LUGANVILLE MUNICIPAL COUNCIL
Defendant
Dates of Hearing: 6th
– 9th March, 2001.
Coram: Before Mr Justiiver
A. Saksak
Ms Cynthia Thomas – Clerk
Counsel: Mr Saling Stephens for
the Plaintiffs
Mr Willie Daniel for the
Defendant
RESERVED JUDGEMENT
Introduction
ass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
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class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The Plaintiffsed
proceedings by way of originating summonses against the Defendant separately
and individually. However
on 20th June, 2000 the three cases were
consolidated.
Brief Facts
The Plaintiffs are former
yees of the Defendant.
1.
Oscar Buleuru
class="MsoNoMsoNormal" style="margin-left: 54.0pt; margin-top: 1; margin-bottom: 1">
He was appointed on 2nd
June 1997 to occupy the post of Treasurer. His bHis basic salary was VT65,276 per
month. He served on a three month probation
period and was confirmed a
permanent officer. He was however terminated by the Defendant on 10th
March, 2000. He was informed if such termination by letter on 13th
March, 2000.
2.
Andip Kensen
class="MsoNoMsoNormal" style="margin-left: 54.0pt; margin-top: 1; margin-bottom: 1">
He was appointed on 13th
October, 1998 to the post of Municipal Patrol Orol Officer. He served on
probation for a period of six months after which
he was confirmed to a
permanent status. However his appointment was terminated by the Defendant on
10th March, 2000. He was informed of such termination by letter
of 13th March, 2000.
3.Bruce
Robertson
He was appointed on 23rd
March 1999 to occupy the post of D of Deputy Town Clerk. He was confirmed as a
permanent officer on 8th October 1999 and was accordingly
informed by the Town Clerk in a letter dated 26th October, 1999.
However, his appointment was terminated by the Defendant on 10th
March, 2000. He was informed of such decision by letter dated 13th
March, 2000.
Allegations
Eachntiff claims that his
termination is unlawful in that no proper notices were served oved on them, and
that the proper
legal procedures were not followed by the Defendant in
terminating their employment.
Prayers
The Plain each seek the
following declarations and Orders:-
1. &nnsp;&&nsp;;&nspp;&nssp;&nsp;   For a declaraclaration that the Plaintiffs are permanent officers within
the meaning of the Act.
clasoNormtyle="text-indent: -35.45pt; margin-left9pt; margin-top: 1; margin-boin-bottom:ttom: 1">
1">
2. &nsp; & &nbbsp; &nbp; &nbp; &nbbp;&nnbsp;
In the alternaternative, that the Plaintiffs were officers not, able
misseer th givi rease notice.
3.ot;"> &nnsp;&&nsp;;&nspp;&nssp;&nsp;
ThatPlai tiffstiffs be entitled to remain in their respective
positions until dismissed in accordance with tw.
p class="MsoNormal" style="text-indent: -35.45pt; mat; margin-left: 70.9pt; margin-top: 1; mar; margin-bgin-bottom: 1">
4. &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Ap order for the rehe reinstatements of the Plaintiffthe Lille Muni Coun/span
lass=ormal" style="text-inxt-indent:dent: -35. -35.45pt;45pt; marg margin-lein-left: 7ft: 70.9pt0.9pt; margin-top: 1; margin-bottom:
1">
5. &bsp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp;
class="MsoNoMsoNormal" style="text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
6.   &nbssp;&nnbp; &nsp; &nbbp;&nnbsp; &nbbsp;
Foan>For such further or other relief as the Court deems meet.
7. &nsp; &nbbsp; &nbbsp; &nbp;
p;
For the osts of the applications.
The Plaintiffs have each filed
sworn affidavits in support of their claims. Except for Andip Kensen who was
not present
at the trial, the Plaintiffs Oscar Buleuru and Bruce Robertson
were put in the witness box to confirm their affidavits and
their contents
and to be cross-examined concerning them by the defence counsel. I do not
intend to set out their evidence
including that of the defence as these will
appear and be referred to throughout the judgment.
