Sam v The Public Service Board of Appeal
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Henry, J. |
| Judgment Date | 20 October 2016 |
| Neutral Citation | VC 2016 HC 70 |
| Docket Number | SVGHCV2014/0247 |
| Court | High Court (Saint Vincent) |
| Date | 20 October 2016 |
High Court
Henry, J.
SVGHCV2014/0247
Mr. Jomo Thomas for the applicant.
Mr. Richard Williams and Mr. Grahame Bollers for the respondent.
Employment Law - Unfair dismissal — Whether the applicant was unfairly or wrongfully dismissed — Whether the decision of the respondent is vitiated — Illegality — Procedural irregularity — Unreasonableness — Imposition of punishment which is disproportionate — Whether the procedure adopted in the disciplinary proceedings was fair — Judicial Review — Whether the applicant's transfer was unlawful — Doctrine of stare decisis — Whether the charge was properly initiated — Hearing before interdiction — Whether the interdiction violated natural justice procedures — Whether the charge against the claimant was valid — Bias — Whether the respondent failed to adequately consider freedom of expression — Damages for unfair dismissal — Duty to loyalty — Transcript of the tribunal hearing — Order 3.27 of the Civil Service Order.
Mr. Otto Sam was employed as a teacher in the service of the Government of the State of Saint Vincent and the Grenadines (‘government’) for thirty years. In August 2010, he was ‘transferred’ to the National Emergency Management Organisation (‘NEMO’), from his substantive post of head teacher at South Rivers Methodist public school. In July 2012 while stationed at NEMO, he admittedly wrote and published an article in two weekly newspapers about certain operations at NEMO. He was interdicted pending investigation.
Disciplinary proceedings were brought against him for misconduct. He was charged with contravention of the duty of loyalty owed as a public servant, for criticizing NEMO ‘in a manner likely to bring the public service into disrepute and prejudicial to the efficient conduct of the service’. He was found guilty by the disciplinary tribunal. After considering the tribunal's report, the Public Service Commission (‘PSC’) dismissed him in August 2014. His appeal to the Public Service Board of Appeal (‘PSBA’) was dismissed.
By order dated 9th February, 2015, Mr. Sam was granted leave by this court to apply for judicial review of that decision. He subsequently filed a fixed date claim challenging the dismissal on the grounds that it was illogical, unreasonable, illegal and amounted to disproportionate disciplinary action. He also attacked the tribunal's findings and the actions of certain public officers. He submitted that the officers and the tribunal committed a series of procedural errors and unlawful acts which have rendered the process unfair thereby invalidating the PSBA's decision.
Mr. Sam has applied for an administrative order quashing the PSBA's decision to dismiss him and an order of mandamus directing the PSBA to reinstate him to his job as a teacher. He contended that he was unfairly or wrongfully dismissed. He claimed damages, full pay with interest and all increases and benefits he has been denied. He also applied for an order that his pension and gratuity benefits be honoured on the ground that there has been no break in his service.
The PSBA has resisted the claim. They submitted that his highly critical attack of NEMO ‘in face of a request from its Director to desist from doing so, transcended the boundaries of responsible expression and trespassed into the realm of misconduct.’ They argued that the procedure adopted during the disciplinary proceedings was fair. They submitted further that the tribunal neither exceed its authority nor acted in any unlawful manner. The PSBA maintained that they provided a well-reasoned decision having applied the correct common law principles to the charges and facts. They contended further that Mr. Sam's dismissal was an appropriate punishment and was not excessive in the circumstances. They submitted that his application has no merit and should be dismissed.
The tribunal, PSC and PSBA were all involved as functionaries and agents of the government. This court has concluded that Mr. Sam's dismissal was unlawful. The government is liable to him in damages.
The issues are whether:
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(1) The PSBA's decision to dismiss Mr. Sam is vitiated because of:
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(a) illegality,
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(b) procedural irregularity,
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(c) unreasonableness; or
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(d) the imposition of punishment which was disproportionate?
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(2) Mr. Sam was unfairly or wrongfully dismissed?
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(3) To what remedy, if any, is Mr. Sam entitled?
The factual matrix in this case covers several events starting with the initiation of disciplinary proceedings, extending to the tribunal hearing and PSC decision and culminating with the PSBA's ruling. Mr. Sam has anchored aspects of his challenge on actions which spanned each stage of those proceedings. It is therefore useful at the outset to provide a comprehensive overview of those surrounding facts to facilitate comprehension of the inter-play between each stage.
Mr. Sam testified but called no witnesses. The PSBA's witnesses were the Honourable Attorney General, PSBA chairman Mr. Cecil John, chairman of the disciplinary tribunal Mr. Colin John and tribunal member Mr. Aldric Williams. They all provided affidavit testimony and were cross-examined. There is little dispute regarding the major elements of the evidence.
Mr. Sam is a post graduate trained teacher. He holds a UWI teacher's Certificate in Education Management and Supervision and a Degree in Educational Administration. In 2005, he was appointed head teacher of the Lowmans Windward Anglican School and 4 years later was transferred as head teacher to the South Rivers Methodist School. As a teacher, Mr. Sam fell under the umbrella of the Ministry of Education which constitutionally is headed by the Permanent Secretary in that Ministry.
Mr. Sam's ‘transfer’ to NEMO placed him within the Ministry of National Security Air and Sea Port but he was not attached to any post there. He was expected to report to the head of that department, Director of NEMO, Mr. Howie Prince. The Permanent Secretary in that ministry was Mr. Godfrey Pompey.
Mr. Sam wrote the article entitled ‘N.E.M.O. an interesting organization’ and had it published in the NEWS and Searchlight newspapers on July 20th 2012 and July 24th 2012 respectively. By memorandum dated August 7th 2012, Mr. Howie Prince asked Mr. Sam to present a ‘written explanation for the nature of the article and the authorization for publishing same.’ Mr. Prince was acting on instructions received from P.S. Pompey by memorandum dated August 2, 2012 requesting the written report by August 9th, 2012. By the time he received the directive, Mr. Sam had less than 2 days to comply. He testified that he sought clarification from the Director but none was forthcoming.
Mr. Sam deposed that on August 8th, before he was able to respond to the memorandum, he received a letter dated August 7th, 2012, from the Chief Personnel Officer (‘CPO’), purportedly on the PSC's behalf, informing him that he was being interdicted from his duties on half pay, pending the outcome of disciplinary proceedings which were to be instituted against him. By letter dated 20th August 2012, Mr. Godfrey Pompey notified Mr. Sam that he was directed by the PSC to initiate disciplinary proceedings against him. He enclosed a statement of charges and asked Mr. Sam to indicate in writing within 14 days of receipt, any grounds on which he relied to exculpate himself.
The charge [Exhibited as OS 6 to Mr. Sam's Affidavit filed on March 11, 2016.] was unsigned and undated. The statement of charges reads:
‘STATEMENT OF CHARGES
Mr. Otto Sam, Headteacher, South Rivers Methodist School, Ministry of Education, on assignment to the National Emergency Management Organization (“NEMO”), you are charged with the following act of misconduct contrary to Order 3.27 of the Civil Service Orders:
CHARGE:
That you, contrary to law and in contravention of the duty of loyalty owed by you as a public servant, to the Government of Saint Vincent and the Grenadines, publicly criticized the National Emergency Management Organization (“NEMO”), the Government's central agency for coordinating disaster management in the State, in a manner likely to bring the Public Service into disrepute and prejudicial to the efficient conduct of the Service, when you said … ‘
The alleged offending portions of the article were then laid out and a copy of the impugned article was attached. The article is fully considered against the applicable law in this judgment.
Mr. Sam testified that he submitted his response on September 4th, 2012. In his undated written response to the charge, he indicated that he had repeatedly brought those concerns to the attention of the CPO, NEMO's Acting Director Michelle Forbes, its Director and the PS without success. He explained that he wrote out of concern that NEMO
‘… is crying out for serious attention relative to policy, leadership and management, interpersonal relationship, planning and professionalism and the will to act.’
He claimed that the publication was actuated by a desire to bring those matters to the attention of someone in the public with the requisite influence to address them. He refuted the allegations of disloyalty and described his approach to work as being that of a committed and loyal worker.
A three member tribunal was constituted [Pursuant regulation 54(2)(d)(i) of the Public Service Commission Regulations (the regulations') Cap. 10 of the Revised Laws of Saint Vincent and the Grenadines, 2009.] to conduct the hearing into the allegations and to render a decision on whether Mr. Sam was guilty. It was chaired by Mr. Colin John, Deputy Director of Public Prosecutions. The other members were Mr. Aldric Williams and Mrs. Cecily Saunders. The hearing was conducted in an office occupied by the Attorney General's chambers. By an undated and unsigned...
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