Public Service Commission v Nako [2009] VUCA 7; Civil Appeal Case 31 of 2008 (30 April 2009)

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

CIVIL APPEAL CASE No.31 OF 2008

BETWEEN:

PUBLIC SERVICE COMMISSION
Appellant

AND:

ABEL HIVO NAKO
Respondent

Coram: Justice John von Doussa
Justice Oliver Saksak
Justice Nevin Dawson
Justice Ronald Young

Counsel: Mr Ari Jenshel and Mr Gilu for the Appellant
Mr Nigel Morrison for the Respondent

Date of hearing: 27th April 2009
Date of Judgment: 30th April 2009

JUDGMENT

This case concerns the provisions in the Public Service Act (PSA) relating to the removal from office of Director-Generals and Directors, and in particular the interpretation and application of s.19B (4) of the PSA.

The factual background may be shortly stated. The respondent was appointed to the position of Director-General of Education by the appellant, the Public Service Commission (the Commission). A number of complaints about the conduct and performance of the respondent were made by different Ministers under whose portfolios the respondent served. The complaints concerned alleged failures to comply with ministerial instructions, failure to provide briefings to the Minister, unauthorised overseas travel, ignorance of ministerial directives and a number of other matters going to the respondent’s performance. These complaints were raised over a period of time by ministerial letters dated 7th August 2003, 17th November 2003, 27th February 2004, 30th June 2004 and 5th July 2004. The last of the letters claimed that the respondent had made unauthorised use of a Government vehicle, had driven a vehicle whilst drunk, and had damaged the vehicle in a resulting crash on 15th June 2004.

On 7th July 2004 a paper was submitted by the Commission’s Secretariat to the Commission concerning matters raised by the ministerial complaints.

On 9th November 2004 two officers were appointed to investigate the complaints made against the respondent.

On 9th December 2004 the Commission informed the respondent of the allegations made against him and gave him 21 days to respond.

On 15th December 2004 the respondent replied in writing to the allegations.

On 18th January 2005 the report of the two investigators was submitted to the Commission.

On 21st January 2005 the Commission resolved to dismiss the respondent from service for serious misconduct pursuant to s.29(1) of the PSA on the grounds of failure to carry out the lawful instructions given by his Ministers, and for misuse of a Government vehicle causing serious damage to the vehicle. The termination of the respondent’s employment had the effect of removing him from office as Director-General.

On 25th January 2005 the respondent was notified of the decision and his employment was thereupon terminated.

The respondent brought proceedings against the Commission in the Supreme Court alleging that the termination of his employment was unlawful and unjustified. He sought a range of remedies including damages.

The Commission denied that the termination was unlawful.

The proceedings came on for trial before the Chief Justice on 13th October 2008. At trial the allegations in the pleadings were refined by the parties. The respondent limited his claim to two grounds: first that the Commission’s decision was made beyond the 75 day period prescribed in s.19B(4) of the PSA, which runs from the receipt of the ministerial complaints, and secondly that the sanctions provided for the misuse of a Government vehicle in s.29B did not include summary dismissal. The Commission contended that it was not prevented from relying on the ministerial complaints even though they were received more than 75 days before its decision, and accordingly that the dismissal for serious misconduct was justified and lawfully made.

Counsel for the respondent invited the Chief Justice to deal with the argument on s.19B (4) as a preliminary issue on the basis that if the argument was correct, the Commission could have no defence to his claim. The Chief Justice agreed. He ruled that as the matters relied on by way of defence were raised in ministerial complaints made outside the 75 day period they were statute barred. There was therefore no evidence of serious misconduct and there was no defence to the claim. The Court ordered that the respondent recover damages to be assessed for unlawful dismissal. On the additional allegation made by the Commission about the car accident, the Chief Justice said that the unauthorised use of a Government vehicle was covered by s.29B, and the sanctions provided did not include summary dismissal. Thus, the respondent was dismissed without cause.

The Commission now appeals as of right to this Court contending that the Judgment of the Chief Justice should be treated as a final judgment. The Judgment certainly determined the issue of liability finally against the Commission, but strictly speaking a final judgment would not be entered until damages are assessed. However we agree that in the circumstances of this case the Judgment on liability should be treated as falling within an exception to the general rule that an appeal against an interlocutory judgment requires leave to appeal. This exception was recognised by the Court of Appeal in the United Kingdom in White v. Brunton [1984] 2All ER 606. The Master of the Rolls, Sir John Donaldson (with whom the other members of the Court agreed), at 608 said:

"If the two parts of the final hearing of the case had been tried together, there would have been an unfettered right of appeal, even if the judgment had been that there was no liability and that accordingly no question arose as to damages. It is plainly in the interests of the more efficient administration of justice that there should be split trials in appropriate cases, as even where the decision on the first part of a split trial is such that there will have to be a second part, it may be desirable that the decision shall be appealed before incurring the possibly unnecessary expense of the second part. If we were to hold that the division of a final hearing into parts deprived the parties of an unfettered right of appeal, we should be placing an indirect fetter on the ability of the Court to order split trials. I would therefore hold that, where there is a split trial or more accurately, in relation to a non-jury case, a split hearing, any party may appeal without leave against an order made at the end of one part if he could have appealed against an order without leave if both parts had been heard together and the order had been made at the end of the complete hearing.

In effect that is the proposition in the present case, for in directing a preliminary issue on a point of construction the district registrar was seeking to divide the final hearing into two parts in the justified belief that it was possible by adopting this course the expense of part of the hearing might be avoided. That the division may not have run exactly along the line dividing liability from quantum is, I think, immaterial. The decisive feature is that the preliminary issue was not, when analysed, an issue preliminary to a final hearing, but the first part of a final hearing."

The overriding objectives of the Civil Procedure Rules, No.49 of 2002, include, in r.1.4(a), (b) and (c), identifying issues at an early state, deciding promptly which issues need full investigation and trial and resolving others without a hearing, and deciding the order in which issues are to be resolved. Rule 12.4 specifically empowers the Court to decide preliminary issues if it is likely that, if the issues are resolved, the proceedings or part of the proceedings will be resolved without trial. Not to recognise the exception identified in White v. Brunton would discourage the parties from seeking to have issues that are likely to bring proceedings to an early conclusion decided as preliminary or separate issues. This would not be consistent with the objectives of the Civil Procedure Rules.

The researches of counsel for the Commission disclose that the exception is almost universally applied throughout Commonwealth: for example in the United Kingdom see Holmes v. Bungladesh Biman [1988] 2 Lloyd’s Law Rep 120 and Roerig v. Valiant Trawlers [2002] 1 All ER 961 at [46]; in Australia, O’Toole v. Charles David [1990] HCA 44 per Brennan J at [7] and Tag Pacific v. McSweeney [1992] FCA 168 at [22], [23]; in New Zealand, Strathmore Group v. Fraser [1992] 3 NZLR 385 and Fullers Bay of Islands v. Northland RC [2001] NZCA 1 at [6]; in Canada, Radke v. MS 2006 BCCA 12 [CanLII] at [20] – [25]; in Papua New Guinea, The ‘Federal Huron’ [1986] PNGLR 5 per Kidu CJ, Pratt and Woods JJ; in Hong Kong, First Pacific Bank v. Fung [1989] HKCA 43 per Fuad VP; and in Singapore, Wellmix Organics v. Lau [2006] SGCA 11 at [22], [24].

Accordingly we treat the decision under appeal as a final Judgment from which there is an appeal as of right.

We turn now to the PSA and deal first with the interpretation of s.19B (4). It is necessary to have regard to the PSA as a whole as s.19B (4) must be read and understood in the context of the whole Act, but s.19A and 19B are of essential importance. Those sections were introduced into the Act in 2000 by the Public Service (Amendment) Act No.37 of 2000 to establish a special regime for the removal of Director-Generals and Directors. Section 19A provides the grounds for removal and s.19B the procedures which must be followed.

Sections 19A and 19B read:

"19A. (1) The Commission may remove a director-general or director:

(a) because his or her performance is unsatisfactory; or

(b) because of misconduct on his or her part; or

(c) because of physical or mental incapacity; or

(d) if he or she becomes bankrupt.

(2) For the purposes of subsection (1), a director-general’s or a director’s performance is unsatisfactory if:

(a) he or she has not undertaken all or any of his or her principal responsibilities as set out in subsection 20(1) or (2) for a significant period of time; or

(b) there has been a serious breach of his or her performance agreement.

(3) For the purposes of subsection (1), an act by a director-general or director that would be a serious disciplinary offence under section 36 amounts to serious misconduct.

(4) A director-general or a director cannot be removed unless the procedure for removal set out in section 19B is followed."

19B. (1) The Commission must not remove a director-general or director from office unless the Commission has received a complaint in writing from the Prime Minister, a Minister, the Ombudsman or the Auditor General:

(a) alleging there is a ground or are grounds for his or her removal under subsection 19A (1); and

(b) setting out the evidence in support of the allegations.

(2) The Commission must:

(a) appoint one or more person to investigate the complaints and

(b) send the director-general or director a copy of the complaint; and

(c) give the director-general or director 21 days within which to respond in writing to the allegations.

(3) The Commission may:

(a) dismiss the complaint it the Commission is satisfied that it is frivolous or vexatious; and

(b) request additional information from the complainant if the complaint does not contain sufficient information.

(4) The Commission must decide whether or not to remove the director-general or director:

(a) within 75 days after receiving the complaint; or

(b) if additional information has been requested under paragraph (3) (b) within 75 days after receiving that additional information.

(5) The person or persons appointed to investigate the complaint must provide a report on the investigation to the Commission. The Commission must take into account the report and any responses made under paragraph 2(c) in deciding whether to remove a director- general or director.

(6) The Commission must give the director-general or director and the complainant written notice of the Commission’s decision and the reason for the decision.

(7) A decision by the Commission to remove a director-general or director takes effect on the day on which the decision is made."

The Chief Justice, in holding that the 75 day time period in s.19B(4) operated as a statute bar, treated the time period as an absolute time limitation which had the effect of depriving the Commission of power to consider the subject matter of the complaints. This interpretation gives the time requirement a draconian effect which could substantially hamper the Commission in carrying out its functions, especially as s.19B (5) requires that the Commission must take the report of the appointed investigators into account when deciding whether to remove a director-general or a director, yet the section does not impose any time requirement within which the investigators must report.

The interpretation of statutory time requirements like in s.19B (4) present particular difficulties. Leading authorities on the topic were reviewed by Lord Slynn of Hardley in Wang v. Commissioner of Inland Revenue [1994] 1 WLR 1286. His Lordship concluded at 1294:

"... when a question like the present one arises – an alleged failure to comply with a time provision – it is simpler and better to avoid these two words "mandatory" and "directory" and to ask two questions. The first is whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time. Secondly, if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void?"

The difficulties in construing statutory time requirements were further discussed by the House of Lords in R v. Soneji [2005] UK HL 49. Lord Steyn by reference to decisions in other jurisdictions noted that parallel developments had occurred in the Courts of New Zealand, Australia and Canada. He noted that in New Zealand Institute of Agriculture Science Inc v. Ellesmere County [1976] 1 NZLR 630, Cooke J (subsequently Lord Cooke of Thorndon) speaking for the Court said, at p.636:

"Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance."

In Project Blue Sky Inc v. Australian Broadcasting Authority (1998) 194 CLR 355 the Australian High Court addressed the same problem. In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ the Court concluded, at para 93:

In our opinion, the Court of Appeal of New South Wales was correct in Tasker v. Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.