Andip Kensen
This Plaintiff did not appear
at the hearing to give evidence and to be cross-examined by the
Defence. Hee. He was aware
of the hearing. Mr Stephens applied to have his case
adjourned to a further date. Mr Daniel objected and applied to have his
claims dismissed.
The case has been consold
and therefore it cannot now be dealt with or taken in isolation. In my
opiniopinion the Plaintiff
Andip Kensen has failed to prosecute his own part of
the claim and therefore those claims must fail. Accordingly I dismiss
Andip
Kensen’s claims and his action in its entirety. I order that he pays the
Defendant’s costs of and incidental to
this proceedings which costs will be
taxed failing agreement.
<
Oscar Buleuru
I now move to deal with the
case ofr Buleuru. The issues to be considered are:-
>
p class="MsoNoMsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
(a) &nbp; &nnbsp;;&nbp; &nsp; &nnbp;&&nbp;;
/span>Was he a he a permapermanent officer?
pan lEN-GBle="font-size: 12.0pt".0pt">(b)(b) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp;
Wpan>Was his dismissal illegal?
&nbs>
Issue No. 1
He was appointed by Mr Havo
Moli who was then occupyhe position of Luganville Municipal Council
Commissioissioner. His
appointment was made effective from 2nd June
1997. He was advised of such appointment by letter dated 7th May
1997 which he annexed to his sworn affidavit as Annexure “A”. The commission
met on 7th May 1997 and approved his appointment which was to be
effective as from 2nd June 1997. His salary scale was in E1 at
VT55,000 per month including child allowance. He was to be on probation for
a period of three months.
The Law
1">
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Section 20 of the
Municipalities Act [26] (the Act) gives the Council discretionary
powers wers to appoint fit persons
as Officers. It reads:-
lass="MsoBoMsoBodyTextIndent" align="left" style="text-align: left; text-indent: -35.45pt; margin-left: 70.9pt; margin-top:
1; m-bottom: 1">
“(1) A Council may appoint fint fit
persons, not being councillors, respectively to be treasurer, medical
officer of health
and engineer upon terms and conditions as it may
determine.
(2) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
A Co maylappoiappoint such other officers as it may consider
necessary for the proper perfoe of unctif thecil u terms and
conditions as s as it mait may dety determinermine and may define the powers and
duti duties of such officers.”
Section 23 of the Act gives
power to the Couto make internal regulationations. It reads:-
“23(1) A Council shall make
inte internal regulatiulations, to be known as staff regulations, which subject to the
provisions
of this Act, may make provisions for all or any of the following
matters relating to persons in the service of the council–
(a)&nb"> &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp;
grade sandry sary scales;
(b) &nbbsp;& &nsp; &nsp; &nnbp;&
classNormayle="indent: -35.45prgin-left: 106.35pt; margin-topn-top: 1; : 1; margimargin-botn-bottom: tom: 1">
1">
<(c) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
(d) ;&nbssp; &nsp; &nsp; p; &nnsp;&
sp;
dian>disciplinary offences;
(e) p;&nbbsp;&nsp; &nsp; p; &nnsp;&
sp;
inan>interdiction and payment of salary or wages during any period of
interdiction;
(f) & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&
sp;
puan>punishments in respect of disciplinary offences including the with
holding or deferment of incre, fineductin rank or salary
an deons from salary in y in resperespect ofct of dama damage toge to property of the Council by
reason of misconduct or
breach of duty by an officer, servant or employee;
(g) ;&nbssp; &nsp; &nbs; &nbbp;&n p;
traininaining;
(an style="font:7.nt:7.0pt &0pt "quot;Times New Roman""> &nnbsp;; &nsp; &nsp; &&nbp;;
/ payment ment of allf allowances and the making of advances; and
(i) ;&nspp;&nssp; p; &nbp; &nbp;
n>teams and conditionitions of service generally, including matters relating
to procedure and duties and responsibilities of officers, servants and
employees.
ass="rmal"e="margin-toin-top: 1;p: 1; marg margin-bottom: 1">
(2) &bsp; &nbbp;&nnbsp; &nbbsp;
Stan>Staff regulations made under the provisions of subsection (1) shall
be subject to the papprof thester itingpan><
The Council has issued those
regulations known as The Luganville Municipal Council (Staff Regulations)
Order No.5 of 1989.
The Defendant has annexed as Annexure “A” to the
affidavit of Batick Karl dated 7th September 2000 which has been
read and received into evidence. Although this copy is unsigned I am
satisfied as to the
explanation by Mr Daniel as to why that is so and I
accept them as valid binding rules. I set out below the relevant part
concerning appointments – eligibility in Chapter 2 –
lass="MsoNoMsoNormal" style="text-indent: -70.35pt; margin-left: 106.35pt; margin-top: 1; margin-bottom: 1">
Clause 2.1 p;&nbi) Subject to
o
o
the Act only citizens of Vanuatu shall be appointed to post in service of
the Council.
class="MsoBoMsoBodyTextIndent3" align="left" style="text-align: left; text-indent: -35.45pt; margin-left: 107.45pt; margin-top:argin-bottom:
1">
(ii) &bsp; ;&nbpp; Notwitditanding
para paragraph 2.1(i), until a Ni-Vanuatu officer is qualified for appointment to
post in the service of the council, -citiffice be ated
to that post for a or a limitlimited peed period.riod.
2.2 &nbs; &nbbsp;&&nbp; (i)&nbs) p&nbssp;&nnsp; &nsp; The
Council mathe adhe advice of the Committee responsible for
recruitment and
appointment appoint temporary officers to a post in the service of th co.
lang="EN-GB" style="font-size: 12.0pt">(ii) & Any Anp temy
ary
a appointment shall be for a specific purpose
and shall contain the period of
appointment and the level of salary to be drawn by the temporary of.
class="MsoNormal" sty" style="mle="marginargin-left: 63.0pt; margin-top: 1; margin-bottom: 1">
(iii) & p; Tsp; Temporamporary
appointment shall not be made for a period exceeding 12 months.
2.3 (1) Subject to on
21(22)1(22) of the Act, the Council may from time to time employ such employees
as may be necessary
for the proper performance of the functions o
council.
n lang="EN-GB" style="font-size: 12.0pt">2.4 &&nsp;;&nspp;&nssp;
Any recruitment notice for any post in the service of the council
ncludempormployor aner ement shall be advertised
publicly
only on the the CouncCouncil’s il’s noticnotice boae board and also on the Government news
media.
2.5 &nbssp; &nbssp;
p;
Appn>Applications for appointment to posts in the service of the council
shall be addressed to the Council. Each application
sha in date
and shall be accompanied by the follofollowing:wing:
- birth cerate or
statutory decl declaration in lieu,
- a certified copy of any
certificate or references,
- a medical certificate,
- where appropriate, a marriage
certificate and children’s birth certificates,
- an official statement of
police record or equivalent document.
2.6 p;&nbbsp; (sp; (i)&nbs) & p;&nssp;&nsp; Tsp; The
appointof e of every officer including temporaficeremployee
shall
be on probation for a period of six months commencing from trom the dahe date on which
(such appointment is made)<
(ii) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp;
During the proe probationary period a contract of employment may be
terminatedithery witnotictime.n>
2.7 p; &nnsp;&&nsp; &nbp; &nb p;
/s Where an offi officer or employee is recruited outside the boundaries of
the council that officer or employee shall make hi
way port duty at his own expen/span>
Mr Buleuru says in his evidence
ths appointment was permanentanent. He provides no evidence as to that
permanent appointment.
Mr Havo Moli was not called to provide evidence of
confirmation of Mr Buleuru to permanent status. He was on probation for
3
months, that is 3 months shorter then the period provided for in the
Regulations Clause 2.6(i). Minutes of the Commission
meeting of 7th
May 1997 have not been produced in order to determine the basis of the
appointment.
Clause 2.5 of the Regulations
requires applications to be made to the Council. Mr Buleuru has not provided
any evidence
in relation to that aspect.
Clause 2.4 requires the Council
to advertise all recruitment notices. There iere is no evidence from the
Defendant showing
that this was done in relation to Mr Buleuru. There is
evidence however of a termination of Mr Buleuru. He was terminated by
the
Defendant at its meeting on 10th March 2000. The termination was
effective from 13th March, 2000. He had been employed beyond the
probationary period. He was employed for more than 12 months so that his
employment cannot be a temporary employment under Clause 2.2 of the
Regulations. He was employed for a period of 2 years and
8 months. In my
view Mr Buleuru had an implied contract of employment with the Defendant.
Section 15 of the Employment Act [CAP.160] reads –
Findings and Rulings
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I find therefore that Mr
Buleuru had an employment contract with the Defendant. The period of that
contract was not stipulated.
By section 15 of the Employment Act that period
shall be implied to be 3 years. Having been employed well outside the
probationary period, I find that Mr
Buleuru’s employment or status as
treasurer was permanent and I so rule. Mr Buleuru would have had a
reasonable expectation
to be employed by the Defendant for at least 3 years.
(See Civil Case No.16 of 2000 Ham Japhet V. Vanuatu Internal Air Services
Ltd unreported Judgement dated 20th October, 2000.)
Issue No. 2
The second issue is whether or
not his dismissed was illegallegal. He received a suspension letter from the
Clerk on 29th February 2000. The letter is in evidence as
Annexure “D” to Batick Karl’s affidavit of 7th September 2000. I
set out below the relevant parts –
p class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
lang="EN-GB" style="font-size: 12.0pt">“Dear Mr O. Buleuru,
Your Immediate Suspension
as Cous Council Employee
/p>
Accordinguganville
Municipal Spal Staff Regulation No.5 of 1989 prohibited Municipal Officers and
employees from engaging
in public controversy on political or Council
matters.
As not complying with the
Staff Regulation of Luganville ille Municipal Council No.5 of 1989 Chapter 5.13
and 5.14 I now
execute the following instruction:-
(i) &nnsp;& ssp;endspou
y w without pay until further notice effective 2nd March, 2000.
>
class="Mss="MsoBodyText" align="left" style="text-align: left; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(ii) &nnbsp; ……………………………………<
&n/span
Yours sincerely,
Signed: Batick Karl
Town Clerk”
The Law
class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
“All Municipal Officers employees are prohibithibited from public speaking, broadcasting, or engaging in
public controversy
on political or council matters. They should not seek to
use their public office or status for political or sectional purposes.
They
should not in any manner whatsoever conduct themselves in such a way as to
bring their office or the Council into
disrepute.”
Clause 5.14 reads –
“Council premises shall not be
used fsed for political activities, eg. Meetings, or the display of posters or
notices,
or distribution of pamphlets, etc. without the express permission
of the Council.”
Chapter 6 of the Staff
Regulations provide the Discipline of the offi officers or employees of the
Council. Clause 6.1
reads –
“Any officer or employee
of f the Council who fails to comply with the provisions of Chapter 5
of these Staff Regulations shall be guilty of a disciplinary Offence.
(emphasis, mine)
class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
“Where the clerk receives a
report that an Officefficer or employee has committed a disciplinary offence and
such disciplinary
offence warrants his immediate suspension from carrying
out his official duties, the clerk may suspend the officer on behalf
salary
and shall immediately report the suspension to the Council.
(i) &nnsp;&&nsp;;&nspp;&nssp;&nsp;   The Council scil shall either reject or confirm the suspension.
1">
<
(ii) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp;
Where the Coun Council rejects the suspension the officer or employee
shall rehis d.
clasoBody align="left" stylestyle="text-align: left; text-indent: -35. -35.45pt;45pt; marg margin-lein-left: 7ft: 70.9pt; margin-top:
1; margin-bottom: 1">
(iii) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
su>Where the
Council confirms the suspn thecil sgive ffice
oyee adequate opportunittunity to y to answeanswer any charges made
against himspan><.”
(emphasis, mine).
