Garae v Public Service Commission [2005] VUCA 20; Civil Appeal Case 03 of 2005 (18 November 2005)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 03 of 2005

BETWEEN:

BEN GARAE
Appellant

AND:

PUBLIC SERVICE COMMISSION
Respondent

Coram: The Hon. Chief Justice Vincent Lunabek
The Hon. Justice Bruce Robertson
The Hon. Justice Daniel Fatiaki
The Hon. Justice Treston

Counsel: Mr. Felix Laumae for Appellant
Mr. Dudley Aru & Ms. Florence William for Respondent

Hearing Date: 14 November 2005
Judgment Date: 18 November 2005

JUDGMENT

This is an appeal against a judgment of Justice Saksak delivered in the Supreme Court at Luganville on 28 September 2005 in which the Appellant's claim for damages for unlawful termination of employment and for severance, was dismissed. The Court also ordered the Appellant to vacate the house in which he was then residing within seven days of the judgment and costs were awarded in favour of the Respondent.

At the time of his dismissal the Appellant held the position of acting principal lands officer in the Luganville Urban Lands Department where he had worked for slightly in excess of 8 years.

Prior to his dismissal on the 11th of February 2004, the Appellant had initially been suspended on full salary from official duties with effect from 29th October 2003 and then reinstated.

Three reasons for the Appellant's suspension were provided in a letter to the Appellant from the then acting Director of Lands entitled "Immediate Suspension for Serious Misconduct."

They were:

(a) That the Appellant had carried out an improper valuation of land title No. 03/OJ94/067 which was then registered in his personal name - There are two aspects to the allegations under this ground of dismissal. First, it was alleged that on or about June/July 2002, the Appellant improperly acquired a piece of land in Luganville for his own personal use and benefit. He is alleged to have submitted no formal application for the land as required by the Regulations, and the Minister of Lands had never issued him with a negotiator's certificate in respect of the land. Second, it was alleged that the Appellant personally valued the and in the sum of VT200,000 as the land premium without following the laid down procedure for land valuations through the appropriate authority. He also prepared a lease in his name and inserted the amount of VT200,000 as the land premium. In both instances there had been a clear and deliberate failure on the Appellant's part to comply with the procedural requirements of the relevant Regulations;

(b) That the Appellant had caused loss to Government funds through the unlawful receipt of housing allowances when he was not entitled to them - The particular allegation here is that in October 2001, the Appellant applied for a housing allowance in order to rent a house at a monthly rental of VT28,000. From October 2001 until October 2003, the Appellant received housing allowances amounting to VT15,000. However, and unbeknown to the department, the Appellant in November 2002 moved out of the rented premises into a deportee's house for which he paid no rental. This state of affairs continued until the 31st of October 2003,when the Director General of Lands instructed the Department of Finance to cease payment of housing allowance to the Appellant and to recover the allowances which had already been paid to him and to which he was not entitled;

There was a third ground of suspension which was not pursued against Mr. Garae. It played no part in his dismissal nor in the Supreme Court hearing and has no relevance to this appeal.

On 31st October 2003, the Appellant's suspension was varied in a letter of the then Director General of Lands (a close relative of the Appellant's). It allowed for the Appellant's immediate reinstatement to his position pending inquiries into the allegations made against him. Shortly thereafter the investigation was taken over (as it should always have been) by a person who was, and could be seen to be independent.

On 12th December 2003 there was a PSC Form 6-1 prepared which briefly set out the allegations against the Appellant and which had a Section 4 which sought the Appellant's written response to the allegations. The Appellant provided his explanation(s) and response in a letter dated 2nd February 2004.

As to the allegation about the improper valuation the Appellant wrote:

"I might have been wrong in not having a Negotiator Certificate but I am definitely not wrong in that valuation that has been made".

He ended his response to this allegation by claiming that other (unnamed) officers had also acquired leases in Vila without the payment of any premiums and he asked:

"What have you done about them too?"

In similar view in regard to the housing allowance allegation the Appellant's response was:

"I might have been wrong in receiving my housing allowance after moving out from the rented house but it was your duty to liaise with me to rectify the situation. You knew well after a visit you made to Santo in 2002 that I was living in a deportee's house, why didn't you take appropriate measures to rectify the situation immediately?"

