Tagicakibau v Public Service Commission [2001] FJLawRp 26; [2001] 1 FLR 132 (16 March 2001)

RUSIATE TAGICAKIBAU v PUBLIC SERVICE COMMISSION & ATTORNEY-GENERAL

High Court Civil Jurisdiction

17 May, 2000, 16 March 2001

HBC0300/97S

Employment - lawfulness of discharge by Public Service Commission - subordinate officer on a five yearly renewable contract – contract yet to expire at the time of discharge – malingering – meaning of - High Court Rules O. 38 r.2; Prisons Act s15(1)(c), 30(1) & (2), 32, 35; Prison Service Regulations reg 19

The Plaintiff challenged his discharge from the Prison Service on grounds that the PSC's decision was an ultra vires exercise of powers, denial of procedural fairness and natural justice, and non-adherence to the provisions of the Prisons Act. He claimed damages for wrongful dismissal. The Plaintiff had been charged and appeared before a discliplinary tribunal on a charge of malingering in respect of the deterioration in his work performance and indiscipline, and taking too many sick days when he was seen to drive a taxi. A disciplinary tribunal convened to hear the charge submitted its report to the Commissioner for determination without making any findings of guilt on the charge. The Commissioner exercised section 15(1) and discharged the Plaintiff. The Court found that the disciplinary tribunal substantially complied with the Prisons Act, but erred in failing to make findings based on the charge but made findings of fact affecting credibility.

Held–(1) Where a prison officer cannot resign or withdraw from Prison Service employment without the consent in writing of the Controller, the disciplinary tribunal which heard a charge of malingering aganist the Plaintiff erred in making several crucial findings of fact including an adverse assessment of the Plaintiff's credibility, which was improperly included in the record of proceedings transmitted to the Commissioner of Prisons for his decision. The Commissioner was not entitled to rely on a transcript of proceedings or take into account previous disciplinary action, and ought to have followed section 35 of the Prisons Act in hearing and determining the case himself.

(2) Section 15 of the Prisons Act which concerns assessment of an officer's efficiency comprises two separate and disjunctive limbs, which recognises that efficiency is not a once-for-all time assessment, i.e. one incident of indiscipline does not inevitably spell the end of an otherwise efficient officer. The decision on assessment of efficiency of an officer is not one solely for the decision of the Commissioner of Prisons. The Commission's confirmation of the Commissioner's decision showed it failed to understand its role and function in respect of section 15.

(3) The Pubic Service Commission failed to inform the Plaintiff he had been found guilty of an offence. The numerous irregularities meant that the Plaintiff was wrongfully discharged.

Declaration issued that the Plaintiff was wrongfully discharged. Damages to be assessed, if not agreed, for 3 year 9 month period from date of discharge until expiry of contract period, plus costs.

[Note: This case is reviewed in the Legal Lali Vol IV No. 2 p.31 December 2001. Subsequently the Prisons Act has been replaced by the Prisons and Corrections Act 2/06]

Case referred in judgment

Sefanaia Masi Kaumaitotoya v The Controller of Prisons & The Attorney General (1982) 28 FLR 54

Raman P. Singh for the Plaintiff
Sharvada Sharma for the Defendants

16 March, 2001

JUDGMENT

Fatiaki, J

By letter signed by the Acting Secretary of the Public Service Commission and dated 5th February 1997, the Plaintiff was 'discharged from the Prison Service in accordance with Section 15(1)(c) of the Prisons Act Cap.86' and by letter dated 9th July 1997 the Public Service Commission purported to dismiss the Plaintiff's appeal against its (the PSC's) earlier decision discharging him.

By Writ of Summons dated the 29th of July 1997, the Plaintiff challenges the lawfulness of his discharge on various grounds including ultra vires exerci powers, denial of procedural fairness and natural justice and 'non-adherence to the provisrovisions of the Act' and the Plaintiff claims damages for wrongful dismissal.

In light of thve 'groungrounds' advanced by the Plaintiff, defence counsel not unnaturally, sought the dismissal of the claim as an abuse of process in that 'the Plaintiff ought to have pursued its relief b of judicial review rather ther than by way of an action begun by Writ of Summons'.

Haviard argument on then the application I rejected it on 20th November 1997 and ordered that the Defendants file a Statement of Defence and the action follow its n course thereafter. Two (2) years elapsed before the actionction was entered for trial and the case was eventually heard on 17th May 2000.

On the indicaof counselunsels that the facts were not in dispute and with a view to expediting the trial the Court invoked its powers under Order 38 r.2 of the High Court Rules 1988 to receive the witnesses evidence-in-chief by way of affidavit with liberty to cross-examine as counsels saw fit.

