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“Our philosophy is to maintain
the dialogue betweeloying authorities and our our members, and if this is
going to affect
us in a much drastic way then- we have the option to take
the Government to task either legally or upon ourselves to stop work.”
The Commission’s concern related
e last part of the last sentence, and its alarm is signifienified in its
initial response
to the Plaintiff by letter dated 13 June 1997 which states
in part as follows:
“Your appearance on Television
as Presiden>of the PSA on Tuesday sday night 10th June has alarmed
the Commission. In particular the statements of opposing Government policies
but more so in your own words- quote:” The option to take the Government
to task, either legally or upon ourselves to stop work.”
It is very obvious that this
statement was a threat to the Government particularly froead of a
Government Dent Department.
This action is considered as a
serious misconduct and a breach of contract as pction 10 of your
Cont Contract Agreement.”
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The Commission’s requirements
were further stated in that same letter as ws:
“With the present incident it is
found that you have breached Regulation 43 (2) of the Niue Public Service
Regulations
1979 and Instruction L2-3 of the Public Service Manual.
Therefore, you are
directed to relinquish your Presidency ency of the PSA effective as of
today 13 June 1997.
You are also given 7 days
(effective today 13 June 1997) to respond to the alleged misconduct. The
Commission is expected
to receive your response before noon Friday 20 June
1997.
From this point onwards the Plaintiff responded to the Commission with correspondence dated 16 June 1997
and 4 nd 4 August
1997; while Mr Chapman, on his client’s behalf, presented a
detailed and comprehensive summary of all the issues that he considered
relevant by his letter dated 18 September 1997. It was that letter that
detailed the six orders the Plaintiff now seeks.
Interspersth the
Plaintiff’s correspondence were those originating from the Commission – they
hey
are dated 13 June;
19 June; 18 July and 23 July 1997.
THE NIUE PUBLIC SERVICE
REGULATIONS 1979.
“10. Under no circumstances that
the Officer wrongfully communicate, retain, copy or disclose any official
information
to any person without proper authority is granted.”
The Plaintiff challenges that he
didact breach Section 10 of his Service Contract. I agree with with the
Plaintiff. There
was no wrongful disclosure of official information in the
Plaintiff’s statement on television.
This letter also refers to the
Plaintiff having .. breachgulation 43 (2) of the Niue Public Service
Regulationations 1979
and instruction L2-3 of the Public Service Manual.”
Regulation 43 (2) states as follows:
“(2) No information out of the
strict course of official duty sbe divulged directly or indr indirectly, or
otherwise used
by an employee, and no communication to the press or to
the public on matters affecting the Service shall be made by any employee,
except
with the consent of the Secretary to the Government.”
The underlining is mine in order
to identify the latter part of Regulation 43(2) which is the provision
relied upon by
the Commission. There is no question that the Plaintiff
failed to seek or obtain permission from the Secretary to the Government
for
his “communication to the press or public.” On this point however, the
Plaintiff claims he was speaking as President
of the Public Service
Association and not as Head of the Public Works Department.
The s letter issued by the
Commission was that dated 19 June 1997 which briefly stated as d as follows:
“Ik you for your
comprehensive reply to the Commission’s letter of 13 June.
Fr to what has been
considered by the Commission as a beach of Regulations 43(2) 46(1)46(1),(2) 61
(3) of the Niue Public
Service Regulations 1979 and Instruction L2-3 of the
Niue Public Service Manual of Instructions, and your reply; the Commission
at its meeting of 18 June wishes to inform that:
You are hereby suspefrom
your position as Director of the Public Works Deks Department with effect 20
June-18 July 1997.
Regulation 63(3) Niue Public Service Regulations 1979.”
Regulation 46(1) and (2)
referred to and relied upon states as follows:
<
“(1) Every employee shall obey
promptly and readily all lawful orders given tven to him by his controlling
officer.
(2) If any employee considers
that he has ground for complaint arising out of any such order or from any
other cause,
he may report the matter through official channels to the
Commission but shall nevertheless, as far as possible, carry out
any orders
lawfully given to him, until they are countermanded.”
The order that the
Plaintiff has not obeyed if Regulation 46 is to be relied upon, is thes the
direction ..”to relinquish
Presidency of the PSA effective as of today 13
June 1997.”
That appears an unusual
direction given that the Plaintxplained to the Commission:
1.
2. &nbp; &nnbsp;;
p;
tpan>that in the PSA minutes of 13 June 1997 it was recorded that he
reminded “… the Council as he has previously done on a
numberccasi that he will be stepping down as President oent of thef the PSA at the next AGM and
will not be available for
re-election.”
