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State v Permanent Secretary for Education, Ex parte Chand [2002] FJHC 18; Hbj0005j.2001s (8 August 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 5 OF 2001S

THE STATE

v.

PERMANENT SECRETARY FOR EDUCATION
Respondent

ex parte

UMESH CHAND
Applicant

Razaak for the Applicant
Z. Sahu Khan for the Respondent

JUDGMENT

The Applicant moves for judicial review following leave granted by Byrne J on 21 September 2001.

On about 3 March 2000 the Applicant was granted a probationary appointment as a farm manager by the Ministry of Education. He was posted to Queen Victoria School. A copy of his letter of appointment is exhibit A to the supporting affidavit filed by him on 26 January 2001. Of particular relevance to these proceedings are paragraphs 3 and 4 of the letter. Paragraph 3 reads:

“3. Your appointment will be probationary for one year.

While on probation your appointment may be terminated by one month’s notice on either side or by payment of one month’s salary in lieu of notice. You would also be liable for summary dismissal in the event of misconduct or insubordination during the probationary period.”

Paragraph 4 reads:

“4. You will be subject to the provisions of Section 140 of the Constitution of the Republic of the Fiji Islands, Public Service Act 1999, the Public Service (General) Regulations 1999 and General Orders, Finance Instructions, Supplies and Services Instructions and Departmental Instructions, in each case as from time to time amended.”

In paragraphs 7 to 15 of his supporting affidavit the Applicant deposed that after taking up his appointment he had a series of disagreements with the Principal of the School arising from the Principal’s alleged misuse of farm stock and staff. On 5 September 2000, just six months after he took up his appointment the Applicant received a letter (Exhibit C) terminating his employment. He was paid one month’s salary in lieu of notice pursuant to paragraph 3 of his letter of appointment. As is clear from the letter the grounds for the termination were the Principal’s assessment that the Applicant’s performance as farm manager had been continuously unsatisfactory and the recommendation that he be replaced.

In paragraphs 18 and 19 of his supporting affidavit the Applicant deposed that he was:

“at no time ... given any opportunity to respond to the allegation regarding my poor and unsatisfactory performance reported by the Principal. No such allegations had ever been put to me by anyone including the Ministry of Education and the Permanent Secretary.”

“I was absolutely astounded as to why the Permanent Secretary for Education chose to terminate my employment without putting the allegations to me and hearing my side of the story.”

A somewhat different version of the events leading up to the Applicant’s dismissal was given by the Deputy Secretary Education (Professional) Alumita Taganesia filed on 23 February 2001. In paragraph 12 she refers to a report on the Applicant prepared by two members of a three men team which visited Queen Victoria School on 22 June 2000 after, according to the report “complaints were received against the Farm manager Mr. Umesh Chand.” A copy of the report is exhibit AT6. As will be seen from the report the team interviewed the Assistant Farm manager, the Vice Principal, the Assistant Principal and several farm labourers. Neither the Principal nor the Applicant was available.

The report found that the Application’s communication, planning, team work and use of farm machinery skills were all wanting. The first recommendation was that a meeting be arranged with the Applicant to discuss the findings. According to paragraph 19 of Mrs. Taganesia’s affidavit the Applicant was called to the Ministry on about 26 June. Following discussion it was agreed that the Applicant would submit his response to the allegations against him but in fact he never did so.

Mrs. Taganesia deposed that on the day of the interview with the Applicant she wrote to her superior (Exhibit AT8). She “strongly recommended” further counselling before deciding on the Applicant’s future.

On 4 August 2000 the same three man team again visited the farm. The Applicant agreed that his relationship with the Principal had not improved and asked for a transfer. The Principal described the Applicant as “incompetent” and banned from driving a tractor. He was however good at raising poultry and pigs. The team recommended that the Applicant be transferred (Exhibit AT9).

On 9 August 2000 after receipt of the follow up report Mrs. Taganesia recommended that the Applicant’s probationary appointment be terminated on the ground of poor performance. A transfer was not recommended first because there was no available vacancy and secondly because the applicant was “incompetent for the work he was appointed to perform” (Exhibit AT10).

Mrs. Taganesia’s recommendation reached the Permanent Secretary via two other senior officers (see Exhibit AT10). On 28 August 2000 the Permanent Secretary wrote:

“I am satisfied that the officer has not performed to expectations. Probationary appointment is therefore annulled. Please action appropriately.”

On 5 September following, as has been seen, the Applicant’s probationary appointment was terminated.

The Applicant seeks declarations that the Respondent exceeded his powers in terminating the appointment and that the termination was unfair and in breach of the Public Service Act 1999 (the Act) and the Public Service (General) Regulations 1999 (LN 48/99 – the Regulations). He also seeks certiorari to quash the decision to terminate his appointment which, if granted, would result in his reinstatement.

