Fiji Islands - Kama v Native Land Trust Board - Pacific Law Materials
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IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 0336 OF 1997
BETWEEN:
ESALA DELANA KAMA
Plaintiff
AND:
NATIVE LAND TRUST BOARD
Defendant
Mr. S. Matawalu for the Plaintiff
Mr. E. Leung for the Defendant
JUDGMENT
The Native Land Trust Board is a statutory body set up under the Native Land Trust Act (Cap. 134) and vested with 'the control of all native land ... for the benefit of the Fijian owners'. Amongst other duties the defendant Board is charged with the duty of collecting and distributing 'rents and premiums received in respect of leases or licences in respect of Native land' and also 'purchase money received in respect of sale or other disposition of native land'.
Pursuant to Section 30 of the Native Land Trust Board Act the defendant Board is empowered to appoint and employ such persons 'as may be necessary to carry out the provisions of this Act'.
It is a notorious fact that most of the land area in Fiji is 'native land' vested in and under the control of the defendant Board. As the major landlord in the Country the defendant Board is also a relatively
large employer with a staff roll numbering in the hundreds spread over three urban centres with the largest concentration being in
its Suva head office where the principal administration centre is housed.
The plaintiff first joined the staff of the defendant Board as an Accountant cadet in the Suva office in 1980 and was promoted through the ranks until confirmed as Deputy General Manager (Administration) with effect from the 1st of June 1992. This was a very senior management position within the management structure of the defendant Board.
In his confirmation letter of 8th July 1992 the plaintiff was advised that '(he would) be in charge of all the Administrative Departments (Finance & Corporate Planning, Human Resources and Information Systems) of
the Board' with a total staff of between 55-60 employees.
In his capacity as DGM (Administration) the plaintiff was in the words of the Secretary of the defendant Board:
'responsible for the proper and full supervision of the Board's accounts, their preparation and collation, the co-ordination of work
and activity that would lead to their submission and approval, and liaison with external auditors as well as all levels of management
necessary to achieve the finalisation of the accounts. One of the principal functions (if not the principal function) of the plaintiff was the preparation and oversighting the preparation using whatever means possible, of the Board's annual accounts.'
This is denied by the plaintiff.
In this latter regard in an internal memorandum dated 8th July 1996 the General Manager wrote to the plaintiff on the subject matter of the outstanding Annual Accounts of the defendant Board which had become, a matter of some adverse media speculation, and sought '(his) full attention in resolving these issues in order that the target for completing all outstanding accounts is achieved'.
Eight (8) months passed by and the annual accounts, of the defendant Board for the years 1991 to 1995 (inclusive) remained outstanding.
Finally by letter dated 21st February 1997 the plaintiff was suspended on half salary 'pending the results of a full investigation ...'. In the suspension letter the General Manager referred to, amongst other things:
* the outstanding Annual Accounts of the defendant Board for the years 1991 to 1995;
* the lack of improvement in the plaintiff's personal relations with his subordinate staff and other Managers; and
* his failure to meet Staff Action Plans or fulfil personal assurances regarding the completion of the Annual Accounts;
In summary, the General Manager wrote:
'As an employee, your poor conduct and performances have brought discredit and embarrassment on the Board. Your performances since
1993 ... indicate that you lack the necessary skills ... to carry out the responsibilities required of the position of Deputy General
Manager (Administration) and these poor performances are also regarded as habitual and substantial neglect of duties.'
The plaintiff was also advised that the defendant Board would be carrying out an investigation and 'during the course of our investigations you will be given the opportunity to present and explain yourself with regards to all of
the above'.
By letter dated 28th February 1997 a three (3) member 'Investigating Team' was appointed:
'to look into each of the points raised in my letter (of 21st February 1997) and determine after considering facts and/or evidence whether or not Mr. Kama is guilty of the breaches he is alleged to have committed.'
The appointment letter also required the Team's 'findings and recommendations ... by 14th March 1997 at the latest'.
It is common ground that the 'Investigating Team' met with the plaintiff on the 12th and 13th of March 1997 and during the course of several interviews, sought 'his responses to the 4 main issues raised in the General Manager's letter of 21st February 1997 which had been addressed to the Plaintiff'.
