Liligeto v Attorney General [2001] SBCA 3; CA-CAC 10 of 1999 (26 February 2001)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

NATURE OF JURISDICTION:	Appeal of judge from the High Court of Solomon Islands (Palmer, J.)
COURT FILE NO.:	Civil Case No. 10 of 1999
DATE OF HEARING:	Thursday 8th February 2001
DATE OF DELIVERY OF JUDGMENT:	Monday 26th February 2001 (By registrar of Court of Appeal)
THE COURT:	Lord Slynn of Hadley, P. Los JA, Ward JA.
PARTIES:	LILIGETO AND OTHERS V ATTORNEY GENERAL AND THE PUBLIC SERVICE COMMISSION
ADVOCATES Appellant: Respondent:	Mr. Ashley Mr. Manetoali
KEY WORDS:
DISMISSED:
PAGES:

By originating summons filed on17 March 1999, the Appellants sought determination of the following questions:

1. Whether the 1st Respondent (Minister of the Public Service) consulted the 2nd Respondent within the meaning of section 3 of the Public Service Act to abolish, amend or amalgamate the public offices of the applicants

2. Whether a recommendation for the abolition, amendment or amalgamation of the applicants’ public offices was made to or by the 1st Respondent (Secretary to Public Service) within the meaning of regulation 76 of the Public Service Regulations

3. Whether the 2nd Respondent which has the power under sections 116 and 135 of the Constitution to terminate the employment contracts of the applicants exercised those powers or whether the said powers were delegated to the 1st Respondent to exercise

4. Whether the 1st Respondent and/or the 2nd Respondent acted fairly within the meaning of section 137 (4) of the Constitution in terminating the applicants’ employment contract.

Should the answer to any or all of those questions be in the negative, the applicants would then seek the following declarations:

1. The purported termination by the 2nd Respondent of the applicants’ employment contracts was a breach of the applicants’ respective contracts of employment with the first Respondent which amounted to wrongful dismissal

2. The applicants are entitled to damages to be assessed for wrongful dismissal.

The application was heard by Palmer J on 2 July 1999 and, in a reasoned judgment, he answered each of the first four questions in the affirmative.

The events are not in issue. When the Alliance for Change Government took power in August 1997, it embarked on the task of trying to restore the economy and, as one step to achieve this, it set up a Policy and Structural Reform Program which was implemented by a Committee of the same name. Four task forces were formed to carry out the Committee’s mandate. Task force 2 had oversight of public service reform with the particular aim to streamline the public service to make it more effective and service orientated. That task force included the Permanent Secretary Public Service as one of its members.

In June 1998 a sub task force produced a Report on Public Service Reform and, on 25 June 1998, the Report was presented to Cabinet for its consideration. Cabinet approved the recommendations in the report and directed the Prime Minister’s office to effect implementation as far as was practicable.

One of the proposals was to introduce the concept of “Partnering of Ministries”. The aim of such partnering was to enable two ministries to share administration and accounting staff with the inevitable result that some officers would no longer be needed. As a result it was decided to abolish the post of administrative Under Secretaries (technical Under Secretaries were unaffected) and to replace Permanent Secretaries by a post of Secretary to the Ministry.

All the applicants were affected by the implementation of the recommendations in the report. One, Liligeto, held the post of Deputy Secretary to the Prime Minister (an Under Secretary level appointment), another, Matangani, was a Chief Accountant and the others were all Chief Administrative Officers.

The manner in which the recommendations were implemented and the true effect of the steps taken form the basis of this case.

The first question posed relates to the power of the Minister of the Public Service. By section 3 of the Public Service Act, he “may, where he is of the opinion that it is in the public interest to do so, after consulting the Commission” inter alia “develop new schemes of service within the public service or abolish, amend or amalgamate any existing scheme of service within the public service”.

It appears from the judgment that the applicants conceded that this gave the Minister the power to abolish, amend or amalgamate the public offices of the applicants but it also required that he must consult the Public Service Commission. By section 140(2) of the Constitution that meant the Public Service Commission had to be given a “genuine opportunity to present ... its views before the decision or action is taken”.

The learned judge found that, although very short notice was given, the Commission did have a genuine opportunity to consider the Report (in two days of extraordinary general meeting) and to present its views. This resulted in his affirmative answer to the first question.