Clause 6.4 reads –<
“If the Council finds that the
charges do not result in any disciplinary or if the punishment is a warning,
the officer
or employee shall receive the salary withheld during his
suspension.”
Clause 6.5 reads –<
“The Council may impose any one
or more of the following punishments as it shall think fit:-
(a) &nbssp; &nbssp; &nbp;
warning;n/span>
(b) p;&nssp; p; &nbp; &nbp;
>
0pt">(c) p; &nnsp;&&nsp; &nbp; &nbbp;&n p;
suspensspension of increment;
(d) ;&nspp;&nssp; p; &nbp;
p;
demot/spa
1">
(e) & &nnsp;&&nbp;;&nbp; &nbp;
rary suspensioension from employment for a period not exceeding six
months with any consequential loss retirement its oart tf;
(f) &nbbsp;& &nsp; &nsp; &nnbp;& &n dismissal and
loss of retirement benefits in whole or in part.”
(emphasis, mine)
Evidence
The evidence from the Defendant
is that Mr Buleuru was seen toen to involve himself in politics. Mr Buleuru
himself admitted
in his evidence that he was involved &nnsp;&&nsp;; isppoli ics
ics
but that he did so outside official working hours.
Part of the evidence of
Mr Batick Karl is hearsay and it is inaible.e arexuresto
is afit of 7thup>th Sep> Septembetember 200r 2000 in particular the letter
dated 22 March, 2000 by Mr Leo Tamata and that by Kevin Shem. These
letters
were written after the termination of Mr Buleuru. The statement by James
Ulas put into evidence as Annexure “E”
to Batick Karl’s affidavit is also
inadmissible evidence. The letter containing information by Gary Mahina
tendered into
evidence by the Defendant as part of Annexure”C” is also
inadmissible hearsay evidence.
The writers of those letters
were never cato give oral evidence conficonfirming those information. The
only admissible
evidence is that of witness Terry Wilson who testified that
he also was present at a meeting held at Palekula during which
he saw Mr
Buleuru taking part in a political meeting. It was a meeting held outside of
official working hours.
class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
Applying the law to the facts
it is my opinion that the Plaintiff Mr BuMr Buleuru, on his own admission, was
involved
in political activities. Clause 5.13 clearly prohibits him from
doing so. He as a permanent officer had clearly demeaned his
office by doing
so. It did not matter that his actions or involvements were done outside
official working hours, as a
permanent officer he was clearly acting in a
manner that brought the Council into disrepute. He therefore committed a
disciplinary offence. Clause 6.1 clearly states that any officer who fails
to comply with the provisions of Chapter 5 of the
Regulations shall be
guilty of a disciplinary offence.
The next issue now is was that
procedure complied with? The proe procedure to be followed by the Council in
respect of
disciplinary offences is laid down in Clauses 6.3 and 6.4. These
are the various steps to be taken:-
1. &nbbsp; &nbbsp; &nbp; &nbp; &nb p;
/span>The Clerk reck receives a report against an officer alleging commission of
a disciplinary offence.
classBodyText" align="left" style="text-alignt; tedent: -34.9pt; marg margin-lein-left: 7ft: 70.9pt0.9pt; mar; margin-top: 1;
margin-bottom: 1">
class="MsoBoMsoBodyText" align="left" style="text-align: left; text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom:
1">
2. &nbbsp;& &nsp; &nsp; &nnbp;& &nnbsp;
Than>The Clerk forms an opinion whether to suspend the officer or not
based on the seriousness of the alleged disciplinary offence
ag him.n>
;&nbssp; &nsp; &nsp; p; &nnsp;&&nsp; &nbp;
Ter Clay suspesuspend the officer on half salary.
4. &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; Tpe Clerk shall repl repor suspension to the Council immediately.
1">
<
5. & &nnsp;&&nbp;;&nbp; &nbp; &nnbp;&
The Coue Council convenes a meeting and considers the report submitted by
the C(6.3(he Co eithjectsonfirms the suspension.
>
6. p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;&
span>Where thre the Coun Council rejects the suspenthe Or shasume duties (6.3(ii).
