Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

Bani v Public Service Commission [2008] VUSC 2; Civil Case 117 of 2007 (14 February 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 117 of 2007

BETWEEN:

ERNEST BANI
Claimant

AND:

PUBLIC SERVICE COMMISSION
Defendant

Coram: Justice C. N. Tuohy

Counsel: Mr. Stephen Joel for Claimant
Attorney General for Defendant

Date of Hearing: 23rd January 2008
Date of Decision: 14th February 2008

RESERVED JUDGMENT

Introduction

1. This is a claim for judicial review of a decision of the Defendant ("the Commission") to dismiss the claimant from his employment in a senior position in the Environment Unit of the Ministry of Lands for serious misconduct.
   

Factual Background

2. The Claimant joined the Public Service more than 20 years ago. His original appointment with effect from 2 January 1987 was a temporary appointment as Principal Environment Officer in the Ministry of Lands, counterpart to an expatriate advisor. After 2 years the appointment was made permanent. Over the years since, his office was shifted into the jurisdiction of other ministries but has now come back full circle to the Ministry of Lands.
   
3. On 10 March 2003, the Environment Management and Conservation Act No. 12 of 2002 came into force. It provided in Section 3 for a Director of the Department responsible for the environment to be appointed accountable to the Commission for the administration of the Act and having various other prescribed functions and duties.
   
4. In his pleadings, the Claimant asserted that he was at the time of his dismissal, that Director. The relevance of that claim is that the Public Service Act contains special provisions (ss. 19A and 19B) relating to the removal of a Director or Director-General whether for misconduct or otherwise. Those officers cannot be removed unless the Commission has received a complaint in writing from the Prime Minister, a Minister, the Ombudsman or the Auditor-General, something which did not happen in this case.
   
5. However the evidence of Mr. Bebe, Secretary of the Commission, is that a separate Department of Environment and Conservation has never been established and the Claimant has not been appointed as Director of it. He stated that the Claimant was at the time of his dismissal the Principal Environment Officer who is Head of the Environment Unit which is part of the Ministry of Lands but distinct from the Department of Lands, Survey and Records.
   
6. During the trial, the Claimant accepted that he was not in fact a Director in terms of the Public Service Act and his counsel formally conceded that. However, his evidence is that he in fact carried out the functions given to a Director under the Environmental Management and Conservation Act.
   
7. On 18 March 2007, which was a Sunday, the Claimant drove his official Government vehicle to Whitesands. The Claimant had no authority to use the vehicle outside working hours. He was under the influence of alcohol and permitted one of his passengers, a family member who did not have a driver’s licence and was also under the influence of alcohol, to drive the car back to Vila. During the trip back, while the Claimant was asleep in the passenger seat, the driver lost control of the vehicle which crashed and was seriously damaged.
   
8. The accident was immediately reported by members of the public to the Commission which wrote to Mr. Rusell Nari, the Director-General of the Ministry of Lands, on 20 March with copy to the Claimant requesting a complete report regarding the matter. The Claimant himself had written to Mr. Nari on 19 March to formally inform him about the matter. In his letter, he gave a brief account of what happened (omitting though any reference to alcohol) and accepted full responsibility for the accident and the costs of repairs (later established at VT 425,000).
   
9. On 22 March, the Claimant sent a lengthier email to his Director-General which repeated what he had said in his letter of 19 March and went on to set out certain matters in mitigation. He referred to the case of another public servant who had damaged a Departmental vehicle while under the influence of alcohol, had paid for the repairs and continued in his job. He submitted that he had learnt his lesson and would pay for the repairs and that the accident did not warrant his termination. He referred to his long commitment to his work and the fact that he was the sole person manning the Environment Unit.
   
10. On 26 March, the then Acting Director-General submitted his report to the Commission. Included was PSC Form 6-1 Discipline Report signed by the Claimant in which he ticked the boxes for "I accept the allegations against me in this report are true" and "I partially accept that the allegations against me are true". He said in his evidence that he did that because it was not him who had been driving at the time of the accident. The Acting Director-General’s letter also advised that the Claimant was the only one currently manning the Environment Unit, though with two contract officers. He also passed on the Director-General’s suggestion that the Claimant be given a final warning by the Commission on this occasion. As well as the PSC Form 6-1, the following were attached to the letter:
    
    1. Claimant’s letter of 19 March
    2. Claimant’s email of 22 March
    100. Report from a person who had passed the Claimant’s vehicle immediately before the accident
    4. Report from Tanna Community at Pacific Venier about the accident
       

The Commission also obtained a copy of the Police Report on the accident.

