Wheeler v Attorney General [1989] SBHC 15; [1988-1989] SILR 54 (4 September 1989)

[1988-1989] SILR 54

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 153 of 1989

WHEELER

v

THE ATTORNEY GENERAL

High Court of Solomon Islands
(Ward C.J.)
Civil Case No. 153 of 1989

Hearing: 31 August 1989
Judgment: 4 September 1989

Powers of Public Service Commission and Minister responsible for Public Service to terminate employment of Public Officers - Right of appeal from decision of Commission under Regulation 14 for officers on contract - Duty of Commission to act fairly - Right to be heard.

Facts:

The Applicant worked as a Senior Stores Officer in the Ministry of Transport, Works and Utilities. He was recruited in UK under OSAS terms and signed an agreement of service with the Crown Agents as agents for Solomon Islands Government. After he had been in Solomon Islands for a year his contract was terminated under clause 12(b) of the agreement. He appealed to the Public Service Commission alleging generally lack of reason and general bad faith. During that hearing, it was shown that the termination was made by the Minister responsible for the Public Service and that the reason given for the termination was untrue. At the end of the hearing and before reaching a decision, the Commission declined jurisdiction on the ground that the Applicant had not been appointed. The Applicant asked the Court to answer two questions set out in the judgment and consequential orders.

Held:

(1) The officer was properly appointed.

(2) The power to terminate employment of Public Officers rests solely in the Public Service Commission subject only to the exceptions in the Constitution.

(3) No Minister can take such a step without using the Commission.

(4) The requirement of natural justice that a man must be given an opportunity to be heard is satisfied by the right of appeal under Regulation 14.

(5) Cases under Regulation 77 have no right of appeal under Regulation 14 and, in such cases, the Commission must allow the officer to put his case before their initial decision.

Obiter: Comment was made on the manner in which a Commission should exercise its discretion.

Cases referred to:

Burns v. Ransley [1949] HCA 45; [1949] A.L.R. 817
R. v. Stepney Corporation [1901] UKLawRpKQB 209; [1902] 1 K.B. 317
Board of Education v. Rice [1911] UKLawRpAC 18; [1911] A.C. 179; [1911-13] All E.R. Rep. 36; 80 L.J.K.B. 796; 104 L.T. 689
In Re K (H) (an infant) [1967] 1 All E.R. 226; sub.nom.Re H.K. (an infant) [1967] 2 Q.B. 617; [1967] 2 W.L.R. 962; 111 Sol. Jo. 296 DC

T. Kama for the Applicant
R. Teutao for the Attorney General

WARD CJ: The Applicant, Mr Wheeler, has been working as a Senior Stores Officer with the Solomon Islands Government since May last year and, his contract having been terminated, he has applied to this Court for determination of two questions. He is an Englishman recruited in England under the Overseas Service Aid Scheme and he signed an Agreement of Service on 14 May 1988.

That agreement was between the Applicant and “the Crown Agents for Overseas Governments and Administrations, London (hereinafter called the Crown Agents) acting as agents on behalf of the Government of Solomon Islands (hereinafter called “the Government”).”

Clause 2 of the Agreement requires that:

“2. The Officer will: -

(a) act in all respects according to the directions orders or instructions given to him by the Government or his superior officers;

(b) place his whole time at the disposal of the Government and will not be engaged in any other business;

(c) save insofar as is herein otherwise expressly stated or as may be inconsistent herewith, be subject to and entitled to the benefits of the appropriate Service Commission Regulations the General Orders of Solomon Islands or instructions for the time being in force insofar as the same are applicable”.

Mr Wheeler’s work was in the Ministry of Transport, Works and Utilities and, after some time, he encountered problems with one or more of his expatriate colleagues. He has exhibited to his affidavit a lengthy submission he made to the Public Service Commission setting out this history but I do not need to go into it here.

The first incident of importance to the matters this Court must consider occurred on 22 May 1989 when he received a letter from the Office of the Prime Minister signed by the Principal Administration Officer 87(Expatriate Affairs) for the Secretary to the Prime Minister. At present, the Prime Minister is the Minister responsible for the Public Service and the Permanent Secretary in charge of the Public Service Office fulfils the role of “Secretary for the Public Service” in the Regulations.

The letter was headed “Termination of Appointment” and started:

“I am directed to inform you that in line with the new Governments reorganisation and review of positions in Ministries, it is seen in the interest of the Public Service of Solomon Islands that your services as Senior Stores Officer M1WU are no longer required.