As to what the '4 main issues' were is deposed in paragraph 62 of the affidavit of the defendant Board's Secretary where he says:
'These complaints were essentially that the Plaintiff failed to produce the annual accounts on a timely basis as specified in the HOI instructions; failed to produce these accounts on the dates set by himself since 1993; failed to produce these accounts by December 1996 based on the plaintiff's personal assurances which had been conveyed to the Board; lacked the necessary
skills ...; and for habitual and substantial neglect of duties as evidenced by the Plaintiff's failure to deliver up as required of him the Board's annual financial statements.'
(my underlining)
and later at para. 66:
'Basically, in the most general terms, the Plaintiff was suspended on 21st February 1997 for incompetence, failure of performance
as well as habitual and substantial neglect of duties, failing to produce the annual accounts on a timely basis ...; and failing
to produce these accounts on the date set by himself since 1993;'
The plaintiff disagrees that these were the specific allegations or charges levelled against him in the General Manager's suspension letter of 21st February 1997 and deposes that:
'... it was not my short coming as a Manager, but rather, the directives taken by the General Manager, the decision taken by the Executive
Management Committee (EMC) and the inaction of the Board of the NLTB, the interference of Mr. Maika Qarikau in my areas of responsibility,
the lack of qualified accountants, the attitude and role of the external auditors, and the lack of support from other managers which
contributed to the situation regarding the Board's accounts.'
and in a particular response to para. 66 the plaintiff deposed:
'... that the real reason I was suspended was because the General Manager had already made his decision to discipline me prior to
the investigation without giving me an opportunity to defend myself and not because he had carried this out in accordance with Section
4 Clause 4.05 of the conditions of employment.'
By letter dated 19th March 1997 the plaintiff was demoted from Deputy General Manager (Administration) 'to a Manager Grade 10 position with Special Duties until the outstanding annual accounts are completed ...' as a disciplinary measure.
The 'reasons' given in the demotion letter were that the plaintiff 'lack the necessary skills which (he) expressly or by implication warrant to possess in order to successfully finalise the Board's outstanding Annual Accounts' and secondly, 'that (he) lack the skills to develop a healthy working relationship with (his) subordinate staff and other Managers ...'
On 20th March 1997 the plaintiff's solicitor in a letter addressed to the General Manager of the defendant Board, questioned the propriety of the procedures adopted in disciplining the plaintiff, and sought his immediate
reinstatement and the appointment of an independent committee 'to carry out the necessary investigations'. This was declined on the 24th of March, 1997.
On 11th April 1997 the plaintiff in a six (6) page CONFIDENTIAL document presented pursuant to Section 9.04 of the defendant Board's relevant Terms & Conditions of Employment, appealed the General Manager's decision to the Chairman of the defendant Board.
On 16th May 1997 the plaintiff's appeal was heard by a Sub-committee of the defendant Board comprising six (6) board members. As to this Sub-Committee it is admitted by the plaintiff (See: para. 69 of his affidavit in reply) '(that) By the time it had come to sit, the Sub-Committee had been advised that the plaintiff had misgivings about the impartiality of the
Investigating Committee.'
By letter dated 3rd June 1997 the Chairman of the Sub-Committee reported back to the defendant Board its finding that '... (the plaintiff's) reason for failing to produce the Audited Accounts lies not in the system but in the man' and the Sub-Committee recommended that ' ... the Board ratify Management's decision ... to demote Kama to a lower post'. The Sub-Committee Chairman had earlier noted in the letter that the so-called 'defective' accounting system had been utilised '... to provide information for audit purposes before 1990'.
On 14th August 1997 the plaintiff issued an Originating Summons seeking the following declarations:
'(a) That the decision ... made on the 19th day of March 1997 in demoting the plaintiff is null and void and of no effect in that
it is in breach of the principles of natural justice;
(b) That the demotion of the plaintiff ... is null and void and of no effect it being in breach of the principles of procedural fairness.'
and the plaintiff seeks his reinstatement to his original position and payment of his salary difference.
