| Fiji Islands - The State v Public Service Commission, Ex parte Consuelo Padua - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW No. 10 of 1996
THE STATE
v
PUBLIC SERVICE COMMISSION
Ex parte: CONSUELO ARCEO PADUA
Mr. M. for the AppliApplicant
Mr. D. Singh for the Respondent
JUDGMENT
On 4 June 1996 DR. CONSUELO ARCEO PADUA (the "applicant") had filed the necessary papers under Order 53 of the High Court Rules applying for Judicial Review of
the decision of the Respondent the Public Service Commission (the "PSC") terminating her services by letter dated 13 March
1996.
The said termination letter is in the following terms:
"The Public Service Commission, after considering the complaints raised against you for unsatisfactory performance has decided
at its meeting of 06 March 1996 that your appointment in the service be terminated forthwith .
In accordance with Clause 8(b) of your Agreement of Service you will be paid one month salary in lieu of this notice.
The Permanent Secretary for Health and Social Welfare is also advised to take necessary action regarding your termination."
Relief sought
The reliefs sought are as follows:
"(a) AND ORDER OF CERTIORARI to remove the said decision of the Commission into this Honourable Court and that the same be quashed.
(b) A DECLARATION in any event that the proceedings and decision aforesaid are:
(i) Null and void;
(ii) In contravention of the provisions of the PUBLIC SERVICE COMMISSION (Constitution) Regulations 1990 namely Regulations 41 to 46(1);
(iii) in breach of the rules of natural justice and fair play;
(iv) prejudiced;
(v) an abuse of discretion;
(vi) in excess of jurisdiction;
(vii) unreasonable having regard to the lack of evidence or insufficient evidence to support the same;
(viii) in breach of her legitimate expectations.
(c) A declaration that the Public Service Commission failed to exercise its powers under the Contract of Employment in good faith.
(d) Damages against PUBLIC SERVICE COMMISSION.
(e) Further Declarations or other relief as to this Honourable Court may deem just.
(f) Costs of this action on an indemnity basis and in any event on a Solicitor/Client basis."
Grounds of relief
The Grounds on which reliefs are sought are:
"(a) That the PUBLIC SERVICE COMMISSION breached the Rules of Natural Justice in that it did not give the Applicant a fair or
any hearing before deciding to terminate her.
(b) That the PUBLIC SERVICE COMMISSION failed to give any or any proper reasons for its decision.
(c) That the decision of the PUBLIC SERVICE COMMISSION is null and void etc. as set out in item (b) of "relief sought" referred
to hereabove.
(d) That the PUBLIC SERVICE COMMISSION abused its discretion in that:
(i) That it took into consideration irrelevant matters and;
(ii) It did not take consideration relevant matters and;
(iii) It acted unreasonably arbitrarily or in bad faith;
(e) That PUBLIC SERVICE COMMISSION has failed to comply with the terms of the contract of employment and therefore the termination is unlawful and bad in law.
(f) That the PUBLIC SERVICE COMMISSION
exercised in powers under the Contract of Employment in bad faith."
About the applicant and background facts
In so far as it is material to this case, I briefly outline the facts.
The applicant who came to Fiji from the Philippines entered into a contract of employment (the "contract") with the PSC
for a period of three years to serve as a medical officer from 22 March 1994 (Annexure ‘A’ of her affidavit of 4.6.96).
She was employed at the Labasa Hospital at first in the Paediatric Unit and later in the General Outpatient Department.
Her employment was subject to terms of contract, the provisions of the Fiji Public Service Decree 1990, Public Service Commission
(Constitution) and statutory Regulations, 1990 and the General Orders of the Government as stipulated under Clause 2(e) of the contract.
In her employment as a Medical Officer she was also subject to the Fiji Medical and Dental Practitioners Act (Cap.255). She was issued with a registration certificate by the Fiji Medical Council.
On 20 March 1996 she was called in the office of the Medical Superintendent of Labasa Hospital along with her doctor husband MARIO
NAGALES PADUA and was handed with the said letter of termination dated 13 March 1996 terminating her employment with the PSC forthwith
for "unsatisfactory performance". Subsequently she was fully paid in terms of contract.
Background to the application
On 4 June 1996 at the time of making the Application the applicant filed the following documents. Application for Leave to Apply for
Judicial Review (Order 53, Rule 3(2)), Statement filed pursuant to Order 53 Rule 3(2), Affidavit (of the applicant) in Support. There
was also a Motion for Stay dated 4 June 1996. Leave was granted to the Applicant by Pain J on 6 May 1997.
There has been Change of Solicitors in this case. It was commenced by Gibson & Co, Labasa but then Kato and Company took over
as solicitors. Because of a criminal case against Mr. Kato he had to abandon this case. Thereafter the applicant appointed the present
counsel Mr. M. Raza. All these led to a considerable delay in the hearing of the judicial review.
Applicant's submission
The applicant contends that the Commission acted arbitrarily, unfairly and in a high-handed manner in terminating her employment without
following the laid down procedures.