The recommendation for the retirement from or termination of employment of any public officer was made under regulation 73 of the Public Service Commission Regulations the procedure for which is found in regulation 76. That regulation requires that such a recommendation shall be made to the Secretary for the Public Service. Again the judge accepted that was done.

The applicants’ case was that, in reality, this was not a case of premature retirement under regulation 73(c) but of redundancy under 73(d) and so it should have followed the procedure in regulation 74. I shall return to that aspect of the case.

The judge found nothing wrong or unfair about the exercise of the powers of the Commission and so was able also to answer the remaining two questions affirmatively.

The applicants now appeal on the following grounds:

1. His Lordship erred by failing to address his mind to the nature of public offices of the Appellants, which offices were permanent and non pensionable within the meaning of the PSC Regulations

2. His Lordship erred by failing to address his mind to section 4(1)(b) of the Employment Act, which made the restructuring of the Public Service by the 1st Respondent a redundancy within the meaning of the said statutory provision as read with regulations 73(d) and 74 of the PSC regulations.

3. His Lordship erred in his findings that the 2nd Respondent was entitled to decide the Appellants’ termination under regulation 73(c) of the PSC Regulations when the evidence before the court shows that the restructuring of the Public Service by the 1st Respondent was a redundancy within the meaning of section 4(1)(b) of the Employment Act and regulations 73(d) and 74 of the PSC Regulations.

At first glance it would appear the grounds of appeal do not raise the same issues as did the questions to which answers were sought originally. However the transcript of the judge’s notes suggests that these matters were raised before the learned judge with the possible exception of the first. We consider that it is proper to deal with all the grounds notwithstanding.

It is submitted on the first ground that the learned judge failed to take into account the fact that each of the applicants’ posts was permanent and non pensionable. It is correct that he did not deal with this paint and Mr. Manetoali for the Respondent suggests that the reason is that it was never mentioned in the originating summons.

We do not see any merit in this ground of appeal. The Respondents do not dispute the status of the applicants’ appointments but such appointment does not prevent the government from terminating their employment. In order to do so, it is bound by the provisions of the Constitution and the Public Service Act and Regulations. Mr. Ashley for the Appellants submits that, unless the second Respondent can show that it has fully complied with Part XI of the Regulations (Premature Retirement and Termination of Employment), the Appellants’ appointments were wrongfully terminated. We agree.

The learned judge found that it had complied and he was thus able to answer the first question in the affirmative. Mr. Ashley has not provided anything that suggests that was not the correct decision. However, the interpretation of the Regulations and in particular regulations 73, 74 and 76, also forms the basis of the remaining grounds of appeal and it is convenient to deal with those grounds together.

Part XI starts with regulation 73 which provides:

“73 This part deals with premature retirement and termination of employment of permanent officers, not otherwise provided for in these Regulations, namely:

(a) Retirement after reaching the minimum prescribed retirement age, other that voluntary retirement.

(b) Premature retirement in the public interest.

(c) Premature retirement to facilitate improvements in Government organisation.

(d) Termination of employment because of redundancy.

(e) Premature retirement on medical grounds.”

The Respondents say this was retirement under paragraph (c); the Appellants say it was redundancy under (d). Whichever paragraph applies, the provisions of regulation 76 must be complied with but, if this was redundancy under 73(d), regulation 74 requires special procedures to be followed:

“74 Where termination of employment under regulation 73(d) is being considered as a consequence of the reduction or abolition of posts, and there will be one or more posts remaining, officers shall be selected for termination of employment in the following order:

(a) Volunteers.

(b) Officers over the minimum prescribed retirement age; the oldest first.

(c) Other officers in order of juniority; the most junior first.”

The Appellants suggest the termination of their employment was, in fact, a redundancy and so the procedures in regulation 74 should also have been followed. They were not and so the termination was unlawful.

In support of their contention they point to section 4(1)(b) of the Employment Act Cap 72:

“4. (1) for the purposes of this Act, when an employee is dismissed his dismissal is to be taken to be because of redundancy if it is attributable wholly or mainly to:-

.....

(b) the fact that the requirement of that business-

(i) for employees to carry out work of a particular kind; or

(ii) for employees to carry out work of a particular kind in the place where he is so employed, have ceased or diminished or are expected to cease or diminish.”

This same point is raised both in grounds two and three and the remaining part of ground one.

