Mafi v Public Service Commission [2014] TOSC 16; CV 237 of 2010 (27 June 2014)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV 237 of 2010

BETWEEN:

SIONE FINAU MOALA MAFI
Plaintiff

AND:

1. PUBLIC SERVICE COMMISSION
2. KINGDOM OF TONGA
Defendants

W. Edwards for the Plaintiff
S. Sisifa with Ms Rose Kautoke for the Defendants

JUDGMENT

[1] The Plaintiff joined the Civil Service in August 1990 as an Educational and Training Officer. By 1999 he had risen to the rank of Deputy Director of Tourism. In November 2008 he was appointed Acting Director of Tourism. He held this position until he was suspended on 2 December 2009. On 31 May 2010 the First Defendant (PSC) advised the Plaintiff that he had been dismissed with effect from the date of his suspension. On 11 October 2010 he was advised by the PSC that his appeal to Cabinet had not been accepted and that his dismissal from the Service had been confirmed.

[2] On 16 December 2010 a writ, statement of claim and application for leave to move for judicial review were filed. Leave was granted on 20 December 2010. A Statement of Defence was filed on 19 January 2011. Thereafter there were prolonged attempts to settle this matter. These were not successful and it was finally set down for trial in June 2014. While attempts to settle are always encouraged, it is unsatisfactory that this action which I find to be relatively straightforward was not brought to trial much sooner. Since the primary aim of a Plaintiff in judicial review who alleges that his dismissal was invalid is reinstatement, the granting of relief becomes much more complicated with the passage of time.

[3] The Plaintiff held office subject to the provisions of the Public Service Act 2002. He was required to conform to the 2004 Code of Conduct for the Public Service (GS 9/04). Paragraphs 3 and 4 of the Code lay down principles governing the officer's "Relationship with Government" and "Relationship with the Public". Paragraph 6 is entitled "Personal Behaviour". It states, relevantly, as follows:

"(1) The fourth principle of the Code of Conduct is concerned with the obligation of employees not to compromise their Department or the Public Service through their personal behaviour.

(2) All employees of the Public Service shall:

(a) -

(b) -

(c) -

(d) Act with care and diligence

(e) - (j) - "

[4] On about 22 December 2007 the PSC advertised the position of Director of Tourism. The Plaintiff and three other candidates applied. They were interviewed by a panel of four including the Minister of Works and the Chairperson of the PSC (Chairperson). According to document D-1 the Plaintiff obtained the highest score however the panel was unable unanimously to recommend him for appointment. Instead (Document D-2) the PSC wrote to the Minister of Tourism proposing several options including continuation of the acting arrangement for six or twelve months followed by re-advertisement.

[5] According to the Plaintiff he was not informed of the outcome of his application for several months. The other three candidates were however advised that their applications had been unsuccessful. He began to make enquiries and received certain information. It seems that the position was eventually re-advertised and he re-applied. He wrote to the Chairperson on 23 October 2009 (D-3) complaining that he had only recently been advised that his first application had not been successful. He explained that he was unable to accept that he did not have the necessary skills for appointment. In addition:

"Certain Panel Members, Ministers and Senior PSC staff and even yourself admitted to Tourism Industry members that I had won the interview and was recommended for the post but the Hon. Prime Minister objected to my being appointed to the post."

"I'm currently seeking legal advice with intention for legal proceedings on the grounds of discrimination and inconsistence recruitment practice. I will also be seeking an appointment with the Prime Minister to seek his reasoning for objecting to my appointment."

The letter was copied to the then Prime Minister's personal assistant.

[6] The Chairperson sent an exceptionally careful and well written reply to the Plaintiff on 27 October. She accepted that the delay in informing him of the outcome of his application was unacceptable and apologized. She offered to make the panel's report available to him. She did not dispute the Plaintiff's right to complain about what had happened and even to proceed with legal action if he had decided on that course. In paragraph 3 of her letter she described the Plaintiff's allegation that the panel's recommendation had been overruled by the Prime Minister as "a very serious allegation to make". Its seems, however, that the focus of her concern was not so much the allegation of the PM's intervention as the alleged breach of confidentiality by the panel's members. She concluded her letter by inviting the Plaintiff to meet with her to discuss his concerns.

