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Amilale v Public Service Commission [2009] TVHC 2; Civil Case 07 of 2009 (26 October 2009)

Civil Case no. 7/09

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Between:

Mila Amilale
Applicant

V

Public Service Commission
Defendant

BEFORE THE CHIEF JUSTICE

S Kofe for applicant
D Gorman for respondent

Hearing: 23 October 2009
Judgment: 26 October 2009

JUDGMENT

1. The applicant has worked in the public service since 1983 when she started as Assistant Librarian. In 1987 she was promoted to Librarian and Archivist and has held the position since. However, on 12 December 2008, her employment was terminated by the respondent. She has sought judicial review of that decision. Mr Gorman has conceded that there has been a denial of natural justice and does not oppose the remedy sought. It is necessary therefore only deal very briefly with the background of the case.

2. The applicant has for some years also been an active member of the Tuvalu National Council of Women (TNCW) and was elected as President in 2005.

3. In April 2007 she received a letter from the Secretary Personnel and Training (Secretary P/T) stating that the Public Service Commission (PSC) had raised concern about her holding the position of President of the TNCW. It pointed out that she should have obtained permission and suggested she do so. The applicant replied on 7 May 2007 pointing out that her duties as President of the TNCW did not conflict with or compromise her work in the public service, apologising for failing to seek permission and concluding:

"I would also take this opportunity to respectively seek the permission of government, especially the Secretary to Government, to allow me to continue my work as the president of TNCW ..."

4. That request received no response but further correspondence ensued between the Secretary P/T, the TNCW and the applicant about her position on the TNCW and repeating that she should seek permission.

5. On 22 October 2007, the PSC held a meeting at which it was decided that the applicant should be allowed to continue as President of the TNCW until the Council’s AGM in 2008. It is clear that was never communicated to the applicant.

6. In the meantime, on 12 November 2007, the applicant wrote to the Secretary to Government repeating her apology and asking, once again, for permission. There was, again, no response.

7. The applicant was re-elected as president of the TNCW in November 2008.

8. On 11 December 2008 the PSC met and decided to terminate the applicant’s appointment. She was advised by letter the next day. The minutes of that meeting show the issue was only raised under AOB and records that the decision was based on the PSC’s conclusion that the applicant had "lied to the Commission that she will give up her presidential position in the general meeting" of the TNCW.

9. It is clear and is accepted by counsel that the applicant never made such a statement and that the Commission’s decision to allow her to continue as President only until the AGM had never been passed to her.

10. I do not go into the evidence further. It is clear on the evidence, as Mr Gorman properly concedes, that there have been fundamental procedural failures resulting in a denial of natural justice. The PSC made no apparent attempt to follow its own procedures in PSC rule 57 with the result, inter alia, that the applicant was never told of the disciplinary offences with which she was to be or should have been charged, was given no opportunity therefore to answer them and the final decision to terminate her employment was based on a mistake of fact which had never been put to the applicant.

11. In those circumstances I order certiorari to bring the decision into this Court and I quash it. The basis for the declarations is adequately covered by that order and I do not see any need to make them.

12. I am advised by counsel for the respondent that the applicant’s position has been filled only by a temporary appointment and so the applicant can be reinstated in her position and will therefore be due to receive any salary which she has not been paid since the purported dismissal was made.

13. The applicant shall have her costs including the court fees.

Dated 26th day of October 2009

Hon. Gordon Ward
CHIEF JUSTICE