Both Counsel filed helpful and comprehensive written submissions for which I am grateful. The two issues calling for determination are:

(a) was the process by which the decision to dismiss the Applicant was taken fair; and
(b) if not, should he be reinstated.

The power to make the Regulations is contained in Section 15 of the Act. Subsections 2(b) and (c) deal with “the appointment, promotion and transfer of all employees” and “the retirement, retrenchment and termination of employment of all employees”.

Division 2 of the Regulations applies to probationary appointments and, since regulation 9 (1) specifies that all appointments to the Public Service shall initially be probationary this Division of the Regulations is of considerable importance.

Perusal of the Division immediately reveals an oddity. Under Regulation 9 (2) the period of probation is to be 12 months. Regulations 10, 11 and 12 deal with the confirmation, extension or termination of probationary appointments but none of these regulations make provision for the termination of an appointment before the end of the 12 month period. The only other provisions which enable an appointment to be terminated are contained in Part 5 of the Regulations which covers discipline arising from breaches by the employee of the Public Service Code of Conduct (see Section 6 of the Act). In the present case it has never been alleged that the Applicant’s appointment was terminated for disciplinary reasons and accordingly Part 5 is not in my view relevant.

The question which arises is whether the absence of a particular provision within Division 2 of the Regulations means that a probationary appointment cannot, if circumstances warrant such a course being taken, be terminated before the end of the 12 month period. In my opinion that cannot be the case since it would have the wholly unreasonable consequence that a probationer who demonstrated irremediable incompetence after only a few weeks or months of his appointment would have to continue to be employed in the Public Service until at least the end of his initial 12 months appointment period.

There is nothing in Division 2 of the Regulations specifically prohibiting early termination. It seems to me clear that the possibility was simply overlooked by the drafter of the Regulations. If this is right then the consequence is not that the Respondent was relieved of a duty to act fairly, rather that the breach of the specific provisions which govern the termination of probationary appointments at the end of the 12 month period cannot here be advanced as a ground of complaint for the simple reason that they are not directly applicable to the circumstances of this case. They are not however irrelevant.

In my opinion it is fundamental that an employer must be able to terminate the employment of an employee who is incurably incompetent. Equally fundamental however is the proposition that the termination process must be conducted fairly.

Under Regulation 7 of the Regulations the Public Service Commission “may employ a person on a contract to perform duties in the Public Service for a fixed term”. The Applicant’s offer of appointment (Exhibit AT5 to Mrs. Taganesia’s affidavit) does not mention a fixed term and the appointment does not seem to me to have been contractual. The letter of appointment makes no mention of a contract either but it does include the termination provisions already set out which are provisions which typically appear in contracts of employment. While provisions of this kind are not directly excluded by Division 2 of the Regulations they are not included either.

In discussion with counsel it was conceded that any fundamental power prematurely to terminate the appointment of a probationer must be exercised in the light of the requirements of Regulation 10 (4) since it could not reasonably be argued that different standards of procedural fairness apply depending on when the probationary termination process is set in train. It was also conceded that between the receipt of the second report by the three man inspection team and the taking of the decision to terminate, the Applicant was not told that his termination was to be recommended (Regulation 10 (4) (a)), his views on the proposed recommendation were not sought (Regulation 10 (4) (b)) and account of his views was not taken before the recommendation was made (10 (4) (c)). In these circumstances I hold and declare that the manner in which the probationary appointment was terminated was not fair.

In his written submission Mr. Raikadroka pointed out that the Applicant’s appointment was terminated very nearly two years ago. The position of farm manager at QVS has long been filled by somebody else. He suggested that reinstatement would now be detrimental to good administration and invited me to decline the issue certiorari.

The granting of prerogative is discretionary. In Chief Constable of North Wales Police v. Evans [1982] UKHL 10; [1982] 1 WLR 1155 (the volume is unfortunately missing from the High Court library) the House of Lords declined to order the reinstatement of a probationary police officer unjustly required to resign. It did however grant him the remedies consequent upon unlawful dismissal. In the present case, as I find, the Respondent was entitled after granting the Applicant a fair hearing to dismiss him upon one month’s notice or the payment of one month’s salary in lieu. This salary was paid.

From the papers before me there is little doubt that the Applicant did not perform satisfactorily. His request for a transfer to a teaching position supports the view that he himself accepted that he had not been a successful farm manager. This, however, was the position for which he was recruited and the position in which he was on probation. In all the circumstances I do not think it would now be right to order reinstatement to the Public Service, reinstatement which would in any event have to be probationary. Apart from the declaration already granted in my opinion further relief cannot now be justified.

M.D. Scott
Judge

8 August 2002