Public Service Commission v Rokosuka [2024] FJPSDT 5; PSDT 05 of 2024 (13 December 2024)

IN THE PUBLIC SERVICE DISCIPLINARY TRIBUNAL
AT SUVA
PSDT CASE No. 05 of 2024

BETWEEN: PUBLIC SERVICE COMMISSION

EMPLOYER

AND: ATELAITE ROKOSUKA
EMPLOYEE

Appearances

For the Employer : Mr. Chauhan V (Attorney General’s Chamber)

For the Employee : Mr. Cakau J (Vosarogo Lawyers)

Date of Ruling : 13^th December 2024

RULING ON REINSTATEMENT OF SALARY

BACKGROUND

1. Ms. Atelaite Rokosuka has been employed as the Permanent Secretary for Fisheries and Forestry since 2 June 2023. She was suspended by the Public Service Commission (“PSC”) on 8 February 2024 with full pay.
   
2. Disciplinary Charges were filed against Ms. Rokosuka on 15 October 2024 in this Tribunal.
   
3. The Ministry preferred two allegations against Ms. Rokosuka:
   

Charge 1

MISCONDUCT: Contrary to sections 6(1) and (2) of the Civil Service Act 1999.

PARTICULARS:
Atelaite Rokosuka failed to discharge your duties with care and diligence when you failed to take heed of the legal advice rendered from the Solicitor-General’s Office and critically consult the relevant ministries and departments and follow due process before entering into an agreement with Infinite Power Clean Energy (Fiji) Pte Limited, on behalf of the Fiji Government.

Charge 2

MISCONDUCT: Contrary to sections 6(4) of the Civil Service Act 1999.

PARTICULARS:
Atelaite Rokosuka failed to comply with all Applicable Act and subordinate legislation when you failed to adhere to Procurement Regulations 2010 and ensure proper due process was followed in the execution of the agreement between the Ministry of Fisheries and Forestry and Infinite Power Clean Energy (Fiji) Pte Limited, dated 24 November 2023.

4. Ms. Rokosuka was advised by a letter from the PSC dated 22 October 2024 that her pay had been suspended effective from 15 October 2024.
   
5. The Tribunal received a letter dated 7 November 2024 from Ms. Rokosuka in which she requests that her salary be fully reinstated. Her request is supported by:
   

1. a statement from the BSP Finance,
2. a statement from Kontiki Finance, and
3. a statement from the Fijian Teachers Association.
   

6. The Ministry was invited to reply to Ms. Rokosuka’s submissions. The Attorney General’s Chambers filed submissions on behalf of the Ministry on 29.11.24 and a supplementary submission on 4.12.24.
   

SUBMISSIONS

Employee

7. Ms. Rokosuka’s submissions are contained in her letter dated 7 November 2024.
   
8. Her counsel referred to:
   

1. the Civil Service Guideline (Revised August 2021) and in particular Guideline 1.1 and;
2. Section 127 of the Constitution; and
3. Section 24 (1) of the Employment Relations Act.
   

9. He submits that:
   

1. the Civil Service Guideline applies only to the discipline of staff other than the Permanent Secretary.
   
2. there is no definite policy guideline for the discipline of Permanent Secretaries.
   
3. accordingly, the decision by the PSC to suspend Ms. Rokosuka’s salary based on the Guideline was inaccurate and unlawful.
   
4. pursuant to Section 24 (1) of the Employment Relations Act, Ms. Rokosuka’s contract is still intact and is not frustrated. Accordingly, she is entitled to be paid whilst on suspension.
   
5. while the PSC has powers to suspend an employee, it has no power to cease the pay of the employee whilst on suspension.
   

Employer

10. The Ministry opposes the application for reinstatement of pay. It notes that the Tribunal has powers under Regulation 23(7) of the Civil Service (General) Regulations to reinstate the pay of a worker.
    
11. The employer relied on the case of State v Public Service Disciplinary Tribunal ex parte Turaganivalu [2017] FJHC 434, Judicial Review HBJ 12 of 2015 (6 June 2017). Justice Alfred held that the award by the Tribunal of 50% salary to the employee was an erroneous decision as the employee in question had been found guilty of misappropriation of public moneys which was a breach of his stewardship as a public servant.
    
12. In the supplementary submissions, the Employer further submitted that the PSC is empowered under Section 126 of the Constitution to take disciplinary action against a Permanent Secretary.
    

DISCUSSION

13. As stated, Ms. Rokosuka has been employed as Permanent Secretary since 2 June 2023.
    
14. Clause 3(e) of her employment contract requires her to comply with the Constitution, the Civil Service Act including Regulations, the Financial Management Act including subsidiary legislation, the General Orders, the Departmental Instructions and all other laws of Fiji including directions from the Prime Minister and Cabinet.
    
