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State v Permanent Secretary for Works, ex parte Henry Danford [2013] FJHC 5; HBJ29.1999 (16 January 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBJ 29 of 1999

BETWEEN:

THE STATE

AND:

PERMANENT SECRETARY FOR WORKS
RESPONDENT

EX-PARTE: HENRY DANFORD, MAHENDRA PRASAD and ALIPATE NAMALO
APPLICANTS

Appearances: Mr. F. Vasarogo for the Applicants.
Mr. S. Raramasi and Mr. Pickering, J for the Respondent.
Date / Place of Judgment: Wednesday 16 January, 2013 at Suva.

Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:
Judicial Review Proceedings – substantive issue being termination – employment governed by contract of employment which had internal remedies procedure enshrined in the same- judicial review jurisdiction not exercisable when internal remedies not exhausted- contracted employees must seek remedy open in the area of private law-public aw remedies not available where employment governed by contract of employment.

LEGISLATION:
High Court Rules 1988 ("HCR").

CASES:

1. Regina v. Secretary of State for the Home Department, Ex parte Swati [1986] 1 WLR 477.
2. R v Epping and Harlow General Commissioners, ex parte Goldstraw.
3. Rv. East Berkshire Health Authority, ex parte Walsh [1984] EWCA Civ 6; [1984] 3 All ER 425.
   

The Cause

1. The applicants Henry Danford and Mahendra Prasad are deceased. The action is pursued by Mr. Alipate Namolo.
   
2. On 30 July 1999 the Court granted the applicants leave to apply for judicial review of the decisions of the Public Works Department made on 9 April, 1999, 20 April 1999, 30 April 1999 and 4 June 1999.
   
3. On the above dates the applicants were initially suspended and then terminated.
   
4. The suspension and termination were based on the allegation that the applicants were stealing and selling fuel for personal gain.
   
5. Upon the grant of the leave, a motion was filed on 9 August 1999 and the following reliefs were sought:
   
   • An order for certiorari to remove and quash the decision of the respondent.
     
   • A declaration that the decisions of the respondent was unreasonable, illegal, biased, arbitrary, ultra vires, capricious, irregular, in breach of the principles of fairness and null and void.
     
   • An order for mandamus directing the respondent to forthwith reinstate the applicants to their respective positions and to pay all arrears of wages and benefits accrued to them during the period of their suspension and termination.
     
   • A declaration that the respondent had delegated its power under the employment contract which it was not authorised to do and was hence unlawful.
     
6. The grounds for the relief are:-
   
   • The respondent invalidly exercised the powers to suspend and terminate the applicants under clauses 36(a), 36(b) and 37(a) of the employment contract in that:-
     
     • (i) It failed during the course of its decision making process or otherwise to give the applicants or any of them an opportunity to answer the allegations against them.
       
     • (ii) It failed to provide the applicants or any of them with a copy of the reports (both police and otherwise) relied upon by it in reaching its decisions to suspend and terminate the applicants.
       
     • (iii) It failed to give the applicants or any of them any opportunity to answer the matters prejudicial to them or any of them contained in its own report or reports of the third parties including the police.
       
     • (iv) It failed to adequately and fully disclose to the applicants or any of them the specific nature and facts of the alleged offences committed by them prior to it adopting the machinery of suspension leading to the eventual termination of the applicants.
       
   • The respondent failed to follow the procedure in the contract for suspending and terminating the applicant.
     
   • The Chief Mechanical Engineer of Public Works Department had no powers to suspend and terminate the applicants in the said circumstances, no breaches of discipline having been established.
     
   • The suspension and termination were unauthorised, improper, unreasonable and therefore null and void.
     
   • The applicants had legitimate expectations to receive a hearing of the alleged charges against them prior to the decisions to first suspend and thereafter terminate their employment.
     
