Palelei v Public Service Commission [2023] TOSC 39; CV 12 of 2023 (24 July 2023)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION

NUKU'ALOFA REGISTRY

CV 12 of 2023

BETWEEN:

TOAKASE PANISIA PALELEI Plaintiff

-and-
PUBLIC SERVICE COMMISSION Defendant

REASONS FOR JUDGMENT

BEFORE: LORD CHIEF JUSTICE WHITTEN KC

To: Mrs D. Stephenson KC for the Plaintiff

Mr S. Sisifa SG for the Defendant
Hearing: 17 July 2023
Ruling: 24 July 2023

Introduction

1. The Plaintiff is the Deputy Secretary of the Ministry of Foreign Affairs.
2. On 14 November 2022, the Minister of Foreign Affairs (“Minister”) sent an “Executive Directive” by email to the Plaintiff, the Secretary of Foreign Affairs (“Secretary”) and staff of the Ministry, for certain action to be implemented within the Immigration Division of the Ministry.
3. The Defendant herein (“Commission”) alleges, inter alia, that neither the Plaintiff nor the Secretary responded to the Minister’s directive. On 18 November 2022, the Minister repeated the directive and required it to be implemented by 2:30pm that day. Again, neither the Plaintiff nor the Secretary responded. As a result, the Minister lodged a complaint with the Commission against the Plaintiff.
4. Where an employee is alleged to have committed a serious breach of discipline or repeated minor breaches of discipline, regulation 5 of the Public Service (Disciplinary Procedures) Regulations (“Regulations”) requires the Chief Executive Officer (“CEO”) of the relevant Ministry to conduct a preliminary investigation into the complaint and if he/she determines that there has been a serious breach of discipline, or repeated minor breaches of discipline, the CEO shall forward a complete report, containing specified information and documents, to the CEO of the Commission.
5. The Ministry of Foreign Affairs does not have a CEO. Under the Public Service Act (“Act”), the Secretary is not a CEO (discussed further below).
6. During a meeting on 10 February 2023, the Secretary advised the Acting CEO of the Defendant that he did not wish to be involved in any disciplinary proceedings against the Plaintiff. As a result, a report in accordance with regulation 5 was never prepared.
7. On 1 December 2022, the Commission issued Decision 908 by which it initiated disciplinary action against the Plaintiff for serious breach of discipline, purportedly pursuant to the Regulations and referred the complaint to the Charge Formulation Committee (“Committee”). The Commission provided the Committee with its two decisions and the “reports” of the Minister.
8. On 21 December 2022, the Commission issued Decision 919 by which it suspended the Plaintiff from duty without pay and advised her that procedures for serious disciplinary charges would be progressed against her.
9. On 1 March 2023, the Committee charged the Plaintiff with serious breaches of discipline.
10. In this proceeding, the Plaintiff challenges the lawfulness of the Commission’s decisions and the resultant decision by the Committee to charge her. On 31 March 2023, the Plaintiff was granted leave, pursuant to Order 39 rules 2(1) and 3(1) of the Supreme Court Rules, to apply for judicial review of the said decisions, and an injunction was issued restraining the Commission from taking any further action in respect of its decisions pending the hearing and determination of the substantive proceeding or further Order.
11. In essence, the Plaintiff contends that the decisions are unlawful because the Commission failed to follow certain procedures prescribed by the Regulations. In particular, the Plaintiff relies on the fact that a regulation 5 report from the CEO of the Ministry was never prepared or provided to the Plaintiff or the Committee as required or referred to by a number of subsequent regulations.
12. By its pleaded case, the Commission contended that, in summary, it is entitled, pursuant to ss 6(f) of the Act and regulation 3(2), to initiate disciplinary proceedings against the Plaintiff, of its own motion, and that in the absence of express procedures within the Regulations for doing so, it is entitled, pursuant to ss 6(i) of the Act, to determine its own procedures provided they are consistent with and complement the Regulations.
13. On 16 June 2023, the parties agreed for the following question to be separately tried pursuant to Order 25 rule 4 of the Supreme Court Rules:

Whether it was lawful for the Defendant to proceed with the subject decisions to charge the Plaintiff with serious breaches of discipline pursuant to Regulation 7 or suspend her from duty without pay pursuant to Regulation 9, in the absence of a report provided for by Regulation 5, the provision of which was not possible, and according to procedures determined by the Defendant purportedly pursuant to ss 6(i) of the Act?

14. The separate trial of the question took place on 17 July 2023. At the conclusion of oral argument, Mr Sisifa conceded (quite rightly, with respect) that the Commission’s defence could not succeed, and that judgment should be entered for the Plaintiff.
15. These reasons explain that conclusion.

Statutory framework

16. To understand the context of the issues for determination, and the parties’ pleaded positions in respect of them, it is appropriate, at this juncture, to set out the relevant statutory provisions.

Public Service Act

2 Application of this Act

(1) This Act shall apply to the following persons —

(a) All chief executive officers and employees in a Government Ministry, as listed in Part 1 of Schedule I; and

(b) All chief executive officers and employees in a Government Agency, as listed in Part 2 of Schedule I.

(2) This Act shall not apply to persons listed under Schedule II.

