING DIVISIONAL ENGINEER NORTHERN has acted unfairly and/or abused his discretion and/or arbitrarily and/or unreasonably and/or acted in breach of the Applicant's
Legitimate Expectations and/or exceeded his jurisdiction in terminating the service of the Applicant.
(d) Damages
(e) Further Declarations and/or other relief as this Honourable Court may deem just and/or expedient.
(f) Costs.
Grounds of relief
The following are the grounds of relief:
(a) the DEN acted unfairly without giving the applicant the opportunity to be heard.
(b) the DEN abused his discretion by not taking into consideration the following relevant matters:-
(i) the applicant worked for respondent for 22 years.
(ii) no proper arrangements were made with the applicant before the decision was taken to terminate him.
(c) the DEN acted arbitrarily and/or unreasonably
(d) DEN exceeded his jurisdiction in that he had no powers to terminate the applicant
(e) DEN acted contrary to the legitimate expectations of the applicant in that he has been in employment for the last 22 years and
his absence from work was due to illness and in the absence of any adverse Medical Report the applicant expected to continue in the
employment of the P.W.D.
(f) the DEN acted in breach of natural justice
Issue
The issue for Court's determination is whether the Respondent was justified in treating the applicant as an "absentee".
If the answer is in the affirmative, then the issue to be resolved is whether the applicant being absent from work for five consecutive
days provided at the earliest opportunity and not later than one week after the fifth day of absence a reasonable explanation to
entitle him to be reinstated as required under clause 46 of the JIC agreement (infra).
Determination of the issue
For the determination of the issue before me I have various affidavits from both sides and also written submissions from both counsel.
As stated by LORD TEMPLEMAN in REG. v INLAND REVENUE COMMISSIONER Ex parte PRESTON [1984] UKHL 5; (1985) A.C. 835 at 862:
"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach
of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers. Judicial review should
not be granted where an alternative remedy is available".
In a judicial review courts ensure that administrative actions are intra vires and keep within the bounds of their authority. These
actions will be ultra vires if they fail to comply with the requirements of certain statutes and by common law. It is important that
administrative actions take into account all relevant considerations and ignore any irrelevant considerations. The decisions must
be reasonable; they must not be biased or pre-determined; they must be exercised with the rights of natural justice in mind, unless
a statute, expressly or by clear implication provides a contrary intention.
The Court is required to consider whether the "process" by which the decision was reached is authorised or valid. The basic
question is whether the decision-maker has acted intra vires or within the discretion conferred reasonably and fairly.
Now I shall deal with the grounds of relief.
In any review of a decision the court is concerned to evaluate fairness. Lord Hailsham L.C. has in Chief Constable of North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155 at 1160 very succinctly put the essential function of judicial review thus:
"It is important to remember in every case that the purpose ... is to ensure that the individual is given fair treatment by the
authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of
individual judges for that of the authority constituted by law to decide the matter in question."
The applicant's employment was governed by the terms, conditions and Rules of Employment for Government Unestablished Employees (the
"JIC Agreement"). The relevant clause for the present purpose is clause 46 which provides:
An employee who absents himself without leave for five consecutive working days may be held to have left his employment and unless
otherwise decided may be struck off the books. Provided that if at the earliest opportunity and not later than one week after the
fifth day of absence the employee provides a reasonable explanation he may be reinstated.
Clause 13 (Notification of sickness) is also relevant. It provides (inter alia):-
(a) Subject to Rule 14(a) below an employee must forward a doctor's certificate not later than the fifth day of absence, failing which
he may be treated as an absentee.
And clause 14 inter alia in so far as it is material is as follows:
(a) Employees are under an obligation to attend at their yard, depot or normal place of work at the appointed time and bad timekeeping
will render employee liable to disciplinary action. An employee who is unable to attend for duty should if practicable inform his
immediate superior or arrange for him to be notified as soon as possible.
The applicant does not dispute that he was absent from work from 25th of June until 24th July 1998. He reported back to work on 28
July 1998.
On 'medical certificates' he says in paragraphs 6 to 8 of his first affidavit sworn 29 October 1998 as follows:
6. ON 1st of July, 1998, I had sent the Medical Report for the period 25th June, 1998 to 1st July, 1998 through Abdul Hamid. The sick sheet
for the period 10th July, 1998 to 15th July, 1998 was taken by Shiu Ram to the PWD Seaqaqa office on 15th July, 1998. The sick sheet
for the period 16th July, 1998 to 17th July, 1998 was taken by me and handed to office clerk Tomasi on 20th July, 1998.
