Solosaia v Attorney General [2015] SBHC 47; HCSI-CC 334 of 2012 (2 June 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 334 of 2012

BETWEEN:

CELESTINE JOSS SOLOSAIA
Claimant

AND:

ATTORNEY-GENERAL
(Representing the Public Service Commission)
First Defendant

AND:

ATTORNEY-GENERAL
(Representing the PERMANENT SECRETARY
OF PUBLIC SERVICE)
Second Defendant

AND:

ATTORNEY-GENERAL
(Representing the CHAIRMAN of the
LEADERSHIP CODE COMMISSION)
Third Defendant

Date of Hearing: 5th May 2015
Date of Judgment: 2nd June 2015.

Mr S. Hanu for First, Second and Third Defendants
Mr C. Solosaia in Person

JUDGMENT ON CLAIM FOR JUDICIAL REVIEW

Faukona PJ: A claim for judicial review was filed on 11th September 2012. The prime focus of the claim is to seek remedy by quashing the decision by the first Defendant terminating the Claimant's employment contract on 22nd September 2010, which was upheld on appeal on 15th February 2012 also by first Defendant. Consequent to that, the first, second and the third Defendants be liable for damages in terms of loss of salary, entitlements, exemplary damages, special damages and interest at 5%.

Undisputed facts:

2. There is no dispute that the Claimant is a lawyer by profession. It is not also an issue that the post he was appointed to is a senior position of Director, Legal Services at the Leadership Code Commissions Office. Not disputed as well that his appointment was for a probationary period of six months and should commenced in October 2006.

Brief Facts:

3. The Claimant was recruited into Public Service by way of an appointment letter dated 16th October 2006. He was appointed as Director, legal services Level 12/13 and posted at leadership Code Commission, pursuant to GO B, 2, 201.

4. On 22nd September 2010, the Claimant's probationary appointment was terminated by the first Defendant by a letter dated 15th October 2010 and was served on the Claimant on 10th November 2010.

5. The Claimant then appealed against his termination to the first Defendant. By the first Defendant's minute of meeting dated 22nd September 2010, it was decided to reject the Claimant's appeal and upheld its decision to terminate the Claimant's probationary appointment. The Claimant then subsequently filed this claim for judicial review.

The issues:

6. The issue is whether the procedures provided for termination of the Claimant's probationary appointment had been complied with?

Probationary appointment.

7. The claimant without doubt accepted his probationary appointment for a period of six months pursuant to GO B, 2 201. The provision further provides that relevant Commission may determine to extend the probationary period on advice of the relevant Authority.

8. GO B 2, 203 vested powers upon the relevant Permanent Secretary to ensure the probationary periods are well managed. From this provision it is expected an officer may count upon or expect be confirmed and admitted to permanent office. However, the appointment remains conditional upon the officer adhering to the ethics and values of the Public Service in carrying out his responsibilities during the period in a manner acceptable to management.

9. By GO B, 2, 204 provide a relevant Permanent Secretary must ensure that the probationary officer has a specified supervisor; in this case the Chairmen of the Leadership Code Commission, who work closely with the Claimant and who should also offer advice. He is also expected to provide leadership and ensure any opportunity for improvement is identified.

11. GO B. 2, 207 provides for adverse comment. The important of this provision is that it vested responsibility on the Permanent Secretary concerning adverse comments in a report or any assessment of the probationary officer that falls below average, be brought to the attention of the probation officer in writing. The second part of this provision vested responsibility upon the supervisory officer (Chairman) if he thinks necessary to address the probationer and give him advice of which might assist acquire necessary standard of conduct or performance.

12. If during the probationary period the Claimant performed below average, had the Claimant aware of it by way of a written letter from responsible Permanent Secretary? Or has the supervising officer address or advice the Claimant of his performance; he was not necessarily expected to do so by mandatory requirement, but in a discretionary fashion if he thinks appropriate. It would appear the Claimant has denied being issued with a letter reminding him of his performance which is below acceptable standard. After four years engaged in the probationary work he received a termination letter dated 15th October 2010.

Termination of probationary employment:

13. The grounds upon which the Claimant's probationary employment was terminated was contained in the letters written by the Chairman of Leadership Code Commission who was the immediate supervisor sec GO B 2 207. The letter on 8th June 2007 was eight months after the Claimant took up the post. The letter recommended that the Claimant's probationary appointment be extended for further six months. At the same time the Chairman gave option to the Permanent Secretary to Public service where appropriate consider taking other actions under Regulation 28 of Public Service regulation (1998) and GO B, 2, 212 as it saw fit. In fact reference made to other actions, was in the mind of the Chairman at that time, and was an action for termination based on poor work output demonstrated by the Claimant.

14. The Chairman's memo of 30th August 2009, addressed to the Secretary to Prime Minister was a report that the Claimant had overstayed his annual leave by thirty days without explanation. The letter on 30th July 2010 was a recommendation to the Permanent Secretary of the Ministry of Public Service for termination grounded on Regulation 28 and GO B, 2, 2012.

15. In summing up, the Claimant's probationary appointment was recommended for termination on the following grounds; (1) unsatisfactory work performance (2) poor attitudes (3) overstayed annual leave for 30 days without explanation (4) lack of leadership quality and (5) inefficiency and negligent of duty.

16. GO B 2, 212 provides for termination of probationary appointment with one month notice and must be done in writing. Regulation 44 of the public Service Regulation (1998) define misconduct to include;

- Acts of misconduct specified in Chapter VII of the Constitution or acts contrary to Chapter C of the General Orders.

- Non-compliance with disobedience of Public Service Act, Public Finance and Audit Act.

- Any General Order, Financial Instructions, Store Regulations from time to time in force.

- Minor acts of misconducts such as lateness, idleness, on indiscipline after a written warning.

- Acts of insubordination to responsible offices directives or public service or cabinet directives or acts contrary to any rules or regulations applying to public officers, or

- Wilful neglect of duty and

- Failure of responsible Officers under delegated power to expedite a conclusions or disciplinary or criminal proceedings within reasonable time, or any act that the Commission considers or decided to be misconduct.

Assessing the arguments

17. Counsel for the Defendants affirms that the grounds for terminating the Claimant's probationary appointment are summed up in the five recommendations. The chairman as the supervisory officer has recommended based on his assessment on the general work output performance of the Claimant which fell below acceptable standard. The Counsel further submits that it was never adorned nor favour that the ground for termination was in the nature of misconduct though it was quoted in the letter of termination was a misguided conclusion.

18. In spite being pleaded in the defence, the Claimant persisted that his appointment was terminated on the ground of misconduct.

19. In paragraph 16 I quote the definition of misconduct define in Regulation 44. That definition appears to reflect a general interpretation applicable to all public officers employed in the Public Service. Out of various misconduct actions and behaviour only one seem to be relevant to this case that is wilful neglect of duty. That act alone can accumulate various misconduct activities. However, the grounds for termination in this case stems out clear and well defined.

20. The Claimant has taken further course to argue that because he was terminated for misconduct, he has never been suspended or charged with any form of misconduct behaviour. As such he was never served with any charge, nor given any opportunity to be heard. The Claimant makes reference to a number of case authorities which I do take note.

21. My perceived view in respect of the GO and Public Service Regulation is that section B 2 of the GO focusses on probationary appointment, supervision, advice and recommendation for termination in severe cases. There was no mention of the word dismissal in probationary appointment in section 2 of the GO. Dismissals of Officers only emerge in the provisions of the GO in respect of permanent employment. It would appear that termination and dismissal applies to two kinds of employment in the Public Service. Therefore, when the Claimant has taken upon himself to argue that he has the right to be heard is a misconception of the General Orders.

22. Whilst I appreciate the Claimant's succinct argument on the issue of natural justice and right to be heard, it is not necessarily relevant in this case. The Defendants have abandoned that line of argument as going beyond the issue of termination because of unsatisfactory work performance and not dismissal for misconduct in Office. Apparently, it appears that engaging in an argument that carries no value and out of context, is a waste of time. The simple and basic rule of thumb is that pursuant to Regulation 28 the supervisor (Chairman) can recommend to the Commission a confirmation, extension or a termination of the probationary appointment of the Claimant. The Commission has the duty to act upon any recommendation by the supervisor where necessary. In this case it acted upon the recommendation for termination. This is a clear case where the termination is provided for under the authority of Regulation 28, and that authority was manifested when the Commission issued a termination letter to the Claimant on 15th October 2010.

23. Upon issuant of a termination note a notice of one month be given. Such notice is not mandatory but a choice whether to act upon or not. That distinguishes from word "shall", which makes it imperative. Important to consider is the use of the word "may" use in GO B 2, 212. The word "may" always implicate the use of discretionary power whether the Commission gave notice of one month or for a lesser period or not at all is a discretion it exercises alone. The argument by the Claimant that no notice for one month was issued is a futile style of argument which is out of course.

24. On the issue of delay the Counsel for the Defendants has admitted there was some delay before hearing of the appeal lodged by the Claimant. If the Court finds there is delay, what remedy would the Claimant obtain as a relief out of that cause. I think delay has contributed nominal invocation to consider. Perhaps it is better to late than never. I noted there is some delay but at the end thereof the appeal was finally heard and determined by confirming the termination of probationary appointment of the Claimant.

25. The Claimant also submits by denouncing the first Defendant did not have the prerequisite jurisdiction to terminate his appointment, refer to section 118 of the Constitution. Sub section (1) provides that appointments (including power to confirm appointments) and to remove and exercise disciplinary control over persons holding or acting in such offices, is vested in the Judicial and Legal Service Commission. Subsection 2 (a) actually refers to persons which subsection (1) applies to and that includes public offices for which a legal qualification is required. There is no evidence before the Court that there was a recommendation by JLSC for the Claimant's appointment or probationary appointment. All I have as documentary evidence is the appointment letter from Public Service Commission dated 25th October 2006. There was no reference of any recommendation from JLSC which may have influenced the appointment. It may seem the JLSC had never involved in recommendation or even appointment of the Claimant. Therefore if there was no participation by JLSC at the initial stage then there can be no expectation that it would participate in whatever decision connected to the plight of termination of the claimant's probationary appointment.

26. I noted there are areas which the supervising officer and the relevant Permanent Secretary failed to conduct a proper probation, in particular what ought to have been done pursuant to GO B 2 203 and 204. On the other hand it is expected the Claimant may count employment in Public Service is not new to him. He had been with the Public Solicitors Office for some years. He knows what is expected of him and what he expects at end of the probationary period. If after eight months of work the supervising officer could note by his personal assessment that the Claimant's work output was unacceptable then there must be something wrong with him and have to be given a proper thought.

27. The Claimant had exhibited copy of his appeal to his sworn statement filed on 18th October 2012. On ground 4 he was amazed that his probation period runs for four years. He could have calculated what actually went wrong. It is not a wrong that a probationary period kept on extended. In fact the supervising officer had taken lenient approach by resuming to continuous extension otherwise the right cause would have been an earlier recommendation for termination which would be a real hazard for the Claimant.

28. Even if there were certain areas which the supervising officer and the relevant Permanent Secretary had fallen short, are they not severe enough when I turn my mind to consider, to warrant an order reviewing or quashing termination of the Claimant's employment. Even if I could quash the order, the Claimant would not resume duty back. What he is interested in is compensations for damages. Any right minded person would plea for reinstatement if termination is quashed. The Claimant's approach seems to serve different purpose. I note from his evidence that he had been working for various legal firms and as well as DBSI. Why should he not chose a carrier path and secure a stable employment to support himself and his family. He must be someone with some kind of attitude. I think the best option is to dismiss his claim in its entirety.

Orders:

1. Dismiss the claim against all the Defendants.

2. As to costs I am quite lenient with the Claimant, therefore cost be in the cause.

The Court.