The officer is advised immediately of t of this dhis decisiecision.
7. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
Where thn Council confirms the suspension the council shall give the
officer or employee adequate opportunity to answer any
charges made st
im. Tnvolves the following wing stepssteps:-
(i) ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;&
Formally layinlaying disciplinary charges st thicer fying the disciplinary offences committed, the date and when the the offenoffences
wces were
ere
committed.
(ii) p; &nsp; &nbbsp;
span>Those chse charges rges are served on the officer together with a Notice
ifyin datehich
ouncil meeconsider tficer c/span
(iii) &nnbsp;;&nspp;&nsp; &nsp; &&nbp;;
The same same charge(s) and Notice are also served on the Clerk and the
informants to enable them to be present at the mg to
lled to
substantiat report in the event that thet the offi officer dcer deniesenies the
allegation(s) against him.
(iv) p; &nnsp;&&nsp; &nbp; &nb p;
/s On the date oate of meeting the charge is read to the officer ands
ked twer wr he accepts or denies the charge(s).
(v) ; &nnsp;&&nsp;;&nbp; &nbp;
/s If he accepts the cthe charge, the Council proceeds to make a decision.
: 1">
(vi) ;&nspp;&nssp; p;
p;
If he denies the charge, the Council calls the informant(s) to
provide his report to substantiate the allegations.
(vii) &nbbsp; &nsp; &nbbp;&nnbp;&
Tpan>The officer is then asked if he has any person to speak in his
support as a witness.houldllowespeakhimse expl and
and answer the charges made against him.
>
(viii) &nbbsp;& &nsp; &nsp;
/s After all this the the Council then makes a decision.
&nt">
>
Applying the l the facts
as supported by relevant and admissible evle evidence. I find that these
procedures were not
followed by the Council. Mr Buleuru was an officer of
the Council and it was encumbent on the Council to follow the procedures
outlined in Clause 6.3 of the Staff Regulations. I find no evidence of a
report of or by the Clerk as required. I have
already ruled that the letters
as Annexure “C” in the Affidavit of Mr Karl are not admissible as evidence.
As such there
is simply no report, save for the Plaintiff’s own admission. I
find further that the Town Clerk had suspended Mr Buleuru without
salaries.
It was submitted that the clerk had the power to do so under Clause 6.3. I
reject that submission. The Clerk
has discretion under that provision to
either suspend or not to suspend. If he decides to suspend, then it has to
be
on half salary. The Clerk had no power to suspend an officer without
salaries and I so rule. Further, I find and rule that
as a permanent
officer, Mr Buleuru was not given adequate opportunity to answer any charges
against him. The procedures
laid down in Clause 6.3 were not followed by the
Defendant. Accordingly I find and rule that the dismissal of Mr Buleuru was
done not in accordance with the procedures as provided for and required by
the law.
As regards the question of
notice the legal requirements are as stated in Chapter 9 of the Staff
Regulations. Clause 9.4
reads –
“The Service of an officer
or employee may be term terminated by giving due notice in accordance
with the terms of his engagement, and if no period of notice is specified
therein, by giving three months notice or three
month’s salary in lieu of
notice.” (emphasis, mine)
The evidence is that because of
the alleged involvement in politiolitics the Defendant viewed Mr Buleuru’s
actions as
amounting to serious misconduct and therefore there was no need
for issuing a notice. Evidence shows that the Plaintiff was
paid notice at
the rate of 14 days equivalent to VT38.599. (See Annexure “G” of Batick
Karl’s affidavit) He was also
paid one month severance at VT65.276. He was
paid for two days of work in February 2000 at VT4.085. Altogether he was
paid VT107.960 but a sum of VT83.000 was deducted in respect of cash
advancement. The balance he received was VT24.960.
It is clear to me that Mr
Bulwas entitled three months nths notice. No such notice was given him. He
was paid 14 days
in lieu of notice. He is entitled to the balance of payment
of three months in lieu of notice and I so rule.
