State v Permanent Secretary for Lands & Mineral Resources, Ex parte Rupeni [2001] FJHC 20; Hbj0028J.2000s (1 May 2001)

Fiji Islands - The State v The Permanent Secretary for Lands and Mineral Resources, Ex parte Rupeni - Pacific Law Materials

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 SERVOMMISSION

Respondents

exe

TIMOTE TOKOARA RUPENI

Applicant

R. Matebalavu for the Applicant

W. Callanchini for the Respondents

JUDGMENT: 1">

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

(i)&nbs> &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp; Applican supposupport, 4 August 00;

(ii) ;&nspp;&nssp;  p; &nbp; &nbp;

(iii) &nbbsp;& &nsp; &nsp; &nnbp;& cant, int, in answeanswer, 31 October 00;

(iv)>(iv) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;; Malakailakai Nawaqaliva, 13 February 01;

(v) &nnsp;&&nsp;;&nspp;&nssp;&nsp; Savenaca Kaunis15 F 15 February 01;

(vi) &nnsp;&&nsp;;&nspp; span>Applicant, in answer to Malakai Nawaqaliva, 19 March 01;

(vii) &nbssp;&nnsp;&&nsp; &nsp; &nb/p; Applicant, in answ answer to Savenaca Kaunisela’s second affidavit, 19 March 01.

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Counsel also filed written submissions:

(i) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &nApplicaplicant, 20t, 20 December 00;

(ii) & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;& Respondspondents, 22 January 01;

n lang=EN-GB style=tyle="font"font-size-size: 12.: 12.0pt">0pt">(iii)  p; &nsp; &nbbsp; Rdents; nts; 26 Feb6 February 01;

(iv) & &nnsp;&&nbp;;&nbp; &nbp; capli 19 March 01.<01.

On 41998 the Applicant and the second Respondent entered into a contract of employment whereby reby 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 1999 the PSC wrote to the Applicant advising him that Mr. Luke Rokovada, the Permanent Secr 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. Roa. He offered a detailed exed 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 ositions in question becausecause 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)  p;&nbbsp;&&bsp; bsp; bsp; that (on his owi admission) the Applicant had recruited 16 new staff. Of these 2 were related to him,re foemployees of Rupeni Consultants and 9 were persons already known to the Applicanticant; and; and

(v) &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nbsppan>shat (on his own aown admission) no proper procedures were followed when recruiting these staff. Inicula posi wereadver and terviews were held. The The approapproval of the PSC was not obtained.

The PSC went on to advise the Applicaat it had accepted Mr. Rokovada’s findings and that it had 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.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> April 00 the Applicant replied. A copy of his letter is Exhibit B to Savenaca Kaunisela’s la’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 00 the Applicant made further oral representations to the PSC.

On 2 May the PSC advised the Applicant that d reached the conclusion that he had “committed a serious bous 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 undergraph 6 (b) terminated the the contract by paying the Applicant one month’s salary in lieu of notice (Exhibit TTR 7).

Natural Justipan>

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 provisioplied there was a requirement for natural justice to be obse 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 wn submission that the PSC’sPSC’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 rocedure applicable to the 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.

Reasonableness

Whether or not the PSC’s decision tminate the Applicant’s contract (not it must once agce 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 the Contract had been breached since the PSC did not strictlyictly 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 sufficiequiries comes to the honest and reasonable conclusion that 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

HBJ0028J.00S