The Summons was supported by an affidavit sworn by the plaintiff on 12th August 1997 and this was answered in an affidavit deposed by the Secretary of the defendant Board (op.cit) dated 29th September 1997 and thereafter the plaintiff replied in an affidavit dated 16th March 1998 which, with hindsight was improperly disallowed in toto by order of the Court dated 24th March 1998.
I say 'improperly' advisedly because Order 28 r.2(5) of the High Court Rules 1988 expressly recognises the 'right' of a plaintiff on whom a copy of the defendant's affidavit evidence has been served (as occurred in this case) 'within 14 days of such service (to) file with the Registry further affidavit evidence in reply'.
In this regard the plaintiff's affidavit of 17th March 1998 comprises 92 paragraphs which seek to address and reply to each and every paragraph of the defendant's affidavit of 29th September 1997 and as such ought not to have been disallowed in toto albeit that it was five (5) months 'out-of-time'. The court's order of 24th March 1998 in so far as it relates to the plaintiff's affidavit in reply must be and is hereby set aside.
Having done so I realise that the plaintiff's affidavit in reply raises inter alia in para. 91 the 'subsequent actions the Board has taken in a letter (to the plaintiff) dated 19th August 1997' i.e. five (5) days after the plaintiff issued the present action.
The letter which is the sole annexure to the plaintiff's affidavit in reply, is signed by the General Manager of the defendant Board; is addressed to the plaintiff personally; and is entitled 'Re: SUSPENSION'.
It opens by referring in no uncertain terms to the plaintiff's Originating Summons filed in the present action and then the following paragraph appears:
'I do acknowledge that you have exercised your rights as a citizen of the land, however, I consider your actions as a very serious
matter, especially as you have decided to take this High Court action against ative Land Trust Bost Board whilst you are still in its employment.'
The letter then proceeds to set out what it is claimed the plaintiff's court action shows, namely:
'you have no faith in the Board's procedures of carrying out a fair and just judgment of your case ...'
and
(the courion) is contrary to y to your said assurance ...'
and the letter continues:
'This incidence is also a breach of the following code of ethics explicit in Clause 4.01 of the NLTB Terms and Conditions of Employment
...'
Then, after setting out various ethical requirements of employees of which breaches are considered 'grave misconduct' for which summary dismissal is a possible penalty, the letter reads:
'Because of all of the above, you cannot be trusted not to interfere with the Board's case and it's witnesses if you are to continue
to be in active employment and a Manager with authority.'
Thereafter the decision is announced:
'In view of the seriousness of this matter and with its exceptional circumstance, you are hereby suspended, without salary and benefits, from carrying your normal duties with the Board with immediate effect. Your suspension is for an indefinite period, pending, the outcome of the Court Action which you have now instituted against the Board.'
(my underlining)
By consent of counsels written submissions were ordered and these were finally submitted on 29th April 1998. At the outset I must apologise for the long delay it has taken to finalise this judgment. Furthermore it is much regretted that
the Court was unaware that after these proceedings were instituted the plaintiff was 'suspended without pay on the 19th of August 1997' in addition to his demotion which is the subject-matter of these proceedings. In the result the plaintiff has been without pay since
August 1997 whilst awaiting this decision.
Suffice it to say that the Board's later indefinite 'suspension without pay' decision is directly linked to the present proceedings instituted by the plaintiff against the defendant Board. This is much to be
regretted as it borders on 'contempt of Court' (per Lord Diplock in A.G. v. Times Newspapers Ltd. (1973) 3 ALL E.R. 54 at 72) and Ratu Epenisa Cakobau v. Fijian Affairs Board Civil Action No: 295 of 1988 (unreported).
In Raymond v. Honey (1982) 2 W.L.R.465 where a prison Governor was found in contempt of court for refusing to send a prisoner's application for committal for his (the Governor's)
contempt, Lord Bridge said in dismissing the Governor's appeal, at p.472:
'... that a citizen's right to unimpeded access to the courts can only be taken away by express enactment: Chester v. Bateson (1920) K.B. 829; R. & W. Paul Ltd. v. Wheat Commission (1937) A.C. 139.'
Lord Wilberforce in his judgment affirming the basic principle that 'any act done which is calculated to obstruct or interfere with the due course of justice, or the lawful process of the courts, is
a contempt of court', said ibid at p.468:
'Since 1900 the force of this principle has in no way been diminished. In A.G. v. Times Newspapers Ltd. (op.cit) Lord Diplock, with whom Lord Simon of Glaisdale agreed, clearly stated that to inhibit suitors, from availing themselves
of their constitutional right to have their legal rights and obligations ascertained and enforced by courts of law could amount to
a contempt of court.'
Furthermore given that the plaintiff remained and remains an employee of the defendant Board albeit on demotion and on reduced terms, the decision to suspend without pay is prima facie an unduly harsh one and tantamounts to a 'de facto' dismissal.
In this latter regard the New Zealand Court of Appeal in Birss v. Secretary for Justice [1984] NZCA 24; (1984) 1 N.Z.L.R. 513 when considering the suspension of an officer pending a final determination of a disciplinary charge
'Held: (the relevant legislation) contained no provisions which specified the procedure to be observed in reaching a decision to suspend. In the absence of any clear
expression of a contrary legislative intent the rules of natural justice prima facie applied to suspension from office without salary
...'
More recently in Divendra Bijay v. Permanent Secretary for Education Judicial Review No. 5 of 1997 (unreported) Pathik J. in granting leave to apply for judicial review in that case of a school teacher who had been interdicted without salary the day after
disciplinary charges had been laid against him, and relying on the judgment in Birss' case (op.cit), observed in his judgment (at p.12):
'... on the authority of Birss, in appropriate cases, rules of natural justice and fairness prima facie applied to suspension from
office without salary. In fact ... in light of Birss, it appears that an opportunity for hearing must be given when contemplating
interdiction without pay in appropriate cases ...'
A fortiori in the plaintiff's case where no actual disciplinary offence was alleged against him in the letter of suspension without pay which
came without warning, and without any opportunity being given to the plaintiff to either explain the exercise of his undoubted constitutional
right to unhindered access to this Court or to dissuade his employers from imposing the suspension without pay.
I do not make these observations lightly because the decision to 'suspend without pay' has effectively overtaken and rendered nugatory the decision of this Court in this present application.
If the plaintiff fails, he returns to his employment on demotion, and, if he succeeds, he is reinstated to his original position,
but, in either case, he is disentitled to any remuneration since 19th August 1997 unless the Board's decision to 'suspend without pay' is successfully challenged as plaintiff's counsel had unsuccessfully attempted to do by way of an amended Originating Summons which was disallowed following defence counsel's objections.
The existence of the letter and its possible effect on the courts determination of the plaintiff's action was sufficiently serious
to warrant a further audience with counsels representing the parties on 11th February, 1999.
I am pleased to record that upon the Court disclosing its concerns, defence counsel sought instructions and a 'without prejudice' payment in excess of $29,000 was made to the plaintiff on the 17th of June, 1999, being his full salary entitlement from the date of his indefinite suspension i.e. August 1997 until July 1998. Nothing further need be said of that sorry episode.
Subsequently a further month, July 1999, was taken up in attempting to reach an amicable settlement of the proceedings before the Chief Registrar since it transpired that in the interim since the plaintiff's suspension, the defendant Board had undergone a major staff re-organisation
and re-structuring exercise which rendered the plaintiff effectively redundant. Unfortunately, no settlement figure could be agreed
between the parties and the proceedings were returned on 23rd August, 1999 to the Court for a final decision to be made on the plaintiff's Originating Summons.
The second matter which has caused me concern is the failure of both parties and their counsels to provide the Court with a copy of the defendant Board's relevant Terms & Conditions of Employment generally in regard to disciplinary procedures and, in particular, with regard to the plaintiff as part of senior management.
In the result the exact disciplinary procedure provided for in the defendant Board's Terms & Conditions of Employment remains a mystery to the Court except for incomplete references that are scattered throughout the various affidavits and annexures
placed before the Court.
For present purposes however it may be accepted that Section 4 of the defendant Board's Terms & Conditions of Employment is relevant and was invoked and referred to in the plaintiff's suspension letter.
In particular, Clause 4.05 empowers the Board when an employee is reported for committing a breach of the conditions of his/her employment, to:
'in writing immediately suspend the employee from carrying out (his) normal duties ... pending the result of a full investigation which the Board shall carry out in due course, provided that the notice
of suspension shall indicate the nature of the breach ...'
It is noteworthy that this power (in the absence of a clear and certain delegation) was invoked by the General Manager in the plaintiff's suspension letter and not by 'the Board'. No complaint however has been taken on this specific matter and need not concern the Court in this application.
The second more relevant clause is Clause 4.07 which requires the Board, in carrying out its investigation as required under Clause 4.05(i) above, to:
'Comply with the principles of natural justice and shall communicate its decisions whether to reinstate the employee, terminate the
employee or take other disciplinary action, in writing to the employee ... within 30 days.'
In this regard too, it is noteworthy that the letter appointing the 'Investigation Team' is signed not by the Board but by the General Manager. But again this point was not urged by the plaintiff as a ground of complaint and has not been considered in this judgment.
I would point out however, that the expression 'the principles of natural justice' used in Clause 4.07 above, is a wide one and is incapable of any precise definition. It has been variously described by the Courts as: 'fair play in action'; 'fairness writ large and juridically' and in less elegant terms as, 'a high-sounding expression'.
What's more 'the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which
the tribunal is acting, the subject-matter that is being dealt with and so forth' (per Tucker L.J. in Russell v. Duke of Norfolk (1949) 1 ALL E.R. 109, 118).
Lord Denning however clearly identified for present purposes, two (2) such 'principles of natural justice' when he said in Kanda v. Government of Malaysia [1962] UKPC 2; (1962) A.C. 322 at p.337:
"The rule against bias is one thing. The right to be heard is another. These two rules are the essential characteristics of what
is often called 'natural justice'. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in
causa sua and audi alteram partem. They have recently been put in the two words: impartiality and fairness. But they are separate
concepts and are governed by separate considerations."
As to the 'audi alteram partem' rule the learned authors of Cases and Materials in Administrative Law (1977) write at p.415:
'The basic requirements of this rule seem to be that the (tribunal) should ensure that any party affected has had adequate notice of the decision in question and of the case to be met and also an adequate
opportunity to make representations.'
More relevantly in Selvarajan v. Race Relations Board (1976) 1 ALL E.R. 12 Lord Denning M.R. speaking generally of the duty of an investigating body to act fairly, observed at p.19:
'The fundamental rule is that, if a person may be subjected to pains or penalties, ..., or in some such way adversely affected by
the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.
The investigating body is, however, the master of its own procedure. It need not hold a hearing ... It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informant. It can give the substance only. Moreover it need not do everything itself.'
(my underlining)
In his written submissions counsel for the plaintiff without referring to either 'rule' by name, submits that the procedure adopted by the General Manager in demoting the plaintiff was in breach of 'the principles of natural justice' in that, the plaintiff:
'(1) was not given a fair hearing; ('audi alteram partem')
and
(2) that the Investigation Committee appointed by the defendant Board was biased in composition and by conduct.' ('Nemo judex in causa sua')
As to ground (1) plaintiff's counsel submits that 'the proceedings complained of are disciplinary proceedings instituted by the defendant Board under Section 4 of the NLTB Terms and
Conditions of Employment' against the plaintiff who 'is ranked second equal in the defendant's organisational hierarchy'.
Further
'given the rather vague nature of the allegations ... and the absence of any specifics given to the plaintiff by the Investigation
Committee and the absence of any overt capability of the Investigation Committee to deal with matters appertaining to accounting,
it is submitted that ... the requirement that the plaintiff be afforded a reasonable opportunity to defend the allegations against
him was sadly lacking'.
