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PSC’s dismissal of Foreign Affairs Deputy Secretary was unlawful, Supreme Court rules

The Supreme Court has declared the Public Service Commission’s suspension of its Deputy Secretary as unlawful.

The hearing was heard before Lord Chief Justice Whitten.

Minister of Foreign Affairs Fekita ‘Utoikamanu. Photo/PM Office

In his report on the case, the Lord Chief Justice said that on November 14, 2022, the Minister of Foreign Affairs  sent an Executive Directive by e-mail to Toakase Panisia Palelei,  the Deputy Secretary of the Ministry of Foreign Affairs, the Secretary of Foreign Affairs  and staff of the Ministry, for certain action to be implemented within the Immigration Division of the Ministry. 

The Public Service Commission alleged that neither Palelei nor the Secretary responded to the Minister’s directive. On November 18, 2022, the Minister repeated the directive and required it to be implemented by 2.30pm that day.  Again, neither the Plaintiff nor the Secretary responded. As a result, the Minister lodged a complaint with the Commission against the Plaintiff. 

Where an employee is alleged to have committed a serious breach of discipline or repeated minor breaches of discipline, regulation 5 of the Public Service (Disciplinary Procedures) Regulations requires the Chief Executive Officer of the relevant Ministry to conduct a preliminary investigation into the complaint and if he/she determines that there has been a serious breach of discipline, or repeated minor breaches of discipline, the CEO shall forward a complete report, containing specified information and documents, to the CEO of the Commission.

However, the Ministry of Foreign Affairs does not have a CEO. Under the Public Service Act, the Secretary is not a CEO. During a meeting on February 10, 2023, the Secretary advised the Acting CEO of the Commissiont that he did not wish to be involved in any disciplinary proceedings against the Plaintiff. As a result, a report in accordance with regulation 5 was never prepared. 

On December 1, 2022, the Commission issued Decision 908 by which it initiated disciplinary action against the Plaintiff for serious breach of discipline, purportedly pursuant to the Regulations and referred the complaint to the Charge Formulation Committee.  The Commission provided the Committee with its two decisions and the reports of the Minister.

On  December 21,  2022, the Commission issued Decision 919 by which it suspended Palelei from duty without pay and advised her that procedures for serious disciplinary charges would be progressed against her. 

On 1 March 1, 2023, the Committee charged Palelei with serious breaches of discipline.

In this proceeding, Palelei challenged the lawfulness of the Commission’s decisions and the resultant decision by the Committee to charge her.  On March 31, 2023, she was granted leave to apply for judicial review of the decisions. An injunction was issued restraining the Commission from taking any further action in respect of its decisions pending the hearing.

Palelei contended the decisions were unlawful because the Commission failed to follow procedures prescribed by the Regulations. In particular, Palelei relied on the fact that a regulation 5 report from the CEO of the Ministry was never prepared or provided to her or the Committee as required.

The Public Service Commission contended that it was entitled to initiate disciplinary proceedings against Palelei, of its own motion, and that in the absence of express procedures within the Regulations for doing so, it was entitled to determine its own procedures provided they were consistent with and complement the Regulations.

On June 16, 2023, the parties agreed for the following question to be separately tried pursuant to Order 25 rule 4 of the Supreme Court Rules:

Whether it was lawful for the Public Service Commission to charge Palelei  with serious breaches of discipline pursuant to Regulation 7 or suspend her from duty without pay pursuant to Regulation 9, in the absence of a report provided for by Regulation 5, the provision of which was not possible, and according to procedures determined by the Defendant  according to the Act. 

The separate trial of the question took place on July 17, 2023. At the conclusion of oral argument it was determined that the Commission’s defence could not succeed, and that judgment should be entered for Palelei.

The Supreme Court ruled the Commission’s decision to suspend Palelei from duty without pay was unlawful.

It said any recommendation from the Committee to suspend her was dependent upon receipt of a regulation 5 report. Similarly, pursuant to regulation 9, the Commission’s power to suspend was dependent upon receipt of a regulation 5 report, which could have been available had the Commission fulfilled its statutory obligation to appoint a CEO and/or had the Minister appointed an Acting CEO.

In the absence of a regulation 5 report, there was no lawful basis for the Committee to recommend suspension or for the Commission to suspend Palelei.  This also meant that the Public Service Commission’s decisions to initiate serious disciplinary action against the Plaintiff which resulted in the charges of serious breach of discipline against her and her suspension without pay for serious breach of discipline and instituting procedures for serious disciplinary charges against her were  unlawful.

The Commission’s decisions were quashed and set aside.