[7] The day after the letter was written the then Chief Secretary and Secretary to Cabinet wrote to the Chairperson. His savingram (D-5) was headed "Vicious and unfounded allegation against the Prime Minister". Apparently the PM's personal assistant had forwarded her copy of the 23 October letter either to the Chief Secretary or to the PM. Mr Kautoke wrote:

"... this office has received the message sent by email to you dated 23 October from Mr Sione Moala ... where he made the allegation that he had won the interview for the post of Chief Executive Officer CEO, Tourism but that the Hon. Prime Minister objected to his being appointed to the post.

In my position as head of department I find this vicious and unfounded allegation to be a serious one made against a Head of Government, the Prime Minister of Tonga.

"In consultation with the Prime Minister it is our recommendation that Mr Sione Moala be suspended immediately from the Service in view to being dismissed after due process by the Public Service Commission".

[8] On 28 October the PSC forwarded the correspondence to the Minister of Tourism. His acknowledgement was sought. On 30 October the Minister replied (Document D-17).

"I took up the matter with Sione ... and found that Sione was just frustrated and disappointed that he was not awarded the post of Directorship. While rumours had gone around that he had won the interview and [was] recommended for the job. Despite his dissatisfaction and after the course of our discussion he accepted the fact of the matter as stipulated in the overall result of PSC processes and was willing to put things behind and move on with things as usual.

Also I acknowledge the response from Chief Secretary and his recommendation for your office to take action on the allegation against the Hon. Prime Minister. I hereby agree and leave the matter to your good office to proceed as necessary".

[9] After taking advice from the Solicitor General the PSC again wrote to the Minister. It advised him that his letter of 30 October "was not considered complete in accordance with the PSC Disciplinary Procedures Regulations 2003. Thus:

The Committee requested that a complete report be kindly submitted to the PSC Office specifying why you consider the breach of discipline serious and including evidence to substantiate the same. The report should contain the following please:

1. Confirmation from the Hon. Prime Minister that the allegation made by Mr Mafi is not true.
   
2. The recommendations of the panel to the post of Director of Tourism to which Mr Mafi's email referred.
   

- That you would kindly terminate the acting of Mr Moala Mafi and appoint a new Director of Tourism

And that either the new acting Director or the Minister himself prepare a complete report for the PSC.

[10] On 23 November the Minister replied. He described the Plaintiff's allegation against the Prime Minister as "out of ground and serious". He again confirmed that the allegation that the PM had intervened in the appointment process was incorrect.

[11] On 25 November the PSC Disciplinary Committee reconvened. It was decided that the Plaintiff be charged with:

"(1) Failure to act with care and diligence, contrary to Section 6(2)(d) of the Code of Conduct".

The particulars of the charge, set out in full at P-67-8 were to the effect that by suggesting that he had won the interview but failed to obtain appointment by reason of the PM's intervention and by stating that he was taking legal advice, he had failed to act with care by:

(i) Wrongfully alleging bias and dishonesty against the Prime Minister;
(ii) By "aggravating the damage" to the PM by copying his allegation to the PM's personal assistant;

And had failed to act with diligence by:

(iii) Wrongly stating that he had "won" the interview;
(iv) Wrongly claiming that he had been recommended for the position; and
(v) Wrongly alleging that the PM had objected to the appointment".

[12] On 2 December 2009 the PSC sent two letters to the Plaintiff. The first, P-66, informed him that he had been suspended from duty without pay for serious breach of discipline with effect from 3 December 2009. The second letter charged the Plaintiff with the serious breach of discipline set out in paragraph 11 above. Copies of the relevant documents were enclosed and the Plaintiff was given 14 days to answer the charge.

[13] The Plaintiff replied on 14 December (Document D-14 and Exhibit A). He referred to the delay in informing him of the outcome of his application. He also referred to the rumours that he had heard about the PM's intervention. He stated that in his opinion the Chief Secretary had no authority to direct the PSC to take action against him, in particular, to suspend him without a hearing. He maintained that in his 23 October letter he was merely "asking questions or clarification". He accepted the Chairperson's offer to supply him with a copy of the panel's report. He also offered his apology to the PM and to the PSC. If the disciplinary proceedings were not to be cancelled then he asked for a hearing and for his legal counsel to be present.

