Deputy Secretary of Foreign Affairs Prevails in Unlawful Disciplinary Action Case Against the Commission
Nuku’alofa, Tonga – In a recent court case that captured attention due to its implications for the public service sector, the Deputy Secretary of the Ministry of Foreign Affairs emerged victorious as the court ruled in her favour. The case revolved around the lawfulness of the Commission’s decisions to initiate disciplinary action and suspend her without pay for alleged serious breaches of discipline.
The plaintiff, Toakase Paleli, challenged the Commission’s actions, asserting that the decisions were unlawful as they failed to comply with prescribed procedures outlined in the Regulations. The Commission, in response, claimed authority to adopt its own procedures for disciplinary actions under specific provisions of the Act.
Background
The crux of the case lay in the alleged failure of the Plaintiff and the Secretary of Foreign Affairs to respond to an “Executive Directive” sent by the Minister of Foreign Affairs. The Minister, dissatisfied with the lack of response, lodged a complaint with the Commission, triggering disciplinary proceedings.
According to the Regulations, a CEO of the relevant Ministry is responsible for conducting a preliminary investigation and preparing a complete report (Regulation 5) in cases of serious breaches of discipline. However, the Ministry of Foreign Affairs had no CEO, and the Secretary declined involvement, leading to the absence of a critical regulation 5 report.
Subsequently, the Commission issued two decisions, numbered 908 and 919, initiating disciplinary action and suspending the Plaintiff without pay, respectively. The Plaintiff contended that these decisions were invalid as they relied on regulations that necessitated a regulation 5 report.
The Commission’s argument that it can adopt its own procedures for disciplinary action initiated on its own motion is unsustainable, according to the Chief Justice in his findings. He notes the Act and Regulations do not permit the Commission to determine its own procedures outside the prescribed ones.
The Court’s Decision
The court ruled that the Commission did not have the authority to determine its own disciplinary procedures outside the prescribed Regulations. It also emphasized the importance of a regulation 5 report, which serves as a comprehensive document for disciplinary proceedings, ensuring the employee’s right to be heard before any adverse decision is made.
Moreover, the absence of a CEO within the Ministry of Foreign Affairs further complicated the matter, making it impossible to produce the required regulation 5 report. Consequently, the Commission’s decisions to initiate disciplinary action and suspend the Plaintiff without pay were deemed unlawful and quashed.
This ruling carries significant implications for disciplinary proceedings within the public service sector, highlighting the importance of adhering to prescribed procedures to ensure fairness and transparency.
The Deputy Secretary’s triumph in this court case sheds light on the significance of following established procedures within the public service sector. The judgment serves as a reminder to institutions to maintain transparency and accountability in their disciplinary actions and to address any deficiencies in the Regulations through proper amendment procedures.