4 Prime Minister to administer Act

The Prime Minister shall be responsible for the Public Service and the administration of this Act.

6 Principal functions of the Commission

The functions of the Commission are to —

...

(f) appoint, promote, confirm, discipline and dismiss employees and resolve employment disputes;

...

(i) determine practices and procedures relating to the ... discipline and termination of employment of employees and any other matters relating to human resource management;

13 Chief Executive Officers

(1) There shall be a Chief Executive Officer(s) for each Ministry.

(2) The Commission shall, after consultation with the relevant Minister, appoint in writing, a person to be the Chief Executive Officer of a Ministry.

...

(5) The Commission shall, after consultation with the relevant Minister, remove a Chief Executive Officer of a Ministry from Office due to non performance or misconduct.

13C Acting Chief Executive Officer

(1) A relevant Minister may in writing, appoint a person to act as Chief Executive Officer of a Ministry during any period, or during all periods, when the Chief Executive Officer is absent from duty or from the country, or during a vacancy in the office.

21 Dispute resolution and disciplinary matters

(1) The procedure to determine disputes and disciplinary matters under this Act shall be prescribed by Regulations.

...

22 Regulations

The Prime Minister may with the consent of Cabinet, make Regulations for the proper and efficient administration of this Act.

27 Act to prevail

Subject to the Constitution, the provisions of this Act shall prevail when any of its provisions conflict with the provision of any other law

Public Service (Disciplinary Procedures) Regulations

PART II - DISCIPLINARY PROCEDURES

3 Determination of a breach of discipline

(1) Subject to these Regulations, a Chief Executive Officer or the Commission

shall decide whether a breach of discipline is minor or serious.

(2) Notwithstanding sub-regulation (1), the Commission may initiate a disciplinary action on its own motion including any disciplinary action against a Chief Executive Officer.

(3) A Chief Executive Officer shall refer a matter to the Commission when there is a conflict of interest by reason of any relationship with the employee or any of the employees involved.

4 Minor disciplinary cases

(1) The Chief Executive Officer may, upon finding that an employee has committed a minor breach of discipline, impose on the employee the following sanctions —

(a) issue written warning;

(b) reprimand the employee in writing or verbally;

(c) counsel the employee;

(d) require the employee to undertake training; or

(e) transfer the employee within the Ministry.

(2) A record of such a minor breach of discipline and action taken by the Chief Executive Officer shall be given to the employee and a copy shall be kept in his personal file.

...

5 Serious disciplinary cases reported by Chief Executive Officer

(1) In the case where an employee is alleged to have committed a serious breach of discipline or repeated minor breaches of discipline, the Chief Executive Officer or his authorised representative, shall inquire into the matter.

(2) If the Chief Executive Officer determines that there has been a serious breach of discipline, or repeated minor breaches of discipline, he shall forward a complete report to the Chief Executive Officer of the Commission, which shall include the following —

(a) the allegations against the employee;

(b) any complaint made against the employee, whether by a public servant or a member of the public;

(c) the reasons that the breach is deemed by the Chief Executive officer as a serious breach of discipline;

(d) the facts gathered from the inquiry;

(e) official records or documents relevant to the serious breach of discipline;

(f) a report from the Auditor General, if there is any;

(g) a report from the Tonga Police, if there is any;

(h) any internal correspondence with the employee relating to the serious breach, including emails;

(i) any representation from the employee;

(j) any statements from witnesses;

(k) any record of previous disciplinary cases committed by the employee; and

(l) any other document that is relevant to breach of discipline:
Provided that the Chief Executive Officer or his Ministry shall not —

(i) make any recommendations regarding the allegations; or

(ii) do anything or omit to do anything or cause another Ministry to do or omit to do anything that amounts to disciplining the employee.

(3) If the Chief Executive Officer determines during or after an inquiry under sub-regulation (1) that there is no serious breach of discipline has been committed by the employee, he shall end the inquiry or record in writing that the inquiry has concluded that there was no serious breach of discipline, and the reasons for making such determination, and such written determination shall be kept in the employee's personal file.

(4) Where it appears that a criminal offence may have been committed by an employee, the Chief Executive Officer or the Commission shall report the matter to the Police and the Chief Executive Officer shall forward a complete report under sub-regulation (2) to the Chief Executive Officer of the Commission.

6 Serious financial irregularity

(1) In cases of serious financial irregularity, the —

(a) Auditor General; or

(b) a Chief Executive Officer,

shall initiate disciplinary action by giving a complete report to the Chief Executive Officer of the Commission or by the Chief Executive Officer of the Commission to the Charge Formulation Committee if the breach was committed by an employee of the Office of the Commission.

(2) The Auditor General or the Chief Executive Officer who made the report under sub-regulation (1) may make recommendations to the Committee or Commission on any serious financial irregularity.

7 Procedure for serious disciplinary charges

(1) A report of serious breach of discipline or repeated minor breaches of discipline shall be dealt with as follows —

(a) within 10 working days of receipt of the report, the Chief Executive Officer of the Commission shall convene the Charge Formulation Committee, to hear the presentation of the report from the relevant Chief Executive Officer or his representative;

(b) within 15 working days of receipt of the report, the Charge Formulation Committee shall charge the employee:

Provided that if the Charge Formulation Committee requires further information to clarify aspects of the report, the employee shall be charged within 10 working days from receipt of that further information.