He then makes allegations against (unnamed) officers in Vila receiving housing allowance while living in Government quarters and he asks again:

"What have you done about them too?"

The response ended with the Appellant making further allegations of instances of improper conduct by (unnamed) land officers acting as private real estate agents and, of an unjust decision to use Government funds on an unnecessary trip to Malaysia when the Lands Department desperately needed funds. Lastly, the Appellant referred to an unfair and unwise decision concerning the sending of a land department officer on a valuation attachment in Malaysia instead of a more appropriate officer from the Valuation Unit.

We make no further comment about the Appellant's responses to the allegations except to note their belligerent and unrepentant tone.

Perhaps not surprisingly, the Appellant's employer after considering his written response and the contents of an internal inquiry report prepared by the Lands Department, wrote to the Appellant on 11th February 2004 advising him of his termination for serious misconduct in improperly valuing his lease No. 03/OI94/067 and the unlawful receipt of a housing allowance to which he was not entitled.

The Appellant issued proceedings seeking severance allowances and damages for what he claims was his unjustified dismissal without notice or compensation. The total claim was for a sum in excess of VT4 million and costs.

The Respondent Commission filed a defence denying the Appellant's claim and justifying his suspension and eventual termination for serious misconduct.

The primary judge in a detailed and comprehensive judgment dealt fully with the various issues that arose in the case and concluded:

"the Claimant's (Appellant) termination was lawful and therefore it follows that his claims for unlawful termination, notice, severance and damages for unjustified dismissal must all fail. Accordingly I so order that the Claimant's claim fail in its entirety."

In his judgment the primary judge set out the provisions of section 34 (c) (d) (f) (k) and (e) of the Public Service Act which relevantly requires any public servant "To behave with honesty and integrity"; "(to) Act with care and diligence"; and "(to) Use resources and public money in a lawful and proper manner." After considering the Appellant's admissions in his written response and the evidence presented by the Commission's witnesses the judge concluded:

"that the two allegations made against the Claimant (Appellant) were serious and as such amounted to serious misconduct"

At the hearing of the appeal, Appellant's counsel sought to argue that the admitted misconduct was insufficiently serious to warrant his summary dismissal. We cannot accept the submission. The determination of seriousness was first made by the Appellant's employer, then confirmed by the primary judge and amply supported by the evidence and the law.

In his Notice of Appeal, the Appellant lists five grounds: -

1. His Lordship erred in fact and in law when in his finding said "from evidence before me it is true that improper valuation of land title no.03/OJ94/067 was done by the Claimant in the year 2001, and the allegation of loss of government funds through receipts of housing allowances were made in 2002. But in my view the length of time that has lapsed do not make the actions any less serious".
   
2. His Lordship erred in fact when in his finding in relation to the suspension of the Appellant he said "it is therefore clear that if nothing was done against the claimant in 2001 or 2002 it was because of this relationship between the claimant and the Director-General that only became apparent in 2003. Therefore the Court concludes that the issue of waiver irrelevant and section 50 (5) is not applicable in the circumstances of the claimant".
   
3. His Lordship erred in law when it accepted allegations made against the Appellant for improperly valuing a land which he acquired lease over then such allegation can only be proceeded with and decided by the court under section 100 of the Land Leases Act [Cap. 163].
   
4. The issue about improper valuation of land title 03/OJ94/067 is a matter can only be determined under section 100 of the Land Leases Act by the Court and only then the Respondent can proof the guilt of the Appellant if the lease he got was obtained by fraud or mistake.
   
5. The allegation about unlawful receipt of housing allowance is not a justifiable ground in light of past practice by the Respondent to use and terminated the employment of the Appellant as there are other course to take to recover the money from the Appellant i.e. deduction of the Appellant's salary."
   

On the basis of this material and the submissions of counsel at the hearing of the appeal it was obvious that the Appellant was relying on the provisions of section 50 (3), (4), and (5) of the Employment Act which provide: -

"(3) Dismissal for serious misconduct may take place only in cases where the employer cannot in good faith be expected to take any other course.

(4) No employer shall dismiss an employee on the ground of serious misconduct unless he has given the employee an adequate opportunity to answer any charges made against him and any dismissal in contravention of this subsection shall be deemed to be an unjustified dismissal.