In this regard the plaintiff deposed in his primary affidavit: (at para. 15)
'During the meeting generalisations were raised and I requested for specific details which I was promised by the Committee members
but to date I have not received the same.'
and (at para. 16):
'On the 17th of March, 1997 ... I wrote a letter to (the Investigating Team) requesting them to provide details in support of allegations against me so I can defend myself and respond. I further reaffirmed that
as the annual accounts are of a technical nature and it will be fair if the committee is assisted by independent and impartial technical
assistance.' (annexure 'J')
It should be noted here that the plaintiff's letter (annexure 'J') post-dates by three (3) days the final date by which the Investigating Team's 'findings and recommendations' were required to be submitted to the General Manager.
The Secretary of the defendant Board for his part and in denying any breach of the 'audi alteram partem' rule deposed (at para. 61):
"The Investigating Committee left the Plaintiff in no doubt during the course of its inquiry that they were desirous of obtaining
his explanation as to why the Board's accounts had not been completed and whether the General Manager's complaint of the plaintiff's
'poor performances' had any merit."
and at para. 58 in a reference to the plaintiff's explanation or defence as to why the Annual Accounts of the Board were not completed or finalised the Secretary deposed:
'By way of explanation ... the plaintiff's answer was essentially to blame deficiencies in LADS. He also alleged he did not have any
accountants to assist him ... complained of the absence of qualified support staff in his Division as well as the attitude of the
auditors. He also cited lack of support from the Manager of the Board's Information System as well as the Board's Manager Human Resources.
The Plaintiff also blamed a lack of support and feedback from Coopers for adding to the problem of late accounts.'
At paras. 50, 52 & 59 the Secretary then refers to the various official records that were sighted by the Investigating Team, and the persons who were interviewed during the course of the Team's inquiry into the allegations made against the plaintiff.
Further at para. 85 the Secretary of the defendant Board deposed to the fact that the plaintiff was given a 'second opportunity' to answer the allegations made against him in the suspension letter when he appeared before a specially appointed Sub-Committee of the Board charged with the responsibility of reviewing the General Manager's decision.
Having carefully considered the affidavit materials and the General Manager's suspension letter of the 21st February 1997 and noted, in particular, the plaintiff's statement in his letter of the 13th March 1997 confirming inter alia:
'I was called by an investigation committee appointed by the General Manager, yesterday 12th March 1997 and today 13th March 1997,
to explain myself on (allegations made against me as referred in the General Manager's letter dated 21st February 1997)';
and later in his letter of 17th March 1997:
'... that I have made myself available for the investigation and have answered all of your questions.'
and further, where he refers to, '... some of my explanations regarding the annual accounts ...', I am more than satisfied that there is no basis whatsoever to support the plaintiff's suggestion that he was unaware of the nature
of the allegations levelled against him, or his complaint that he was 'not given a fair hearing'.
Needless to say by this time the absence and non- presentation of the defendant Board's audited accounts for the years 1991 to 1995 had become a matter of wide-spread media speculation and public comment and could not reasonably have escaped the attention of the
plaintiff or his department which was primarily responsible for preparing the annual accounts.
What's more in this case the defendant Board was not dealing with a junior clerical officer of limited qualification and experience,
rather it was dealing with a highly qualified, long-serving officer of 17 year's work experience who held one of two deputy General
Manager positions within the management structure of the defendant Board.
If I have erred however in my assessment of the proceedings that occurred before the Investigating Team at first instance, then there is little doubt in my mind that whatever procedural irregularities that may have occurred before the
Investigating Team has been more than adequately 'cured' (for want of a better term) by what subsequently transpired in the plaintiff's appeal to the Chairman of the defendant Board which was delegated to be heard by a Special Sub-Committee of Board members appointed to review the plaintiff's demotion.
In so finding I disagree with the plaintiff's allusion to 'pre-judgment' in para. 70 of his affidavit in reply in that the suggestion is plainly based on a typographical error of the defendant Board's minutes of 30th April, 1997 wherein the 'Recommendations' are incorrectly attributed to the Sub-Committee instead of to the Investigating Team.
