Ministry of Education v Waqamailau [2023] FJPSDT 1; PSDT 01 of 2023 (30 June 2023)

IN THE PUBLIC SERVICE DISCIPLINARY TRIBUNAL

AT SUVA

PSDT: 01/23

BETWEEN	:	THE MINISTRY OF EDUCATION
AND	:	IFEREIMI WAQAMAILAU
Date of Hearing	:	9 May 2023
Date of Ruling	:	30 June 2023
Appearances
for the Ministry	:	Ms. Buaserau and Ms. Sattar J.
for the Defendant	:	In Person

R U L I N G

INTRODUCTION

1. Mr. Ifereimi Waqamailau (‘Mr. Waqamailau’) is a secondary school teacher of Queen Victoria School (“QVS”). At the relevant time in November 2020, he was the Assistant Principal at QVS. He is currently on suspension and is facing some disciplinary charges before this Tribunal. The charges (see below) were filed by the Ministry of Education (“Ministry”).
   

CHARGES

2. Below, we set out the disciplinary charges against Mr. Waqamailau.
   

Charges

MISCONDUCT: Contrary to section 6 (1), 6 (2), 6(3), 6 (12) and 6(14) of the Civil Service Act 1999.

Particulars of Charges

IFEREIMI WAQAMAILAU on 16 November 2020, at Queen Victoria School, had acted unprofessionally and inflicted corporal punishment by being involved in rubbing chillies on the private parts of four male students of Queen Victoria School, namely Matia Waqanivalu, Year 10, Jiosateki Koroi Year 9, Daniel Viliame Vosaikilakeba Year 9 and Suluo Saulekaleka Year 10.

THE HEARING

3. The hearing was conducted on 09 May 2023 in Courtroom No. 11, Government Buildings, Suva. In conducting the disciplinary hearing, the Tribunal is mindful that this is not a criminal matter (PSDT-v- ex parte Ministry of Works (2019) FJHC 494; HBJ 8 of 2014 (May 2019) at para 38 and 39) and ensures that in accordance with Regulation 21 (2) of the Public Service Commission (Discipline) Regulation 2009 the Tribunal is not bound by the formal rules of evidence and deals with proceedings fairly including the right of the employee to be heard. The Ministry called the following witnesses:
   

MW1	Master Atish Chand Mudaliar
MW2	Mr. Josateki Koroi
MW3	Mr. Suluo Saulekaleka

4. Mr. Waqamailau called the following witnesses:
   

DW1	Mr. Apenisa Vasu
DW2	Mr. Jitoko
DW3	Mr. Jeremaia Mateni
DW4	Mr. Isimeli

BURDEN OF PROOF

5. The burden lies with the Ministry to prove the following facts on the balance of probabilities.
   
   • (i) that, as at 16 November 2020, Mr. Waqamailau was a school teacher at QVS.
     
   • (ii) that Mr. Waqamailau was employed by the Ministry.
     
   • (iii) that, on the said date, Mr. Waqamailau was involved in the rubbing of chillies onto the private parts of four (4) male students namely Matia Waqanivalu, Year 10, Jiosateki Koroi Year 9, Daniel Viliame Vosaikilakeba Year 9 and Suluo Saulekaleka Year 10.
     
   • (iv) that the rubbing of chillies was carried out to punish the four students for their unauthorized departure and absence from school from 14 to 16 November 2020.
     
   • (v) that, by his involvement in the rubbing of chillies as such, Waqamailau thereby acted or engaged in conduct which breached section 6 (1), 6 (2), 6(3), 6 (12) and 6(14) of the Code of Conduct.
     

BACKGROUND

6. We set out here the background to this case. This is based on the uncontroverted facts which we gather from the evidence of all witnesses.
   
7. Four (4) students namely Matia Waqanivalu (Year 10), Jiosateki Koroi (Year 9), Daniel Viliame Vosakilakeba (Year 9) and Suluo Saulekaleka (Year 10) had taken an unauthorized three-day French leave from school from 14 to 16 November 2020.
   
8. Their parents were also not aware of their being absent from school on the above dates. When the students returned to school on the morning of 16 November 2020, at about 8.00 a.m. or thereabouts, they were taken to Mr. Waqamailau’s office. Mr. Mateni (DW3) was also present in the office.
   
9. When the four students were presented at Mr. Waqamailau’s office, Mr. Waqamailau gave them two options. The first was to resolve the case right there in his office without informing or involving their parents. The second was to have their parents called and be informed of their actions. All four students chose to solve the matter in school and that their parents not be informed.
   
