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Italeli v Attorney-General [2009] TVHC 7; Civil Case 08 & 09 of 2009 (12 December 2009)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Civil Jurisdiction

Consolidated Case Nos 8/09 and 9/09

Between

ISAIA ITALELI
SOLOMONA VILIAMU
Applicants

And

ATTORNEY GENERAL
PUBLIC SERVICE COMMISSION
MINISTRY OF EDUCATION
Respondents

BEFORE THE CHIEF JUSTICE

K Muaror for the applicants
D Gorman for the respondents

Hearing: 26 October 2009
Judgment on quantum delivered:

Judgment on Quantum

1. These two actions arose from the same events in late 2005 and 2006 which led to the dismissal of both applicants, finally, on 23 February 2007. The cases were heard together and the facts of the case are set out in the judgment delivered on 26 October 2009. I do not repeat them here.

2. Both sought certiorari in respect of two decisions of the Public Service Commission (PSC); the first of which purported to dismiss them and the second to dismiss their appeals against the first decision. In addition they sought declarations, first, that both decisions are null and void and, second, that the decisions they had been responsible for the leaking of examination papers, which was the basis of the dismissal, was also null and void. The second declaration fell was outside the scope of these proceedings and was refused at the outset.

3. The trial was badly delayed because of the difficulties the applicants experienced in obtaining legal representation as a result of the absence of a people’s lawyer for much of the intervening period. I found for the applicants but the passage of time meant that there was no question reinstatement as had been sought in the remedies. They also sought "damages and/or all unpaid wages and entitlements from the effective date of termination until the date of payment". It that aspect of the case with which I now deal.

4. I concluded my judgment:

"I consider these two men are entitled to a public statement that the decision by which they were dismissed from the Public Service was reached by a totally incorrect procedure under which they were dismissed without being told of the case against them and were denied their right to make a proper defence.

I order certiorari and direct that the decision made by the Public Service Commission on 18 August 2006, dismissing them from the Public Service, and on 16 February 2007, rejecting their appeal against the first decision, be removed into this Court and quashed. I do not need to make the first declaration sought and have already stated that I decline to make the second declaration.

Whilst that means the dismissal was unlawful, it has clearly taken place and it is equally clear that, whatever the reasons for the delay in reaching this Court, the applicants cannot be re-instated in their former positions. I therefore refuse that prayer but consider the proper remedy must lie in damages ..."

5. I was able to hear evidence from both applicants before the end of the court sitting in October and reserved my judgment on quantum.

6. During the hearing, repeated reference was made to the rights or wrongs of the allegation of leaking examination papers made against these men, which formed the basis of the decision to dismiss them. The Court was not able to consider that matter. As has been repeated so often, the purpose of Judicial Review proceedings is to consider the decision making process and, with the exception of Wednesbury unreasonableness which did not form part of the present case, it does not involve a consideration of the merits of the case itself.

7. They are relevant at this stage only in deciding whether they would have resulted in the dismissal of these men if the proper procedures had been followed. The evidence I have heard suggests that would have been the result of the findings particularly of the Commission of Inquiry, which led, in this case by an improper route, to the decision to dismiss.

8. The purpose of damages is to try, as well as can be done in the circumstances of the case, to put the successful party back in the position he would have been had the wrong committed against him not occurred. In this case, it places a firm limit on the damages recoverable.

9. The principle has been interpreted in many wrongful dismissal cases as limiting the assessment of the loss suffered to the amount the employee would have received had he been dismissed by correct procedures. It is based on the assumption that the fault was the adoption of incorrect procedures and so the remedy is to restore the salary and entitlements the dismissed person would have received had the proper procedures been followed.

10. Mr Muaror, for the applicants, despite the wording of the prayer for damages, suggests that, as their employment in the public service would normally continue until the compulsory retirement age of 55 years, they must be paid the salary they would have received up to that time. I do not accept that is correct.

11. He also submits that the manner in which these men were treated over this whole allegation caused them considerable distress and hardship. Their evidence spoke of the effect on each man and on his immediate family members and on the status of the family as whole in the eyes of the Tuvaluan public.

12. I accept this was a difficult, frustrating and embarrassing period for both. The decision may well have lowered them in the eyes of the community, although I have only their evidence of this, and they are left with little or no opportunity to obtain similar employment in the education field in this country as a result.

13. However, the quashing of the decision by this Court provides the principal remedy for that aspect of the case. They have received, as I stated in the first judgment, a public statement that the decision by which they were dismissed was made following totally incorrect procedures.

14. The conduct of the PSC was, the applicants further submit, so blatant that the applicants should receive some additional financial damages for the distress that wrongful attitude caused. In a case such at this where the Court might have sent the case back for a rehearing by the PSC, the Court may take note of the likelihood that such a step would result in a hearing under the correct procedures coming to the same conclusion. I bear in mind the warning, given by Bingham LJ in R v Chief Constable of Thames Valley Police, ex p Cotton [1990] IRLR 344, of the risk of straying into "the forbidden territory of evaluating the substantial merits" of the decision. However, whilst the applicants were undoubtedly denied the opportunity properly to put their defence as I have found, the overall manner in which the PSC evaluated the incident and the evidence before it demonstrates that, had the proper procedures been followed, the result would have been the same.

15. In this case, the PSC failed to follow the correct procedures and denied the applicants their rights but I do not consider this was the result of any mala fides or deliberate prejudice against the applicants. In my judgment, I accepted that there was no evidence of bias by the PSC. Indeed the manner in which it pursued the matter showed an attempt to give them the right to answer the allegations even though the manner in which it was done was inadequate and incorrect. The wrong was the PSC’s failure to follow its own procedures. As I have already found:

"The failure to follow its own procedures was the first step along the path which led, inevitably, to the failures of natural justice. Had the PSC followed the Rules, this judicial review would probably not have started. The PSC did not even start to do so ..."

16. I also consider that the distress caused to the applicants derived largely for the findings of the Commission of Inquiry and the general public interest in the case. I am satisfied that the quashing of the decision and the statement that it was reached improperly is the most effective remedy for that injury.

17. I consider the appropriate award of damages should be limited to the salary due under the normal period of notice for termination of employment. I have not been provided with the period of normal notice and that will need to be determined. I therefore order that the defendants shall pay each applicant damages amounting to that amount of salary and any other entitlements they would have under a normal (that is to say on grounds other than disciplinary reasons) termination with proper notice.

18. The applicants have had substantial success in their claim and so they shall have their costs.

Order on quantum:

1. The respondents are jointly and severally liable to pay damages to each applicant in a sum equal to the salary for the normal period of notice required when terminating a public servant for reasons other than dismissal on disciplinary grounds and any entitlements which such a terminated officer would receive.
   
2. The respondents shall have their cost to be taxed on a party/party basis if not agreed.
   

12 December 2009

Gordon Ward
Chief Justice

Delivered in open Court this ... day of ............ 20..