The Public Service Commission Decree, 1990 and the Public Service Commission (Constitution) Regulations, 1990 (the "Regulations")
set out the Commission's powers. The disciplinary provision against an officer are set out in Regulations 36 to 53. But disciplinary
powers for malpractice by a medical practitioner are vested in the Fiji Medical Council under section 27 of the Medical and Dental Practitioners Act, (Cap. 255). But Mr. Raza submits that regulation 27(c) clearly states that the contract shall be terminated in accordance with its
terms but she was also subject to the Commission's regulations. The commission he says did not follow the procedure laid down in
the regulations particularly reg.41. Hence there was denial of natural justice. No proper investigation was carried out by any competent
person on the allegations against the applicant and the "serious question arises whether those two reports contain "views" of the competent persons to adjudge the Applicants
performance".
Mr. Raza argues that despite damaging reports against her, she has not been given the opportunity to answer them or cross-examine
the complaints as to the truth of those allegations made against her. Because of the reasons for termination being of such a damaging
nature that it will be impossible for the applicant to obtain another employment in her profession as a doctor.
Respondent's submission
Mr. D. Singh for the Respondent submitted that the applicant is governed by the contract of her employment as provided for in clauses
2 & 8 thereof.
He says that if after reasonable inquiries PSC is satisfied that the officer is guilty of misconduct or the breach of any term of
the contract, the officer may be summarily dismissed. This means, he says, that the test of the requirement of summary dismissal
is a subjective one on the part of PSC.
According to Mr. Meli Bainimarama, the Secretary to the Commission the applicant's employment was terminated under clause 8(b) and
clause 10 of her contract. The said clause 10 allows for summary dismissal upon reasonable inquiries being made to the satisfaction
of PSC and that the applicant was guilty of misconduct. The applicant was paid all salaries owed to her and all entitled benefits
as contained in contract of employment after leave was granted to her for judicial review on 6 May 1997. The contract has now expired
i.e. on 23 March 1997.
Consideration of the issues
There are certain principles applicable when considering an application for judicial review. In a judicial review the Court is "not
as much concerned with the merits of the decision as with the way in which it was reached" [CHIEF CONSTABLE OF THE NORTH WALES POLICE v EVANS [1982] UKHL 10; 1982 1 W.L.R. 1155 at 1174. Also, as put by LORD TEMPLEMAN in REG. v INLAND REVENUE COMMISSIONER, Ex parte PRESTON [1984] UKHL 5; (1985) A.C. 835 at 862:
"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach
of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers."
In a judicial review the Courts ensure that administrative actions are intra vires and keep within the bounds of their authority.
These actions will be ultra vires if they fail to comply with the requirements of certain statutes and by common law. It is important
that administrative actions take into account all relevant considerations and ignore any irrelevant considerations. The decisions
must be reasonable; they must not be biased or pre-determined; they must be exercised with the rights of natural justice in mind,
unless a statute, expressly or clear implication provides a contrary intention.
This application requires me to consider whether the "process" by which the decision was reached is authorised or valid.
I am not here to consider the merits or otherwise of the ultimate decision; but sometimes the distinction between the decision-making
process and examination of the merits of the decision itself is difficult to make.
Like in any judicial review the basic question is, has the decision-maker acted intra vires or within the discretion conferred reasonably
and fairly.
The learned counsel has enumerated numerous grounds in the relief sought. In actual fact they boil down to two main grounds namely,
firstly procedural ‘impropriety" i.e. whether there has been a breach of the procedure set out in Regulation 41 and secondly,
whether there was a denial of natural justice.
First ground
The applicant is governed by the PSC Regulations and the terms of her contract. On the facts and circumstances of this case, her termination
by PSC is susceptible to judicial review despite the provisions in the contract in clause 8(b), inter alia that:
"Without prejudice to the provision of paragraph 10 (relating to dismissal) Government may terminate this Agreement:
(a). . . . .
(b) at any time by giving in lieu of the notice aforesaid, one month's basic salary; and
(c). . . . .
The applicant was dismissed from service on the ground of "unsatisfactory performance". I would at this stage refer to the
dismissal clause 10 in the contract which, in so far as it is relevant, is as follows:
"10. If after reasonable inquiries the appropriate Service Commission is satisfied that the Officer has been guilty of misconduct
or a breach of any term of this Agreement the Officer may be summarily dismissed and upon such dismissal all rights and advantages
reserved by him under this Agreement shall cease."
It is not quite clear, and it has not been raised at all, whether the said clause 10 covers "unsatisfactory performance"
to entitle the PSC to dismiss the applicant.