The Charge Formulation Committee shall also recommend to the Commission whether the employee should be suspended from duty without pay. If the Commission decides for the employee to be suspended, the employee shall be informed in writing of his suspension by the same deadline as for the charging of the employee (afore-stated in paragraph 1 and 2 of this same sub-regulation).

(c) within 10 working days of receiving the charge, the employee may submit a written representation to the Commission in response to the charges, and either:

(i) admit the charge, and include mitigation; or

(ii) dispute the charge and make submissions as to why he disputes the charges, and may provide other evidence.

(d) within 10 working days of receipt of the representation from the employee, the Chief Executive Officer of the Commission shall submit the matter to the Commission along with his recommendations;

(e) within 10 working days of receipt of the recommendations of the Chief Executive Officer of the Commission by the employee, the employee may make further representation in writing or orally to the Commission;

(f) after receipt of the case under paragraph (d) or hearing further from the employee under paragraph (e) the Commission shall decide the case, and if the employee is found to have committed a serious breach of discipline, the Commission shall impose the appropriate sanctions as set out under these regulations.

(2) The charge laid against the employee shall include the following —

(a) a copy of the report from the Chief Executive Officer;

(b) a copy of the report of the Auditor-General, if any;

(c) information about the time within which a written reply may be made; and

(d) a copy of the Code of Ethics and Conduct and these Regulations.

...

7A Establishment, functions and powers of the Charge Formulation Committee

(1) The Charge Formulation Committee is hereby established and shall consist of the following members —

(a) the Chief Executive Officer of the Commission, who shall be the chairman;

(b) the Auditor-General or his representative;

(c) the Solicitor General or his representative; and

(d) the secretariat shall be from the Commission.

(2) The Charge Formulation Committee shall have the following functions —

(a) consider the report received from a Chief Executive Officer or the Commission under regulation 5; and

(b) seek further clarification on the report from the Chief Executive Officer or any other person.

(3) The Charge Formulation Committee shall have the following powers —

(a) lay the appropriate charges against the employee;

(b) recommend to the Commission to suspend the employee;

(c) direct the Chief Executive Officer or his Ministry to provide within 10 working days further information to clarify the report; and

(d) dismiss an allegation of serious breach of discipline due to lack of sufficient evidence.

...

8 Committee of Enquiry

In any serious disciplinary action, the Commission may appoint a Committee of Enquiry to undertake an investigation.

9 Suspension

(1) Upon receipt of a report under regulation 5 relating to a serious breach of discipline, the Commission may suspend the employee pending a final decision.

(2) Suspension under these Regulations shall be without pay.

Agreed facts

17. For the purposes of the separate trial, the parties agreed on the following facts.
18. The Secretary of Foreign Affairs is not a CEO as defined by s 3 of the Public Service Act. There is no CEO, as defined, employed within the Ministry of Foreign Affairs. As such, it was not possible for a report as required by regulation 5 and referred to in regulations 7, 7A and 9 to be prepared by the CEO and forwarded to the Commission prior to it making the decisions the subject of the claim.
19. At the time Decision 919 was made:
    • 19.1 no inquiry pursuant to regulation 5(1) had been conducted into the allegations of serious breach of discipline against the Plaintiff; and
    • 19.2 no determination pursuant to regulation 5(2) had been made that there had been a serious breach of discipline by the Plaintiff.
20. In arriving at its decision on 1 March 2023 to charge the Plaintiff with serious breaches of discipline, the only documents considered by the Committee were Decisions 908 and 919, and reports from the Minister of Foreign Affairs.
21. The Committee did not receive or consider any report pursuant to regulation 5(2) when the Committee was convened or in arriving at its decision to charge the Plaintiff with serious breaches of discipline.
22. On 2 March 2023, the Commission provided the Plaintiff’s counsel with its letter dated 1 March 2023 charging the Plaintiff with serious breaches of discipline in relation to Decision 919 including attachments; its letter dated 1 March 2023 charging the Plaintiff with serious breaches of discipline in relation to Decision 908 including attachments; the Public Service (Disciplinary Procedures) Regulations; and the Code of Ethics and Conduct for the Public Service 2010. The documents did not include a report as referred to in regulation 7(2)(a).