(5) An employer shall be deemed to have waived his right to dismiss an employee for serious misconduct if such action has not been taken within a reasonable time after he has become aware of the serious misconduct."

Counsel for the Appellant submitted that there were various alternative courses open to the Respondent Commission to deal with the Appellant's misconduct short of dismissal and that having regard to past practice, the Respondent Commission ought to have adopted a less serious courses available such as recovering the monetary loss by way of regular deductions from the Appellant's wages.

We cannot agree given the Appellant's seniority within the Department and his deliberate actions in the misconduct alleged against him. They cannot be viewed other than most seriously. Both activities bore the hallmarks of deliberate dishonesty and abuse of power and privilege for personal gain and indirectly caused substantial monetary loss to the Government.

The Appellant's belligerent and unrepentant responses to the allegations did not help his case. They suggest a disquieting underlying attitude that it is all right for people to misuse and abuse public positions for their own personal gain but if they are unlucky enough to get caught out, repayment of money is all that is required. Nothing could be further from the truth. All people in positions of power and authority must act always in the interest of the State and its people and not abuse the trust and confidence which is reposed in them.

We do not accept that the Appellant's evidence and submissions demonstrate or establish that the Respondent Commission acted otherwise than in good faith in its determination to dismiss the Appellant.

Counsel for the Appellant also submitted that there should have been an oral hearing granted to the Appellant before his summary dismissal. In this regard the primary judge found that the Appellant was given the opportunity to respond in writing to the allegations made against him, which he did. Given the admissions in his written response, the primary judge concluded that he had been afforded natural justice and it was not necessary for the Respondent Commission to hear the Appellant any further. We agree and would only add that section 50 (4) does not, in terms, require an oral hearing to be given to an employee before a dismissal for serious misconduct.

Finally, counsel for the Appellant submitted that the Respondent authority had waived its right to dismiss the Appellant for serious misconduct given the time that had elapsed between the misconduct and the actions taken by the Respondent Commission.

In this regard the primary judge found that any action against the Appellant was impossible because he was a close relative of the then Director General of Lands who candidly admitted the relationship. The clear conflict of interest that arose from that relationship prevented the Director from dealing personally with the Appellants' matter. None of these could be or was challenged by the Appellant and given that his written response to the allegations did not eventuate until December 2003, his dismissal some two months later in February 2004 cannot, in our view, be categorized as unreasonable in terms of section 50 (5) of the Employment Act.

During the course of his submissions, counsel for the Appellant also sought to justify the Appellant's valuation of his leasehold. The evidence is clear however, that a subsequent independent valuation placed the value of the Appellant's property at in excess of VT771,000 a figure slightly over three times the value which was adopted by the Appellant.

The accuracy or correctness of the Appellant's valuation of his leasehold is irrelevant. The crux of the matter is not the correctness or the justifiability of the Appellant's valuation but the fact, that in conducting the valuation he had knowingly ignored processes and procedures of the Department and furthermore this was for his personal benefit and constituted an abuse of his powers.

Counsel for the Appellant also argued that before the Respondent authority could dismiss the Appellant from his employment it would be necessary for a Court to grant an order cancelling the lease title under s.100 of the Land Leases Act [CAP. 163] and unless and until that occurs there was no basis for any action based on his getting the lease.

This submission is misconceived. Whether or not there is action taken to rectify the lease under s.100, the admitted and uncontradicted fact is that contrary to departmental processes the Appellant was directly involved in a transaction benefiting himself in which the valuation figure he used, was not the true or proper sum. That is why the Commission could properly conclude that he did not "behave with honesty and integrity" or "act with care and diligence".

The Appellant pointing the finger at various other people is unhelpful.

Perhaps there are other people who could be pursued for abuse of position, improper obtaining of benefits, misusing a public role and the like. But the fact that, as yet, they have not been caught or called to account provides no defence, excuse, or justification for what the Appellant admits to doing.

The primary judge was entirely correct to refuse the relief sought. This appeal has no merit and is dismissed. The Respondent is entitled to standard costs to be agreed and if not, to be assessed and determined.

Dated at Port Vila, this 18th day of November 2005

BY THE COURT

Hon. Chief Justice Lunabek
Hon. Justice Robertson
Hon. Justice Fatiaki
Hon. Justice Treston