By Mary Lyn Fonua

The Supreme Court of Tonga has ruled in favour of a civil claim brought by the Deputy Secretary of Foreign Affairs against the Public Service Commission, who unlawfully initiated serious disciplinary action against her.

The Plaintiff, Toakase Panisia Palelei, successfully challenged the lawfulness of the Commission's decisions and the resultant decision by the Committee to charge her with a breach of discipline in March this year.

In his ruling the Lord Chief Justice Whitten KC. considered that there were many problems with the regulations, which he said were best addressed by amendment or repeal and replacement - saying the wording in some regulations is "nonsensical".

“The Regulations came into force in 2003. They were the subject of numerous amendments in 2010.  Yet, a number of other omissions, drafting infelicities and ambiguities remain.”

He also said that unlike every other Ministry in the Kingdom, the Ministry of Foreign Affairs does not currently have a CEO.

The Plaintiff's civil claim was heard on 17 July in the Supreme Court of Tonga and the ruling for the Plaintiff was made on 24 July by the Lord Chief Justice

Background

On 1 December 2022, the Commission issued Decision 908 by which it initiated disciplinary action against the Plaintiff for serious breach of discipline.

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

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

On 31 March this year the Plaintiff was granted leave by the court to apply for judicial review of the Committee's decisions and an injunction was issued restraining the Commission from taking any further action on the disciplinary decisions pending the hearing.

Reasons for disciplinary action

The reason for the disciplinary action against the Secretary related to Ministerial executive directives that allegedly were not implemented.

The Commission alleged that on 14 November 2022, the Minister of Foreign Affairs sent an “executive directive” by email to the Plaintiff, the Secretary of Foreign Affairs and staff of the Ministry, for certain action to be implemented within the Immigration Division of the Ministry.

It also alleged that neither the Plaintiff nor the Secretary responded to the Minister’s directive.

“On 18 November 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.”

The Chief Justice said 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, in this case, “The Ministry of Foreign Affairs does not have a CEO. Under the Public Service Act (“Act”), the Secretary is not a CEO,” the Chief Justice said.

During a meeting on 10 February 2023, the Secretary advised the Acting CEO of the Defendant 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.

The judge said that, importantly, the regulation provides the very first opportunity for the employee to respond and be heard on the allegations before any further step is taken.

“Denial of that right to natural justice by circumventing the requirements of regulation 5 presents yet another potential breach by which subsequent decisions may be invalidated.”

No CEO for Foreign Affairs

He said that at the heart of this review proceeding was: “The real reason the Commission did not obtain a regulation 5 report was because, unlike every other Ministry in the Kingdom, the Ministry of Foreign Affairs does not currently have a CEO.  

“During the course of submissions, Mr Sisifa helpfully attempted to elucidate that peculiarity as follows:

• the Secretary, who is also currently the Lord Privy Seal, is the person in putative charge of the administration of the Ministry;
• the Secretary is not employed under a fixed contract of employment under the Act and therefore cannot be a CEO as defined by s 3 of the Act;
• in any event, the Act expressly does not apply to the Secretary;
• the Secretary was appointed by the King; and
• otherwise, any reason/s for the absence of a CEO in the Ministry were described as “sensitive”.

“It is unfortunate that that state of affairs led the Commission to take the course it did.”

He said that pursuant to s13, the Commission was required to appoint a CEO for the Ministry of Foreign Affairs.

“In breach of that requirement, it has not done so. Had it done so, it is reasonable to expect that that CEO would have conducted an inquiry in accordance with regulation 5 and produced the requisite report.”

No lawful basis

The judge ruled that 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 the Plaintiff.

He declared that the Defendant's decisions were unlawful - the decision to initiate serious disciplinary action against the Plaintiff which resulted in the charges of serious breach of discipline against her on 1 March 2023; and number 919 of 21 December 2022 suspending the Plaintiff from duty without pay for serious breach of discipline and instituting procedures for serious disciplinary charges against her.

He quashed and set aside the Defendant's decisions number 908 and 919 and remitted the matter back to the Defendant for further consideration according to law.

By consent, the Defendant is to pay 75% of the Plaintiff's solicitor/client costs of and incidental to the proceeding, to be taxed in default of agreement.

Mrs D. Stephenson KC represented the Plaintiff and Mr S. Sisifa SG for the Defendant.