State v Public Service Appeals Board, Ex parte Torowale [2008] FJHC 352; HBJ28.2008 (17 December 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW ACTION NO.: 28 OF 2008

BETWEEN:

THE STATE

V

PUBLIC SERVICE APPEALS BOARD
First Respondent

PUBLIC SERVICE COMMISSION
Second Respondent

EX-PARTE:

MELINI TOROWALE
Applicant

Applicant - In Person
Ms K. Bavou for First Respondent
Mr. S. Sharma with
Mr. A. Pratap for Second Respondent

Date of Hearing: 4th November 2008
Date of Judgment: 17th December 2008

JUDGMENT

Background:

[1] The applicant was a civil servant and was employed at the Attorney General’s Chambers as an Executive Officer. The Public Service Commission is responsible for appointing, disciplining and terminating public servants: Section 147 of the Constitution.

[2] On 26th February 2007 the applicant was charged with forty four disciplinary offences. These charges alleged that the applicant was persistently late for work or absent without leave. They alleged that despite counseling and warnings, the applicant’s attitude towards work had not improved. Two charges being Counts 11 and 12 were withdrawn as the attendance register in respect of them was not available. The Public Service Commission (PSC) conducted the disciplinary hearing. It found the defendant guilty. It then invited the applicant for mitigation. Immediately after the mitigation, the applicant terminated the applicant’s appointment.

[3] The applicant through her unions appealed to the Public Service Appeal Board under Section 25 of the Public Service Act 8 of 1999. The Public Service Appeal Board (PSAB) heard her appeal but disallowed the appeal so the applicant remains terminated.

[4] I heard the leave application inter-parte. I granted the applicant leave on two narrow issues which were:

(a) Whether the final warning letter dated 18th January 2007 absolved her previous late arrivals and absence.

(b) Whether the PSC had predetermined the sentence before mitigation.

Issue (a) - Whether the letter of 18th January 20078 provided her a clean
sheet:

[5] The applicant submits that the disciplinary charges relate to incidents prior to 18th January 2007 and there is double jeopardy. Her argument is that once she had been given final warning, then pre-18th January 2007 conduct could not be made the subject of disciplinary proceedings.

[6] The final warning letter is annexure H to the affidavit of the applicant. The relevant portion of the letter reads:

"The records maintained in your Leave File reveal that despite counseling, verbal and written warnings you:

• Still continue to report late to work;
  
• Still continue to absent yourself from work without authority; and
  
• Have a tendency to inform by telephone that you will be absent from duty and shall formalize this on resumption of duties.
  

This is not acceptable. You are warned that any repetition of such nature will no longer be tolerated and you will be suspended from duty without salary with immediate effect."

Jeremaia Namuaira is the acting Director Corporate Services in the Attorney General’s Chambers. He swore an affidavit dated 1st September 2008. Annexure 5 to the affidavit is a photocopy of the attendance register of the staff at the Chambers for 18th, 19th and 22nd January 2007.

[7] The register shows that the applicant was absent on 18th and 19th. On 22nd her name does not appear. Mr. Sharma submitted that on 22nd she arrived late and did not enter her name and the register shows a blank space.

[8] For her absence on 18th, she produced a sick sheet. The sick sheet stated that the applicant was fit to resume duty on 19th but on 19th she was again absent. A note on the explanation sheet given by her shows that she did not inform anyone that she would be absent that day.

[9] Jeremaia Namuaira also deposed that on 31st January 2007 the applicant informed the employer that she would be late. On 5th February 2007 she rang to say she would not come to work due to no water supply. On 12th February 2007 she rang to say that she will not attend work but will formalize her absence the next day, a somewhat casual attitude towards being absent from work with little regard being given to inconvenience it caused to the employer.

[10] All this information was before the PSC and also the PSAB. The affidavit of Josese Bisa, who is the Secretary of PSAB, sworn on 9th July 2008 contains the records of PSAB hearing. It shows that the applicant was represented by one Mr. W. Tofinga who made representations to PSAB. The PSAB considered the representations and the evidence before it, it made certain findings four of which are pertinent and are as follows:

"a] The appellant had a dismal track record of various misdemeanors including unauthorized leave, late arrivals, etc.

b] She was warned on more than 3 occasions and was ultimately given final warning and was later charged on 44 counts for late arrivals and unauthorized absence from office.

c] Despite numerous written and verbal warnings and counseling she failed to show any improvement in her attitude towards work.

d] The appellant has the tendency of taking leave without authority and later formalizing her absence on resumption of duty."

