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Re Robert E Birch [1980] NRPSAB 1; [1980-1989] NLR 1 (6 May 1980)

[1980-1989] NLR 1

REPUBLIC OF NAURU

PUBLIC SERVICE APPEALS BOARD

APPEAL NO. 2 OF 1980

APPELLANT: ROBERT E. BIRCH

DECISION

The appellant was employed by the Republic as a pilot. He commenced service in 1973 and continued to be so employed until 11th April, 1980, when he was dismissed by the Chief Secretary.

One of the grounds of his appeal is that he was not given any hearing before he was dismissed. The Chief Secretary has supplied to this Board a copy of all the relevant correspondence. From that it is apparent that the appellant was informed by the Deputy Chief Pilot on 2nd April, 1980, that he would be required to fly an aircraft on 5th and 6th April, 1980, and that those were dates on which he had been rostered not to be on duty. He sent a telex message to the Chief Pilot refusing to accept the roster change. He then left Nauru to visit his family in Noumea. On 4th April, 1980, the Deputy Chief Pilot sent him a telex message that he was relieved of all rostered duties with immediate effect. On 8th April, 1980, the Chief Pilot reported to the Chief Secretary by telex what had occurred and recommended that the appellant be dismissed. On 11th April, 1980, the Chief Secretary informed the appellant, who was then in Noumea, by international telegram that he was dismissed for gross misconduct. The Chief Secretary also sent a letter to the appellant on 11th April, 1980, in which he gave details of the alleged gross misconduct and again dismissed him.

On 8th April, 1980, presumably after receipt of the Deputy Chief Pilot’s telex message sent on 4th April, 1980, the appellant wrote a letter to the Chief Secretary. He did not expressly set out to justify what he had done. Rather the letter was one of complaint against the Chief Pilot and the Deputy Chief Pilot; in the last paragraph the appellant gave notice of his intention to resign on 2nd September, 1980. It is not clear when that letter was received by the Chief Secretary. But, in any event, it did not purport to be, and it was not, an answer to any disciplinary charge.

It is by no means clear whether the provisions of the Public Service Act 1961-1973 relating to the manner in which disciplinary offences are to be dealt with were required to be strictly complied with in the appellant’s case; that depended on the terms of his contract. Those provisions, in effect, require that a fundamental rule of natural justice, namely the audi alteram partem rule, should be observed. However, even if they were not strictly applicable in the appellant’s case, there can be no doubt that that rule of natural justice should have been observed. Before the appellant was dismissed, he should have been given an opportunity to deny the allegations made against him and explain his conduct. The affidavits which have been filed in this appeal indicate that there were matters which he could have raised and which might have influenced the mind of the Chief Secretary. It is not the function of this Board to make good that fundamental defect in the dismissal by carrying out itself the inquiry which the Chief Secretary should have made. We reiterate that inquiry into allegations of misconduct, with the person against whom they are made being given an adequate chance to deny them or to give an explanation of his conduct, and the making of findings in respect of any facts which are in dispute, is a necessary prerequisite to any decision being taken by the Chief Secretary to punish any officer for a disciplinary offence. If that prerequisite has not been met, the decision cannot be allowed to stand. The function of this Board is to say so and not to hold the inquiry which the Chief Secretary should have held, but to return the matter to him to be dealt with correctly.

That is what we intend to do in the present case. Whether the Chief Secretary should proceed now to inquire into the matter as an alleged disciplinary offence or not is for him to decide. If he decides to do so, he may, if he thinks fit, suspend the appellant from duty, on full pay, until he completes his inquiry and decides whether the charge is proved and, if it is, what action to take. If he decides not to proceed to inquire into the alleged disciplinary offence, the appellant must be fully reinstated and resume his normal duties, subject, of course, to any right the Chief Secretary may have to terminate his services without disciplinary proceedings by giving the appropriate period of notice or by payment of salary for such period in lieu of notice.

If the Chief Secretary decides to inquire into the appellant’s alleged disciplinary offence and if he finds him guilty of it, the appellant will, of course, have a right of appeal to this Board against the finding of guilt and against any order made consequent thereon.

The appeal is allowed and the appellant is reinstated to his public service office as a pilot.

CHAIRMAN
MEMBER
MEMBER

6th May, 1980