Lonsdale v Attorney General [2015] SBHC 99; HCSI-CC 356 of 2012 (25 November 2015)

IN THE HIGH COURT OF SOLONON ISLANDS
(Faukona PJ)

Civil Case No.356 of 2012

BETWEEN:

DOREEN KULU LONSDALE
Claimant

AND:

ATTORNEY-GENERAL
(On behalf of Public Service Commission)
Defendant

Date of Hearing: 12th November 2014, 14th November
2014 and 11th October 2015

Date of Judgment: 25th November 2015

Mr A. Rose for the Claimant
Mr E. Kii for the Defendant

JUDGMENT

Faukona PJ: A claim in Category C was filed by the Claimant on 21st September 2012. The claim is in the nature of quashing or declaratory order, often describe as claim for judicial review. The intention of the claim is to quash the decision of the Defendant made at its meeting on 28th March 2012 terminating the employment of the Claimant for breach of natural justice. Alternatively, a declaration that the Defendant had been wrongfully terminated the Claimant from her employment. In consequent to that, the Defendant be reinstated to the position she held at the time of termination or be posted anywhere within the Public Service.

Facts:

2. On or about 14th August 2009, Mr Alison Papabatu verbally informed the Claimant who was the Administrative Officer in the Ministry of Mines, Energy and Rural Electrification ("Ministry of Mines") by authorising her to collect and cashed his cheque of $5000.00 being for repatriation costs which had been prepared by the Ministry. At that time Mr Papabatu was on course to retire. The reason given for the Claimant to collect the cheque was because Mr. Papanatu will be away to the Western Province with a team of scientist for one month.

3. Whilst away on work commitment to Western Provinces, the Claimant collected and cashed Mr Papabatu's cheque. Out of the $5,000.00, $3,000.00 was given to Mr Moses Vekevania, another officer of the Ministry of Mines whose mother had died. The Claimant did that with the approval from the Chief Accountant.

4. After one month Mr Papabatu returned and the Claimant gave him $3,500.00, and explained the shortfall of $1500.00.

5. On the 1st November 2011, Mr Papabatu, by his memo informed the Permanent Secretary of the Ministry of Mines that his $5000.00 was abused by a responsible officer and would like to recover that payment immediately. On the same note, on 28th November 2011, the Human Resource Manager of the Ministry of Mines wrote a memo addressed to the Accountant General and copies to the Permanent Secretaries of Public Service and Ministry of Mines. In the memo she indicated repayment of $5000.00 belonging to Mr Papabatu cashed by the Claimant.

6. A further report of payroll copies confirming the Claimant had personally collected the cheque on 14 August 2009 were submitted by the Human Resources Manager per her memo of 30th January 2012, addressed to Permanent Secretary of Public Service.

7. On 23rd February 2012, the Permanent Secretary for Public Service laid five charges against the Claimant for breaching Public Service rules. On 5th March 2015 the Claimant made a reply to the charges.

8. On 5th March 2012 Mr Papabatu wrote a letter entitled "to whom it may concern" affirming that he had authorised the Claimant to collect his cheque and cashed it and agreed on how his money being used to support another officer in a time of destitute.

9. By a letter dated 15th March 2012, the Permanent Secretary for Public Service dismissed the Claimant from her employment with the Public Service.

10. On 16th March 2012 Mr Papabatu wrote another letter in similar nature as above certifying that he had authorised the Claimant to collect and cashed his cheque on his behalf. On the same paragraph Mr Papabatu said he should be the one reported the issue and that the money has now being fully paid.

11. On 20th March 2012, the Claimant appealed against the decision of dismissal, but that appeal was dismissed, see letter by the Permanent Secretary of Public Service 10th April 2012.

Public Service Rules applied in this case:

12. Section 94(1) of the Constitution is a general vesting provision, which vest or confers duty by way of decent conduct upon all officers of the legislative and executive arm of the government. Particularly in the areas of conflict of interest, demeaning of officer's position, integrity being questioned, endanger or diminish by way of respect to the government of Solomon Islands.

13. GO C 113 as read with Public Service Regulation ("PSC Regulation") 44 provides that the Claimant must comply with the procedures prescribed under the General Orders in the cause of duty as an Administrative Officer. By obtaining and cashing a cheque No. 03096 for $5,000.00 under the name of Mr Papabatu without his approval is a breach of the above provision.

14. Provision GO C1.101 as read with PSC Regulation 44, states that as a public officer must at all time uphold the laws of Solomon Islands faithfully and impartially.

15. Financial Instruction FI22.1 as read with PSC Regulation 44 that the Claimant has failed thereby held accountable to the misuse of the cheque worth $5,000.00 without approval of Mr. Papabatu.

16. Financial Instruction 23.2 as read with PSC Regulations 44 that whilst obtained, cashed the cheque from Treasury Division and used it without the approval of Mr Papabatu.

Whether the Defendant complied with relevant provisions in dismissing the Claimant.

17. Regulation 45 of the Public Service Regulations 1998 "Regulation" provides that a supervisory officer has responsibility to report once suspected acts of misconduct by the staff and to deal with disciplinary cases promptly. By Regulation 47 the Secretary for Public Service on recept of the report may make further inquiries as necessary and if he considered there has been misconduct he will inform the Officer concerned in writing of the charge.

18. The Officer by Regulation 48 is given not less than seven days to respond to the Charge and if so requests he may be accompanied by a friend or an official representative of his trade union.

19. Regulation 14 provides a privilege to appeal to the Commission, if aggrieved of the decision taken. The appeal must be made within 14 days after the date on which the decision has been communicated and must be in writing as required by Regulation S.16. Any interview in connection with his appeal an officer may be accompanied by a friend or an official representative of his trade union.

20. What transpired from evidence is that sometimes in July 2011, about one year and eleven months after the event, Mr Papabatu reported to Nancy Pita, the Human Resources Manager for the Ministry of Mines that his cheque with an amount of $5,000.00 had been obtained and cashed by the Claimant for her own benefit, without his authority. Three months after that meeting, Mr Papabatu on 1st November 2011 wrote a letter to the Permanent Secretary of the Ministry of Mines expressing if he could recover his $5,000.00 from a responsible officer of the Ministry who abused his money.

21. After several consultations the Human Resource Manager then wrote a letter to the Accountant General, copies of which were sent to the Permanent Secretary to Public Service and Permanent Secretary to Ministry of Mines and other dignitaries, and as well as a copy was sent to the Claimant. In the letter, she also revealed that there were no correspondences by previous Permanent Secretaries in confidential personal files in respect of Mr. Papabatu's plight.

22. Mr Diamana who was the Assistance Secretary Investigation/Discipline in the Public Service was tasked to probe into the case. According to his sworn statement, paragraphs 3 and 4 he actually conducted investigations into the complaints.

23. Sadly, there was no response from the Permanent Secretary of the Ministry of Mines though complaint and copy of report was furnished to him.

24. However, the Permanent Secretary of Public Service responded by a letter dated 23rd February 2012 imposing fives charges against the Claimant for breaching of Public Service Rules.

25. Later, on 16th March 2012, the former PS for Ministry of Mines wrote a letter to the Chairman of Public Service Commission that the Claimant's case had gone to the Ministry of Public Service without his notice.

26. That is definitely a lame and an unacceptable excuse. He should have received Mr. Papabatu's letter addressed to him on 1st November 2011, advised of his plight. If that should not be enough, he should have received a copy of the Human Resources Manager's letter dated 28th November 2011. Despite he had been informed of this matter, the PS for the Ministry of Mines never responded until lapse of three and half months. Whether he was a substantive holder and was in the office, or another, the fact is that both had never bothered to response. Should a PS was on the post, by his act of non-response and delay had ignored the fundamentals of Regulation 45 of the Public Service Regulations 1998, to deal with suspected acts of misconduct promptly and expeditiously. His act of delay or non-response in time is an act of misconduct itself – see Regulation 45.

27. Having had sufficient information about the $5,000.00 issue, the PS would have immediately response and took over any investigations as a responsible officer by complying with the processes. He had failed drastically; waited after the charges were laid upon the Claimant on 23rd February 2012, and after the Claimant was dismissed on 14th March 2012, reacted, an action too late to value or to be considered, and attract no credit at all.

28. In surmising, the problem encountered by Mr Papabatu was an event occurred in August 2009. No one from the Ministry of Mines dare vested interest to deal with, though Mr Papabatu would have reported to responsible officers in the past. Not until the new Human Resources Manager took up the post, then Mr Papabatu had the privilege to consult her. The new Human Resources Manager then wrote a letter on 28th November 2011, a copy was sent to PS Public Service and PS Ministry of Mines. Further investigations are carried out and certain relevant documents were obtained from Finance Payroll Section which were disclosed to the PS of Public Service under cover of memo dated 30th January 2012.As a result five charges were laid on the Claimant for misconduct on 23th February 2012. On 5th March 2012 the Claimant replied to the charges.

29. Further to that, the Human Resources Manager interviewed Mr Papabatu and Mr Vekevania of which a report to that effect was conveyed to the PS of Public Service on 9th March 2012. It was after that, the Claimant was dismissed on 14th March 2012. On 20th March 2012 she appealed to the Public Service Commission against the dismissal, however, her appeal was dismissed on 10th April 2012.

30. The fundamental argument advance by the Claimant is that the Defendant had failed to comply with relevant processes prior to final determination to dismiss her employment. I have answered this question in paragraph 21 above. The PS who supposed to be and the one the Claimant rely on, as a responsible officer, had never responded, though fully aware of Mr Papabatu's problem. His reaction was late in time, perhaps dozing, only to wake when his administration was critically on spotlight.

31. There is also evidence that at the time of the incident, there was no Undersecretary, no Human Resources Manager, no Principle Administrative officer, perhaps the only senior officers at the Ministry of Mines was the PS and the Chief Accountant. How long were those vacant positions continued to prevail? There is no evidence to verify such. Should it be the case, when the new Human Resources Manager took up position in July 2011, she felt obliged and took up responsibility and deal with such issue. The PS cannot be relied upon, he had failed to response, so the Human Resources Manager took upon herself to investigate and submit reports of her findings, remember Regulation 45 is a measuring rod.

32. From facts of the case, it is clear that victim Mr Papabatu himself reported the case to the Human Resources Manager. Again reported the case to the PS who was dormant and inactive and had done nothing. From events outline above I would conclude that the Claimant's case was fairly treated, investigated by an officer who took upon herself responsibility when the PS was absolutely ineffective and dormant. As a Human Resources Manager she was responsible for supervising, management and deals with personal matters. One cannot deny there was collaboration with Mr Diamana from the Ministry of Public Service. Undoubtedly the Public Service Commission would have in possession full evidence including disclosures and evidence from the Claimant when deliberated on her appeal. The claim that the Defendant did not comply with the relevant provisions cannot be sustained and was unsubstantiated.

Breach of rule of natural justice:

33. A claim premise on breach of rule of natural justice is commonly described as one calling for administrative review and falls within the ambit of common law[1]. In the case of Hanson V Church Commission of England & Anor[2] where Lord Denning M.R said;

"it is one of the cardinal principles of natural justice that a matter should not be decided adversary to a man, unless he has had a fair warning of the case against him and a fair opportunity of dealing with it"

34. As a general approach in a wider perspective, S.10 (8) of Constitution calls for any person who appears before a Court or other adjudication authority shall be given a fair hearing within reasonable time.

35. In the current case the Claimant is alleging that she had not been afforded a fair hearing in that she was not given the opportunity to be heard. More specifically, the Claimant was not given the opportunity to be present and be heard when the Defendant was deliberating over her appeal against the decision to dismiss by the Permanent Secretary of the Public Service.

36. Regulation 16 of the Public Service Regulations 1998, states that;

"At any interview in connection with his appeal an officer may be accompanied by a friend or any official representative of his trade union".

37. From observatory perception, an interview is a part of the processes provided for by Regulation 16, but it is not a mandatory requirement that in all the appeals to the Commission the appellant must be present and be interviewed to provide relevant facts. There is no common law obligation to afford the appellant the right to oral argument in every instance. To find such right in these circumstances would open the floodgates to argument when documentary evidence will illuminate the issues. Memory of things said is notoriously subjective and would exacerbate difficulties in case such as these where the procedural steps in the Regulations imply written records[3].

38. In conclusion, there is consequently no right to seek relief sought by the Claimant, unless a clear error of law is apparent. I am not satisfied any such error in law has risen for procedural fairness has given them. The award of dismissal was available on the facts and a penalty provided for misconduct by the Regulations relied on by the Commission.

39. Kakai's Case must be distinguished from the case of Lomo V AG[4]. In Lomo's case the Judge, Her Lordship Izuako, concluded on page 12, paragraph 2, that she did not agree that the rules of natural justice are of any relevant in that case. Natural justice would arise if the Claimants were dismissed on grounds of misconduct or criminal acts without opportunity given them to be heard.

Finding on the evidence:

40. The alleged misconduct act had occurred in August 2009. Almost two years before the new Human Resources Manager was posted to the Ministry of Mines.

41. The victim Mr Papabatu agreed that when he arrived back from Western Province from circuit, he was given $3500.00 by the Claimant and a shortfall of $1500.00 was explained.

42. After the new Human Resources Manager was posted to the Ministry of Mines in July 2011, Mr. Papabatu reported to her of his plight. Mr Papabatu agrees in his oral evidence that what the Human Resources Manager wrote in her memo of 28th November 2011 was what he told her. He attempts to divert the truth by saying despite that, they have sorted out the matter already in 2010. That memo contains very important facts, one of which was an indication that Mr Papabatu could have raised his problem previously but received no positive response. Secondly there was a correspondence attached which identified the Claimant as the Officer who cashed the cheque and an attachment of SA Form for possible repayment. Subsequently, disclosed as a suggestion, that since the nature of misconduct is serious the officer should be penalised.

43. Apparently, Mr Papabatu agrees to those facts in the memo and agrees he was the source of those facts. That admission must be given greater value, not only on its face, but has given the Court the assistance to assess whether his denial of the memo he wrote on 1st November 2011 addressed to the PS of Ministry of Mines was true. In his oral evidence he denies he did not write the memo. It was given to him by the Human Resources Manager for endorsement. Mr Papabatu was the Principal Seismological Observer, a senior position in the Government. An uneducated or illiterate person could not hold such position. The question whether the memo was written by the Human Resources Manager or not, the fact that he signed implicated that he had read it and agreed to it's contain as an educated man. His denial of the truth is far from being accepted but rather demeans him as a witness of his calibre.

44. After the Claimant had been charged on 23rd February 2012, Mr Papabatu wrote a letter on 5th March 2012, and after dismissal he wrote another letter on 16th March 2015, attempted to retract what he had reported to the Permanent Secretary of Ministry of Mines in his memo on 1st November 2011, and information supplied to the Human Resources Manager which were disclosed in a memo she wrote to the Accountant General and carbon copies to PS of Public Service and PS of the Ministry of Mines which the Mr Papabatu agreed to the facts he disclosed. In his letters Mr Papabatu diverted attention from what he had provided as facts, by attesting that he had authorized the Claimant to collect his cheque and cashed it, and agreed as to how his money was used to assist the needy.

45. His sworn statements on 5th December 2012 and 5th April 2013 were intended collaboration to reinforce his letters. At the same time supported or corroborated the Claimants main argument. Unfortunately his letter of 5th March 2013 reflected an outstanding payment of $2000-00 was yet to be recovered, and no mention of $1500.00. Further, he also stated in his letter of 16th March 2012 and deposed in his two sworn statement that he had recovered the $1500.00 outstanding in 2010. The question is why he should report his loss to Human Resource Manager in November 2011 when he had already recovered it a year ago.

46. Mr Papabatu is a person without any genuine compassion. His evidence cannot be accepted. He was dragged and easy to manipulate. What he did was reflected by the materials; as self-contradictory, worth nothing and cannot be accepted by any competent Court of law. He attempted to retract his own evidence after the Claimant had been charged and dismissed. His intention was to dilute to nothing, and attempt to withdraw the decision dismissing the Claimant's employment; a decision premised on the facts he provided. In oral evidence he said he was sorry for the Claimant. It took almost two years before he could report his plight to the new Human Resources Manager. Such period was long enough to consider whether to proceed reporting his case or not. He was educated enough to absorb, once a case of misconduct is reported to a responsible officer, certainly it will be dealt with by the Public Service. In any event he seems quite familiar with the situation experience in the Ministry of Mines where act of misconduct was never reported, investigated and not even acted upon.

47. Mr Papabatu's evidence depicted he is a controversial person, undecided and self-contradictory. I must therefore reject his intended retraction of evidence. Change of evidence plainly tantamount to misrepresentation intended to induce the Court to belief him. In reality he had made a huge mistake. He was drawn into an elusive compassion which is absolutely at stake and cannot assist the Claimant's case, it came too late. The Public Service Commission had made its decision on merits of the original facts supplied and contributed by Mr Papabatu himself. And those decisions I find to be valid and must prevail and cannot be subjected to any review. I must therefore dismiss the Claimant's claim for judicial review.

Orders:

1. Dismissed the claim and all the orders sought by the Claimant.

2. Cost is awarded to the Defendant on standard basis.

The Court.

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^[1] Kaikai v AG (2004) SBHC 46; HC-CC 322 of 2003 (25 June 2004).
^[2] (1977) 2 WLR 848 at 855.
^[3] Ibid (1)
^[4] (2009)SBHC 9: HCSI – CC 69 of 2008 & 48 of 2008 (consolidated) (23 April 2009).