Plaintiff’s submissions

23. The Plaintiff’s submissions may be summarised (omitting any repetition of the relevant statutory provisions recited above) as follows.
24. All disciplinary procedures must be made under the Regulations. Although ss 6(i) of the Act permits the Commission to determine practices and procedures relating to the discipline of employees, s 21 provides that disciplinary procedures must be made under the Regulations. The wording of s 21 is clear and unambiguous. There is no conflict between ss 6(i) and s 21. Sections 21 and 22 provide a mechanism to ensure that the disciplinary process against Public Service employees (being matters of gravity with potentially serious consequences^[1]) are clearly defined, transparent and fair to the employee. The Regulations plainly indicate the Prime Minister’s intention regarding approved disciplinary procedures at the time when the Regulations were enacted (and as amended).^[2]
25. It was therefore not open to the Commission to determine disciplinary procedures outside of the Regulations. To the extent that the Regulations do not provide for the disciplinary procedure that the Commission wished to undertake, the appropriate course was for the Prime Minister to amend the Regulations in the manner prescribed by s 22.
26. Once an employee is alleged to have committed a serious breach of discipline, the first step prescribed by regulation 5(1) is for the CEO of the relevant Ministry to inquire into the matter. Regulation 5(1) is not concerned with who initiates the disciplinary action. The trigger for the inquiry is simply that a serious breach of discipline has been alleged.
27. If the CEO determines that there has been a serious breach of discipline (or repeated minor breaches of discipline) then he is required to prepare the report pursuant to, and including the matters listed in, regulation 5(2), and forward it to the CEO of the Commission.
28. As there is no CEO, as defined, employed within the Ministry of Foreign Affairs, it was not possible here for a regulation 5 report to be prepared.
29. The CEO is a key appointment within a Government Ministry. The CEO has a number of important functions which are listed in section 13B.^[3] Pursuant to s 13, the Ministry of Foreign Affairs is required to have a CEO, and it is the Commission’s obligation to appoint that CEO. In failing to appoint a CEO, the Commission was (and is) in clear breach of its obligation under ss 13(2). That failure was the reason the regulation 5 report was not, and could not, be prepared. There is no provision in either the Act or the Regulations which dispenses with the requirement for the regulation 5 report for this, or any other, reason.
30. In circumstances where there was no CEO appointed, s 13C permitted the Minister to appoint an Acting CEO, which would have enabled the regulation 5 report to be prepared. The Minister chose not to do so.
31. The suspension of the Plaintiff purportedly pursuant to regulation 9 was unlawful. The plain wording of regulation 9 provides that the Commission’s discretionary power to suspend an employee without pay arises “upon receipt” of a regulation 5 report. Since there was no lawful basis to dispense with the report, the Commission’s power to suspend the Plaintiff without pay under regulation 9 was not enlivened.
32. The laying of charges against the Plaintiff purportedly pursuant to regulation 7 was unlawful because, again, there was no regulation 5 report. The importance of the regulation 5 report as the foundation document which underpins the functions of the Committee - and the entire charge procedure - is clearly recognized in the Regulations. In the absence of the report, the Committee simply cannot perform its functions mandated by regulation 7A(2). The necessity for the report is further underscored by the fact that the Regulations make no provision for an alternative procedure in the event that a regulation 5 report is not available.
33. Further, regulation 7(2) requires that a copy of the regulation 5 report be provided to the employee charged because it is the only document that provides the totality of the information upon which the charge decision was made. To not provide it would prejudice the employee’s ability to appeal. The report provides the only opportunity for the employee to make representations prior to a charge being laid and is therefore a clear recognition of the employee’s natural justice right to be heard before an adverse decision is made. This indicates strongly against the Commission’s claim that it could simply dispose of the requirement for the regulation 5 report and proceed to charge the Plaintiff without it. Without the report, the Committee would be acting on incomplete, irrelevant and biased information, given its only sources of information would be the Commission and the complainant Minister.
34. The Commission cannot invoke ss 6(i) of the Act to determine practices and procedures for the subject decisions in the absence of a regulation 5 report. The Commission is precluded from invoking practices and procedures as they relate to disciplinary matters unless those practices and procedures are prescribed by the Regulations in accordance with s 21. The clear purpose of s 21 is to create certainty and transparency around disciplinary practices and procedures. Section 21 would be rendered redundant if ss 6(i) was interpreted as permitting the Commission to determine disciplinary procedures outside of the Regulations. If the Regulations are deficient, or do not address a particular disciplinary situation, then the appropriate course is to amend them.

Defendant’s submissions

35. The Commission’s written submissions may be summarised as follows.
36. The Commission has power under ss 6(f) to discipline an employee.
37. The Act and its Regulations should be interpreted to reflect the Commission’s principal function, recognised in ss 6(f), of disciplining employees.
38. There is no conflict between ss 21 and 22, and ss 6(i) of the Act.
39. In the absence of:
    • 39.1 a report required from a CEO under regulation 5;
    • 39.2 any specific reference to a “report” from the Commission in regulation 5;
    • 39.3 any expressed directive or clear guidance on the procedures under the Regulations which the Commission and the Committee must follow in a case of serious disciplinary action initiated upon the Commission’s own motion, such as the present, as well as suspension of an employee pending final decision,

ss 6(i) permits the Commission to determine a practice or procedure to be followed which not only “complements” the Regulations but is consistent with the procedures in regulations 5, 7, and 9.