[14] On 3 February 2010 the PSC convened a meeting to hear the Plaintiff's representations. Mr Clive Edwards appeared for the Plaintiff. A full minute of the meeting is at D67-72. The Plaintiff again explained the circumstances which led out to his letter. He denied having the intention to accuse the Prime Minister. Mr Edwards submitted that the Plaintiff had not committed any disciplinary offence at all. He had merely, in a privileged letter "put forth an idea or complained to the PSC". This should not lead to him losing his job. His written apology should be sufficient and he should be forgiven, especially as he was a senior officer with many years of unblemished service.

[15] After hearing the Plaintiff and Mr Edwards the PSC found the Plaintiff guilty as charged. It took the view that the Plaintiff "was given an opportunity to prove himself but had failed to dispute the charges made against him". "[Plaintiffs] representation which was supported by Clive Edwards was focused mainly on why it is a problem to speak against the PM. The Commission noted that that is not the issue". The Commission concluded by agreeing "that the appropriate disciplinary measure be discussed at the next PSC meeting".

[16] On 25 May 2010 the PSC met. No minutes of the meeting were discovered by the Crown and it is not disputed that neither the Plaintiff nor his legal representative was given notice of the meeting or was present. On 31 May the Plaintiff was advised (P-76) that it had been decided that he be dismissed with effect from 2 December 2009. He was advised that he had a right of appeal to Cabinet as provided by Regulation 13 of the 2003 Regulations.

[17] On 25 June 2010 the Plaintiff's appeal was lodged with Cabinet. The grounds of appeal are set out in full at D78-81. In summary, the Plaintiff submitted:

(i) That the intervention by the Chief Secretary contravened

Regulations 3, 5, 7 and 9 of the Regulations;

(ii) That he had not committed a breach of discipline, either

serious or minor;

(iii) That his letter of 23 October was merely and enquiry; it was private and not for publication;

(iv) That his right to freedom of expression was not being

respected;

(v) That he had faithfully served the Government for many years without complaint;
(vi) That he had already been severely punished by being

suspended without pay since December 2009;

(vii) That he had not been convicted of fraud or criminal conduct and therefore the whole matter should have been disposed of "in true Tongan and Christian spirit of talanoa and forgiveness".

[18] On 8 July 2010 the PSC filed its response to the appeal. A copy is P84-90. On the whole, the response was a reasonably fair account of what had occurred. It did not, however, attempt any explanation of why it had been thought necessary for the Plaintiff to be dismissed rather than suffer any of the other penalties available under Regulation 10. In fact, the sentence imposed on the Plaintiff was not mentioned at all, except in Annex 14, the PSC decision of 25 May, already referred to. There were two assertions which I find were either incorrect or misleading. The first, at page D-85 is the statement:

"The PSC Office considered the matter as disciplinary only when the Minister of Tourism reported Mr Mafi's actions and allegations as a serious breach and concurred with the letter from the Chief Secretary and Secretary to Cabinet dated 28 October 2009".

This suggestion is not borne out by the PSC's letter of 28 October 2009 (P-52 and the annexures) and appears to be at variance with paragraph 3 of a saving from PSC to the Solicitor General dated 2 November 2009 (not discovered) referred to in paragraph 8 of the Solicitor General's reply dated 5 November (D-10).

[19] Secondly, the statement that the Plaintiff had not taken up the Chairperson's 27 October suggestion of a meeting between them (P-89) is in my opinion somewhat unfair given the Chief Secretary's letter to the Chairperson sent the very next day.

[20] On 11 October 2010 the Plaintiff was advised by PSC that Cabinet at its meeting on 29 September 2010 had dismissed his appeal (P-91). It is not in issue that neither the Plaintiff nor his counsel attended the Cabinet meeting and that neither of them was given an opportunity to make representations either as to the PSC's finding of guilt or the sentence passed.

