R v Public Service Commission ex parte Tiare [1984] SBHC 19; [1984] SILR 80 (31 May 1984)

[1984] SILR 80

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 25

R.

v

PUBLIC SERVICE COMMISSION ex p. TIARE

High Court of Solomon Islands
(John Freeman, Commissioner)
Civil Case No. 25 of 1984

31 May at Honiara
Judgment 31 May 1984

Certiorari - dismissal of public officer - whether any notice of charge or opportunity to be heard as required by Public Service Commission Regulations 1979 regs. 49, 50 - whether effect of hearing (if any allowed) to be considered - whether right of appeal under Regulations or alternative remedies to be pursued first - whether undue delay.

Facts:

On 25 July 1983 the applicant was formally charged by the Secretary for the Public Service with absence from his work without leave. He replied asking for a hearing before the Public Service Commission. No hearing was held, but on 18 October 1983 he was dismissed by the Commission “in view of (his) unsatisfactory work record”. On 28 March 1984 he applied to the High Court for leave to move for an order of certiorari to bring up and quash his dismissal.

Held:

1. Notice of the charge on which the applicant was dismissed had been given as required by reg. 49.

2. However, the applicant had not been given an opportunity to be heard, as required by reg. 50.

3. A hearing might materially have affected the decision of the public Service Commission and in the circumstances the court would not speculate as to the probable result of such a hearing.

4. In principle the applicant was bound to pursue his right of appeal under the Regulations before applying for certiorari, but since the appeal in this case lay to the Commission which had already decided to dismiss him, he could not be regarded as bound to take that course.

5. The applicant was not obliged to proceed under the Unfair Dismissal Act 1982 in preference to applying for an order of certiorari.

6. However the time-limits for an appeal under the Regulations and for an application under the Unfair Dismissal Act 1982 could be taken into consideration on the question of delay.

7. The delay in this case was of the applicant’s own making and to his unfair advantage.

Application refused.

Cases considered:

Glynn -v- Keele University [1971] 1 WLR 487
R. -v- Postmaster-General ex p. Carmichael [1928] 1 KB 291
Kalesoa’s Application [1983] SILR 174

John Muria, acting Public Solicitor, for the applicant.
James Apaniai for the respondent Commission.

John Freeman: The applicant Charles TIARE was a public officer till 18 October 1983, when his appointment was terminated by order of the Public Service Commission (“the PSC”). He applies for that decision to be quashed for failure to comply with the PSG Regulations 1979 (“the Regulations”) and consequent breach of natural justice. The applicant says he was given no notice of the charge against him (contrary to Regulation 49) and no opportunity to be heard, despite his request (contrary to Regulation 50).

The facts leading up to the decision (so far as they may be important) are not in dispute. During the earlier part of 1983 the applicant was dissatisfied at being posted to a position below his substantive level in the Public Service. So he wrote twice to the Secretary for the Cabinet and Public Service (“the Secretary”). In his first letter (28 April) he asked to be posted to his proper level, or if that were not to happen, to be “retired in the public interest”. Regrettably he got no reply. On 9 June he complained again about the treatment he had received saying “I understand there were adverse reports about me, but I have never been asked to explain”. He announced his decision to go on unpaid leave (for an unspecified period and without getting approval first as required by General Orders). He asked again that “the question of “Retirement in the Public Interest” be taken up whilst I am on unpaid leave”. The applicant stayed away from his work from 9 to 30 June, but it was not till 25 July that a reply was written on behalf of the Secretary to his letter of 9 June.