Now to the reliefs sought the
Court makes the following Declarationstions and Orders:-
lass="MsoBoMsoBodyText" align="left" style="text-align: left; text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom:
1">
(1) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;
sp;
Than>That the Plaintiff Oscar Buleuru was a permanent officer within the
meaning of the Act.
(2) p; &nsp; &nbbsp;
(3) ;&nspp;&nssp; p; &nbp;
p;
The datioration sought under paragraph 3 of the Originating ss
not sary s herefusepan><
(4) &nnbsp;;&nspp;&nsp; &nsp; &&nbp;;
The declaratioration sought under paragraph 4 of the Originating Summons
is not necessary and is hereby refused.
(5) &nnsp;&&nsp;;&nspp;
s That the Plaintiff is entitled to balances of his entitlements to be
calculated.
clasoBody aligft" s"textn: left; text-indent: -34.9pt4.9pt; mar; margin-lgin-left: eft: 70.9p70.9pt; mat; margin-top: 1; margin-bottom:
1">
(6) &nbbsp; &nbbsp; &nbp; &nbp;
The Deft be rebe required to pay the Plaintiff’s costs of and
incidental to this act/span
lass=odyTelign=" style="text-align:
left; mat; margin-rgin-top: top: 1; margin-bottom: 1">
Outstanding Entitlements
(i) &nbbsp; &nbbsp; &nbp; &nbp; &nb p;
/span>Balance of seof severance for 2 months – (Sec56 ofoymen)
65,27 = 32
He has been paid 276: that
is equivaleivalent to severance for 2 years served at VT32,638 for each 12 months
period worked.
(ii) &nbbsp; &nbbsp; &nbp; &nbp;
Be of Notice –ice – 3 months x VT65,276 – (section 49(4) of
Employment Act)
p clasoBod" alieft" ="text-align: left; margin-top: 1;p: 1; marg margin-bottom: 1">
= VT195,828
Less amount paid = 30,599
VT157,229
p>
========
Total = VT32,638 + 157,229 ,229 =
VT189,867.
In my considered opinion the
Defendant was required to pay these in full correctly exercising their
discretion under Clause
6.5(f) of the Staff Regulations. I therefore order
that the Defendant pays a further sum of VT189,867 to the Plaintiff
forthwith.
ass="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
The Plaintiff will not be
entitled to any damages in view of the admissioissions in his evidence as to his
involvements
in politics in contravention of Clause 5.13 of the Staff
Regulations.
Bruce Robertson
Thues are –
class="MsoBoMsoBodyText" align="left" style="text-align: left; text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom:
1">
(an style="font:7.0pt "quot;Times New Roman""> &nnbsp;; &nsp; &nsp; &&nbp;; &n sp;
Whan>Whether ther or not he was a permanent officer?
: 1">
(b) & Whetheroor ns
his
d dismissal was legal?
&nbs>
/p>
<
Issue No.1
He was appointed by the Mayor
by letter dated 23 March 1999. The lett letter is in evidence as
Annexure “A” to his affidavit sworn on 13th July 2000. He held
the position of Deputy Town Clerk. He was to be on probation for 6 months.
His job description was
clearly defined. However by letter dated 13th
March 2000 the Plaintiff was advised that he was effectively terminated on
that date. The Council having met on 10th March 2000 to make that
decision. The only reason given for such termination is that his position
was a political post.
The letter is in evidence as Annexure “B” to his
affidavit.
The Town Clerk advised the
Plaintiff by letter dated 26th October 1999 that that a decision was
made on 8th October 1999 that a decision was made on 8th
October 1999 to confirm his position as a permanent status with effect from
25th October 1999. His salary was VT69,600 per month.
The Defendant denies that the
Plaintiff’s appointment wast was permanent. They submit that the post he occupied
was a political
post. In their evidence they refer the Court to a Memorandum
of Understanding (MOU) signed between the Vanuaaku Party (VP)
and the Union
of Moderate Parties (UMP) on 22nd February 1999. It is in
evidence as Annexure “A” to Batick Karl’s affidavit of 7th
September 2000. Paragraph 5 provides for the office of Deputy Town Clerk as
follows –
class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
“The office of Deputy Town
Clerk to be held by VP from February 1999 to February 2001.”