7. ON being advised that the sick sheets covering the period 25th June, 1998 to 17th July, 1998 were not able to be located in the office,
I hand delivered copies of the sick sheets to the Personal Officer John. I also handed the original sick sheet covering the period
20th July to 22nd July to John.
8. ON 24th July, 1998 I again went to the PWD office at Seaqaqa and hand delivered the original sick sheet for the period 23rd July to
24th July to office clerk Tomasi.
Mr. Kohli submits that the sick sheets were delivered in time to persons referred to in the affidavit but none of them 'has chosen to take oath and say that they had not received the sick sheets. None of them has filed an affidavit'; but the investigation which DEN conducted after receiving Abdul Hamid's and Shiu Ram's affidavits revealed that Kalisana Duguyagona
and Tomasi Masiwini did not receive the Applicant's sick sheets.
It is the decision-making process which the courts will look closely and the ultimate decision to ascertain whether the decision-maker
has acted fairly. One of the grounds of challenge in this case is that there was procedural impropriety.
In Council of Civil Service Unions v Minister for the Civil Service (1985) A.C. 374 at 408 LORD DIPLOCK explained the parameters of this ground thus:
"I...describe the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice
or failure to act with procedural fairness towards the person who will be affected by the decision. This is because the susceptibility
to judicial review under this head covers also the failure by an administrative tribunal to observe procedural rules that are expressly
laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial
of natural justice."
This ground deals with the process by which the decision was reached and not the outcome. Here the applicant is required to show that
the decision was reached unfairly. This process is also called the 'duty to act fairly' or "natural justice". As Sir Thaddeus McCarthy said in Birss v Secretary for Justice [1954] 1 NZLR 513 at 523:
"there is no perfect recipe which covers for all cases what natural justice may require to be done. What is necessary in a particular
case must be determined in the light of the facts of that case. In some nothing beyond ordinary administrative procedure will be
called for; in others much more is necessary. When that is and what should be done is not always easy for a permanent head to decide,
and it ill befits us to be unduly technical or critical. In the final analysis we are concerned with what is fair, and that means
fair between the persons concerned. In some situations, as Richardson J points out, a permanent head may have to act immediately
and suspend without notice or without giving an opportunity for discussion".
Similar observations were made by Lord Lane C.J. in R v Commission for Racial Equality, ex parte Cottrell and Rothon (a firm) (1980) 3 All E.R. 265, 271 when he said:
"As has frequently been said, and there is no harm in repeating it, all that the rules of natural justice mean is that the proceedings
must be conducted in a way which is fair to the firm in this case, fair in all the circumstances."
In National Federation case (below) [1981] UKHL 2; [1982] A.C. 617 at 652 Lord Scarman said:
"The courts have a role, long established, in the public law. They are available to the citizen who has a genuine grievance if
he can show that it is one in respect of which prerogative relief is appropriate".
In an application for judicial review the Court is concerned not as much with the merits of the decision as with the process by which
the decision was reached.
This is an administrative law case which raises a question concerning the lawful exercise of the powers of the respondent (DEN). The
DEN purported to exercise his powers under the abovementioned provisions of the JIC agreement. In doing so there is a legal duty
to act fairly. It is for the applicant to show either a failure to discharge the duty cast upon the respondent or that he abused
his powers or acted outside them. In this regard I refer below to what Lord Diplock said in Inland Revenue Commissioners and National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 (H.L) at 637:
".....judicial review is available only as a remedy for conduct of a public officer or authority which is ultra vires or unlawful,
but not for acts done lawfully in the exercise of an administrative discretion which are complained of only as being unfair or unwise...."
In the present case, there is force in Mr. Barnes's argument that clause 46 'operated automatically as soon as an employee is deemed to have left his leave for more than 5 days, without explanation he is deemed
to have left his employment'. When the DEN acted under clause 46 he had no knowledge of the alleged 'sick notes' having been delivered to his office. There was
no explanation for the applicant's absence at that time which should have come within one week of fifth day of absence, i.e. by 2nd
July. The applicant was heard on 30th July, 1998 and provided an explanation which was not accepted.
It is abundantly clear from the evidence before me and it is not in dispute that the first time DEN received any explanation for the
applicant's absence was on 30 July 1998 after absence of 14 days. In other words no explanation was provided for absence until 30
July.
In this case in this application the Court is simply concerned with the procedural steps taken by the DEN in terminating the applicant's
services. The question is whether he acted intra vires the powers vested in him bearing in mind the provisions of the said clause
46. The evidence is that the applicant was absent for more than 5 days without explanation. Hence clause 46 came into play which
meant that he has left his employment.