11. All this material was placed before the Commission at its meeting on 26 April under cover of a Submission Paper summarizing the case, referring to the relevant sections of the Public Service Act and the options available to the Commission and setting out the details of 5 other cases where public servants has caused car accidents outside official hours when drunk. (All 4 of those which were the subject of a Commission decision resulted in dismissal under s. 29. The other was the case referred to by the Claimant which was dealt with inside the Department involved).
    
12. The Commission also had before it, as might be expected, the Claimant’s personal file which had on it papers relating to a fine imposed by the Commission in 2002 under s. 29B of the Act for unauthorized use of a Government vehicle, a letter from a Political Advisor to the Minister of 17 August 2005 reprimanding him for not attending Ministerial meetings when required, another letter of 12 May 2006 suspending him from overseas missions due to difficulties of his office in coping with work demands and a letter of 3 April 2007 from his Director-General expressing concern with his performance in Ministerial consultation.
    
13. The Commission’s deliberations and decision are recorded in its Minutes:
    

"In its deliberations, the Commission took into consideration the fact that:

1. Mr. Bani has not obtained the "appropriate authority" to use the official vehicle after official working hours and that the vehicle was not used for official duties;
2. Mr. Bani was heavily under the influence of alcohol while driving including passengers;
3. Mr. Bani has by responsibility, permitted a person (non government employee) who has no valid driver’s licence and was also under the influence of alcohol to dire the official vehicle and caused the car accident; and
4. Commission further noted from Mr. Bani’s past records that Mr. Bani was issued with a notice for driving official vehicle without obtaining the "appropriate authority".
5. Mr. Bani was warned and suspended from overseas travel by his Director General for traveling overseas without prior approval from the authorities concerned.
6. Mr. Bani was warned for failing to attend ministerial meetings following instructions from his superiors.
   

Commission considered the matter as serious and decided that:

1. Mr. Bani is dismissed from service with immediate effect under section 29(1), PS act:
2. Commission determined his past service exemplary;
3. Commission further decided that the severance pay be calculated in accordance with section 29, PS Act (Employment Act Cap. 160, section 56(2)(a)(ii) which is 15 days remuneration for every period of 12 months;
4. Commission further decided that the costs of the repairs to the vehicle be deducted from his final pay".
   

The Claimant was advised of the decision by letter dated 2 May 2007.

A Preliminary Point

14. In his first sworn statement, the Claimant had given grossly hearsay evidence about what the Chairman of the Commission had allegedly told someone else outside the Public Service on a social occasion about the Claimant’s case. This had understandably brought forth a sworn statement in response from the Chairman denying the hearsay allegations. At the commencement of the hearing, the Court ruled the Claimant’s evidence on this issue inadmissible, an entirely predictable ruling.
    
15. Counsel ought never to have allowed obviously inadmissible gross hearsay to have been included in the sworn statement. It has resulted in the Commission’s lawyers unnecessarily expending resources in filing a sworn statement in reply and the Court unnecessarily wasting time in disposing of the issue at trial. Counsel is by no means alone in including obviously inadmissible gross hearsay in sworn statements. The profession should be aware that doing so in future may well result in expensive costs orders.
    
16. The Court also wasted considerable time at the start of the hearing dealing with successful objections to the admissibility of large portions of the Claimant’s sworn statement on the grounds that they consisted of legal submissions and arguments not evidence. Again, this is a practice which is widespread. All counsel are urged to read and comply with R 11.4 in future. The Court should not have to wade through irrelevant and inadmissible material in sworn statements. Legal submissions and arguments should not be contained in sworn statements.
    

Submissions

17. The Claimant has never at any stage denied any of the facts surrounding the accident. Nor does he dispute that his actions amounted to serious misconduct. Once the Director point was conceded, the Claimant’s counsel, was left with only 2 submissions.
    
18. First, he submitted that the Claimant was not given the opportunity to answer the previous matters relied upon by the Commission. Secondly, he submitted that there was a course other than summary dismissal available to the Commission, namely the giving of a warning and making the Claimant pay the costs of repairs. He referred in support to s. 50(4) and s. 50(3) of the Employment Act and s. 29 of the Public Service Act and also to provisions of Chapter 6 of the Public Service Manual (which is not in evidence).
    
19. The Attorney-General submitted in answer to the first point that since the past matters had been put to the Claimant at the time that they occurred they did not have to be put again. As to the second issue, he submitted that the Claimant’s actions were so serious that they warranted summary dismissal. He referred to William Bani v. Government of Vanuatu [2007] VUSC12; CC 214 of 2005 and Ben Garae v. Public Service Commission [2005] VUSC 20; CAC 3 of 2005 in support of his submission. He also referred to Chapter 6 of the Public Service Manual.
    