10. Following that short time in Mr. Waqamailau’s Office, the four students were released to go back to their dormitories where they took a shower and then attended classes later that same morning.
    
11. Later that day, in the afternoon, after classes, the four students submitted to three hours of community service. This is the standard punishment for their offence in accordance with school policy.
    
12. There was no medical examination done at the school dispensary or at Korovou Hospital.
    

MAIN ISSUE OF FACT

13. The main issue of fact is whether or not Mr. Waqamailau was involved in the rubbing of chillies onto the private parts of the students concerned. Mr. Waqamailau refutes the allegations. He has maintained a plea of not guilty to the charges. At the end of the day, this is a matter of pitching Mr. Waqamailau’s words against MW2’s and MW3’s words.
    

THE EVIDENCE

14. It is not in dispute that Mr. Waqamailau was the Assistant School Principal at the Queen Victoria School at the material time. He was a civil servant employed by the Ministry of Education. This establishes his accountability to the Code of Conduct in the Civil Service Act 1999.
    
15. Neither MW2 nor MW3 said in evidence that Mr. Waqamailau was directly involved in the rubbing of chillies onto their private parts. However, MW3 said in re-examination that Mr. Waqamailau was the one who was instructing Mr. Mateni on what to do.
    
16. We note that MW2 and MW3 both said that it was Mr. Mateni (DW3) who had directed a student to fetch some chillies and bring them to Mr. Waqamailau’s Office. When the chillies were brought to DW3, DW3 then crushed or mashed the chillies into a paste. DW3 then ordered MW2, MW3 and their two friends to apply the potion onto their private parts.
    
17. We note in particular that, in response to a question we asked him after his re-examination, Mr. Mateni (DW3) said that he too had faced disciplinary action by the Ministry in relation to his alleged involvement in the rubbing of chillies on the four students. He said the Ministry did suspend him for two years or so. He said he was only reinstated by the Ministry after he was acquitted of the related criminal charges against him in the Magistrates Court. Notably, Ms. Buaserau did not challenge DW3’s account on this. We accept DW3’s account as true.
    
18. We note that Mr. Waqamailau did cross-examine MW2 and MW3 extensively on why they did not complain about the alleged chilies-rubbing incident immediately after the supposed event. We note that both witnesses said that they were “afraid” or “ashamed”.
    
19. We have also considered the evidence of DW1 and DW4. Both confirmed that the students in question appeared separately in their classes later the same morning of 16 November 2020. They both said they did not notice anything untoward about their behavior.
    
20. We accept the cross-examination by Ms. Buaserau that neither DW1 nor DW4 were in a position to shed any light on whether or not there had been any chillies-rubbing incident that same morning.
    
21. DW3 was in year 11 in 2020.On the morning of 16 November 2020, he was in his classroom when he was directed by Mr. Waqamailau to go and call the four boys from their dormitory. When he arrived at their dormitory, he saw them all seated and laughing. He then escorted them to their individual classes. Then he returned to his classroom. He said he did not see anything wrong or out of the ordinary with the four boys. He said he belonged to the same House as the four boys and was aware that they had been missing from school for three days.
    
22. In cross-examination, DW3 said they were talking about what they did during their French Leave and not about what happened after the French Leave or what happened in Mr. Waqamailau’s office. He said none of them ever mentioned about any rubbing of the chillies – nor did he notice any awkward look on their faces.
    

ANALYSIS

23. It is alleged that Mr. Waqamailau, by being “involved” in the chillies-rubbing incident, misconducted himself contrary to section 6 (1), 6 (2) 6 (3) and 6(12) of the Civil Service Act 2009.
    
24. We note that the above provisions are consolidated or “rolled together” so to speak into one single charge.
    
25. We are of the view that the charge is rather poorly drafted. In its current form, the charge would require the Ministry to prove every element of the different subsections of section 6 (see above) to establish that Mr. Waqamailau did misconduct himself as charged.
    
26. In our view, the Ministry need only charge Mr. Waqamailau under section 6 (12) and/ or section 6(14) of the Civil Service Act 1999. These are the ‘catch all’ provisions. These provisions are sufficient to encompass the alleged offending act in question in these proceedings.
    
27. In any event, the Tribunal must determine the allegations as charged in its current form.
    
28. As stated above, it is not in dispute that Mr. Waqamailau was an employee of the Ministry of Education at the time of the offence.
    