40. The legislature intended that the report referred to in regulation 5 be either a report from the CEO of the relevant Ministry or a report submitted by the Commission and considered by the Committee.
41. Where the Commission decides to initiate disciplinary action on its own motion, a report from the CEO of the relevant Ministry is not required.
42. The content requirements of regulation 5(2) only apply when disciplinary action is initiated by a CEO of a Ministry.
43. As the Commission initiated its own motion disciplinary action, it was open to the Commission to effectively adopt the regulation 5 procedure by issuing its decisions 908 and 919, together with “its report”, comprising the Minister’s complaint and “other relevant documents in support” of the complaint to the Committee for consideration. That procedure was consistent with and complemented the procedures prescribed by regulation 5.
44. Further, if the Commission considered that an investigation is necessary to determine whether there are merits in a complaint, under regulation 8, the Commission may appoint a Committee of Enquiry to undertake an investigation. Regulation 8 does not require a Committee of Enquiry to submit a report in accordance with regulation 5(2). However, as the Commission determined that the complaint here, with its supporting documents, were sufficient to be referred to the Committee, it was unnecessary to appoint a Committee of Enquiry.
45. On that basis, the procedures prescribed by regulation 7 were “duly followed and complied with”.
46. Further, the procedures followed by the Commission were fair and consistent with the principles of natural justice whereby the Plaintiff was served with the charges and given an opportunity to respond before a decision on them is made.
47. As a regulation 5 report from a CEO was not required because the Commission initiated its own motion disciplinary action, and it had determined from the Minister’s further complaint “that there was a serious breach of discipline by the Plaintiff ... it was appropriate in the circumstances to “adopt the procedure” prescribed under regulation 9 and suspend the Plaintiff without pay”.
48. It cannot be argued that employees of the Ministry of Foreign Affairs cannot be held accountable for misconduct on the basis that a CEO, or an Acting CEO is “yet to be appointed”, or on the basis that a CEO has refused to enquire into a complaint against an employee, thereby rendering impossible the provision of a regulation 5 report.

