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Garae v Public Service Commission [2005] VUSC 114; CC 012 2004 (28 September 2005)

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

Civil Case No. 12 of 2004

BETWEEN:

BEN GARAE
Claimant

AND:

PUBLIC SERVICE COMMISSION
Defendant

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Willie J. Kapalu for the Claimant
Miss Florence William for the Defendants

Date of Hearing: 27th and 28th June 2005
Date of Judgment: 28th September 2005

JUDGMENT

Introduction

This is a reserved judgment.

Claims

The Claimant seeks damages against the defendants for unlawful or unjustified dismissal in the sum of VT4,152,966 made up as follows:-

(a) Severance payment = VT 528,355

(b) Notice = VT 287,616

(c) Annual Leave = VT 166,655

(d) Damages for unjustified dismissal = VT3,170,310

Total = VT4,152,966

He further claims costs of and incidental to this action.

Facts

The Claimant was employed by the defendant within the Lands Department since 1^st January 1996. After a total of 8 years 1 month and 11 days his employment was terminated on 11^th February 2004. He held the position of Acting Principal Lands Officer within the Luganville Urban Lands Department and earning a monthly salary of VT95,872.

The reasons provided for this termination were:-

(a) That the Claimant had carried out improper valuation of land title 03/0J94/067 which was then approved and allocated to him.
(b) That the Claimant had caused loss to Government funds through unlawful receipts of housing allowances.
(c) That the Claimant had on numerous occasions misused government vehicle No. 437.

These reasons were specified in the letter of suspension served on the Claimant by Mr Alick Kalmelu, the Acting Director of Lands dated 29^th October 2003. That letter was varied by the Director General, Mr Stephen Tahi three days later on 31^st October 2003 when the Claimant was reinstated to his position.

However on 11^th February 2004 the Claimant was informed by letter from the Acting Secretary Mr Bill Willie that he had been dismissed for serious misconduct for reasons as in (a) and (b) above.

Allegations

The Claimant alleges that:-

(1) He was not given the opportunity to be heard before the decision to terminate; and

(2) That as a result he had suffered losses and damages for unjustified dismissal.

Burden and Standard of Proof

The burden of proof rests on the Claimant to prove his case in the balance of probabilities.

Evidence for the Claimant

Evidence was received by way of sworn statements from the Claimant. He was cross-examined on his statements by Miss Williams. He called no independent witness evidence.

Evidence for the Defendants

The defence called evidence from Mr George Pakoasongi the current secretary of the Defendant, and from Mr Michael Mangawai the current Director of Lands. Both witnesses were cross-examined on their statements by Mr Kapalu.

Issues

It appears to me that the facts are not in dispute. However Mr Kapalu has raised some issues in his written submissions that the Court will first consider as follows:-

(1) Whether the allegations against the Claimant are serious?

Mr Kapalu argued and submitted that the allegations were not serious taking into account the four years that had lapsed after the incident complained of before action was taken.

Findings and Conclusions by the Court

From the evidence before me it is true that the improper valuation of land title no. 03/0J94/067 was done by the Claimant in the year 2001, and the allegation of loss of government funds through receipts of housing allowances were made in 2002. But in my view the length of time that has lapsed do not make the actions any less serious.

The law

Section 34 of the Public Service Act No. 11 of 1998 (the Act) states –

“Every employee, director-general, director or senior administrator (as the case may be) must in the course of his or her employment in the Public Service:-

(a) ....................., and
(b) ....................., and
(c) behave honestly and with integrity; and
(d) act with care and diligence, and
(e) ......................, and
(f) use resources and public money in a lawful and proper manner; and
(k) not provide false or misleading information in response to a request for information; and
(l) not make improper use of information or his or her duty, status, power or authority in order to gain or seek to gain a benefit or advantage for himself or herself or for any other person; and......”

The Claimant accepted in cross-examination that he did the valuation over the title which he was allocated by himself. His valuation was VT200,000 whereas the Valuation Unit valued it at VT771,200. The evidence by Mr Mangawai showed that it was not the normal procedure that an applicant for a lease should himself be the valuer of the property. The evidence also is that the Claimant got the lease over that title after making that valuation. Against that set of facts the Claimant was acting contrary to section 34(1)(c), (d), (k), and (l) of the Act. Those actions are serious enough to warrant a disciplinary proceedings against the Claimant and/or a dismissal.

The Court concludes that the two allegations made against the Claimant were serious and as such amounted to serious misconduct.

2. Whether the defendant has waived its rights to terminate the Claimant?
   

Mr Kapalu referred the Court to section 2.3.2(b) of the Public Service Staff Manual which states –

“In cases where the employee has been suspended in full pay, the matter shall be referred to the Commission as soon as practicable but no later than 10 working says after the Director has become aware of the alleged disciplinary offence committed by the employee.”

Findings and Conclusion by the Court

Section 2.3(2)(b) provides for the procedure to be taken when there has been a suspension. In this case the Court concludes that there was no suspension. The evidence is clear. Mr Alick Kalmelu, the Acting Director suspended the Claimant by letter dated 29^th October 2001. Mr Steven Tahi the Director-General overruled that suspension and re-instated the Claimant to his position. It is clear therefore by that fact that there was no suspension and section 2.3(2)(b) is irrelevant and does not come into play.

