State v Permanent Secretary for Lands and Mineral Resources, Ex parte Rupeni [2001] FJHC 151; Hbj0028j.2000s (1 May 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 28 OF 2000S

THE STATE

v.

PERMANENT SECRETARY FOR LANDS AND MINERAL RESOURCES
and
THE SECRETARY, PUBLIC SERVICE COMMISSION
Respondents

ex-parte

TIMOTE TOKOARA RUPENI
Applicant

R. Matebalavu for the Applicant
W. Callanchini for the Respondents

JUDGMENT

This application for judicial review proceeds under the shortened procedure governed by Order 53 r 3 (9) with the agreement of the parties.

Altogether 7 affidavits were filed:

(i) Applicant, in support, 4 August 00;
(ii) Savenaca Kaunisela, in opposition, 20 October 00;
(iii) Applicant, in answer, 31 October 00;
(iv) Malakai Nawaqaliva, 13 February 01;
(v) Savenaca Kaunisela, 15 February 01;
(vi) Applicant, in answer to Malakai Nawaqaliva, 19 March 01;
(vii) Applicant, in answer to Savenaca Kaunisela’s second affidavit, 19 March 01.

Counsel also filed written submissions:

(i) Applicant, 20 December 00;
(ii) Respondents, 22 January 01;
(iii) Respondents; 26 February 01;
(iv) Applicant, 19 March 01.

On 4 May 1998 the Applicant and the second Respondent entered into a contract of employment whereby the Applicant was appointed Permanent Secretary in the Ministry of Lands and Mineral Resources for a period of 3 years. A copy of the contract is Exhibit TTR1 to the first affidavit.

On 25 June 1999 the second Respondent (the PSC) received an unsigned letter from anonymous members of Lands Department Management staff. A copy of the letter is Exhibit TTR2. The letter stated that the Applicant had “totally abused his office” by, among other things, appointing 15 new members of staff to the Ministry, including 4 consultants, each of whom was either a past employee of a private firm previously run by the Applicant or was a relative or was a family friend. In no case, it was alleged, had applicable PSC procedures for the recruitment of new staff been followed.

On 13 July 1999 the PSC wrote to the Applicant advising him that Mr. Luke Rokovada, the Permanent Secretary for Health, had been appointed to investigate the allegations (Exhibit TTR 3).

On 15 July 1999 (Exhibit TTR 4) the Applicant wrote to Mr. Rokovada. He offered a detailed explanation and justification for each of the appointments made. He pointed out that with the exception of the consultants the other staff were all temporary appointees. The consultants had been given 12 months contracts but the Applicant claimed that he had been advised by his Chief Assistant Secretary that he had the power to offer such contracts without the need to refer to the PSC. The letter of 15 July did not directly address the question of nepotism but in paragraph 16 (6) of his first affidavit the applicant deposed:

“that I thought it unnecessary to advertise the positions in question because I considered it necessary to employ only individuals who I could rely on to produce the desired goals”.

On 10 April 00 the PSC again wrote to the Applicant. It advised him (Exhibit TTR 5) that Luke Rokovada had completed his investigations and had concluded:

(i) that (on his own admission) the Applicant had recruited 16 new staff. Of these 2 were related to him, 5 were former employees of Rupeni Consultants and 9 were persons already known to the Applicant; and

(v) that (on his own admission) no proper procedures were followed when recruiting these staff. In particular the positions were not advertised and no interviews were held. The approval of the PSC was not obtained.

The PSC went on to advise the Applicant that it had accepted Mr. Rokovada’s findings and that it had decided that the Applicant was in breach of his contract of service. The PSC gave the Applicant an opportunity to make representations before a decision on his future was taken.

On 17 April 00 the Applicant replied. A copy of his letter is Exhibit B to Savenaca Kaunisela’s first affidavit. The Applicant accepted that he had employed relatives, friends and former employees but repeated that he had recruited these persons because he knew them to be workers of quality. The Applicant also accepted that the recruitment procedures were in breach of the requirements but stated at the time he honestly believed that he was not required to follow the established procedures.

On 1 May 00 the Applicant made further oral representations to the PSC.

On 2 May the PSC advised the Applicant that it had reached the conclusion that he had “committed a serious breach of the Public Service rules and regulations”. It had decided to give the Applicant an opportunity to resign. Failing resignation the PSC proposed to terminate the contract by invoking paragraph 6 (b) on the agreement (Exhibit TTR 6).

The Applicant did not resign and on 5 May 00 the PSC, acting under paragraph 6 (b) terminated the contract by paying the Applicant one month’s salary in lieu of notice (Exhibit TTR 7).

These proceedings for judicial review were initiated on 4 August 00. As will be seen from paragraph 20 of the O. 53 statement the Applicant says that the termination of his contract was in breach of the rules of natural justice, was unreasonable and was in breach of the terms of his contract. The Applicant’s contentions were expounded in detail in the two written submissions filed on his behalf. It will be convenient to consider the 3 main grounds of complaint one by one.