2. Accordingly, under clause 12(b) of your agreement of service, you are given three month’s salary in lieu of this letter which services as notice of your termination.

Your assignment terminates as from 23rd May 1989”

It then deals with matter of pay and passages and concludes:

“4. Finally but not the least, I wish to take this opportunity on behalf of SIG to thank you for your services during the past 13 months and wish you luck in your future endeavours.”

There is no dispute that Mr Wheeler was given no prior notice or warning of this and, indeed, less than two hours before it was delivered by the office messenger, had been arranging a meeting with his Minister and staff from the Ministry of Finance over a new computer project he had been working on for some ten months.

There followed over the next few days a number of statements and contradictions relating to reason for the termination of his employment.

The Minister of Transport Works and Utilities first said he had no knowledge of the reason but after telephoning the Prime Minister’s Office said it was because Mr Wheeler was a freemason. Mr Wheeler denied this and, following further telephone calls, it was added that Cabinet had been informed he was one of the most active freemasons in Solomon Islands. However, a few days later, his Minister told him it was because of a reorganisation and review of positions within Ministries and the injection of Solomon Islanders into these positions as had been initially stated. The same day the Secretary to Cabinet told Mr Wheeler that whilst his termination was by the Public Service it was at the request of the Ministry of Transport, Works and Utilities.

On 2 June he wrote a letter of appeal and it was accepted by the Public Service Commission.

The grounds of appeal were, briefly, that there never was a review or reorganisation in the Ministry of Transport, Works and Utilities, that the real reason for the termination was the untrue allegation that he was a freemason, that the Minister had acted on a malicious report by other officers in the Ministry without the Applicant being given a chance to be heard and that the position of Senior Stores Officer was still in existence and vacant.

The Commission sat for five days during which it received written and oral evidence from five witnesses for Mr Wheeler and five for the Government.

The Respondent does not dispute that the evidence given by the Government witnesses confirm that the decision to terminate the Applicant’s employment had been the result of an instruction by the Prime Minister, that there was no review or reorganisation as claimed in the termination letter, that no request for the termination had been sent from Mr Wheeler’s Ministry and no investigation had been carried out by the Public Service before the termination.

The Commission then adjourned to reach its decision.

On 17 July 1989, a copy of the decision was sent to Mr Wheeler’s solicitor in which appeared the following passage:

“The Commission learned during the hearing that Mr Wheeler was never formally appointed by the Commission, although Mr Wheeler signed a contract. The Commission then deliberated on the question whether the PSC have the jurisdiction to hear and determine an appeal in relation to the termination of Mr Wheeler made outside the PSC Regulations. The Attorney General advised that since Mr Wheeler was not formally appointed by the Public Service Commission, the PSC has no jurisdiction to hear and determine the appeal. On this basis the Commission then DECIDED that it has no jurisdiction to determine and make a decision on the appeal."

By originating summons, the Applicant now seeks answers to two questions:

“(1) Does the Minister responsible for the Public Service have the power to terminate the Applicant from his employment under the terms of an Agreement of Service dated 14th May, 1988 since the Applicant is deemed to be an officer under the same agreement?

(2) Does the Public Service Commission of Solomon Islands have jurisdiction to decide on the termination and/or to hear and determine the appeal against the termination of a Public Officer employed under a contract of employment, in particular the Applicant whose contract states that he is “subject to and entitled to the benefits of the appropriate Service Commission Regulations, General Orders of Solomon Islands or instructions for the time being in force insofar as the same are applicable.”

On the answers they anticipate to those questions, they seek orders that:

“(1) the Applicant be re-instated in his position as a Senior Stores Officer, MTWU,

(2) alternatively, the appeal by the Applicant be returned for re-hearing before the Public Service Commission

(3) further or other relief as seems fit”.

The second of those orders would seem to be more appropriate to an application for mandamus, if such an order would lie against the Commission, for which leave has not been sought. However, Mr Teutao raises no objection to the procedure adopted here. He quite properly takes the position that it is important to have the main matter resolved with the minimum of delay. However, as will appear, I will not need to make such an order.