This reply started by setting out a number of things which had taken place over the last two years. The only complaint made about the applicant’s previous record was that some time during 1982 “... it was reported that your work and conduct left much to be desired; you were allegedly absent from work on various occasions and (a private affair) was said to be affecting your duty performance”. The letter finished by formally charging the applicant with absence without 1eave from 9 to 30 June, giving him seven days to reply, failing which “the papers will be put to the PSC for consideration of any penalty”. The applicant did reply on 5 August, denying the complaint about his earlier absences from work: he went on to say that (apparently in June) he had been upset by his posting and other treatment and “walked out blindly and without thinking”. He said he had now cleared his mind and was trying to make up for that. Finally he expressed the hope that his letter “would give you the understanding of my reasons to be absence, otherwise I would be grateful if I could appear before the Commission to explain further”. He apparently received a reply dated 29 August, but this has not been produced. On 18 October a letter was written to him on behalf of the Secretary telling him that the PSC had “suggested your appointment be terminated in view of your unsatisfactory work record”, and that this was to take effect “from the date of this letter on payment by Government of 3 months salary in lieu of notice”. It is not suggested that the Government has failed to pay that salary, or the applicant to accept it.

Counsel for the applicant submitted that he had been dismissed for misconduct in the form of an unsatisfactory work record, and had received no notice of this charge as required by Reg. 49. Although the letter of 18 October speaks of “termination” rather than dismissal, it was not and could not have been suggested that it announced anything other than a dismissal for misconduct. The reason might have been more precisely given, but it was well known to all concerned that what had set proceedings in motion against the applicant was the formal charge of absence without leave made in the letter of 25 July. Clearly that was the charge on which he was really dismissed, and so I reject his complaint that he had not been informed in writing as required by reg. 49.

Counsel for the PSC rightly conceded, however, that the applicant had requested a hearing, and was not given one, contrary to reg. 50. (In his letter of 5 August, the applicant in effect only waived his right to a hearing if his explanation for his absence were accepted). But counsel for the PSC goes on to argue that a hearing would have made no difference, since the applicant had already said everything he could in that letter. Counsel relies on Glynn v. Keele University [1971] 1 WLR 487 to show that in this case I have a discretion as to whether or not to grant certiorari, (as in that case the court held it had a discretion to refuse an injunction where a hearing would have made no difference). I accept that I have such a discretion; but Pennycuick VC in the Keele case (at p. 496 F) gave a salutary warning when he recognized that the discretion to refuse relief for this reason “should be very sparingly exercised where there has been some failure in natural justice.” He did go on to say that it certainly should be exercised in an appropriate case (which according to the learned Vice Chancellor the Keele case was; there being in his judgment no question of fact involved (since the plaintiff, a rusticated student, did not deny that he had been seen sunbathing naked on the campus) Pennycuick VC refused relief since “all that (the plaintiff) or anyone on his behalf, could have done would have been to put forward some plea by way of mitigation”. It might be said that this case is similar in that way; but it should be remembered that the applicant blamed his absence on a personal crisis caused by his treatment by the authorities over a period of some time.

I find it impossible to say that an explanation given by the applicant in person might not have had considerable weight with the PSC. For me to decide whether or not it would have been conclusive, or of significantly greater weight than the explanation given in his letter, would be to usurp the functions of the PSC. By the regulations, the applicant was entitled to a hearing on the facts before the PSC, (or it may be the Secretary), not before this court.

Counsel for the PSC also argued that the applicant could not complain of his dismissal as he had already asked to be retired in the public interest. Although (according to the Secretary’s letter of 18 October) the applicant’s appointment was non-pensionable, there is still a good deal of difference between these two ways of ending a contract of employment, in terms of public esteem and self-respect. If the Secretary and the PSC took the trouble to dismiss the applicant, rather than simply accept his offer to retire, they too must have regarded the difference as meaningful, and I cannot accept this argument.

I do not need to consider the authorities on whether someone in the applicant’s position is entitled at common law to a hearing (though I should say he was) as the Regulations themselves give him that right. He was wrongfully deprived of it, and entitled to relief, subject only to the question of what he should have done after being dismissed.
Counsel for the PSC argues first that the applicant should have made use of his right of appeal to the PSC under reg. 14; next that he should have made an application under the Unfair Dismissal Act 1982; then that if he had done neither of those things, he should have-applied to this court sooner. As he waited to make this application till 5 months and 10 days had passed from his dismissal, (having had 3 months’ salary in lieu of notice), counsel says I should exercise my discretion to refuse it.