Be that as it may, on the affidavit evidence before me I do not find any evidence of any complaint either verbal or in writing having
been put before the applicant for her to answer and I agree with her in this regard. In fact the report of the Medical Superintendent,
Labasa Hospital dated 2.3.95 has very little complaint against the applicant and all in all it is insufficient to justify summary
dismissal. He says in his "conclusion/Recommendation inter alia that "most of the complaints is of malpractice is against Dr. Mario Padua (the husband doctor) rather than Consuelo Padua (the applicant)
Dr. Mario Padua definitely lacks the necessary knowledge and skill required in medicine, or his position as Head of Unit for that
matter. Certainly most of the complaints about mismanagement is levelled against him". If the allegations were so serious then she should have had disciplinary proceedings commenced against her under reg. 41. She would
then have had the opportunity of answering to the allegation. The procedure under reg.41 should have been followed. Since unsatisfactory
performance is alleged against her another avenue was open to PSC and that was to refer the matter to Fiji Medical Council which
could have properly dealt with it when it concerns professional people.
It is quite obvious on the facts that the provisions of reg. 41 have been ignored to the extent that she has not been given the opportunity
to make representations or be heard. The applicant is completely ignorant of the allegations made against her. If there were allegations
then she should have been allowed the opportunity of either admitting or denying them as required under reg. 41.
At this stage, I think I ought to refer to the decision of PAIN J herein of 6 May 1997 when the applicant applied for leave for judicial
review. His Lordship granted leave and stayed the decision with salary and considered at some length the various affidavits filed
therein. His decision sums up the view that I now hold that the dismissal was based on a very weak foundation. Pain J said that:
"these total circumstances could give rise to the possibility that the decision to consider termination of the Applicant's employment
was Influenced by the very serious complaints and allegations against her husband. It might be that there were overwhelming grounds
for termination of his employment, and as his wife, the Applicant was automatically included. That, of course, would not be a proper
exercise of discretion. The applicant had a separate Agreement of Service and was entitled separate consideration.
His Lordship goes on to state as follows with which agree:
"However, in the absence of more specific information of the Applicant's unsatisfactory performance", It is arguable that
the Respondent did not exercise its discretion to invoke the dismissal provisions of her Agreement of Service in accordance with
its duties as a public authority. Proper consideration may not have been given to her individual performance of her duties and/or
the Respondent may have wrongly taken into account or been influenced by the serious medical misconduct of her husband Dr Mario Padua.
It would not be in the public interest for the Respondent to dismiss a medical officer whose work was adequate and the evidence of
the Respondent's knowledge on this matter is inclusive."
On the facts before me find that there was unfairness in the manner in which the decision was reached. This is an important head of
challenge. The applicant had not been given a fair opportunity to make representation so that the decision-maker may become fully
acquainted with all the relevant considerations before reaching a decision. The applicant should also know the case she has to answer.
Hence there is a duty to act fairly. On the aspect of ‘fairness’ I find the following passage from the judgment of LORD
MUSTILL in DODDY v SECRETARY OF STATE FOR THE HOME DEPARTMENT (1995) 3 All E R 92 at 106 pertinent:
"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the
often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive the following:
(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which
is fair in all the circumstances.
(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application
to decisions of a particular type.
(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on
the context of the decision, and this is to be taken into account in all its aspects.
(4) As essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of
the legal and administrative system within which the decision is taken.
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make
representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is
taken, with a view to procuring its modification, or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests
fairness will very often require that he is informed of the gist of the case which he has to answer."
Natural Justice - second ground
The procedure under reg. 41 was not complied with by PSC . This is one case which cried out for the application of the principles
of natural justice. The right to be heard and to be able to present her case was her right and the applicant should not have been
condemned without a hearing. In Ridge v Baldwin [1963] UKHL 2; (1964) AC 40 LORD REID emphasised that the right to be heard should depend upon the consequences of the decision to the individual and not upon
whether the decision is administrative or judicial. A government decision which causes serious harm to an individual ought in principle
attract the right to be heard. The importance of the right to be heard has been highlighted by LORD FRASER in IN re EMILTON; IN re FORREST (1981) AC 1038 at 1045 when he said:
"One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before
any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any,
as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings
has been excluded by Parliament or by necessary implication."
In the outcome I find that PSC's actions were ultra vires. The Commission erred in law. The PSC was dealing with a professional person
to wit a doctor and it behooved it to have been very careful in dealing with the matter and it should have dawned on it that the
applicant is also controlled by the Fiji Medical Council in so far as misconduct or unsatisfactory performance etc are concerned
and the matter fell within the purview of the Fiji Medical Council and that Council would have been a more appropriate body to deal
with the situation that the PSC was confronted with.
Conclusion
To sum up there has been procedural impropriety in this case. The Public Service Commission proceeded on the wrong footing ab initio.
The procedure which has been so clearly spelt out in regulation 41, which is applicable in this case, has been ignored and has been
thrown out the window in such a way that it resulted in the denial of natural justice to the applicant.
In the result I grant judicial review of the Respondent's decision. The applicant whose contract has also expired has already been
paid her full salary and other entitlements under the contract and hence on the facts and circumstances I make no order for damages.
It is ordered that certiorari go to quash the decision of the Respondent terminating the applicant's services under the contract with
costs to the applicant to be taxed if not agreed.
D. Pathik
JUDGE
At Suva
9 November 1998
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