It is convenient to deal first with the decision by the Commission that it had no jurisdiction because Mr Wheeler had not been formally appointed. Mr Teutao does not seek to support the extraordinary advice apparently given to the Commission by the Attorney General’s Office. He is wise to take that course. It is quite clear that Mr Wheeler was indeed appointed and, even if he had not been, it would be an unfortunate situation if the Public Service Commission, by a failure to carry out its own procedures, could avoid its obligations under a contract that had been recognised for nearly a year.

Having abandoned such an untenable position, Mr Teutao sought to argue the case purely as a matter of contract. In summary, he said that clause 12(b) of the contract, which reads:

“12.The Government may terminate this Agreement: -

(b) by giving the officer three month’s salary in lieu of notice aforesaid;”

gave the Government a right to terminate. That is clearly correct but he then points to Regulation 77 of the Public Service Commission Regulations 1979:

“Nothing in these Regulations shall restrict the right of Solomon Islands Government to terminate a public officer’s employment or to take any other action in accordance with his agreement of service.”

as giving the Government the power to exclude the Public Service Commission from this process.

In order to support this argument he sought to suggest the Solomon Islands Government referred to there and in the agreement of service allowed action by some body other than the Commission and could allow a Minister to take the action himself. However, by the end of his argument, he had abandoned that position and now concedes that the law clearly does not give the Minister any right to terminate the appointment of any public officer in a way that bypasses the Commission. An examination of the law shows that is clearly correct.

First we should consider the meaning of the words “the Government”. The interpretation section of the Constitution is little help and uses similar terms to the Interpretation and General Provisions Act simply stating that the Government means Her Majesty’s Government of Solomon Islands.

What then is “the Government”? The term is frequently used narrowly in a colloquial sense to describe the members of Parliament who belong to the governing party and, equally frequently, widely describe anything and everything to do with life apart from private business.

The true meaning of the term covers the whole system by which the country is governed. The doctrine of the separation of powers divides the power of the Government into three separate categories, executive, legislative and judicial, but the Government is the total of all three. It has been described as signifying the established system of political rule, the governing power of the country considered as an organised entity and independent of the persons of whom it consists from time to time (per Dixon J in Burns v. Ransley [1949] HCA 45; [1949] A.L.R. 817).

Clearly such a body must act through its officers and various laws and rules have been made, delegate the responsibilities and dictate the procedures involved.

It is the Government’s dealings with the Public Service that concern us here. Public Service is service of the Crown in a civil capacity in respect of the Government of Solomon Islands and a public officer is a person holding or acting in an office of emolument in the public service. It is dealt with in Chapter XIII of the Constitution and section 115 establishes a Public Service Commission the powers of which are set out in section 116. The relevant parts are:

“116. (1) Subject to the provisions of this Constitution, power to make appointments to public offices (including power to confirm appointments) and to remove and to exercise disciplinary control over persons holding or acting in such offices is vested in the Public Service Commission.

(2) The Public Service Commission may, subject to such conditions as it thinks fit, delegate any of its powers under this section by directions in writing to any member of the Commission or to any public officer.”

The words of that section are perfectly plain. Subject to certain clearly defined exceptions which are not applicable to this case, the power to appoint, remove and discipline public officers is vested in the Commission. The power is the power of the Government but it must be exercised through the Commission.

There is no question of delegation of the power in this case. Mr Teutao tells the Court power has only been delegated in relation to grades below those of Mr Wheeler’s post. As the power to delegate under section 116(2) is limited to a member of the Commission or a public officer, there is no question of delegation to a Minister.

The power to remove is further explained in section 135 –

“(1) References in this Constitution to the power to remove a public officer from his office shall be construed as including references to any power conferred by any law to require or permit that officer to retire from the public service and to any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract shall or shall not be renewed:”

Section 137(1) gives the Commission the power by regulation to make provisions regulating and facilitating the performance by the Commission of its functions under the Constitution. The Public Service Commission Regulations, 1979, were made under that power and clearly, by the terms of section 137, cannot give powers not granted by the Constitution or take away powers granted by the Constitution. Thus Mr Teutao’s original suggestion that Regulation 77 can somehow remove the power vested in the Public Service Commission by sections 116 and 135 is clearly untenable. The position is stated in Halsbury’s Laws, 4th Edition, Volume I paragraphs 33 and 34.

“A public body endowed with a statutory discretion may legitimately adopt general rules or principles of policy to guide itself as to the manner of exercising its own discretion in individual cases, provided that such rules or principles are legally relevant to the exercise of its power, consistent with the purpose of the enabling legislation and not arbitrary or capricious..... Public bodies cannot disable themselves by deed, grant or contract from fulfilling their obligations to exercise their powers and duties for public purposes; and an agreement or undertaking which purports to impose or would have the effect of imposing such a fetter is void”.