   • That the said decisions of the Public Works Department in the circumstances were biased and it had further predetermined the issues in that:
     
     • (i) It was obvious that the Public Works Department had made up its mind from the outset to terminate the applicants' employment and had (erroneously) applied the suspensions tactics and the non-existent police investigations to achieve its improper motive and/or purpose.
       
     • (ii) It had concocted the events against the applicants as evident from their failure to act in a timely manner.
       
     • (iii) That the allegation was siphoning of fuel and thereafter selling of fuel for which there was no evidence.
       
     • (iv) It did not initially treat the alleged conduct of the applicants as having sufficient gravity to warrant an immediate termination but ultimately relied on and used the provisions of Section 37 of the JIC Agreement to summarily (in effect) dismiss the applicants.
       

The Background

7. The background leading to the suspension and the termination of the applicants are set out in the affidavits of Mr. Namolo and Mr. Henry Danford. Mr. Namolo deposed that:-
   
   • He started working in PWD in 1990. He worked as a messenger for 1 year, a clerk for 1 year and after that as a store man. Whilst being employed as a store man, he had on occasions been delegated by his employers to do the duties of one Mahendra Prasad as a fuel boy when Mahendra Prasad was absent from work as at all times there was need for the drivers of trucks to be accompanied by one assistant. He is certain that he worked with Henry Danford on 17 to 20 March 1999. He did not work with Henry Danford on 29 March 1999.
     
   • On 29 March 1999 the employer wrote a letter to him and dismissed his services with effect from 12 noon of 29 March 1999. The reason given was "unethical conduct of selling PWD fuel from the fuel truck to private parties". The applicant was requested to leave the yard immediately and not to re-enter the plant pool yard without the permission of the mechanical engineer.
     
   • On 31 March 1999 a letter was written to the applicant and the dismissal was withdrawn. The applicant was asked not to enter the pool yard at any time and to report to one Jone Koroi until further notice.
     
   • On 9th April 1999 the employer wrote another letter and stated that the applicant had misused and sold government fuel from truck GJ 508. The incidents were said to be discovered by the two pool engineers on the days of:
     
     • (i) 6 March 1999: it was alleged that the pool engineer saw a private green car D 4166 parked beside the fuel truck where he saw the applicant Namolo and Mahendra Prasad siphoning fuel from the tanker into the 20 litre drums. The drums were later transported to the green car.
       
     • (ii) 24 March 1999-: it was alleged that Senthil Gounder and Masibilo witnessed 10 drums of fuel filled from the truck and then loaded on to a private car D 4166.
       
     • (iii) 29 March 1999: the pool engineer confronted the applicants and to his surprise he found only 8 litre drums instead of 10.
       

The letter stated that such unfaithful act of defrauding the government was not be condoned by the management. It further stated that it is in accordance with JIC Regulation Section X, Clause 36(a), the applicant was suspended from work for 7 days with effect from 12 April 1999 pending further police investigation.

• On 20 April 1999 the employer wrote to the applicant and advised him that his suspension had been extended to another 7 days with effect from 21 April 1999 pending further police investigation.
  
• By a letter of 30 April 1999 the suspension was again extended to one month to allow police investigations to be completed. The extension was with effect from 30 April 1999 to 11 May 1999.
  
• By a letter of 4 June the applicants were summarily dismissed from service with effect from 7 June 1999. The applicants were given 1 month to appeal the decision.
  

8. The applicant denies the allegation and states that he is entitled to the remedies sought upon the grounds put forward by him.
   

The Opposition

9. The respondent basically states that the applicants should have made use of the appeals procedure in the contract of employment. They failed, thus the judicial review discretion is not exercisable.
   

The Law/Submissions and Analysis

10. Both counsel emphasised their position in their written submissions and reinforced their argument by case precedents.
    
11. The applicant was employed by the respondent as a government wage earner. The terms and conditions of the employment of government wage earners are governed by the Joint Industrial Council Agreement ("JIC" Agreement). This is the agreement between the Public Service Commission and the Public Service Association.
    
12. The JIC agreement stipulates the terms and conditions of the employment. It also contains the appeal procedures upon dismissal from employment. That appeals procedure is an alternative remedy which should have been pursued by the applicants. They failed and now want that the decision be judicially reviewed.
    
13. It is a cardinal principle of law that save in the exceptional cases, judicial review jurisdiction should not be exercised where other remedies are available and have not been used: Regina v. Secretary of State for the Home Department, Ex parte Swati [1986] 1 WLR 477 and R v Epping and Harlow General Commissioners, ex parte Goldstraw.
    
14. This is not an exceptional case where I would exercise my jurisdiction to judicially review the decision of the employer. It is a known fact that the respondent employs so many people under the same terms and conditions known as the JIC Agreement. If all employees were to bypass the procedure of resolving the contractual grievance provided for under the contract, the purpose of entering into the contract would be defeated and the provisions of Order 53 of the HCR misused.
    
15. Further, the applicant's employment is governed by a contract of employment known as the JIC Agreement. The termination of the applicant's contract was pursuant to the contract of employment. I have not been shown that there were special statutory restrictions on dismissal which underpinned the applicant's position. The applicant thus cannot seek public law remedies but private law remedies: Rv. East Berkshire Health Authority, ex parte Walsh [1984] EWCA Civ 6; [1984] 3 All ER 425.
    
16. In the case of R v. East Berkshire (supra) "the applicant was employed as a senior nursing officer by the respondent health authority under a contract of employment which, pursuant to the National Health Service (Remuneration and Conditions of Service) Regulations 1974, incorporated terms and conditions which were negotiated by a recognised negotiating body and approved by the Secretary of state for Social Services. In August 1982 the district nursing officer suspended the applicant from duty and on 27 September she purported to terminate his employment with the health authority. The applicant sought judicial review of the dismissal, on the grounds that the district nursing officer has acted ultra vires in dismissing him and that there had been breaches of the rules of natural justice in the procedures leading up to the dismissal. The health authority raised a preliminary point whether it was appropriate for the applicant to question the dismissal by bringing proceedings for judicial review. The judge held that the applicant's rights were of a sufficiently public nature to enable him to seek public law remedies or, alternatively, that if he was not entitled to an order of certiorari he could, under RSC order 53, rule 9 (5), continue the action as though it had been begun by a writ".
    
17. The decision of the judge went on appeal. On appeal it was held that:-
    

" Whether a dismissal from employment by a public authority was subject to public law remedies depended on whether there were special statutory restrictions on dismissal which underpinned the employee's position, and not on the fact of employment by a public authority per se or the employee's seniority or the interest of the public in the functioning of the authority. Where the authority was required by statute to contract with its employees on specified terms with a view to the employees acquiring private law rights, a breach of that contract was not a matter of public law and did not give rise to any administrative law remedies: it was only if the authority failed or refused to contract on the specified terms that the employee had public law rights to compel the authority to comply with its statutory obligations. The fact that the applicant was employed on conditions of service which were negotiated by a negotiating body, were approved by the Secretary of State and were imposed on the applicant and the authority by the 1974 regulations was not sufficient to give the applicant public law remedies in respect of his dismissal. Since the applicant had been engaged on the proper conditions of service and his complaint was that he had been dismissed in breach of those conditions, his contract was an ordinary master and servant contract of employment and the appropriate remedy was the private law remedy..."

18. On the issue of costs, I am of the view that this case should not have been brought before the court for judicial review at all. The respondent has been unnecessarily put to expense. A lot of time and paper work had to be raised by the respondents in arguing both the leave and the substantive issue. The respondent is entitled to costs of this proceeding.
    

The Final Orders

19. The application for judicial review is dismissed with costs to the respondent, summarily assessed, in the sum of $550.
    

Anjala Wati
Judge

16.01.2013
_____________________________________

To:

1. Mr. Vasorogo, counsel for the Applicant.
2. AG's Chambers for the Respondent.
3. File: Suva HBJ 29 of 1999.