Lord Steyn considered that this passage provided an improved analytical framework for examining the question of statutory interpretation. Lord Steyn also drew attention to Canadian authorities. In British Columbia (Attorney General) v. Canada (Attorney General); An act respecting the Vancouver Island Railway (Re) [1994] 2 SCR 41 the majority of the Supreme Court of Canada agreed with Iacobucci J that: "courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative?" And in Society Promoting Environmental Conservation v. Canada (Attorney General) [2003] 228 DLR (4th) 693 the Federal Court of Appeal reasoned at 710 para 35:

"... the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity."

Lord Steyn concluded that in the exercise of statutory construction emphasis ought to be on the consequences of non compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity.

It is important when considering the authorities discussed in the case cited above to recognise that the principles that guide the court when the issue is limited to the construction of a statutory provision will differ from those that will arise when the case before the Court is one for judicial review. In cases of the latter kind, the Court must still construe the statute by asking the two questions formulated by Lord Slynn in Wang v. Commissioner of Inland Revenue, but in administrative law cases involving judicial review a third question must be asked if the answer to the second question is in the negative, namely whether in the discretion of the Court it is appropriate in the circumstances of the case nonetheless to grant a remedy.

In London & Clydesdale Estate v. Aberdeen DC [1979] UKHL 7; [1980] 1 WLR 182, Lord Hailsham, in the following long passage observed in a case concerning judicial review of administrative decisions that the facts of different cases will range across a broad spectrum and depending where in a spectrum a case falls discretionary factors can arise. His Lordship said:

"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves or their power to act. In such cases, though language like "mandatory", "directory", "void", "voidable", "nullity" and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind."

When the issue before the Court is purely one of ascertaining the meaning of a statutory provision, the court is not exercising a supervisory jurisdiction, and the administrative law considerations which underlie Lord Hailsham’s discussion do not arise.

In the course of argument, counsel for the appellant took the Court to the Privy Council decision in Charles v. Judicial Legal Service Commission & another [2003] 1 LRC 422 both for statements of principle, and to illustrate how those principles have been applied in a case concerning time limits governing disciplinary action against a public servant. That appeal concerned proceedings for the judicial review of administrative steps that had been taken by the Judicial and Legal Services Commission established under the Constitution of the Republic of Trinidad & Tobago. The nature of those proceedings provides the reason why it became relevant for the Privy Council in the concluding paragraphs of its Opinion to identify factual aspects of that case which influenced the ultimate result. The Privy Council observed that the delays in that case which constituted failures to observe the time requirements set out in the relevant regulations were delays which occurred in good faith, were not lengthy, and which were understandable. Further, the Privy Council observed that the appellant had suffered no material prejudice from the delays, no fair trial considerations were or could have been raised, and no fundamental human rights were an issue.

However, where the issue is purely one of statutory construction as was the issue before the Chief Justice in the present case, the particular facts of the case which may raise issues of prejudice to the person concern, the length of the delay, or questions of good faith are not relevant to the meaning of the statute. Considerations of that kind may have relevance to the case, but for other reasons which we explain below; but they are not relevant to the proper meaning of the statute.

The objectives of the Public Service Commission and its main functions are set out in ss.7 and 8 of the PSA. Relevantly:

"7. Objectives of the Public Service Commission

The objectives of the Commission are to provide a service to the Government and Vanuatu people of the highest professional standard, and to conform to, comply with, and foster within the Public Service, the guiding principles of the Public Service set out in section 4.

8. Major functions of the Commission

(1) Subject to Article 60 of the Constitution and to the provisions of this Act, the major functions of the Commission are:

...

(d) the resolution of employment disputes and discipline of employees in accordance with this Act; ...

..."

Section 19B empowers the Commission to remove a director-general or a director:

(a) because his or her performance is unsatisfactory; or

(b) because of misconduct on his or her part; or

(c) because of physical or mental incapacity;

(d) if he or she becomes bankrupt.

In the present case the ground relied upon was misconduct, and this prompted submissions on the respondent’s behalf that the time limit in s.19B (4) was there as an important protection of the rights of the individual director-general or director. We think that submission fails to give full recognition to the function of the Commission in ensuring the provision of a service to the Government and people of Vanuatu of the highest professional standard. A similar argument as to the purposes of time requirement in the regulations under consideration in Charles v. Judicial Legal Service Commission was rejected. The Privy Council observed at 429 C:

"Although the time limits in reg 90 are incidentally of benefit to that officer, their Lordships view them as designed primarily to expedite the investigation process for the benefit of public interest in having matters of indiscipline or misconduct effectively investigated and dealt with. This makes it unlikely that the breach of a time limit was intended to lead to the frustration of that ultimate purpose."

When it is recognised that the procedure in s.19B applies also to cases of unsatisfactory performance, physical and mental incapacity or bankruptcy, the force of the reasoning of the Privy Council is readily apparent.

There can be no doubt that the first question posed by Lord Slynn in Wang v. Commission of Inland Revenue must be answered in the affirmative: The legislature intended that the Commission in making a decision whether or not to remove the director-general or the director would comply with the time provision.

What then is the answer to second question which follows? Did the legislature intend that a failure to comply with the time provision would deprive the Commission of jurisdiction to make a decision on the complaint?

We have already referred to the objectives of the Commission. Those objectives require that primacy be given to providing a public service of the highest professional standard. This obligation would not be aided by a barrier that prevented the Commission from deciding a complaint which raises one or more of the grounds for removal set in s.19B(1) upon its merit.

Whilst s.19B(4) will incidentally provide a measure of protection for the rights and interests of the person under investigation, the fact that the time provision runs from the date of the complaint rather than from the date of the event which could constitute the grounds for removal suggests that the intent of the time provision is not so much to protect the person under investigation from consideration of matters which have become stale but rather to hasten the decision making process in the interest of maintaining the standard of the public service.

We have already referred to s.19B (5). If the expiry date of the time provision in s.19B(4) terminated the powers (i.e. jurisdiction) of the Commission to make a decision on the complaint, the complaint process set out in s.19B would be frustrated by delay for whatever reason, by the investigators in completing their report. All manner of reasons beyond the control of the investigators could arise for delay. The legislature could not have intended that the investigators should report come what may in time for the Commission to reach a decision within the s.19B (4) time frame. To require the investigators to do so could encourage a report based on incomplete or inadequate inquiry.

It should be noted that there is also a time provision in s.19B (2) (c) relating to the time within which the person against whom the complaint is made must respond. In relation to that time provision we do not think that it would have intended that a response received outside the time limit is to be disregarded.

In our opinion the purpose of the time limit in both s.19B(2)(c) and 19B(4) is to stress the importance of reaching an expeditious conclusion to the investigation and decision on a complaint, not to impose an absolute bar to further considering a complaint or response if a time limit expires.

We consider that s.19B (4) does not operate in an absolute way like a time limit under a limitations of actions Act. In the present case we consider that the Commission was not deprived of jurisdiction from making a decision on the ministerial complaints merely by the effluxion of the 75 day time period. It follows that we consider this appeal must be allowed.

It does not follow from our conclusion that delays by the Commission in the decision-making process required by s.19B may not have relevance. Bodies exercising statutory power which affect the right of individuals are under an important duty to act fairly in the exercise of those powers: see de Smith’s Judicial Review of Administrative Action, 4th Ed, at pp 238-240. The duty to ensure procedural fairness is particularly important. Delay which is unreasonable, or is tainted with a lack of good faith, or which prejudices the ability of a person to make proper answer to a charge against him may, depending on the circumstances of the case, breach the duty to act fairly.

Where a breach of the duty to act fairly occurs, a count in the exercise of its supervisory jurisdiction may judicially review the decision making process and set aside a decision made in breach of the duty. In a case where a statutory obligation as to time is so outrageously and fragrantly ignored or defied, to use the words of Lord Hailsham in London & Clydesdale Estate v. Aberdeen DC, a decision will have no legal consequence. The decision will be rendered void by the gross failure to respect the time frame directed by the statute.