Consideration

49. It is common ground that the procedures to be followed for disciplinary action within the Public Service must be as prescribed by the Regulations.^[4] It is equally common ground that the Regulations do not contain any express procedures for cases initiated by the Commission of its own motion. However, that is not the only problem with the Regulations.
50. The Regulations came into force in 2003. They were the subject of numerous amendments in 2010.^[5] Yet, a number of other omissions, drafting infelicities and ambiguities remain. Examples include (not by any means an exhaustive list):
    • 50.1 There is no clear statement of how serious disciplinary proceedings are initiated. The arguments in this case focussed on either the Commission or a CEO of a Ministry initiating proceedings. However, that is not what regulation 3(1) provides. It merely refers to either being able to determine whether a breach is minor or serious. As a matter of logic, one would expect that disciplinary proceedings in fact commence with the submission of a complaint against a public servant to whom the Act applies. The question then is: what happens next?
    • 50.2 There is no definition of minor versus serious breach of discipline. The Act does not assist and the only reference in the Code of Conduct for the Public Service is in clause 7 which merely provides that any breach of the Code will be deemed a breach of discipline pursuant to the Regulations, without any reference to whether such a breach may be minor or serious. That then begs the question: by what provision or measure is a CEO of the relevant Ministry or the Commission to determine whether an allegation of breach of discipline involves a minor or serious breach. That, in turn, is essential in determining whether a complaint is to be dealt with in accordance with regulation 4 or regulations 5 to 7A.
    • 50.3 Regulation 3(1) is unclear as to the circumstances in which either a CEO or the Commission is to determine whether an allegation of breach of discipline is minor or serious. That regulation does not provide for both to do so, which could well lead to conflict and/or confusion. Similarly, neither the Act nor the Regulations contemplate a situation in which the Commission may second guess, override or somehow act in an appellate role in respect of a decision by a CEO on this issue, if for some reason, the Commission does not agree with the CEO’s decision. The same may be said of a CEO’s determinations pursuant to regulations 4 or 5(2).
    • 50.4 The language of regulations 3(1) and 5(2) presupposes guilt even before the Committee has decided to lay charges or the Commission has thereafter considered the case. Those provisions must be read as referring to allegations of breach of discipline being characterised as either minor or serious (for the purposes of regulation 3(1)), or that a CEO (for the purposes of regulation 5(2)) has determined that there is sufficient evidence to support the allegation (i.e., a prima facie case to answer) so as to trigger the ensuing procedures of formal charge by the Committee and determination of the charge by the Commission. Otherwise, if regulation 5(2) is to be interpreted literally, a CEO’s determination that there has been a serious breach of discipline should be the end of the matter and there would be no utility in the subsequent procedures. That summary power to end proceedings is reserved only to where the CEO determines there has been no serious breach of discipline.
    • 50.5 The opening words of regulation 3(2) – “Notwithstanding sub-regulation (1)” – are nonsensical because sub-regulation (1) says nothing about which of a CEO or the Commission are to ‘initiate’ disciplinary action, only that one or the other shall decide whether the allegation is a minor or serious breach.
    • 50.6 Regulation 7A(2)(a) requires the Committee to consider the report received from a CEO “or the Commission under regulation 5”. Regulation 5 does not contain any express reference to a report of the kind prescribed being produced by the Commission.
    • 50.7 The timeframes and steps prescribed by regulation 7 culminate with (f) and the Commission deciding the case. However, regulation 13(2), entitled “Matters before the Commission” provides, relevantly, that the Commission shall consider the case “within 30 days from the date of filing of the notice of appeal” and decide it. The only other reference in the Regulations to appeals is to be found in PART III: appeals to the Tribunal. The reference to a notice of appeal in regulation 13(2) appears to be in error or is otherwise nonsensical and in conflict with regulation 7.
    • 50.8 There are no prescribed criteria or considerations by which the Committee is to decide whether to recommend, or the Commission is to decide whether, to suspend an employee under investigation without pay. That omission renders that part of the process at risk of being exercised capriciously or arbitrarily.
51. These issues (and perhaps others) are best addressed by amendment (or repeal and replacement).
52. With those observations in mind, we return now to the Commission’s submissions.
53. The Commission’s case was founded firstly on its right to proceed with disciplinary action against the Plaintiff on its own motion. While regulation 3(2) permits the Commission to initiate a disciplinary action on its own motion, the concept of doing so, as it was deployed in this case, and as a basis for arguing that the Commission could therefore adopt its own procedures, was in fact something of a misnomer.
54. As noted above, any disciplinary proceedings must necessarily commence with a complaint about an employee. There is no indication in either the Act or the Regulations, nor was it suggested by the Commission during this proceeding, that disciplinary action may be taken against an employee without a complaint first being levelled against that employee. A complaint may be received or raised by the CEO of the relevant Ministry. A complaint might also be made direct to the Commission. In the former, regulation 3(3) provides that the CEO must refer the complaint to the Commission if the CEO is in a position of conflict of interest. A complaint will also be received and actioned by the Commission where it is against a CEO. Beyond that, it is unnecessary, within the context of the facts and submissions advanced in this proceeding, to seek to define any further limits or ambit of the Commission’s power to take disciplinary action of its own motion.
55. The Regulations are unclear about who does what next with the complaint or how or by whom disciplinary action for a serious breach of discipline is “initiated”. By comparison, regulation 6 expressly provides, that in cases of (alleged) serious financial irregularity, the Auditor General or the CEO of the relevant Ministry shall initiate disciplinary action by giving a “complete report” to the CEO of the Commission, or by that CEO to the Committee, if the complaint is against an employee of the Commission.
56. There is no other guidance in the Regulations as to when a CEO proceeds with serious disciplinary action as opposed to the Commission proceeding of its own motion. Any prospect of the CEO and the Commission proceeding with separate disciplinary proceedings in tandem would be unworkable. That is not an interpretation the Legislators (the Prime Minister with the consent of Cabinet) are presumed to have intended.^[6] Presumably, the task in regulation 3(1) of characterising whether an allegation is a minor or serious breach is undertaken by the person (or organisation) who receives the complaint. Regulation 4 only refers to a determination by the CEO of a minor breach and the sanctions to be applied in that event, not the Commission. That would suggest, without express provision, that even if a complaint of a minor breach is submitted directly to the Commission, it will be dealt with by the CEO of the relevant Ministry (including the CEO of the Commission if the complaint is against one of its employees). Whether regulation 5 shines any light on this issue will be examined further below.
57. Upon Mr Sisifa’s concession that the disciplinary procedures referred to in ss 6(i) must, by operation of ss 21 and 22, be those prescribed by the Regulations, the second plank to the Commission’s case - that in the absence of express procedures for disciplinary action of its own motion, the Commission may adopt or determine its own procedures provided they are consistent with or complement the Regulations – became unsustainable. There is no express provision in the Act or the Regulations which permits the Commission to adopt or determine its own procedures in cases initiated of its own motion. Nor is there any provision which permits the Commission to do so provided the procedures it adopts are consistent with or complement the procedures prescribed by the Regulations.
58. This part of the Commission’s case was not supported by a proper interpretation of the relevant provisions or any authority which might have supported the approach to the interpretative exercise submitted. Moreover, and for the reasons developed below, it will be seen that even on a generous purposive interpretation, the strained and ambitious approach taken by the Commission was, in fact, unnecessary.
59. The Commission’s attempt to circumvent the requirements of regulation 5 was misguided. It’s submission that, in Commission own motion proceedings, the report prescribed by regulation 5 is not required, misread the relevant provisions, misconstrued the significance of regulation 5 in any proceedings for an alleged serious breach of discipline, overlooked the importance of the role of the CEO of the relevant Ministry, and disregarded the mandatory imperative and value of a regulation 5 report for subsequent steps in the prescribed procedures. In circumstances, as observed at the outset, where there are no express procedures provided for Commission own motion action, any submission that because there is no provision which expressly requires a regulation 5 report for Commission own motion proceedings, such a report is not required, was a bootstraps argument which also suffered from circularity of reasoning.
60. Regulation 5 is headed “Serious disciplinary cases reported by Chief Executive Officer”. Neither counsel addressed the significance or otherwise of the heading. Notwithstanding, it is relevant to the interpretation of the regulation. The Interpretation Act is silent on the use of headings as aids to statutory interpretation. At common law, headings can be taken into consideration in determining the meaning of a provision where that provision is ambiguous and may sometimes be of service in determining the scope of a provision. But where the enacting words are clear and unambiguous, the title, or headings, must give way, and the full effect must be given to the enactment: Police v Fa'otusia [2020] TOSC 111 at [19] to [22].