On 15th Nor
1999 the Chairman of UMP gave one month notice to t to their VP counter-parts
that they intended to terminate the
MOU signed between them on 22nd
February 1999 that is some 8 months earlier. This letter is in evidence as
Annexure “B” to the affidavit of Batick Karl.
On 15th February,
2000 the National United Party (NUP) and the Melanesian Progressive Party (MPP)
signed another Memorandum of
Understanding for the purposes of running the
Council in place of UMP and VP. Paragraph 9 of their MOU they provided for a
change in the office of Deputy Town Clerk. It reads –
“The Office of Deputy Town
Cle be held by NUP from Februaebruary 2001 to February 2002.
class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
The Office of the Deputy Town
Clerk to be held by d by MPP from February 2002 until the end of the present
council.”
These are the circumstan that led to the dismissal of Mr Robertson. On the one one hand we have policies
and on the other
we have the law and its regulations. I have attempted to
set out some relevant provisions of laws and regulations in relation
to Mr
Buleuru and I do not wish to repeat them here. There is evidence that the
post of Deputy Town clerk was advertised
in accordance with clause 2.4 of
the Staff Regulations. There is evidence that eight (8) persons applied in
written form
for the post. These letters are in evidence as Annexures “A” to
Batick Karl’s affidavit of 31st January 2001. None of these
letters belongs to Mr Robertson although he did say in his evidence that he
did apply. He
was not able however to provide a copy of his letter of
application together with certificates as required by Clause 2.5 of
the
Staff Regulation. I am not prepared therefore to accept his evidence as the
truth.
None of those who applied was
picked for the position of Deputy Towy Town clerk. The Plaintiff was appointed
although
he did not apply. In my opinion Mr Bruce Robertson was a political
appointee. He was appointed by the Mayor on 23rd March 1999.
Appointments are made by the Council (see section 22 of the Act). The Mayor
is not the Council. Decisions
of the Council are executed through or by the
Town Clerk as Chief Officer of the Council. The letter of 23rd
March, 1999 was copied to the Treasurer and the Town Clerk. That is a clear
indication that the appointment was not made
by the Council.
lass="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
As regards hisanent status
the Council decided that on 8th October 1999. Mr Robertson had
fulfilled his probationary period which ended on 8th September
1999. The Town Clerk himself wrote that letter which is in evidence as
Annexure “B” to Batick Karl’s affidavit.
He wrote it on behalf of the
Council as its Chief Officer. The Council at the time were elected members
of VP and UMP
having the majority and who were running the Council under the
MOU signed by them on 22 February 1999. Under their arrangement,
Mr
Robertson was to occupy the post of Deputy Town clerk from February 1999 to
February 2001. In my opinion that is the
period which the Council had
confirmed the Plaintiff to remain as Deputy Town Clerk for. That period was
determinable
by how long the parties running the Council were able to hold
on together. In Mr Robertson’s case the MOU came to end on or
about 15th
December 1999 because the Parties to it were not able to hold on together.
Therefore two new Parties came up to run the
Council with their strategies.
It was impossible for the Plaintiff to remain in his post under a different
arrangement
by different parties not his own. If the Plaintiff has any
claims at all, then it is against his party and not the Council
in my view.
Conclusions
I therefore conclude that the
Plaintiff’s appointment was not permanent. The tere term “permanent” used in his
letter
of 26th October 1999 must be read to mean the period under
which the Plaintiff held the post under the political arrangements of 22
February 1999.
p class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
Having comehis conclusion
I also conclude that the Plaintiff’s df’s dismissal was proper in the
circumstances. And that
takes care of the second issue. The issues of
disciplinary offences are therefore of irrelevant considerations.
class="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1">
I accordingly dismiss the
Plaintiff’s Originating Summons and order that the Plaintiff pays the
Defendant’s costs of and
incidental to this action.
DATED at Luganville this 16th
day of March, 2001.
BY THE COURT
OLIVER A. SAKSAK
Judge
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