In other cases where the departure from the time frame cannot be so characterised, the administrative decision will be valid unless and until a court on judicial review decides that the decision should be set aside. As Lord Hailsham observed, the principles of administrative law which apply in these cases are still developing, and individual cases will be decided on their facts as they arise.

In deciding in a particular case whether delay has caused procedural unfairness the most important considerations are likely to be prejudice to the director-general or director concerned, whether steps have been taken by the Commission to lessen or remove that prejudice, the seriousness of the matters about which there is ministerial complaint and the reasons for the delay.

Returning to s.19B, it is possible, as happened in this case, that complaints are made about events which occurred sometime in the past. This is especially likely to be so where the complaint concerns unsatisfactory performance due to a failure to undertake principal responsibilities for a significant time: see s.19A (2) (a). Nothing in s.19B requires that the ministerial complaint be made within a certain time after the event which is the subject the complaint. If the complaint concerns incompetence the facts giving rise to the complaint may extend over time and operate cumulatively so that the allegation of unsatisfactory performance rest on individual situations which together show a general incompetence. In other cases, a complaint may rest on a particular event which occurred a considerable time back. Here the prospect of prejudice may be very real as memories, witnesses and documents may no longer be readily accessible. If prejudice is so likely that the complaint becomes vexatious, the Commission has the power to dismiss it under s.19B (3) (a).

Delay in making a complaint, at least where the complaint alleges unsatisfactory performance or misconduct, will also be relevant in assessing whether the allegation in the complaint can be substantiated. For example, if there is delay in complaining about misconduct after it comes to the attention of the Minister, this could suggest that the misconduct was not serious. Delay in complaining about events said to indicate incompetence or unsatisfactory performance may suggest that a period of satisfactory performance has followed, and that the complaint is not indicative of present performance.

The respondent’s case before the Supreme Court was that his termination was unlawful or unjustified. The issue before the Court was whether the alleged failure to carry out lawful instructions given by Ministers, and the incident with a Government car, provided a lawful basis for dismissal.

Removal from office under section 19B does necessarily lead to termination, but in this case the Commission found that the respondent had been guilty of misconduct which justified not only his removal but also his dismissal under s.29 (1) of the PSA.

As the respondent was a Director-General, the general power of the Commission to dismiss a public servant for serious misconduct under s.29 (1) is qualified by the requirement to follow the procedures under s.19B. Save for the failure to meet the time frame provided by the s.19B (4) it seems there is no longer any contest that these procedures were followed. So the issue for the Court, as in any case where dismissal from employment for serious misconduct occurs, was whether the facts before the employer (in this case the Commission) justified dismissal for serious misconduct.

Those facts include the circumstances leading to the damage to the Government car. Whilst s.29B sets out a summary procedure for imposing a monetary penalty for the unauthorised use of a Government vehicle, s.29B (5) make it plain that such use may give rise to disciplinary proceedings. Here the ministerial complaint was not limited to unauthorised use but included serious damages to the car. The reference to the damage makes the cause of the damage relevant and part of the complaint. The alleged cause was drunken driving. The combined effect of s.29B(5), s.19A(3) and s.29 means that such conduct could provide ground for the Commission to dismiss the respondent for serious misconduct if the Commission was satisfied that the conduct was sufficiently serious.

These issues were not considered at trial because of the ruling that the complaint was statute barred. As that ruling is now overturned, the matter must be returned to the Supreme Court for decision whether the dismissal was justified.

The appeal is allowed. The Order made at trial is set aside. The matter is returned to the Supreme Court. The respondent is ordered to pay the costs of the appeal at standard rates to be agreed or fixed by the Court.

DATED at Port-Vila this 30th day of April 2009

BY THE COURT

John von Doussa J
Oliver SAKSAK J
Nevin Dawson J
Ronald YOUNG J