Natural Justice

It needs to be appreciated that when the Applicant was appointed in May 1998 the principal applicable legislation was still the 1990 Constitution, the Public Service Decree 1990 and the Public Service Commission (Constitution) Regulations 1990. The requirement that the Applicant conform to the existing law was contained in paragraph 2 (d) of the contract.

By May 2000 the 1990 Constitution had been replaced by the 1997 Constitution, the Decree by the Public Service Act 8 of 1999 and the Regulations by the Public Service (General) Regulations 1999 (LN 48/99).

Whichever of these provisions applied there was a requirement for natural justice to be observed in disciplinary proceedings, either under the common law or by virtue of Regulation 22 of the 1999 Regulations.

Mr. Matebalavu submitted on pages 8, 9 and 10 of his first written submission that the PSC’s failure to follow the disciplinary procedure set out in the Public Service (Constitution) Regulations 1990 (which he says were probably still applicable given Regulation 37 of the 1999 Regulations) amounted to a breach of the rules of natural justice. I do not agree.

Mr. Matebalavu’s argument appears to be based on the assumption that the procedure applicable to the termination of the Applicant’s employment with the Fiji Government was the same, or broadly the same as that of any other civil servant. There is, however, a fundamental difference between the two types of employee, the permanent and the contractual. The employment of a permanent officer may only be terminated (apart from age and ill health) for disciplinary reasons, such reasons now being reduced to a breach of the Public Service Code of Conduct (see sections 6 & 7 of the Public Service Act 1999 and Regulation 22 of the 1999 Regulations). An employee however whose terms of service are governed by a contract (1999 Regulations – Regulation 7) may have his employment terminated merely by operation of the contract.

The Applicant complains that he was never formally charged with disciplinary offences, and that he was never given a copy of Mr. Luke Rokovada’s report. He says that Mr. Rokovada should not have been appointed on his own to investigate. Had it been the case that the Applicant’s employment could only be terminated by a clearly defined disciplinary process then I might agree that that process had been breached. In the present case however the PSC had the contractual right embodied in Section 6 (b) to terminate the contract. Although that right has to be exercised “in good faith in accordance with the general purposes of (the Public Service Act) for the public good” (see Manunivavalagi Korovulavula v. PSC FCA Reps 1995/415, 433) and as such must be exercised fairly, in my judgment the requirements of good faith and fairness did not require compliance with any particular procedure so long as the main principles involved in the concept of natural justice were observed. In the present case I am satisfied that they were. In particular I am of the view that disclosure of Mr. Rokovada’s report was not necessary since the Applicant did not dispute its principal conclusions but instead offered a justification for his actions, a justification which was rejected by the PSC.

Reasonableness

Whether or not the PSC’s decision to terminate the Applicant’s contract (not it must once again be emphasised, to discipline him, a confusion which must be borne in mind when reading the Respondent’s written submission filed on 22 January 01) by invoking clause 6 (b) was unreasonable must be judged against the background of the principles set out in Section 140 of the 1997 Constitution – recruitment and promotion policy in the public service, and by the Public Service Code of Conduct set out in Section 6 of the Public Service Act 1999.

Viewed in this way I have no doubt at all that the decision to dispense with the Applicant’s services was entirely reasonable. There can be no doubt that the Applicant’s manner of recruiting the 15 or 16 new staff was quite incompatible with the principles set out in the Constitution, in the Code of Conduct and with General Orders. It also breached the practice and procedure guidelines developed by the PSC for recruitment (see Exhibits A and D to Malakai Nawaqaliva’s affidavit). The attempt to blame a more junior officer was also in my view deservedly unsuccessful. Whether or not the Court would have acted as the PSC did is not the question. For the Applicant to succeed he would have to show that the PSC’s decision was quite unreasonable. That, in my judgment, he has failed to do.

Breach of Contract

Mr. Matebalavu’s submission was that the Contract had been breached since the PSC did not strictly follow the disciplinary procedure set out in the PSC (Constitution) Regulations 1990. For reasons which I have already given I do not think that clause 6 (b) of the Contract could only properly be invoked after following a disciplinary procedure designed for permanent public servants, a procedure which, as already noted, in any event been replaced by a general requirement for natural justice.

Where the PSC, after due and sufficient enquiries comes to the honest and reasonable conclusion that a contract officer has breached one or more of the specific terms of the contract and the duties of confidence and trust placed in him and where it takes the honest and reasonable view that a contractual termination clause should therefore be invoked for the good of the public service then no breach of contract occurs.

In all the circumstances I can find no fault with the decision taken by the PSC or the manner in which the decision was reached. No complaint has been offered against the first Respondent. The application for Judicial Review fails and is dismissed.

M.D. Scott
Judge

May 2001