3. Whether there was compliance with natural justice?

Mr Kapalu relied on section 50 of the Employment Act [cap. 160] to submit that there was no natural justice afforded to his client.

Section 50 of the Act states –

“(3) Dismissal for serious misconduct may take place only on case where the employer cannot in good faith be expected to take any other course.

(4) No employer shall dismiss an employee on the ground of serious misconduct unless he has given the employee an adequate opportunity to answer any charges made against him and any dismissal in contravention of this subsection shall be deemed to be an unjustified dismissal.

(5) An employee shall be deemed to have waived his right to dismiss an employee for serious misconduct of such action has not been taken within a reasonable time after he has become aware of the serious misconduct.”

The natural justice issue

The evidence from Mr George Pakoasongi was that the Defendants received a report concerning the actions and allegations against the Claimant. His evidence shows further that on 28^th November 2003 the Commission sent to the Claimant a PSC Form 6-1 which set out the various allegations made against him and required him to make a response to those allegations. On 4^th December 2003 the Claimant responded in writing to those allegations. The Claimant admitted making a valuation on the property over which he was granted a lease at the value of VT200,000. He further admitted receiving housing allowances when he had already vacated privately rented quarters and whilst occupying a deportees property. He provided justifications for his actions and attempted to evade responsibility by shifting blames on other officers in his department. Since the Claimant had made admissions, it was not necessary in the view of the Court for the Commission to hear the Claimant any further. The Court concludes therefore that natural justice was afforded to the Claimant.

The Waiver Issue

The evidence is clear. The complaints about misuse of government vehicle were not recent complaints. The complaint about improper valuation of leasehold property value occurred in 2001. In 2002 the complaint about unlawful receipts of housing allowances occurred. These could have been addressed then but were not. The question is why not?

The answer becomes clear when Mr Kalmelu took a bold step by issuing a suspension letter on 29^th October 2001. Mr Stephen Tahi, then the Director-General overruled that suspension and re-instated the Claimant. However four days later on 4^th November 2001 Mr Tahi wrote to the Chairman of the Defendant informing the Commission that due to a conflict of interest (in that he being a relative of the Claimant) he could no longer proceed with the matter and was accordingly withdrawing himself.

It is therefore clear that if nothing was done against the Claimant in 2001 or 2002 it was because of this relationship between the Claimant and the Director-General that only became apparent in 2003. Therefore the Court concludes that the issue of waiver is irrelevant and section 50(5) is not applicable in the circumstances of the Claimant.

Further Submissions by Defendant for Determination

The State Law Office representing the Defendant submitted in their conclusions that the termination of the Claimant by the Defendant was not unlawful and submitted that it was done in accordance and pursuant to Chapter. 6 Rule 2.4 of the Public Service Staff Manual; Section 29(1) of the Public Service Act and Sections 50 of the Employment Act. Rule 2: 4(a) (ii) states –

“(b) The Commission shall consider the report provided and the employee’s response and make a decision as to whether to:

(i) dismiss the matter,
(ii) immediately dismiss the employee with cause [Public Service Act, section 29],
(iii) refer the matter to the Police for criminal charges to be laid, or
(iv) refer the matter to the Public Service Disciplinary Board.

Section 29(1) of the Public Service Amended Act No. 8 of 2001 states-

“The Commission may dismiss an employee at any time for serious misconduct or inability but subject to its obligations to act as a good employer.”

Section 50(1) of the Employment Act CAP. 160 states –

“In the case of a serious misconduct by an employee it shall be lawful for the employer to dismiss the employee without notice and without compensation in lieu of notice.”

Section 55(2) of the Employment Act states –

“An employee shall not be entitled to severance allowance if he is dismissed for serious misconduct as provided in section 50.”

The evidence by Mr Pakoasongi is clear. The Commission received a report and, to act as a good employer under section 29(1), the Commission sent a PSC Form 6-1 to the Claimant inviting him to answer the allegations raised against him. The Claimant responded. Based on his responses and admissions, the Commission decided to use its discretionary powers under Rule 2.4 (a)(ii) of the Public Service Staff Manual – Chapter 6 to dismiss him.

Section 29(1) of the Public Service Amendment Act gives the Commission additional powers to dismiss for cause. Where dismissal is done for cause, no notice and compensation in lieu thereof are necessary. If follows further that no severance allowance is payable to the employee by virtue of section 55(2) of the Employment Act.

Applying the law to the facts of the case as proved by evidence, it is the clear view of the Court that the Claimants’ termination was lawful and therefore it follows that his claims for unlawful termination, notice, severance and damages for unjustified dismissal must all fail. Accordingly I so order that the Claimant’s claims fail in its entirety.

I now order that –

(1) The Claimant vacates the house in which he resides within 7 days from the date of this judgment.

(2) The Claimant must pay the Defendant’s costs of and incidental to this proceeding to be agreed, if not taxed.

DATED at Luganville this 28^th day of September, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge