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In the Matter of TB Hewitt [1985] NRPSAB 3; [1980-1989] NLR (4 December 1985)

[1980-1989] NLR
[Ed - No page no. in original]

PUBLIC SERVICE APPEALS BOARD

BEFORE THE PUBLIC SERVICE APPEALS BOARD

IN THE MATTER OF T.B. HEWITT

PUBLIC SERVICE APPEAL NO. 15/1985 OF AIR NAURU CREW.

Decision of Board

For the reasons stated in Appeal No. 1/85, a copy of which is annexed hereto, the Board declines jurisdiction.

CHAIRMAN
MEMBER
MEMBER

4 December 1985.

IN THE SUPREME COURT OF NAURU

No. 1 of 1985

IN THE MATTER of an Appeal in which

ANTHONY L. ALLEN
Appellant

AND

THE CHIEF SECRETARY
Respondent

An appeal has been filed by the Appellant in the following form:

"Anthony L. Allen

Dept. of Civil Aviation

May 3rd 1985

The Chief Secretary

Republic of Nauru

Dear Sir,

With reference to your notification of dismissal dated April 26 1985.

I wish to lodge an appeal to the Public Service Appeals Board based on the severity of the punishment, under section 79 of the Public Service Act.

Yours faithfully,

Anthony L. Allen"

The Board has considered the submissions of both parties to the appeal and finds two factors emerge therefrom. The first is that there is no general agreement by the parties as to the facts. The appellant does not appear and his submissions were forwarded to the Board by his solicitor. No evidence is being lead. In a hearing involving issues and facts upon which findings of law are to follow the tribunal involved is entitled to expect to have either all relevant facts settled by evidence or by the presentation to it of an agreed statement of facts. It cannot be left to the tribunal to accept or reject facts contained in conflicting submissions. The second factor is that it is manifestly clear that the appellant is, in effect, through the appeal process, pursuing a claim arising out of contract and alleged breaches thereof and even in tort. He claims the dismissal appealed against was "for cause" and thus could be considered by the Board. But that contention is arguable and we are satisfied the case involves the interpretation of contract and other documents, the application of rules of construction and findings of law which are properly the functions of a court of law. This Board is an administrative tribunal, not a court of law as defined in the Constitution. Its powers prescribed by section 89 of the Public Service Act 1961-1979, are limited to confirming, annulling or varying any decisions appealed against. Its decisions are not binding in any Court. We are therefore satisfied the proper forum for this matter is a court of law.

Furthermore, the appeal is against dismissal and it is sought to pursue it pursuant to the right to appeal given under Article 70(6) of the Constitution, an Article contained in Part VII of the Constitution dealing with the public service. It has been held by the Supreme Court in Keke and Anon v. The Chief Secretary (1985) Misc. Cause No. 3 that the Public Service Appeals Board constituted under Article 70, was intended by the legislature to be for the purpose of dealing with appeals under the Public Service Act only, since that Act was a complete code of employment for Public officers and that accordingly the appeal provisions of the Act must be read subject to the Article. In the contract relied upon in this case, the Appellant and the Republic of Nauru agreed in Clause 16.1 as follows:

"Except where inconsistent with the specific provisions of these conditions of service or letter of appointment, the Public Service Legislation of the Republic of Nauru for the time being in force shall apply to this appointment as if you were a permanent officer in the Public Service, but shall not operate so as to restrict the grounds upon which you may be dismissed, or the manner in which you may be dismissed."

The right of appeal herein is available only within "the Public Service legislation of Nauru". This legislation, by virtue of the above clause, must not operate to restrict the grounds of dismissal of the appellant or the manner in which he may be dismissed. This appeal is concerned with the dismissal and certainly the manner of dismissal. The Board's jurisdiction being limited to confirmation, annulment and variation of the decision referred to it, an annulment or variation of the decision of dismissal on appeal, in our view, would operate as a restriction on the grounds of dismissal under the contract and the manner of it. We therefore consider the right of appeal is not available to the appellant.

For the above reasons, the Board declines jurisdiction.

Dated this 4th day of December 1985.

CHAIRMAN
MEMBER
MEMBER