61. Any impression that by its heading, regulation 5 is intended to be confined to cases conducted by the CEO (and not the Commission) is, upon a reading of the whole regulation, erroneous. The enacting words are clear and unambiguous. The regulation provides, in short, that in cases of alleged serious breach of discipline (regardless of who initially determines the nature of the breach), a CEO is to inquire into the matter. If he/she is then satisfied that the allegation is of a serious breach, he/she is to report the matter to the Commission in the form of a “complete report” as prescribed by regulation 5(2). The operative provisions of regulation 5 make plain that it is intended to apply regardless of whether proceedings are pursued by the CEO or the Commission of its own motion. There is no provision which suggests otherwise. In ordinary circumstances, if a complaint (against an employee other than the CEO of that Ministry) is submitted directly to the Commission, there is no reason why the Commission cannot refer the matter to the CEO of that Ministry and request him/her to inquire into the allegations and prepare a report in accordance with regulation 5(2). And there are good reasons for the Commission doing so.
62. It is evident from the terms of regulation 5 that the role of the CEO in disciplinary proceedings is important. Rarely will there ever be a person within a particular Ministry better placed to understand the nature of the complaint, the employee in question, any other employees involved, the inner workings of that Ministry insofar as they be relevant to the complaint, and so on. Regulation 4 confers on the CEO power to deal with minor breaches of discipline. Regulation 5 confers on the CEO the power of preliminary enquiry. Much like a Magistrate in criminal proceedings for an indictable offence, the task of assessing and determining whether there is sufficient evidence for an accused person to be committed to stand trial in the Supreme Court, a CEO is tasked with gathering specified information and documents, as a sort of triage assessment, to determine whether there is sufficient evidence for the complaint to be referred to the Committee, and if formally charged, for the employee complained of to effectively stand trial before the Commission. That power also extends to terminating a disciplinary proceeding where the CEO determines, in terms, that there is insufficient evidence of any serious breach.
63. The significance of a regulation 5 report is demonstrated by the multiple references to it in subsequent regulations. The ‘report’ referred to in regulation 7(1) must be interpreted as a report issued pursuant to regulation 5, not least because sub-regulation (a) refers to the Committee being convened to hear the presentation of the report from the relevant CEO or his/her representative. Further, each of the time intervals prescribed thereafter are counted from the date of receipt of that report.
64. Regulation 7(2) requires any charge laid against an employee to include a copy of the report from the CEO. As noted above, regulation 7A(2) requires the Committee to consider the report from the CEO and, if necessary, seek further information from the CEO. It has already been observed that the reference there, in the alternative, to a report from the Commission under regulation 5, does not expressly exist within that regulation. During oral submissions, Mrs Stephenson KC suggested that the cross reference was in error and was perhaps intended to refer to regulation 6. Mr Sisifa disagreed but without clearly explaining why. In my view, and assuming no error in the drafting, the preferred interpretation is that that limb of regulation 7A(2)(a) reinforces that a regulation 5 report is also required for Commission own motion proceedings. The report could be prepared by the Commission itself or it may cause the report to be prepared by say the relevant CEO, if available, or by appointment of a Committee of Enquiry pursuant to regulation 8 (discussed further below).
65. Regulation 9 mandates the receipt of a regulation 5 report a prerequisite to the Commission exercising its discretion to suspend pending final decision.
66. Quite apart from the procedural requirements for it, the importance and value of the information and documents to be gathered during a regulation 5 inquiry, for the efficacy and integrity of the subsequent processes before the Committee and the Commission, cannot be overstated. Requirements for a “complete report” such as the facts gathered from the inquiry, the reasons the CEO deems the complaint to be one of serious breach of discipline, relevant documents including any internal correspondence, statements from other witnesses, and details of any previous disciplinary breaches by the employee, are all essential for the Committee, at first instance, to be properly informed as to whether to charge the employee (or dismiss the allegations for lack of evidence). Without that information, any decision by the Committee is susceptible to challenge in review proceedings for failing to take into account relevant considerations. A fortiori, the contents of a complete regulation 5 report must be seen as indispensable for the Commission, under regulation 7(2), to validly “decide the case”. For without that information and documents, it is highly unlikely that the Commission would be able to take into account all relevant considerations and very likely that any decision by it to find an employee guilty solely on the basis of the complaint (absent admission by the relevant employee) would be unlawful.
67. Further, and importantly, regulation 5(2)(i) provides the very first opportunity for the employee to respond and be heard on the allegations before any further step is taken. Denial of that right to natural justice by circumventing the requirements of regulation 5 presents yet another potential breach by which subsequent decisions may be invalidated.
68. Following that analysis of the criticality of a regulation 5 report to any proceedings for an alleged serious breach of discipline, we come to the heart of this review proceeding.
69. The real reason the Commission did not obtain a regulation 5 report was because, unlike every other Ministry in the Kingdom, the Ministry of Foreign Affairs does not currently have a CEO. During the course of submissions, Mr Sisifa helpfully attempted to elucidate that peculiarity as follows:
    • 69.1 the Secretary, who is also currently the Lord Privy Seal, is the person in putative charge of the administration of the Ministry;
    • 69.2 the Secretary is not employed under a fixed contract of employment under the Act and therefore cannot be a CEO as defined by s 3 of the Act;
    • 69.3 in any event, the Act expressly does not apply to the Secretary;^[7]
    • 69.4 the Secretary was appointed by the King; and
    • 69.5 otherwise, any reason/s for the absence of a CEO in the Ministry were described as “sensitive”.
70. It is unfortunate that that state of affairs led the Commission to take the course it did.
71. Firstly, pursuant to s 13, the Commission was required to appoint a CEO. In breach of that requirement, it has not done so. Had it done so, it is reasonable to expect that that CEO would have conducted an inquiry in accordance with regulation 5 and produced the requisite report.
72. Secondly, and alternatively, even if the Secretary could be regarded, for present purposes, as a de facto CEO, his decision not to be involved in disciplinary proceedings against the Plaintiff could easily have been addressed by the Minister appointing an Acting CEO pursuant to s 13C. For reasons which were never explained, the Minister has not done so.
73. Thirdly, had the course hypothesised by Mr Sisifa been adopted, whereby, pursuant to regulation 8, the Commission might have appointed a Committee of Enquiry (in the absence of any CEO or Acting CEO) to undertake an investigation, as a procedure said to be consistent with the Regulations, the Commission may have been on firmer ground. But it did not do so. In that regard, the Commission’s submission that regulation 8 does not require a Committee of Enquiry to produce a report in accordance with regulation 5 (or at all), did not advance the Commission’s cause. If a Committee of Enquiry was appointed to undertake an investigation into a complaint of alleged serious breach of discipline, there would be little point to the exercise if the results were not communicated to the Commission in the form of some sort of report. It follows that if, on any sensible view, a report would be required, and the importance of the information and documents prescribed by regulation 5(2) is beyond question for the reasons explained above, there can be no good reason (and none was advanced) why such a report ought not address the matters prescribed by regulation 5(2).
74. The Commission’s submission that because it determined that the complaint and “supporting documents” were sufficient to be referred to the Committee, it was unnecessary to appoint a Committee of Enquiry, was also misconceived. There is no provision in the Regulations which permits the Commission to usurp the role of the CEO in regulation 5 in determining whether there is sufficient evidence to support an allegation of serious breach of discipline. Further, without the inquiry, information and documents mandated by regulation 5, any purported determination by the Commission that there was sufficient evidence to refer the matter to the Committee failed to take into account relevant considerations and was not reached in accordance with the Regulations.
75. Fourthly, the Commission’s purported “report” to the Committee could not in any way, shape or form, be regarded as “consistent with or complementary to” the prescribed procedures in the Regulations. Despite the various surreptitious references in the Amended Statement of Defence^[8] to “the report” as an apparent attempt to equivalate the requirements of regulation 5, and those which follow and depend for their operation upon a complete report in accordance with regulation 5(2) being provided, Mr Sisifa confirmed in submissions that “the report” consisted only of the Minister’s complaints (and “supporting documents” which were never specified but which I infer were the Minister’s emails to the Plaintiff) and the Commission’s decisions 908 and 919. As such, none of the other important information or documents required by regulation 5 were before the Commission when it decided to proceed with serious disciplinary action or the Committee when it decided to formally charge the Plaintiff.
76. Finally, and for the reasons which follow, the Commission’s decision to suspend the Plaintiff from duty without pay was unlawful:
    • 76.1 any recommendation from the Committee to suspend purportedly pursuant to regulation 7(1)(b) was dependent upon receipt of a regulation 5 report;
    • 76.2 similarly, pursuant to regulation 9, the Commission’s power to suspend is dependent upon receipt of a regulation 5 report, which for the reasons explained above, could have been available had the Commission fulfilled its statutory obligation to appoint a CEO and/or had the Minister appointed an Acting CEO; and
    • 76.3 therefore, in the absence of a regulation 5 report, there was no lawful basis for the Committee to recommend suspension or for the Commission to suspend the Plaintiff.
      