The evidence before the judge showed that the Appellants were each sent a notice under regulation 76 and given 30 days to make representations. Three did so. The person delegated to perform the functions of the Secretary for the Public Service then made a submission to the Commission recommending that the Under Secretaries should be made redundant under 73(d) and the Chief Administrative Officers be prematurely retired or made redundant under 73(c) or (d).

The Commission sat on 3 November 1998 and made its decision. In respect of the Under Secretaries it was:

“The submission to prematurely retire and terminate the employment of all Under Secretaries (Admin)....because the officers’ posts have been de-established in the new Partnership Ministries Organisation to facilitate improvement in the service was considered by the Commission.

The commission also noted that the submission was straight forward and therefore DECIDED that the following ..... be prematurely retired under PSC Reg 1979 section 73(c) and be made redundant under PSC Reg 1979 Section 73(d) wef 3/11/98.”

Included in that list was Liligeto.

The decision for Chief Administrative Officers and Chief Accountants was in similar terms:

“In considering the submission to prematurely retire and terminate all Chief Admin Officers and Chief Accountants, the Commission noted that under the new Partnership structure, new posts of Chief Admin and Chief Accountant have been created and therefore DECIDED that the following ... be prematurely retired under PSC Reg 73 (c) and be made redundant under PSC Reg 1979 Section 73(d).”

In dealing with this point in relation to Liligeto, the learned judge said:

“I find that the PSC had done what was required of it to be done. It took into account the Report, the memorandum (i.e .of the restructuring of the Public Service) ... and the submission from the Secretary. It then decided in its own deliberate judgment that the appropriate provision to use in Liligeto’s case was regulation 73(c). I find nothing illegal or wrong with that course of action. It was entitled to invoke regulation 73(c) for the termination of the employment contract of this applicant.

Perhaps the only thing it did wrong was in assuming that once the applicant had been prematurely retired that he can then be made redundant under regulation 73(d). Unfortunately that is not legally correct. The reason being that once an officer has been prematurely retired under regulation 73(c), assuming all procedural requirements (regulation 76) had been complied with, that amounts to a valid terminating under the Public Service Commission Regulations. Once an officer has been terminated, he stays terminated. An officer cannot be terminated under regulation 73(c) by premature retirement and then re-terminated by redundancy under regulation 73(d). However, where an officer’s post had been abolished or reduced so that it ceases to exist or has diminished, it seems he would be able to claim redundancy payments under section 4(1) of the Employment Act (Cap 72). It appears this was actually what the PSC had in mind when it made its decision, but unfortunately stated it incorrectly. I accept though this was inadvertent.”

He later made the same point in relation to the other Appellants and added:

“It should be borne in mind that the new Partnering Structure set up by the Government, resulting in the reduction of the Chief Administrative Officers’ Posts and the Chief Accountants’ Posts was done primarily to facilitate improvements in Government organization. It was not correct therefore to say that these applications had been terminated under regulation 73(d) and therefore regulation 74 would apply. The abolishment or reduction of there posts was a direct consequence of the Government’s push for environment in the Public Service.

They were validly terminated therefore under regulation 73(c) and not under regulation 73(d) as claimed”

This is clearly correct. The Commission has the power to terminate officers under regulation 73 for any of the reasons set out in paragraphs (a) to (e). It may be, of course, that the facts of a particular case could be applied to more than one of those categories. What is important is the reason for the Commission’s decision. It will decide which category of termination it wishes to use.

The evidence in the present case makes it clear that the Commission decided to terminate these officers to facilitate improvements in Government organisation. Having made that decision, any question of whether they could alternatively have been terminated because of redundancy becomes irrelevant.

It seems equally clear to us that the reference to regulation 73(d) in the Commission’s decision was made on the misapprehension that they needed to do so to ensure these officers received redundancy payments. They could not do that as the judge correctly pointed out. That entitlement arises under the Employment Act and is a separate matter for determination elsewhere under that Act on the circumstances of each case. The result does not depend on the regulation actually used by the Commission for the termination but on the nature of the termination.

It appears that all the Appellants did in fact receive such payments, as the judge mentioned in his judgment. Clearly their entitlement to those arose under the terms of the Employment Act rather than the Public Service Act

It should be mentioned that the reason the learned judge dealt with the case of Liligeto separately was because, in his case, there were a number of unusual features that required separate consideration. They are not the subject of this appeal and so we have dealt with all the Appellants together.

The appeal must be dismissed with costs.

Lord Slynn of Hadley, P.
Los JA
Ward JA