29. We now turn to consider whether Mr. Waqamailau was involved in the rubbing of chillies. The charge, which we set out above, alleges that he was “involved in rubbing chillies on the private parts of four male students”. The word “involve” is imprecise. In the circumstances of this issue, it could denote a range of things (e.g. that he was just present in the room, or that he actually personally and physically applied the chillies). The word is defined in the Concise Oxford English Dictionary (12^th ed.) as:
    

“include as a necessary part or result. Cause to experience or participate in an activity or situation”

30. Ideally, the charge should have specified the exact nature of Mr. Waqamailau’s alleged involvement in the incident in question. Regrettably, this was not the case.
    
31. As we have noted above, MW2 and MW3 did say in evidence that Mr. Waqamailau was not involved in crushing the chillies into a paste, nor was Mr. Waqamailau the one who had directed that the chillies be brought to his office for that purpose. Rather, both said in their evidence that this was all done by Mr. Mateni (DW3). Notably, MW3 did say that Mr. Mateni acted on the direction or instructions of Mr. Waqamailau.
    
32. It would seem that, in order to establish that Mr. Waqamailau was at all “involved” in the chillies-rubbing incident, one would have to first establish that Mr. Mateni really did commit all the acts which MW2 and MW3 said he did on the 16 November 2020 in the office of Mr. Waqamailau. We are unable to make a finding that Mr. Mateni really did commit the act which MW2 and MW3 said he did, in their evidence. Our reasons follows:
    
    • (i) we accept Mr. Mateni’s account that he too had faced disciplinary charges in relation to the same allegations and was suspended for two years and he was only reinstated by the Ministry following his acquittal of related charges in a court of law (see paragraph 17 above)
      
    • (ii) while Mr. Mateni’s acquittal in the court of law does not per se determine these disciplinary proceedings against Mr. Waqamailau, the acquittal does accentuate the existing doubt on the question as to whether or not Mr. Mateni really did commit the acts which MW2 and MW3 said he did
      
    • (iii) in any event, we find it hard to accept MW2’s and MW3’s evidence in as far as it implicated Mr. Mateni. We say this because the veracity of their account was not tested and put under cross-examination.
      
    • (iv) the fact that Mr. Waqamailau did not cross-examine MW2 and MW3 on the above is not fatal to his defence.
      
    • (v) We reiterate that, only evidence ever given of Mr. Waqamailau’s alleged involvement in chillies- rubbing was by MW3 who said that Mr. Waqamailau was the one who directed Mr. Mateni to act. However, as we have said, there is no firm evidence before us that Mr. Mateni did act as such. While we are mindful that the standard of proof is balance of probabilities, we draw an analogy from the law which governs the liability of an accomplice, that is, that the liability of an accomplice (Mr. Waqamailau) is contingent, first and foremost, on a finding of guilt against the principal (Mr. Mateni).
      
33. In light of the above, we are not prepared to make a finding that Mr. Waqamailau was at all involved in the rubbing of chillies on the four students, let alone, that he misconducted himself by behaving contrary to honesty and integrity, or that he failed to act with care and diligence, or that he failed to treat everyone with respect and courtesy and without coercion or harassment of any kind, including sexual harassment or discrimination.
    
34. Given the above findings, we are restrained from even considering the allegation that Mr. Waqamailau had failed to properly report the matter. In other words, there was nothing for Mr. Waqamailau to report.
    
35. Since the first subsection, subsection 6 (1) of the Civil Service Act 1999 was not established, and because of the manner in which the charge was drafted, the Tribunal finds that the Ministry has failed to establish a case against the Defendant on a balance of probabilities.
    
36. We do hope that the Ministry will take appropriate action to safeguard Mr. waqamailau from exposure to any negative repercussions on his professional reputation resulting from these proceedings.
    

CONCLUSION

37. The Tribunal recommends the following:
    
    1. that Mr. Waqamailau be fully reinstated into the service.
    2. that reinstatement shall include full restoration of all employment benefits, rights and privileges which Mr. Waqamailau was entitled to prior to his suspension including the restoration of the 50% salary which was withheld during the period of suspension
    100. that Mr. Waqamailau’s employment record shall be expunged of any reference to the disciplinary offences and allegations which are the subject of these proceedings.
         

Signed:

________________________________________________________________________

Hon. Justice Tuilevuka, [Chairman, Public Services Disciplinary Tribunal]

Date:

Hon. Justice Samuela Qica, [Member, Public Services Disciplinary Tribunal]

Date:

Hon. Justice Senileba Levaci, [Member, Public Services Disciplinary Tribunal]

Date: