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Tale v Public Service Commission [2003] FJHC 19; HBC0327j.1999 (19 August 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION HBC 327 OF 1999S

Between:

APOROSA TALE
Plaintiff

and

THE PUBLIC SERVICE COMMISSION
First Defendant

and

THE ATTORNEY-GENERAL
Second Defendant

Ms. R. S. Devan for the Plaintiff
Ms. S. Tabaiwalu for the Defendant

JUDGMENT

This matter proceeded to hearing following my Decision herein dated 8 March 2002.

The Plaintiff was formerly employed by the Ministry of Agriculture as an unestablished driver. His conditions of employment were those set out in the agreement issued by the Joint Industrial Council for Government Unestablished Employees (the JIC Agreement) – revised March 1986 (Exhibit 1).

On 6 February 1997 the Plaintiff received a letter from his Permanent Secretary terminating his employment under the provisions of clause 37 (b) of the JIC Agreement. A Copy of that letter was Exhibit 4.

Clause 37 (b) of the JIC Agreement reads as follows:

“Discharge

(a)

(b) An employee may be discharged with one week’s notice or equivalent pay in lieu of such period of notice.”

In the body of the letter of discharge a number of acts of indiscipline were alleged. It was also stated that the Plaintiff had previously received three written warnings, the first in June 1991, the second in February 1993 and a final warning in July 1995.

The final paragraph of the letter of termination reads as follows:

“If you are dissatisfied with the action now taken by the Ministry you are given one month to appeal against the decision under the provisions of clause 38 of the JIC conditions of employment”.

In his evidence the Plaintiff told me that after he received the termination letter he went to see the Acting Director of Industrial Relations at the PSC. The Plaintiff agreed that his representations to the Acting Director were made within the provisions of Clause 38 (a) of the JIC agreement.

The Acting Director did not decide in favour of the Plaintiff and accordingly the Plaintiff reported the matter to his Union, the Public Employees Union, under the provisions of the second limb of clause 38 (b) of the JIC Agreement.

On 21 February 1997 the Union made representations on the Plaintiff’s behalf. It appears that the Union was acting under the provisions of clause 43 (e) of the JIC Agreement. The Plaintiff told me that he was not allowed to attend the hearing, that his entry was barred. He clearly felt aggrieved by the decision to exclude him.

According to paragraph 8 of the Statement of Claim the Union’s intervention did not meet with success. The Union was advised that the termination would stand. According to paragraphs 9 and 10 of the Statement of Claim (partly admitted in the Defence) the Ministry of Labour then rejected an attempt by the Union to have the matter accepted as a trade dispute.

The Plaintiff’s simple allegation is that “his termination [was] wrong”. The particulars, in their entirety are:

“(a) the Plaintiff was not accorded any opportunity to respond to allegations made against him and his explanations were discounted.

(b) Upon his termination he was not afforded a chance to be heard and the First Defendant was very obstructive in relation to the Union’s representation made on behalf of the Plaintiff both on appeal and to the Ministry of Labour”.

Surprisingly, no particulars were sought of these allegations. It will be however be noted that allegation (a) is self contradictory: if the Plaintiff was given no opportunity to respond to the allegations against him how then could his explanations have been discounted?

As to allegation (b) no evidence was offered as to what transpired between the Union and the PSC and between the Union and the Ministry of Labour. For some unexplained reason no record of these proceedings was produced and neither was I shown any of the correspondence apparently relevant to this issue, in particular Documents 7, 8, 9, 10, 11, 12, 13, 14 and 15 disclosed by the Plaintiff’s solicitors in its list of documents.

The first witness called was Anare Vuniwai, the Executive Director of the Fiji National Council of Disabled Persons. Mr. Vuniwai was Senior Personnel Officer at the Ministry of Agriculture for part of the time when the Plaintiff was employed by the Ministry.

In about July 1995 the Plaintiff came to see him. He brought with him a copy of a document entitled “Final Warning” and dated 10 July 1995. A copy of this document was produced as Exhibit 5. After discussing the matter with the Plaintiff and after looking at the Plaintiff’s Personal File Mr. Vuniwai wrote a memorandum dated 26 July 1995 to the Acting Director of Administration and Finance. A copy of the memorandum is Exhibit 2.