There is ample authority that certiorari may be refused where a statutory right of appeal is not exercised. It was taken for granted that this was so in R. v. Postmaster-General ex p. Carmichael [1928] 1 KB 291; there certiorari was granted, although there was a remedy open by way of appeal, since the decision quashed had been given by a person not authorised to make it. That is not the case here. I did have some doubts, first as to whether, if the decision of the PSC was a nullity for want of any hearing, then the principle in Carmichael’s case might apply. My next doubt was as to whether it was reasonable to insist that the applicant appeal to a body that had already come to a decision against him. However, looking at this case from a practical viewpoint, it is clear that an appeal would have been likely to result in the very hearing which the applicant had been denied. If there had been a hearing before the PSC in the first place, though defective in some way, then any appeal to the PSC might well have been meaningless; but I do not see any reason to suppose that the PSC could not have given the applicant a fair hearing on appeal, if that were the first time they had listened to his arguments. However if this point had stood alone, I should not in my discretion have refused relief.

The question of whether the applicant should have proceeded under the Unfair Dismissal Act 1982 is a less troublesome one. I do not think it can be said that any litigant is obliged to pursue a remedy in private law in preference to one in public law. In fact the trend of authority in England and Wales has recently been the other way, at least where the duties of local authorities towards homeless persons are concerned. The only point to be made is that applicants to this court will find it less able to consider the facts or to take a broad general view of the fairness or otherwise of their dismissal than can the Trade Disputes Panel under the Act of 1982.

I should not refuse relief on this ground.

Finally there is the question of delay. The applicant was dismissed on 18 October; a letter to him from the legal advisor to the Ombudsman put in by his counsel shows that he wrote to the Ombudsman on 31 October, and on 16 November 1983 was very properly advised either to appeal, or to challenge his dismissal through either the labour authorities or the Public Solicitor. I was not told when he consulted the Public Solicitor but I am quite satisfied, both from the applicant’s position and from the letters he had written, that he should have known he would do well to, as soon as he heard from the Office of the Ombudsman, if not before. No explanation has been given for the fact that no application was made to this court till 28 March 1984, only three weeks short of the six months’ limitation period for certiorari cases laid down in Order 61 rule 3 of the High Court (Civil Procedure) Rules 1964.

In this connection R. v. Savo Local Court ex parte Kalesoa (reported as Kalesoa’s addition [1983] SILR 174) is of interest. There Daly CJ was considering an application outside the six months’ limit, but observed (pp 175 - 6):-

“When as in this case, the possibility of appeal is restricted to a three month period by statute with no power to extend, then there is an even stronger case for regarding (this limit) as something more than advisory ... I should add that I regard 0. 61 r.3 as containing the extreme limits of the period within which the application must be brought; there may be a case for saying that an application brought within that period might still be regarded as delayed so as to give the court concern as to whether it should exercise its discretion (to grant leave to apply for certiorari) in such an instance. But that would depend on the facts of the case”.

I should mention that although the PSG was invited to appear by counsel on the application for leave in this case, they did not do so, and Daly CJ granted leave to apply without hearing more than a brief summary of the facts from the applicant’s counsel.

In this case too there was a statutory appeal period shorter than the six months’ limit for certiorari (14 days, 3 months. in special circumstances; 3 months for a complaint of unfair dismissal, if that were relevant). Neither appeal or complaint could have been made after 3 months from the applicant’s dismissal: he let this period go by and so far as I can see did nothing at all until the limit for certiorari was nearly reached. It is not suggested that his solicitors had this in mind, but I cannot forget that the applicant had received 3 months’ salary instead of notice: if certiorari were granted after that time, any delay could only benefit him. (The result would of course be that, with the quashing of his dismissal, the Public Service authorities would be obliged to pay him arrears of salary going back to 3 months after it had taken place, although he had done no work since then).

I do not know whether the applicant was seeking this unfair advantage in delay. It is only right to point out that the departure of Daly CJ may have delayed the hearing of this case a few weeks beyond what might have been expected. I have however come to the conclusion that it would be inequitable to allow the applicant to have the benefit of a delay which up to 28 March 1984 was entirely of his own making. It would also be wrong not to make it clear to all those who seeks discretionary remedy that delay is invariably at their own risk.

So this application is refused.