Result

77. For those reasons, the answer to the separate question is "no".
78. As a result, pursuant to Order 25 rule 4(2), there will be judgment for the Plaintiff.
79. Accordingly, it is declared that the Defendant’s decisions:
    • 79.1 number 908 of 1 December 2022 to initiate serious disciplinary action against the Plaintiff which resulted in the charges of serious breach of discipline against her on 1 March 2023; and
    • 79.2 number 919 of 21 December 2022 suspending the Plaintiff from duty without pay for serious breach of discipline and instituting procedures for serious disciplinary charges against her, are unlawful.
80. The Defendant’s decisions number 908 and 919 are quashed and set aside.
81. The matter is remitted back to the Defendant for further consideration according to law.
82. By consent, the Defendant is to pay 75% of the Plaintiff's solicitor/client costs of and incidental to the proceeding, to be taxed in default of agreement.

NUKU’ALOFA	M. H. Whitten KC
24 July 2023	LORD CHIEF JUSTICE

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^[1] Regulation 10 contains a list of the penalties available to the Committee, which includes dismissal

^[2] Since enactment, the Regulations have been amended once, in 2022

^[3] Not set out above because none of the specified functions in s 13B expressly refer to the CEO’s role in disciplinary proceedings. There is only the catch-all: “(n) such other functions as are imposed on the Chief Executive Officer by or under this or any other Act”.

^[4] Section 21.

^[5] GS 18/2010.

^[6] 'Atenisi Institute Inc v Tonga National Qualifications and Accreditation Board [2019] TOSC 45 at [157(e)] citing Edwards v Fifita [1999] Tonga LR 75.

^[7] ss 2(2) of the Act and Schedule II, item 24, thereto.

^[8] Paragraphs 1.a.i(f), 23, 24, 26.