The witn were then call called and each identified and produced his affidavit as an exhibit. The Plaintiff produced his affidavit dated May 2000 (Exhibit P-1) and closed his case after defence counsel indicated that he did not not wish to cross-examine him. The defence then called two (2) witnesses, the Commissioner of Prisons (Exhibit D-1), and an Acting Principal Administrative Officer in the Public Service Commission (Exhibit D-2). Both defence witnesses were cross-examined by Plaintiff's counsel.

The bfacts of the case case were that prior to his discharge from the Prison Service the Plaintiff was employed as a subordinate offin a five (5) yearly renewable contract which was last renewed on 5th November 1995 and due due to expire in November 2000. His career in the service can best be described as being a 'chequered' one in which he served in various prisons around the country and on no less than two prior occasions in November 1992 and April 1994, decisions were taken by his supervisors to discharge him from the service owing to a deterioration in his work performance and indiscipline. On neither occasion was the Plaintiff discharged for one reason or another and he continued to be re-engaged in the prison service.

In this latter regard oection 30(1) of the Prisons Act (Cap.86) provides that 'for the purposes of the trial of offences against discipline there shall be the following tribunals ...' and, in the case of a subordinate officer such as the Plaintiff, paragraph 'B' constitutes - 'A Supervisor or Senior Officer' as an appropriate tribunal to try offences. No complaint can be nor was any raised by the Plaintiff on that score.

As far as the proe at t at trials of disciplinary offences is concerned Section 30(2) generally provides that:

'No officer ... shall nvicted of an offence against discipline unless the charge has been read out and investigattigated in his presence and he has been given sufficient opportunity to make his defence thereto.'

This is further reinforced and expanded in Regulation 19 of the Prison Service Regulations which affords a fairly comprehensive list of protections in order to secure a fair trial for ansed officer.

In the present caseng ping perused the record of proceedings and in the absence of cross-examination pertaining thereto, I am satisfied and so hold that the provisions of Sections) of the Prisons Act (Cap.86) and Regulation 19 (ibid) were were substantially complied with in the trial of the Plaintiff for the disciplinary offence of Malingering.

It is clear however, from the record of proceedings that the tribunal that heard the disciplinary charge against the Plaintiff did not determine the charge pose any penalty on the Plaintiff nor did the tribunal invoke Section 32 as it could have dave done. In its own words: 'Without making any findings I state the proceedings to the Commissioner of Prisons for his decision and award.'

The Plaintiff complhowe however that the Commissioner of Prison's handling of the matter after it had been referred to him was 'in excess of jurisdn' in that it deprived him of procedural fairness and denied him natural justice.
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Agh not specificalfically mentioned in the tribunal's referral, the sole authority or basis for the particular course of action adopted is that which is providedection 35 of the Prisons Act (Cap.86) which reads:

'In any case where it appears to the Supervisor or senior officer who is inquiring into an alleged offence against discipline, that the offence alleged to have been committed would not, by reason of its gravity, or by reason of previous offences, or for any other reason, be adequately punished by any of the punishments that he is empowered to impose by Section 30 such supervisor or senior officer shall, without recording any finding, stay the proceedings and transmit the proceedings to the Controller.'

and, ih a circumstance,ance, the Section continues:

'The Controller may hear and determine the case himself or direct thate dealt with by the supervisor or senior officer who transmitted it, or by any other Supervupervisor or senior officer.'

I only reported judgmendgment in this area, namely, Sefanaia Masi Kaotoya v The Controller of Prisons & The Attorney General (1982) 28 F.L.R.54, Ke4, Kermode J. (as he then was) in declaring that the Controller of Prisons had erred in law in finding the Plaintiff guilty of a disciplinary offence where proceedings were referred to him under Section 35 in almost identical circumstances as in the present case, said at p.58:

'The Controller did not 'hear' the Plaintiff's case. He certainly purported to 'determine' it but such determination in my view was a nullity as he had not complied with Section 35 which required him to hear the case if he elected to hear it himself.

When the Controller decided to 'hear and determine' the case himself he became the Tribunal trying the case. He was obliged to start de novo and hear the charge against the Plaintiff in the usual manner. This he did not do.

While it is ciated ated that this involved duplication of work that is what the law requires if the proceedings are not sent back to the Tri to conclude. The express prohibition of the record of any finding by the Tribunal that firt first hears the case is intended to prevent any pre-conceived views the ultimate Tribunal hearing the case might have gained from perusing the record made by the first Tribunal.