The same applies to regulations. The test is whether the regulations are compatible with the discharge of public responsibility in terms of the Constitution.

The Constitution clearly states that, in relation to officers such as the Applicant, the power to terminate his employment in the Public Service is vested solely in the Commission. No regulation can change that. When the Government wishes to exercise any of the rights referred to in Regulation 77, it must do so through the Constitutional provisions that established and gave power to the Public Service Commission.

It follows that no Minister has the power or can have the power to take such a step on his own. If he should wish to terminate the employment of any public officer, he must advise the Commission in the manner set down by the Commission in its Regulations. Having made his submission to the Commission, he must await the Commission’s decision.

Thus the answer to the first question, whether the Minister has power to terminate the Applicant’s employment, is clearly no.

Section 137(4) of the Constitution provides in relation to any Commission established by the Constitution:

“4. In the exercise of their functions under this Constitution no such Commission shall be subject to the direction or control of any other person or authority except where otherwise provided by this Constitution.”

These terms are clear and unequivocal. A body entrusted with a statutory discretion must address itself independently to the matter for consideration. It cannot lawfully accept instructions from, or mechanically adopt the view of, another body as to the manner of exercising its discretion in a particular case; R v. Stepney Corporation [1901] UKLawRpKQB 209; [1902] 1 K.B. 317. The Commission has an independent role. It must consider the matters raised before it and it may seek any other information it feels is relevant. Having done so, it acts in its own judgment. It is not, of course, unrestricted in the manner it exercises its power. The decision at this stage is administrative but, when deciding matters such as termination of employment which can affect a man’s livelihood, there is a duty to act fairly.

In Board of Education v. Rice [1911] UKLawRpAC 18; [1911] A.C. 179, Loreburn LC dealing with this in relation to the Board said at p. 182.

“In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view”.

That principle has been accepted and expanded in numerous subsequent cases throughout the Commonwealth.

Lord Parker CJ dealing with the decision of an immigration officer In Re K (H) (an infant) [1967] 1 All E.R. 226 at page 231 said –

“Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one’s mind to bear on the problem, but of acting fairly, and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly.”

and Salmon LJ, at 232, explained it in this way:

“I have no doubt at all that in exercising his powers under that section, the immigration officer is obliged to act in accordance with the principles of natural justice. That does not of course mean that he has to adopt judicial procedures or hold a formal inquiry, still less that he has to hold anything in the nature of a trial, but he must act, as Lord Parker, C.J., has said, fairly in accordance with the ordinary principles of natural justice. If for example, and this I am sure would never arise, it could be shown that when he made an order refusing admission he was biased or had acted capriciously or dishonestly, this court would have power to intervene by the prerogative writ”

The Commission clearly had this in mind when drafting the 1979 Regulations. Parts VII, VIII and IX of those Regulations, dealing respectively with Discipline, Inefficiency and Premature Retirement and Termination of Employment, all require the officer involved to be advised of the position and given time to make representations. It is clear Regulation 77 has not extended those provisions to termination employment of contract officers but that cannot remove the duty to act fairly in such cases.

The Commission should see itself as a buffer or safeguard against arbitrary or unreasonable acts by the Government in relation to appointment, removal and discipline of public officers. Where dismissal or termination of employment is sought but no reasons are given, the Commission is entitled to, and should, ask for them. Having been given them, it is their duty to decide on the propriety or sufficiency of those reasons.

The relevant considerations have been conveniently summarised by the learned editor of Halsbury: -

“Discretionary powers must always be exercised in good faith, for the purpose for which they were granted, and within the limits of the Act or instrument conferring the power. Discretion must always be exercised fairly, not capriciously and in accordance with proper legal principles; and these standards imply that all relevant considerations must be taken into account and that extraneous considerations be disregarded by the person or body exercising the power” (Laws, 4th Edition, Volume 1 paragraph 61).

The answer to the first part of the second question, whether the Public Service Commission has jurisdiction to decide on the termination of employment of a contract officer, is yes.