Needless to say by that date the Sub-Committee had not yet heard the plaintiff's appeal against his demotion and so could not have recommended ratification of the decision by the
defendant Board. This 'typo error' is rendered even more obvious by the further recommendation '(e)' that urged the defendant Board to hear the plaintiff's appeal as 'an important step'.
In Calvin v. Carr (1980) A.C.574 the Privy Council in rejecting an appeal where the judge at first instance had held that the investigating committee might have failed to observe the
rules of natural justice, nevertheless,
'Held (2): That although there was no general rule as to whether appellate proceedings could cure a defect due to a failure of natural justice
in original proceedings there was a broad spectrum of domestic proceedings ... where a person who had joined in an organisation or
contract was to be taken to have agreed to accept a fair result reached after a consideration of the case on its merits; that the
test was whether after both original and appellate stages the complainant had had a fair deal of the kind he had bargained for when
joining the organisation or contract.'
In particular their lordships said at p.593:
'What is important is the recognition that such cases exist, and that it is undesirable in many cases of domestic disputes, particularly
in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialisation ... the tendency
in matters of domestic disputes should be to leave these to be settled by the agreed methods without requiring the formalities of
judicial process to be introduced.'
and later at p.594:
'What is required is examination of the hearing process, original and appeal as a whole, and a decision on the question whether after
it has been gone through the complainant has had a fair deal of the kind that he bargained for.'
In the present case the appellate Sub-Committee (if I may so describe it) not only had before it all of the relevant correspondence following the General Manager's suspension letter including, the plaintiff's 6 page appeal but excluding the Investigating Team's report and, in addition, the plaintiff was granted and availed himself of a personal audience before the Sub-Committee 'to enable him to put his case fairly and fully'.
Furthermore given that the General Manager's decision was ultimately to demote the plaintiff as opposed to dismissal, the requirements of natural justice must necessarily be
examined in that context [See also: Pillai v. Singapore City Council (1968) 1 W.L.R. 1278 at 1284/85].
Ground (1) is accordingly dismissed.
As to the second ground of complaint regarding the composition of the Investigating Team it is common ground that the Team was comprised of three (3) very senior and experienced staff members of the defendant Board namely, the Board Secretary, a qualified lawyer; the Deputy General Manager, a valuer by profession; and the ALTA Task Force Co-ordinator also a qualified lawyer. Each member had served with the defendant Board for over 20 years and was plainly familiar with 'the Board's set up, workings and systems'. They also had the assistance of a senior partner of an independent international accounting firm which was then acting as external
auditors for the defendant Board's accounts.
There is, in my considered view, no substance to the plaintiff's complaint of 'bias' against the Investigating Team in so far as it relates to their qualifications. The mere fact that none of its members had accounting qualifications is not and
does not amount to a disqualifying 'bias' in an inquiry as to an officer's 'habitual and substantial neglect of duties' exemplified by the failure of his department for over five (5) years, to produce the defendant Board's Annual Accounts on a timely basis and within a promised time frame.
In this latter regard it hardly needs to be said that a manager who blames the equipment, his support staff and all others except
himself, is plainly unsuited to a senior management role where academic qualifications are necessarily secondary to planning and
people-skills.
What's more a manager who refuses to accept responsibility for the shortcomings and inability of his department to meet a primary
production target, in this case the defendant Board's Annual Accounts, lacks a fundamental trait or quality of leadership.
As defence counsel bluntly writes:
'In any language it was plain that (the plaintiff) had not been doing his job. Whatever disputes of fact exist between the parties as might be apparent from their competing affidavits,
nothing changed the incontrovertible fact that by the end of calendar year 1996, the plaintiff had failed to produce, despite his
personal assurances, the annual accounts of the defendant Board for the years 1991, 1992, 1993, 1994, 1995 and 1996.'
This second ground of complaint is also without foundation and is accordingly dismissed.
In light of the foregoing the plaintiff having failed on both grounds the order of the Court is that the Originating Summons is dismissed with costs which are summarily fixed at $500.00.
D.V. Fatiaki
JUDGE
At Suva,
27th August, 1999.
Hbc0336j.97s
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