The Cller could havd have sent the proceedings back to the Tribunal and directed him to deal with the case. He could then under Section 31 have reviewed the proceedings and if necessary increased the punishment meted out by the Tribunal. He elected not to do so.'

and, in words that miqut equally apply to the present case, Kermode, J. continued:

'It is clear from the evidence ... that the question of the guilt of the Plaintiff was very much a case of wside the Tribunal believed.eved.

The Controllot hnot having seen or heard any witness, was in no position merely from reading the (record of the) proceedings to decide on the issue of credibility or the guilt or otherwise of the Piff and his two witnesses.

I have not see pthe proceedings but if such views (as to the Plaintiff's credibility) were expressed by the Tribunal in the proceedings he recorded (as occurred in this case), they would conse 'findings' which he was ewas expressly precluded by the Section from recording.

A sr>A similae must beft befall the Commissioner's determination in the present case where he deposed at paragraph 35 of his affidavit (Exhibit D-1):

'As the facts had been established (e Supervisor of Naboro Pris Prison) that the Plaintiff had in fact committed a disciplinary offence, I found him guilty.'

It is significant that in his written explanation to Public Service Commission dated 14th January 1997 in response to the Commissioner's letter, the Plaintiff maintains that:

'In fact the case regarding the allegation that I was seen driving a taxi after my Annual Leave is still under investigation. For this I am still innocent until the tribunal proves that there is enough evidence to judge me guilty. I was in fact travelling to hospital while I was on sick leave.'

The significof this is s is that it seems the Plaintiff was not advised by the Commissioner that he had been found guilty of the offence as ainly should have been.

tunately the errors in s in this case do not end therethere but are continued in the Commissioner's purported exercise of his powers under Section 15 of the Prisons Act (Cap.86).

It is notewortht no meno mention is made at all, either in the Commissioner's affidavit or in his oral testimony, that, having formed that view, he as the proper 'tribunal', had applied his mind to thvisions of Section 32 of thof the Prisons Act (Cap.86) which relevantly provides:

'Where it is considered that a junior or subordinate officer should be removed from office ...; he shall be so informed at the conclusion of the hearing by the Tribunal and told that –

(a) any representations made in writing by him within fourteen days, will be forwarded to the Secretary of the Public Service Commission, accompanied by all relevant papers and records for a decision to be made by the Commission; and that

(b) If he makes no representations within 14 days, he shall be removed from office ..., accordingly.'

Quitenly Section 32 is 2 is in my opinion, the more appropriate provision where a decision to discharge an officer is taken during the course of a disciplinary hearing and not the procedure under Section 15 which applies 'at any time' irrespective of whether or not a disciplinary hearing has occurred or is being undertaken.

Be that as it may, the Commissioner wrote to the Plaintiff on 6th January 1997 in the following terms:

'Recently I have received several re on your poor work performance. Latest one's on 19.11.96 where you were seen driving a taxi taxi instead of resuming duties after enjoying your Annual Leave.

You were enlisted tnto the Fiji Prisons Service on 5.11.80. To date you have been charged on: 12 occasions for breaches of discipline, 13 counselling sessions and 9 written warnings. These had little effect on performance and attitude tode towards your duties.

is obvious that you hyou have ceased to be an efficient officer. Under the provisions of Section 15(3) of the Prisons Act, cap.86, I wish to inform you that I intend to discharge you under Se 15(1)(c) of the Prisons Acns Act and hereby serve you one (1) month notice as required under sub-section 2.

How I invite you toou to submit in writing within fourteen (14) days as to why you should not be so discharged. An early written extion will be forwarded to the Secretary for Public Service Commission. If no representationation is received from you within fourteen (14) days, I will assume that you have waived this privilege extended to you.'

Sec15 of the Prisons Acns Act (Cap.86) relevantly provides:

'(1) Subject to subsection (3) any officer of the Prison Service other than aor officer may be discharged by the Controller at any time time -

(c) if the Controller considers that he is unlikely to become, or has ceased to be an efficient officer.

(2) Every officer ... discharged under the provisions of Subsection (1) shall be given one month's notice of intention to discharge him from the Prison Service ... or ... one month's pay in lieu of such notice.

(3) Where it is considered that any such officer should be so discharged he shall be so informed and told that -

(a) any representation made in writing by him within 14 days, will be forwarded to the Secretary of the Public Service Commission accompanied by all relevant papers and records for a decision to be made by the Commission; and that

(b) if he makes no representations within 14 days, he shall be discharged in the manner prescribed by this section.'

It will be seen from the above that Section 15(1)(c) comprises two (2) quite separate and disjunctive limbs albeit that they are both concerned with the assessment of an officer's efficiency. Furthermore the section recognises that 'efficiency' is not a 'once-for-all time' assessment or in other words, 'efficiency' once attained can never be lost, but equally, just as one swallow does not make a summer neither does one incident of indiscipline inevitably spell the end of an otherwise efficient officer.

Kermodeas quite aware oare of this difference in the limbs when he said in Sefanaia Kaumaitotoya's case (op.cit) at p.59 after setting out Section 15(1)(c):

'I cannot see how the Controller can be satisfied as to both the alternative situations covered by the provisions.

If laintiff was unls unlikely to become an efficient officer that implies he has never been an efficient officer.

Conve if he has ceas ceased to befficient officer (as was stated in the present case) it imit implies that he had attained efficiency at some time but that he was noer efficient.

I consthe Plaintiffntiff is f is entitled to know the proper reason for his dismissal ... (and) ... the Controller should have stated precisely the grounds on which he proposed to dismiss the Plaintiff.

The virtually cporamporaneous conviction of the Plaintiff and his proposed dismissal raises a very strong inference to an onlooker that the conon triggered off the proposed dismissal.'

In the present the Plai Plaintiff coff complains that the Commissioner had erred in invoking Section 15(1)(c) and in not confining himself to the period after 5th November 1995 when the latest renewal of thintiff's contract occurred rred and which Plaintiff's counsel argues tantamounts to a 'forgiveness of (the Plaintiff's) past indiscipline'.

In his evidhowever the the Commissioner quite firmly rejected the suggestion that he had improperly invoked Section 15 by way of a penalty and said that he considered he was entitled to refer to and consider the Plaintiff's conduct prior to his contract renewal 'in deciding whether the Plaintiff should be allowed to continue in the prison service as an efficient officer'. Needless to say the Plaintiff's contract renewal in 1995 had occurred during the term of the present Commissioner's predecessor and ought not therefore to bind him. I cannot agree.

In the first place, a nrison officer's employment is rather unusual in that once appointed he cannot resign or withdraw from the Prison Service without the consent in writing of the oller (see: Section 13); secondly, Section 29 of the Prisonrisons Act (Cap.86) provides for the punishment of any officer who commits any offence against discipline and, where punishment has been imposed, 'no such officer shall be punished twice for the same offence'. This latter prohibition would be rendered meaningless if the officer's conviction could subsequently be resurrected for the purpose of undermining his 'efficiency' as occurred in the Plaintiff's case. The same cannot be said however, of warning letters and counselling sessions or other non-disciplinary measures but that was not all that the Commissioner considered as his memorandum clearly disclosed.

This is rendered al more more important when one considers the submission of defence counsel that the Public Service Commission's decision under Section 15 is merely to 'confirm, vary or revoke the Commissioner of Prisons (declared) intention on the basis of the representations made by the Plaintiff' and further, that the decision of an officer's 'efficiency' is entirely for the Commissioner of Prisons to determine as the person best suited to assess it. On both counts I cannot agree.

Trroneous submission ison is evidenced by the title and contents of the letter of the Public Service Commission dated 5th Februar7 discharging the Plaintiff, which reads:

'The Public Service Commission at itst its meeting held today has considered your appeal and decided that you be discharged from the Prison Service in accordance with Section 15(1)(c) of the Prisons Act, Cap.86.'

The use of thd 'appeal'peal' is unfortunate in the circumstances, since it belies a misunderstanding by the Public Service Commission of its role and function in the discharge of subordinate prison officers and, despite the Assistant Secretary's (DW2) attempts to down-play the use of the term, his statement (at para.3 of his affidavit) that: 'At its meeting, the First Defendant (PSC) agreed with the Commissioner of Prisons that the Plaintiff had ceased to be an efficient officer' reinforces the Public Service Commission's misunderstanding of its role and function.

In light o numerous irrs irregularities that occurred in this case I am reluctantly driven to the conclusion that the Plaintiff was improperly discharged from the Prison ce.

He has not sought retemtatement however aner and given the length of time it has taken for this matter to be finally determined (for which the Plaintiff must bear some responsibility) and the fact that the Plaintiff's employment contract would have expired on 5th November 2000, the justice of the case is best served in my view by a formal declaration and an order for the assessment of damages in the event that agreement cannot be reached.

Accordingly I decthat that the Plaintiff was wrongfully discharged on 5th February 1997 and order that damages be assessed if not agreed from that date to 5th November 2000. Thentiff is to have the costs of these proceedings which are sare summarily assessed at $750.00.

Declaration granted.

Marie Chan