By Regulation 14, which reads

“A public officer in respect of whom a decision has been taken by the Commission, or by an officer exercising delegated powers, under the provisions of these Regulations may appeal to the Commission if he is aggrieved by that decision”,

that decision is subject to appeal by the officer in all cases where the decision was made under the Regulations. Although Mr Teutao has not disputed the right of a contract officer to appeal in a case such as this, I feel there is no such right.

Regulation 14 gives a right of appeal from any decision of the Commission taken “under the provisions of these Regulations”. The decision to terminate the officer’s employment under a contractual term such as clause 12(b) in this case is expressly reserved from the Regulations by Regulation 77. Thus where the decision of the Commission relates to a term of the agreement of service, the officer affected by the decision has no right of appeal to the Commission.

The answer to the second part of the second question, whether the Public Service Commission has jurisdiction to hear and determine appeals against termination by an officer under a contract worded as stated in the question, is “no” where the termination is entirely under a specific term of that contract.

That does not mean such an officer has no means of redress. Despite the terms of section 137(4), the jurisdiction of the High Court in relation to any question whether a person or authority has performed any function under the Constitution in accordance with the law or should not perform that function is expressly preserved by section 138. That applies, of course, to all officers not just contract officers.

Similarly it should be borne in mind in relation to the terms of Mr Wheeler’s agreement, which the Court is told is in a standard form, that where the matter is not entirely covered by the contractual terms it may still need to be determined under the Regulations. Clause 16, for example, reads –

“Matters not covered by the terms of this Agreement shall be governed by the General Orders and other Regulations for the time being in force”

Thus, had dismissal been sought for misconduct under clause 14(2) of that Agreement the Commission would have to determine whether he is guilty of that misconduct “after due enquiry”. In order to do that, they must follow the procedure under the Regulations. If a contract officer is then aggrieved by that decision, he has a right of appeal under Regulation 14.

That right of appeal gives the officer an opportunity to put his side of the case if he does not agree but, equally, it should be borne in mind that the duty of the Commission to act fairly requires, in cases where there is no right of appeal, that the officer should have an opportunity to put his side before the initial decision is made.

As has been seen, the Commission accepted an appeal from Mr Wheeler and then decided it had no jurisdiction. Clearly it had no jurisdiction but not for the reason that was put forward. As it happened, it inadvertently produced the correct result. The reason for the lack of jurisdiction in this case is twofold; the Commission had never made any decision from which appeal would lie and, even had it done so, the decision under clause 12(b) would not have been made under the Regulations and so Regulation 14 does not apply.

I have already ruled that the Minister responsible for the Public Service had no direct power to terminate Mr Wheeler’s employment under clause 12(b) or in any way. What is the effect then of the termination of employment in Mr Wheeler’s case? The normal consequence of failure to comply with a procedural requirement is invalidity but consideration must be given to whether the requirement is mandatory or directory. In this case, the constitutional requirement that the decision must be made by the Public Service Commission is clearly mandatory with the result that the purported termination of Mr Wheeler’s employment is invalid and a nullity.

The effect of that is that Mr Wheeler remains a public officer under the terms of his agreement of service.

The first order sought is to reinstate Mr Wheeler. I cannot do that for the simple reason that he is still a public officer under the terms of his agreement. Similarly the second order cannot be made because there was no decision to appeal and so the Commission should not have started to hear the appeal.

This does not mean the Government cannot terminate the contract by invoking clause 12(b). What it means is that, if the Minister wishes to take that step as he is, of course, entitled to, he must follow the proper procedures and the termination will then be made by the Commission if it feels it is a proper case.

If that should happen in this case, the Commission should consider any reasons put forward and must be entitled to consider the matters already within their knowledge, having been raised at the appeal hearing, insofar as they consider those matters relevant. Thus, if the ground of termination is still the same as before, the Commission is entitled to consider that reason. If it has changed, they are entitled to question the new reason and the reason for the change if they wish.

Finally the summons seeks further or other relief as seems fit.

By section 83 of the Constitution, this Court has jurisdiction in any proceedings lawfully brought before the Court to determine whether any provision of the Constitution has been contravened and to make a declaration to that effect and, if the person affected seeks relief, grant such remedy as the Court considers appropriate.

The other party in this action is the Government. I have no doubt that, having seen the mistake that has been made, it will be rectified by treating Mr Wheeler’s employment as continuous since 22 May 1989 and continuing until and unless proper steps are taken to terminate it. In those circumstances I do not feel a declaration or further remedy is necessary at this stage.

Costs to the Applicant.