15. Section 126 (1) (c) of the 2013 Constitution provides:
    

126.—(1) Subject to this section and other sections of this Constitution, the Public Service Commission has the following functions—

(c) to institute disciplinary action against permanent secretaries;

16. Section 120 (9)(a) of the Constitution provides:
    

(9) In addition to such other functions as may be conferred by written law, the [Public Service Disciplinary] Tribunal shall have the function of hearing and determining disciplinary action instituted by the Public Service Commission—against any permanent secretary;

17. Clearly, these provisions do give the PSC the option of instituting a disciplinary action against any Permanent Secretary before this Tribunal.
    
18. The question which then arises is whether Regulation 23 (6) of the Civil Service (General) Regulations 1999 would apply whenever the PSC institutes a disciplinary action against a Permanent Secretary before the Tribunal?
    
19. Regulation 23 (6) provides as follows:
    

“23 (6) Subject to sub regulations (7) and (8), a referral to the Public Service Disciplinary Tribunal has the effect of suspending the employee commencing from the date the case is referred and the suspension must initially be on no pay, provided however that where the employee occupies staff quarters or receives a housing allowance, then that employee continues to be entitled to occupy the staff quarters or receive the housing allowance until the determination of the disciplinary charge by the Public Service Disciplinary Tribunal”.

20. The term “employee” is defined in section 3 of the Civil Service Act 1999 as follows:
    

“Employee means a person employed in the civil service but does not include a wage earner”

21. It would appear then that the above definition includes a Permanent Secretary.
    
22. As to whether Regulation 23 (6) applies only to a referral to the Tribunal by the Permanent Secretary, or whether it also applies to a referral by the PSC, the answer is to be found in Regulation 23 sub-regulations (4) and (5). These provide as follows:
    

(4) A period of suspension while the matter is under investigation by the Ministry is on full pay.

(5) Upon completing investigation, the Permanent Secretary of the relevant Ministry or the Commission may decide to institute disciplinary action by referring the case to the Public Service Disciplinary Tribunal.

23. When Regulation 23 (4) and (5) are read together with Regulation 23 (6), the overall effect is as follows:
    

1. a Permanent Secretary may be put on suspension while he or she is under investigation.
   
2. the investigation may be carried out either by the Ministry or the PSC
   
3. upon completing investigation, the PSC may decide to institute disciplinary proceedings by referring the case to the Tribunal
   
4. upon a referral to the Tribunal, the Permanent Secretary shall be on suspension with no pay
   
5. however, Regulation 23 (7) gives the Tribunal a discretion to reinstate the Permanent Secretary’s salary following a request by the Permanent Secretary.
   

24. As stated in paragraphs 2 and 4 above, Ms Rokosuka’s pay was suspended on 15 October 2024 which was the same day when the PSC instituted disciplinary proceedings by referring the case against her before the Tribunal.
    
25. What is now before the Tribunal is Ms. Rokosuka’s request to reinstate her salary.
    
26. Ms Rokosuka has provided a statement of her accounts showing her loan commitments.
    
27. However, the exact nature of the loan(s) in question is not immediately clear. Are these home loans, or a vehicle loan, or some other kind of loan?
    
28. Ms. Rokosuka also has not provided any information about her personal circumstances apart from the need to support her two children.
    
29. There is no information as to whether she has an alternative form of income or is being supported by her spouse or other family members.
    
30. While the Tribunal holds no view as yet as to the viability or otherwise of the PSC’s case against Ms. Rokosuka, the Tribunal notes that the allegations are serious. Given her position as the Permanent Secretary, much is required of her in terms of accountability (as per section 127 of the Constitution).
    
31. In exercising its discretion under Regulation 23 (7) of the Civil Service (General) Regulations 1999, this Tribunal has to consider whether it is appropriate to order partial or full reinstatement of Ms. Rokosuka’s salary. It has to create a balance between the facts of the case, the personal circumstances of the employee and the potential recovery by the employer.
    
32. The Tribunal takes into account the following:
    

1. Ms. Rokosuka is on a Salary of $190,000.00 per annum.
   
2. she occupies a staff quarters (the payslip attached to her request shows that she is charged rent in the sum of $584.62 per fortnight)
   
3. the allegations against Ms Rokosuka are serious (a breach of the Civil Service Code with financial implications of up to $110 Million to the Government (according to the Investigation Report).
   
4. there is some case authority which appear to state that where allegations of misappropriation of funds is alleged, it would be improper to order any form of reinstatement of salary.
   

DECISION

1. The request by the employee for reinstatement of salary is refused.
   

Signed __________________________________
Mr. Anare Tuilevuka
[Chairman – Public Service Disciplinary Tribunal]
Date:

Signed ___________________________________
Ms. Deepika Prakash
[Member - Public Service Disciplinary Tribunal]
Date:

Signed ___________________________________
Mr. Jeremaia N.L Savou
[Member - Public Service Disciplinary Tribunal]
Date: