Bosokuru v Attorney General [2016] SBHC 156; HCSI-CC 49 of 2016 (26 September 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: FELIX BOSOKURU - Respondent/Claimant

AND: ATTORNEY GENERAL - Applicant/Defendant
(Representing the Permanent Secretary,
Ministry of Health and Medical Services)

Date of hearing: 26 September 2016
Date of judgement: 26 September 2016

Ms. R. Soma for the claimant.
Mr. R. Devi for the respondent

Application to strike out the claimed declaration that the claimant’s termination of employment by the Ministry of Health was unlawful.

Brown J:

Extempore –
The claimant was previously an employee of the Ministry of Health when dismissed after investigation into his involvement in acts of theft from his employer and subsequently bribery alleged, to cover up the offences. He was not charged by the police but was dismissed by the Permanent Secretary of the Department in accordance with delegated powers. While breaches of natural justice were alleged, no particulars were provided. On reading the material filed by the Attorney General on the Ministry’s behalf, the claimant was shown to have been invited to answer the allegations and did so in writing, claiming no knowledge of the many particularized offences under Public Service Rules. On the face of the procedure afforded the employee, no procedural unfairness is apparent on the record.

The troubling issue is that the claimant says he was not given the opportunity to appeal, for while the letter was addressed to him at the Ministry of Health, at paragraph 20 of his sworn statement he states he did not receive the letter of dismissal but “only a copy of the letter of Expatriate HR Advisor after I requested a copy which she printed from her email account.”

There is no corroborative evidence to show that the letter was given him by his immediate superior, for instance. In such a serious case warranting a dismissal, it is incumbent upon an employer to give notice personally, not as has happened here, by sending the letter by post. The letter said Felix Bosokuru had 14 days from the date of the letter to appeal his dismissal but that period had expired by the time he received a copy from the expatriate adviser. Now there is a presumption that a letter posted may expected to be received some days after posting, but that presumption is rebutted in this case on the claimants own evidence. In any event we do not know when letter of 10 April was posted.

Mr. Soma pointed to the letters of the claimant denying knowledge of the stealing and bribery allegations, as showing that the claimant had opportunity to be heard. But that opportunity related to the investigation of the allegations against him, allegations which the Permanent Secretary, found proved after considering the result of the investigation by the Internal Audit and the claimant’s letters of denial. That opportunity to be heard was given him and he took the opportunity by writing in answer.

He was not apparently believed after the Internal Audit investigation but the separate issue, the opportunity to appeal the finding of the Permanent Secretary, would appear to have been denied him. Such appeal goes to the Public Service Commissioner itself.

Since the power exercised by the Permanent Secretary to dismiss has not been shown to be beyond jurisdiction and has been made after proper investigation, the dismissal may not be impugned by the court.

What has happened however, is that strictly speaking, the 14 day period for an appeal has not be given Felix Bosokuru. This Court may direct that the right of appeal shall date from this order, if the claimant wishes to avail himself of it.

The dismissal shall stand. Any appeal to the Public Service Commission shall be instituted within 14 days. The originating claim for unlawful termination is struck out since no reasonable cause of action is disclosed. [R9.75]
I make no order as to costs.

__________________
BROWN J