Lolos v Republic of Vanuatu [2007] VUSC 92; Civil Case 26 of 2007 (30 October 2007)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 26 of 2007

BETWEEN:

SANDY LOLOS
Claimant

AND:

GOVERNMENT OF THE REPUBLIC OF VANUATU
Defendant

Coram: Justice Tuohy

Counsels: Mr. Yawha for Claimant
M. Ngwele for Respondent

Date of Conference: 30 October 2007
Date of Decision: 30 October 2007

RULING

1. When this proceeding was filed, it name as First, Second and Third Defendants, the Police Service Commission, the Public Service Commission and the Police Commissioner. The Claimant is a police officer who is claiming that he was underpaid between 1991 and 2005 because he did not receive "responsibility allowances" which he says he was entitled to.

2. Mr. Ngwele, counsel for the Defendants, applied to strike out the claim against all three Defendants because none of them was the employer of the Defendant. After this application was filed, Mr. Yawha counsel for the Claimant, himself applied to remove the First and Third Defendants and to add the Government as a Defendant. There was no opposition to this and I have made orders accordingly. The application to strike out the claim against the Public Service Commission ("PSC") was, however, opposed.

3. It is obvious that a claim by an employee for unpaid remuneration must be against his employer who is liable to pay him under the contract. There seems to be no dispute that the Government is the Claimant’s employer and liable to pay him. But Mr. Yawha submits that the PSC is also his employer. He submits that because s. 15 of the Public Service Act imposes on the PSC a duty to act as a good employer.

4. The PSC is specifically referred to in several articles contained in Part I of the Constitution which relates to the public service. Article 60 relates to the functions of the PSC which are primarily the appointment, promotion and discipline of public servants. (Members of the Police are specifically excluded but that point was not relied upon in the argument).

5. As well the Public Service Act in Parts II and III contains a number of provisions relating to the objectives, functions and membership of the PSC. More particularly, s. 8 (1) provides:
   
   • (a) to provide policy advice to Government on matters relating to the efficiency and effectiveness of the Public Service and in human resource development; and
   • (b) the appointment and promotion of employees on merit; and
   • (c) the selection or approval of those to undergo training courses overseas and for such purposes may organize competitive examinations; and
   • (d) the resolution of employment disputes and discipline of employees in accordance with this Act; and
   • (e) promoting the codes of conduct in Part V; and
   • (f) subject to the provisions of any other enactment, to classify and set levels of salary and allowances and other entitlements of employees; and
   • (g) to review the efficiency and economy of the Public Service in employment matters; and
   • (h) for the purposes of efficient Government in employment matters, to review the establishment and approve the grading of posts; and
   • (i) coordinating and providing training programs in Vanuatu for, and assisting with, the training of employees; and
   • (j) providing guidelines to directors-general, directors and to the Public Service in managing or developing employees in good employer systems and obligations; and
   • (k) ensuring the observance of the rule of law in public affairs;
   • (l) to ensure compliance with and be responsible for the administration of this Act.
     
6. Nowhere in the Constitution or the Public Service Act does it say that the PSC itself is the employer of public servants generally or is itself liable to pay their remuneration. Section 14 of the Act does give the PSC power to appoint its own employees as may be necessary to enable it to carry out its functions and duties. It is plain however that the functions and duties referred to are those of the PSC itself not those of the public service generally. The existence of section 14 confirms that the PSC is not itself the employer of public servants, except for those who carry out the work of the PSC. Even with regard to those employees, it does not necessarily follow that the Commission itself (as opposed to the Government) is liable for their remuneration. That is something which it is not necessary to decide in this case.
   
7. I do not think that section 15 of the Act changes the substantive position. Although s. 15(1) requires PSC members to ensure that the PSC "shall be a good employer" and s. 15 (2) provides that the Commission shall act "as a good employer", that refers only to the way in which the PSC should act in carrying out its duties. In my view, those provisions are not intended to create direct contracts of employment between the PSC and public servants generally. The fact that the PSC has the power on behalf of the Government to appoint, dismiss, promote and discipline public servants does not make it their employer. The employer of public servants is the Government. The same conclusion has also been reached by the Courts of Fiji: see Attorney General v. Halka 18 FCR 210, 215 per Gould V. P.
   
8. Accordingly, I consider that this is an appropriate case to strike out the claim against the PSC and to remove it as a defendant. The claimant’s case against the PSC is clearly untenable as a matter of law. It is, of course, perfectly tenable as against the Government (subject to limitation issues yet to be decided).
   

Dated at Port Vila, this 30th day of October, 2007

BY THE COURT

C.N. TUOHY
Judge