[11] The PSAB concluded that despite warnings the applicant continued to come late and absent herself from work over a number of years. The conclusion is at paragraph 17.1 of its ruling. It reads:

"The Board notes that despite severe warnings the appellant continued with late arrivals and absence without leave over a number of years. She was given ample opportunities to improve by being counseled and warned on several occasions but she did not improve her conduct. She was given severe written warnings on 08/07/03, 27/08/04, 16/05/05 and 04/01/07. Even after the final warning on 18/01/07, she did not improve. The Board therefore concurs with the PSC that the appellant had breached GO 302 and GO 304 as well as Solicitor General’s Internal Circular No. 1 of 2004, contrary to Section 6(4) and 6(5) of the Public Service Act, 1999."

The General Orders 302 require a public servant to sign the attendance register and note the time of arrival and give any reason for late arrival or early departure. General Orders 304 provides that an officer who is absent without leave opens himself/herself to disciplinary action and one of the penalties for it being termination.

[12] Sections 6(4) and 6(5) of the Public Service Act provide that an officer must comply with all applicable Acts and subordinate legislation and comply with all reasonable directions given by person in authority. The applicant had been warned a number of times about being punctual and being present at work but such warnings were not heeded.

[13] The PSAB was quite entitled to reach the findings and conclusions which it did. In review applications of this nature, the court is not sitting on appeal against a decision on merits but only to ensure that the decision was arrived according to law and that proper procedures were followed and that appropriate principles of natural justice and fairness were observed. I cannot substitute my findings of fact for those found by PSAB even if I disagreed with those findings.

[14] The letter of 18th January 2007 was only a warning letter not a disciplinary proceeding conducted by the PSC which is the relevant authority to discipline civil servants. It was a letter written from within the department. The department has no powers to discipline. The Public Service Act deals with misconduct of public servants and provides for disciplinary penalties which may be imposed. Once a public servant has been charged and dealt with, then the same matter cannot be reopened. The applicant, however, is trying to elevate warning letters to the level of disciplinary proceedings.

[15] The object of warning letters is to caution a person or try to get a person to reform. Its purpose is not investigatory and punitive like that of disciplinary proceedings. In Tagicakibau v. PSC (2001) FJHC 12 Justice Fatiaki in comparing punishment after investigation with warning letters remarked obiter that: "This latter prohibition would be rendered meaningless if the officer’s conviction could subsequently be resurrected for the purpose of undermining his efficiency ... The same cannot be said however, of warning letters and counselling sessions or other non-disciplinary measures". The prohibition he was considering there was officer being punished twice for the same offence.

[16] The Court of Appeal upheld the above reasoning and went further to state that in deciding whether an officer had ceased to be efficient, his whole employment history may be taken into account. Discharge of an inefficient officer is different from imposing a penalty: PSC and Attorney General v. Rusiate Tagicakibau – ABU 24 of 2001.

[17] Accordingly I reject the submission that the letter of 18th January 2007 precluded the respondent from relying upon conduct of the applicant prior to 18th January 2007. So the first grounds fails.

Issue 2 - Whether the Public Service Commission had decided the
penalty before mitigation hearing:

[18] The applicant is not complaining of finding of guilt by the PSC but only predetermination of sentence. The applicant is relying on comments by comment of the chairman saying "we have made up our minds you know, whether they going to mitigate its useless to us because we have decided".

[19] These are comments of one member of the panel at the PSC hearing. Subsequently the applicant appealed the decision to PSAB. There was intervention of PSAB hearing after the PSC decision. Unlike judicial review, the PSAB on appeal can consider the decision on merits. The PSAB did conduct a full hearing and invited submissions. Then it made a decision. There is no allegation of bias or predetermination against PSAB. The PSAB is an independent appellate tribunal. Any allegation of bias against one member of the PSC cannot infect PSAB.

[20] In any event if the PSC had made up its minds earlier, then it is unlikely it would have taken a week to make the decision.

[21] The comments by the member of PSC are unfortunate but I am of the view that in no way advances the applicant’s arguments. This ground therefore also fails.

Final Orders:

[22] The application for judicial review is therefore dismissed with costs which I summarily fix in the sum of $500.00 to be paid in fourteen (14) days.

[Jiten Singh]
JUDGE

At Suva
17th December 2008