[21] The Statement of Claim raises numerous grounds of complaint, among them:

(i) The Plaintiff was not guilty of any disciplinary offence, whether minor or serious;
(ii) The words complained of did not allege dishonesty or bias;
(iii) The copying of the 23 October letter to the PM's PA did not "aggravate the damage to the PM";
(iv) No enquiry or report was carried out by the Plaintiff's Head of Department as required by Regulations 5 and 7;
(v) No copy of the report was attached to the charge as required by Regulation 7(1)(c);
(vi) The disciplinary proceedings were not initiated by the Plaintiff's Head of Department;
(vii) The PSC did not act independently but at the direction of the Chief Secretary; and
(viii) There was no reasoned decision given by the Cabinet.

[22] A detailed and careful Statement of Defence was filed on 19 January 2011. The trial took place on 3 and 4 June 2014. Only the Plaintiff gave evidence. The papers were all admitted by consent and the facts were substantially undisputed. The Plaintiff told the Court that apart from a 2 year contract, now expired, with TCC, he had been unemployed since his dismissal. He confirmed the correctness of the Retirement Board Notice dated 19 February 2011 (P-92). He again maintained that he had been told that the PM had objected to his appointment: the late Minister had told him personally. He denied suggesting that the PM was biased or dishonest.

[23] Mr Edwards filed comprehensive written submissions for which I am grateful. Mr Sisifa presented oral submissions in answer, making the best of a difficult brief.

[24] Although I find that the circumstances of the Plaintiff's dismissal reveal several questionable decisions, in my view four principal matters of concern may be identified.

[25] The first problem is the alleged offence itself. I agree with Mr Edwards that, as is stated in subsection (1) of the Regulation, Regulation 6 is "concerned with the obligation of employees not to compromise their Department or the Public Service through their personal behaviour". As pointed out, and not disputed by the Defendants, the 23 October letter was sent privately by the Plaintiff to the Chairperson and copied privately to the PM's Secretary. I can find nothing in the Plaintiff's actions having the effect of compromising either the Department of Tourism or the Public Service in general.

[26] Secondly, I do not accept that the Plaintiff's complaint alleges bias or dishonest conduct.

[27] Thirdly, it is absolutely fundamental that where a public servant is charged with a disciplinary offence, which is denied, the officer must be given an opportunity to be heard before a finding of guilt is arrived at. The officer must then be given a further opportunity to make representations before penalty is imposed. Where the officer appeals, an opportunity must be given for his representations to be made to the appellate tribunal before a decision is taken to confirm the findings of guilt or the sentence imposed or both (see PSC v 'Epeli Langiloa [1997] FLR 303 in which the Fiji Court of Appeal reviewed the principal authorities).

[28] In the present case, although the PSC gave the Plaintiff the required opportunity to be heard before it found him guilty, it did not allow him an opportunity to make representations as to sentence. It gave no reasons for concluding that the only adequate punishment for the offense was dismissal. Furthermore, the Cabinet, which was sitting in a quasi-judicial capacity also failed to give the Plaintiff an opportunity to make representations either as to why the appeal against conviction should be allowed or why the sentence imposed on him should be set aside or varied. In my judgment those failures fundamentally vitiated the dismissal procedure.

[29] The Plaintiff seeks a declaration that the decisions to dismiss him taken on 25 May 2010 and 29 September 2010 were null and void. That declaration will be granted. He also seeks general damages for "emotional, physical and mental distress" and, if not reinstated, special damages for loss of salary. It is the long-standing practice of the Court not to award damages for distress caused by wrongful dismissal (Addis v Gramophone Co Ltd [1909] AC 488). The Court does not have the power to order reinstatement ('Epeli Langiloa supra) however the declaration will have the result that the Plaintiff is entitled to receive the benefits that would have accrued to him had he not been dismissed from his substantive position of Deputy Director in December 2009.

[30] In conclusion, it will be noted that the criticisms of Cabinet's involvement in the Public Service Appeal process expressed in Mele 'Amanaki v Mishka Tu'ifua and Ors (CV1139 of 2007) referred to by Mr Edwards have been followed by the repeal of the 2003 Regulations and their replacement by the 2010 Amendment Regulations which provides an appeal to the Public Service Tribunal, rather than to Cabinet.

Result: It is declared that the Plaintiff's dismissal from the Public Service in 2010 was null and void.

The claims for damages are dismissed.
I will hear argument as to costs.

CHIEF JUSTICE

Dated: 27 June, 2014.

N. Tu'uholoaki
27/6/2014.