In response to questions Mr. Vuniwai accepted that his memorandum was largely based on what the Plaintiff had told him. He was unable to justify the assertions contained in the second paragraph of the memorandum and he conceded that there was nothing on the personal file to support his allegations that the Plaintiff had not been given a fair hearing. Mr. Vuniwai could not help me on the circumstances of the Plaintiff’s termination which took place some 18 months after Exhibit 2 was written and neither was I told whether the memorandum elicited any response. It appears however that Mr. Vuniwai’s submissions were rejected since the 10 July 1995 final warning is incorporated into the termination letter.

The Plaintiff himself was the next witness. Unfortunately his evidence was not at all clear. He denied ever having seen a document marked MFI 2 and dated 10 June 1991 entitled “Sick without sick sheet” although it is clear that this is the same document which, in paragraph 5 (a) of his Statement of Claim he pleads to having received.

The Plaintiff also denied having ever seen two other documents marked MFI 1 and MFI 4 although the documents appear on their face to be the same documents as documents (2) and (3) referred to in the termination letter, Exhibit 4. Unfortunately, for some unfathomable reason the Defendants did not produce the Plaintiff’s personal file and therefore MFI 3 and MFI 4 were not exhibited.

According to the Plaintiff, the only warnings ever received by him, either orally or in writing were the final warning letter of 10 July 1995 (Exhibit 5) and a warning on 10 June 1996 (item (6) in the termination letter). The Plaintiff admitted that on a number of occasions he had discussed allegations made against him including allegations very similar to those set out in the termination letter but he maintained that all these matters had been satisfactorily resolved after his explanations had been offered and accepted. This evidence appears to conflict with the claim in paragraph 11 (a) of the Statement of Claim.

Put simply, the Plaintiff’s case was that the termination letter was unjustified, that the allegations it contained were false, that the Acting Director of Industrial Relations was wrong to reject the Plaintiff’s representations, that the Plaintiff was wrongly excluded from the clause 43 (e) hearing and that the Ministry of Labour should have accepted an industrial dispute arising from the termination.

In my view it is now far too late to enquire into allegations prior to the final warning issued in 1995. Apparently the Plaintiff did not challenge either the first warning on 10 June 1991 or his second warning dated 11 February 1993 (MFI 4) which he also denied seeing before but which is pleaded in paragraph 5 (b) of the Statement of Claim as having been received by him. I do not accept that the Plaintiff’s evidence about these written warning documents.

So far as the final warning was concerned there is nothing to show that the Plaintiff resorted to clause 38 (b) of the JIC Agreement after Mr. Vuniwai’s representations were apparently rejected. I do not accept that the circumstances leading up to the final warning letter can now be reopened.

As already pointed out, I was told virtually nothing about what transpired before the Acting Director of Industrial Relations at the PSC or at the Ministry of Labour. The main thing I was told was that representations made on behalf of the Plaintiff were unsuccessful. Apart from that I was told that the Plaintiff was excluded from the clause 43 (e) hearing. In my view it was a mistake to exclude him. He had a legitimate interest in being present and in my opinion his sense of grievance is justified. The question however is whether this procedural misjudgment is enough to render the termination wrongful. In my view it is not.

As seen at the outset of this judgment, an unestablished employee such as the Plaintiff can, under clause 37 (b), be terminated by giving one week’s notice. Although the clause is to be found in part X of the JIC Agreement I do not think that any indiscipline at all has to be proved against an employee before the clause can be invoked. The Plaintiff, it must be emphasised, was not discharged for a “serious act of indiscipline” under clause 37 (a).

On the papers before me and having heard the Plaintiff I am satisfied that the Ministry of Agriculture came to the conclusion, after about five years of service with them, several warnings and many complaints that the Plaintiff was an unsatisfactory employee. Therefore they discharged him. As was his right, he exercised the rights of appeal embodied in the JIC Agreement. They were unsuccessful. I was told nothing and saw nothing which led me to believe that the Plaintiff’s case was handled at all improperly or that the Ministry was not fully entitled to terminate the Plaintiff’s employment in the manner and at the time that it did. In these circumstances and notwithstanding the incomprehensible decision not to call any admissible evidence on behalf of the Defence the Plaintiff’s case must fail and be dismissed.

M.D. Scott
Judge

19 August 2003