3. &
That in his reply dated 16 June 1997 he sought deferral in
relinquishing the Presidenc two weeks to the AGM when he could then
account for the activities of his committee ttee during his term of office.
That request for a tek
deferral in all the circumstances appears to me to be a reasonable request
w which was never
considered by the Commission. Certainly there was no
evidence to suggest that they had considered it. That appears to be the
only
directive upon which the Commission invokes Regulation 46 and the question
must be asked as to whether a directive
which has received a reasonable
response can without more be regarded as an “order” within the terms of
Regulation 46.
Regulat1(3) was also relied
on by the Commission. That Regulation states:
(3) &bsp; Thd Head of Departmpartment shall forthwith forward to the Secretary to
the Government a copy of the complaint and any replies
thereto, together
with a report by the Departon thter ach othe other repr reports orts as may
have been obtained; and
the Secretary to the Government shall thereupon
proceed to consider and determine the matter.”
However, Regulation 61 has no
application to this present enquiry nor does Regul 63 (3) which is also
referred to.
The Attorney-General concedes that is so.
<
In the Commission’s letter to
the tiff dated 18 July 1997 the Commission resolved:
>
“However it was decided (under
Section 7 (a) of Contract) that–
>
1. &bsp; ;
p The Contract ract is terminated forthwith and in place of a 3 months
notice, you are entitled to 3 months full salary effect
21 July to 20
October 1997.
  &nbssp;
During your period of suspension 20 June to 18 July you will receive
only half salary.”
That decision therefore purports
to be based on Regulation 43 (2) ande given effect to by a term termination
of the employment
contract pursuant to the provisions of Section 7 (a) of
that contract. While that decision referred to a period of suspension
on
half salary only, the Attorney-General advised the Court at the hearing that
the Commission has subsequently agreed
that the Plaintiff would be entitled
to full pay for the period 20 June to 18 July and thereafter three months
full pay
in lieu of three months notice. However, by letter dated 23 July
1997 the Plaintiff was advised –
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“Third, you are directed to take
up duties as a meof the Niue Public Service vice Commission on 21 October
1997. Prior
to that date I will advise you of the office within the Niue
Public Service to which you will be appointed.”
From that correspondence
emanating from the Commission this must try as best as it cant can to
ascertain whether the
Commission’s actions constituted a transfer of the
Plaintiff for administrative purposes and which actions were contrary to
the
wishes of the Plaintiff, or whether to Plaintiff was being punished for a
disciplinary offence.
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THE ALLEGED OFFENCE
The of the television
interview, which has already been set out in full above, is the base basis of the
Commission’s subsequent
decisions just referred to. The Commission’s only
complaint with that interview is the Plaintiffs statement that ..”we have
the option to take the Government to task either legally or upon ourselves
to stop work.”
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When that statems analysed
there could be no objection to the Plaintiff as head of the PSA referring ring to
his members
..”taking the Government to task legally..” If any action
contemplated was legal then naturally there could be no complaint.
So the
Commission’s concern must have referred to “ taking the Government to task..
upon ourselves to stop work.”
I appreciaat in a very
small Public Service operating in Niue different standards may necessarissarily
apply from those
applying in New Zealand. But nevertheless such statements
are every day occurrences in New Zealand and regarded as part and
parcel of
the Public Service spectrum. Even as this decision is dictated there are
very large and important sectors of
the New Zealand Public Service on strike
and causing serious concern in the failure to provide New Zealand with
essential
services. Other essential services within the Public Service have
also threatened to go on strike. But again I reiterate that
what happens in
New Zealand is not to be regarded as the standard to be necessarily applied
in Niue.
But having said that I hearke back to the last line on the television interview because it is a question
whetherether it constituted
a disciplinary office, and whether the Commission did
or should have regarded as such in making its final decision.
To assist this determin I
refer to the New Zealand Court of Appeal case Poananga v State Services
Commission ( 1985) 2NZLR 385. In that case a Ms Poananga worked for the
Ministry of Foreign Affairs. However, her strong personal views
had come in
sharp conflict with the policy of the Ministry as exemplified by the
following memorandum which she circulated
to a seminar for new recruits to
the Ministry.
“SEMINAR FOR NEW RECRUITS TO THE
MINISTRY: 3.20PM 28 AP982, BICULTURALISM & THp; THE MINISTRY
“Witi and I were going to speak
to yoay on a Maori approach to the Ministry’s work both here ande and
abroad, and how
this relates to the aspirations of the Maori community. We
were the originators of what is known as “biculturalism “ in the
Ministry
and in terms of time, involvement and commitment have been the main
advocates of this cause.
“We were ind last week that
we would not be speaking to you ‘because we are too controversial’. al’. We would
like you
to think about this statement and its implications.
“Our view is that biculturalism
is nssible when the cultural majority refuses to allow the Maor Maori
minority the right
to decide on matters affecting themselves; and does so
only on their (Pakeha) terms. This is known as Racism
r place we have asked Alan
Williams to circulate Donna Awatere’s paper ‘Cultural Iral Imperialism and the
Role of the Maori Public Servant.’
We agree with her approach and
reiteratt; ‘ to achieve biculturaliuralism, white hegemony must be put
aside. Unless this
is done all that is sought is a display of biculturalism
rather than its reality’ and the ‘Public Service forces Maori people
to live
in a schizoid existence, to hang our Maoriness outside the office desk, to
wait like house pets for the changes
to come, sneaking our Maori side in
occasionally and holding our breath, but basically forced to be content with
the
magician tricks half believing that reform and change are not fallacious
illusions which make us feel we are not the house
pets we are.’
“As Maoris we feel, along with
others in the Maori community, ‘that it appears as if the Ministry has
betrayed the cause
of biculturalism ‘ [ a notable Maori has written this in
a letter to the Secretary]. He was referring to the controversy over
the
Maori film produced and distributed by the Ministry without proper
consultation and the agreement of Maori officers
and others in the Maori
community.
“This een justifiably
condemned by many Maori people and organisations.
In the citances we cannot
and will not continue to be the Ministry’s ‘house niggers’. To do sodo so betrays
our people
and their mana
Nicole Poananga Witi Ihimaera
28.4.82”
Fong the publication of
that Memorandum the State Services Commission transferred Miss Miss Poananga to
the Department
of Scientific and Industrial Research. Miss Poananga appealed
and the question for determination for the Court of Appeal was:-
Can an officer be transferred
purely administratively contrary to the will of that officer when the real
reasons for the
action is that he or she has been guilty of conduct
constituting in substance a disciplinary offence?
The Court found that the test
was one of materiality – that is whether the conduct comes n the
Offences Provisrovisions
of the Legislation and is material to the decision to
transfer. In the result the Court of Appeal allowed Miss Poananga’s Appeal
and declared the decision to transfer her to the Department of Scientific
and Industrial Research, and to dismiss her
from the Public Service, as
invalid. That brief synopsis of the principles applied in the New Zealand
Court of Appeal
decision related of course to the New Zealand State Services
Act 1962. Under that legislation there is specific provision for
laying
charges against employees for specified offences in the same way as
Regulation 61 of the Niue Public Service Regulations
1979 make provision for
dealing with complaints and enquiries of all Niue public servants with the
exception only of
Heads of Departments. Nevertheless the above principles
are relative. In this present case the Commission, by its letter dated
18
July 1997, relied on the Plaintiff’s breach of Regulation 43 (2) and liable
therefore to a disciplinary offence which
resulted in the termination of his
contract while nevertheless remaining an employee of the Niue Public Service
and subject
to a transfer to an as yet undetermined Department.
THE DECISION OF THE COMMISSION
Clearly the Commission regarded
he television interview as a very serious disciplinary offe offence. In that
event the Plaintiff
should have been charged with that offence and a full
hearing held in order to fully consider all the evidence.
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If that proces been
followed, the following quite unsatisfactory procedures adopted by the
Co Commission could have
been objected to and the essential standards of
natural justice would not have been breached by the Commission.
1.
By letter dat d 19 June 1997 the Plaintiff was “.. suspended from
your position as Director of the Public Works Depnt wifect
20
une –ly 97 – Regulation 63 (3) Niue Public Service RegulRegulationations 197s 1979.”
9.”
But Regulation 63 (3) does
not provide authority for the suspension of the
Plaintiff. The Attorney-General conceded that Regulation 63 has no relevance
to this present case. The so-called suspension on 19 June 1997 was therefore
invalid.
2. &
By letter datr dated 18 July 1997 the Commission stated in part:
&nb"> span>
“Although the statementmade
in your capacity as the President of the PSA forA for and on behalf of the
Association, the
members of the PSA Committee gave assurance that what you
have stated have never been discussed nor alluded to in any of the
Committee
meetings.”
It is clear that the Commission
has interviewed “the members of the Pmmittee” who have provided ided
evidence relied upon
by the Commission, the details of which have not been
made available to the Plaintiff. Secret hearings in the absence of the
Plaintiff, the results of which now form the basis of terminating a contract
of employment is a flagrant breach of natural
justice.
3. &nbp;
In the satter tter dated 18 July 1997 the Commission stated:
&