Discussion

20. Section 29 of the Public Service Act empowers the Commission "to dismiss an employee at any time for serious misconduct, but subject to its obligations to act as a good employer". In Government of Vanuatu v. Ephraim Mathias [2006] VUCA 7, CAC 10 of 2006, 1 June 2006, the Court of Appeal confirmed that the protective provisions of s. 50(2) – (5) inclusive of the Employment Act are entirely consistent with the obligation in s. 29 "to act as a good employer".
    
21. Section 50(4) provides that an employee shall not be dismissed on the ground of serious misconduct unless he has been given an adequate opportunity to answer any charges against him. What this refers to is the charges constituting the alleged serious misconduct, in this case the events of 18 March resulting in the accident.
    
22. There is no question that the Claimant was given a full opportunity of answering the charges against him. In fact he availed himself of that opportunity by writing his letter of 19 March and his email of 22 March in both of which he admitted the facts on which the charges are based. He acknowledges that they constitute serious misconduct.
    
23. In his second sworn statement, the Claimant complained that he was not given a formal charge to answer. However, there is no merit in this complaint. He knew exactly what alleged conduct of his the Commission was concerned about and there has never been any question or misunderstanding about that. He admitted it. Given his admission of the conduct, there is also no merit in his complaint that there was no oral hearing (see Garae v. Public Service Commission [2005] VUCA 20; CAC 3 of 2005 (18 November 2005).
    
24. His complaint is that in deciding whether to exercise its discretion to summarily dismiss once serious misconduct had been established, the Commission took into account previous matters disclosed in his personal file without putting those matters to him.
    
25. These are not matters which s. 50(4) is directed towards. In any event, the Attorney General’s submission is correct. It is evident from the material that the Claimant was given the opportunity at the relevant times to answer the various matters raised, none of which amounted in themselves to serious misconduct. For example in regard to the previous incident of unauthorized use of a Government vehicle in 2002, the Claimant was given the opportunity to dispute the matter if he wished, otherwise he could pay the fine imposed under s. 29B which he apparently chose to do.
    
26. The Commission must be entitled to look at an employee’s past record as disclosed by his personal file when deciding how to deal with proven serious misconduct and the employee must expect this. Apart from anything else, if the Commission decides to dismiss, it must make a decision on whether or not the employee’s past service has been exemplary for the purposes of a redundancy payment under s. 29(2) of the Public Service Act. (In this case the Commission found his past performance exemplary despite the matters on his file, a fair decision given the length of the Claimant’s service). It is completely impractical to expect the Commission to re-adjudicate every matter noted in the file over the previous years of employment. The time for disputing an adverse entry is when it is made.
    
27. The other issue raised by the Claimant is whether the Commission was in breach of s. 50(3) of the Employment Act in that it could have dealt with his case other than by summary dismissal, for example, by giving him a final warning and requiring him to pay the repair costs.
    
28. In his counsel’s submissions and in his second sworn statement, he went as far as arguing that this course should have been taken because he has specialized skills and experience in his job and it is in the national interest that he be retained in the Public Service.
    
29. Obviously, when a case of serious misconduct is proven the Commission must decide whether it justifies summary dismissal or whether some other course is "in good faith" open. That is a discretionary decision which the Commission must take having regard to its objectives as set out in s. 7 of the Public Service Act: "to provide a service to the Government and Vanuatu people of the highest professional standard, and to conform to, comply with, and foster within the Public Service, the guiding principles of the Public Service set out in Section 4". Those guiding principles include:
    
    • have the highest ethical standards
    • be accountable for their actions
    • provide leadership of the highest quality
    • observe the law
    • ensure transparency in the performance of their functions
      
30. It is for the Commission to exercise that discretion and the Court will not interfere unless it is shown that the Commission has acted on a wrong principle, taken into account irrelevant considerations or failed to take into account relevant considerations or was plainly wrong. There is nothing to suggest that here. The Claimant’s misconduct was undoubtedly serious. The Commission cannot be criticized for taking the view that in the circumstances the only course available to it was summary dismissal. In that respect, the Claimant’s case has been dealt with consistently with similar cases; see e.g. William Bani v. Government of Vanuatu [2007] VUSC 12; CC 214 of 2007 (27 March 2007).
    
31. The Claimant’s argument that the difficulty of replacing him should mean that he gets only a final warning comes very close to a plea that those in important positions in the Public Service should be treated more leniently than those in less important positions. It would be a very dangerous thing for the Public Service if the Commission accepted that line of argument. If anything, the more important the office, the higher should be the standard of conduct expected of the office-holder.
    
32. The end result is that the Claimant has failed to show any grounds for the Court to interfere in the decision of the Commission. The Claim is dismissed. The Commission is entitled to costs to be fixed by the Court if not agreed upon.
    

Dated at Port Vila, this 14th day of February, 2008

BY THE COURT

C.N. TUOHY
Judge