It is pertinent to note here the contents of the affidavit of DEN sworn 19 April 1999 in Reply to Applicant's affidavit in support
of the Motion.
He said, inter alia:
5. BY 15 July 1998, I had not received any notice or explanation from the Applicant for his absence. Upon being informed of this absence
by the Road Supervisor in Seqaqa, I immediately instructed the supervisor to contact the Applicant. On or about 15 July 1998, I enquired
whether any notice, explanation or sick sheets had been received by PWD office in Seqaqa.
6. I was informed by the Road Supervisor that nothing had been received from the Applicant. I was also informed that since 25 June 1998,
a number of officers in Seqaqa had visited the Applicant's residence to obtain some of the office keys. Even on this occasion, they
were not able to get in touch with the Applicant and despite the fact that the officers had left messages for the Applicant to contact
the office, the Applicant had failed to visit the office or to even contact the office by phone.
7. AFTER making full enquiries on the absence, and after having satisfied myself that the Applicant had been absent without any notice or
explanation for well in excess of 5 working days, I considered that Regulation 46 of the JIC Agreement applied.
I do not doubt DEN's assertion in his affidavit when he said "we did not receive any communication at all from the Applicant".
The DEN's officers even went to his residence but there was no response from him. Looking at the sick sheets his sickness which was
merely some kind of 'viral infection' could not have prevented the applicant from responding to DEN of his absence or presenting
himself to DEN long before the time he reported back to work.
I prefer to accept DEN's version of events than what Abdul Hamid and Shiu Ram have said in their affidavits in relation to the sick sheets alleged to have been given to them by the applicant to be forwarded
to DEN. What they say do not in any way affect the manner in which DEN proceeded to deal with the matter of the applicant's absence.
There is nothing to indicate that DEN did not take into account the applicant's 22 years of service. I find that he exercised his
discretion properly and took into account all matters which should have been considered. He acted fairly and in good faith and he
had enough information to enable him to make a fair assessment of the matter. In such a case I do not think the Court should interfere.
No employer would tolerate such a long and continuous absence without an explanation; clause 46 is there for a purpose. There was
no question of DEN acting arbitrarily and unreasonably. The applicant was given the opportunity to explain and hence there was no
denial of natural justice.
The applicant could not have succeeded any way even if there was the hearing of the nature sought. I adopt what was said by HOOPER J in REGINA v MINISTRY OF DEFENCE Ex parte MURRAY (The Times Law Reports, Q.B., Div. Ct. 17.12.97 p.32) when he said:
"judicial review was unlikely to succeed where the reasons were easily discernible albeit not expressed or where no other conclusion
than that reached was realistically possible".
It has even been held that "there is no principle of law that says that unfairness can never be ignored if a fair hearing would
not have made any difference to the decision taken;" (CELIK (Ali) and CELIK (Hanifa) v Secretary of State for the HOME DEPARTMENT (1991) Imm. A.R. 8, C.A. referred to in CLY p.489 1991 item 1969). There STAUGHTON L.J. said:
"Ordinarily, if there has been improper procedure, one needs to be soundly convinced that the impropriety made no difference
before one should refuse to act upon it."
For these reasons there is no sign of procedural irregularity or impropriety or unfairness. The DEN complied with the procedural requirements.
I therefore find no merit in these grounds of judicial review.
There is no merit in the applicant's allegation that DEN exceeded his jurisdiction or that DEN's actions were contrary to applicant's
legitimate expectations.
It is pertinent to note, as pointed out by Mr. Barnes in his submission, that there is a 'grievance procedure' under clause 15 of the JIC agreement which could have been utilised by the applicant as an alternative remedy instead of resorting first to Judicial
Review as has been done here. If that had been done, the parties concerned could have gone into the merits of the case which is not
available under a judicial review application.
In administrative law, there is need on the part of a decision-maker to act reasonably and there has to be a reasonable basis for
the decision. The decision I find was Wednesbury reasonable and in considering this aspect of the application I am guided by the following passage from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 K.B. (C.A.) 223 at 233-234:
"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account
matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account
matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible
to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have
nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again,
I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a
decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority
have contravened the law by acting in excess of the powers which Parliament has confided in them."
Conclusion:
To conclude, on the facts and circumstances of this case I find no merit in any of the grounds of relief. The applicant has thus failed
in his attack upon the decision made by the Acting Divisional Engineer Northern. His application will have to be dismissed accordingly
which I hereby do and he must pay the respondents' costs in the sum of $500.00 within 28 days.
D. Pathik
Judge
At Suva
5 October 1999
Hbj0002j.98b
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