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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
PUBLIC REPORT
ON THE
UNLAWFUL SUSPENSION OF A SECONDARY SCHOOL TEACHER BY THE FORMER DIRECTOR OF SECONDARY SCHOOL, MR ANTOINE THYNA AND THE TEACHING SERVICE COMMISSION
Date: 26 June 2000
Ref/98
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PUBLIC REPORT ON THE UNLAWFUL SUSPENSION OF A SECONDARY SCHOOL TEACHER BY MR ANTOINE THYNA AND THE TEACHING SERVICE COMMISSION
SUMMARY
This report provides an overview of the improper procedure and power to suspend a secondary teacher, 'Mr A' by the former director of secondary school, Mr Antoine Thyna 'Mr Thyna' endorsed unlawfully by the Teaching Service Commission (‘TSC') without the proper procedure of suspension required under the law.
Mr A was appointed as a permanent secondary teacher by the TSC under section 11 of the Teaching Service Act Cap 171, ('the Act'), on 17 September 1997 and was posted to teach at Burumba Junior Secondary School on probation period of two years.
At the beginning of 1998, Mr Thyna wrote to the Salary Section at The Ministry of Education informing them to suspend the salary of Mr A along with the two other teachers, Mr Ruru Gaetan and Mr Willie Iaruel. (see Appendix D)
As a result Mr A was not given a post in 1998. It is alleged that Mr A was not given any notification either by the TSC or the Minister responsible on the grounds of his suspension. Mr A informed us that he has served the Teaching Service since 1983. However, the Ministry of Education and the TSC could not locate his personal file.
The Ombudsman has tentatively found that the action of Mr Thyna in suspending Mr A was unlawful and did not follow the proper procedures for suspension as provided by the Act.
The Ombudsman then recommended:
* That, Mr A appears to have a legal and justified right to make a claim for unpaid salary during the period that he was not served with the notice in writing of his termination.
* That, the Teaching Service Commission and Mr Thyna be held responsible for any compensation claim that Mr A may request from the Ministry of Education based on maladministration, negligence and error of law.
* That, the Ministry of Education seek appropriate legal advice on Mr A’s claim for unpaid salary.
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TABLE OF CONTENTS
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1. JURISDICTION
1.1 The Constitution, the Ombudsman Act and the Leadership Code allow the Ombudsman to look at actions of the government, related bodies, and Leaders. He can also look into defects in laws or administration, discrimination and breaches of leadership code. This includes the conduct of the TSC and the Former Director of Secondary Education, Mr Thyna following the alleged suspension of 'Mr A' without following the proper procedures required under the Teaching Service Act.
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
2.1 This report discloses the events related to the alleged unlawful suspension of a secondary Teacher by the Teaching Service Commission and Mr Thyna.
2.2 The report sets out the information obtained in the Ombudsman’s investigation and Ombudsman’s findings and recommendation into the alleged improper suspension of 'Mr A'.
2.3 The Ombudsman collects information and document by informal request, summons, letters, interviews and research.
3.1 The Constitutional and statutory provisions relevant to this report are mentioned in the 'Appendix F' at the end of the report.
3.2 The Teaching Service Act (Cap 171) provides for the appointment and suspension of Teachers. [The Act also sets the procedure that the Teaching Service Commission should follow when suspending any Officer from the Teaching Service].
3.3 The Act gives the responsibility to the Minister of Education and Teaching Service Commission to decide on the suspension or the termination of any officer with written notification.
4. OUTLINE OF EVENTS
4.1 Mr A EDUCATIONAL AND EMPLOYMENT BACKGROUND
4.1.1 Education:
Mr A has a bilingual Education background. He completed his French studies at the secondary level for which he received a B.E.P.C certificate: (Brevet d'études du Premier cycle).
With regard to his English education background he completed Grade Eight at Malapoa College and was awarded with a General Certificate of Education (G.C.E) in 1981.
He extended his English education at the University of the South Pacific and gained a Preliminary Sciences Award and successfully completed courses in English, Mathematics, Chemistry, Physics, and Technical Studies.
4.1.2 Courses Attended:
While working part-time he completed the following courses to improve his teaching service:
- From 03/08/95 to 16/08/95 at Basic Education Training College ('BETC') in Port Vila.
- Also from 11/10/95 to 25/10/95 at BETC
4.1.3 Previous Employment Background
1982: Accountant clerk at Indosuez Bank ( confirmed by his aunt
Ms B who is now working at Banque d’Hawaii)
1983: Teacher at Norsup (According to Mr A )
1984: Sport teacher at INTV (' ’)
1985-mid 1988: Science teacher at Lycée Louis Antoine de Bougainville. Mr A left teaching in mid 1988 because the education system changed.
1989: There was an urgent need to fill the post of teacher of Maths and Agriculture at Lenakel Junior Secondary School. Mr A had the necessary qualifications to fill this post and was recommended by the Shefa PEO to the Teaching Service Commission but no consideration was given to his submission.
Mr A was not given a post in the Teaching Service and was reinstated in the epistemological unit at the Vila Central Hospital.
1990- 1994: Teacher at Burumba Primary school.
1995: On 12 July 1995 Mr A was asked by the SHEFA PEO to temporarily replace Mr. Same Aime who had left the 'Ecole Public' in Vila. This temporary post was approved by the Teaching Service Commission on 01 September 1995.
1996-1997: Teacher again at BURUMBA
1998: His salary was suspended by Mr. Thyna and he was not given any post.
4.2 BACKGROUND ON HIS APPOINTMENT WITH THE TEACHING SERVICE COMMISSION
4.2.1 On 01/09/95, the Teaching Service Commission appointed him on a temporary basis with the terms and conditions required by s. 14(2) of the Teaching Service Act with effect from 17 July 1995 until 31 December 1995 (Refer to Appendix 'A'). Mr A was appointed temporarily during that period to replace Mr. Same Aime at the Public School, (Ecole Public) in Vila.
Mr A was an attractive candidate for the TSC. The TSC’s own documents indicated that the TSC were particularly interested in employing Mr. A for his French language skills and his qualifications in agricultural science, mathematics and general studies in science.
4.2.2 0n 01/11/96, based on the terms and conditions of his temporary appointment, TSC gave one month’s notice of termination with effect from 1st November 1996.
4.2.3 On 17 May 1997 TSC re-appointed him under section 11 of the Teaching Service Act (See appendix B). Permanent officers were appointed under this section and should be given a post by the Minister responsible in the following year as required by s. 18 of the Act. Mr. A was appointed to teach at Burumba Junior Secondary in Epi on one year probation.
4.2.4 In 1998, his salary was suspended by Mr. Thyna and he was not given a post.
4.2.5 On 3 March 1999, 'Mr. A' was reinstated to teach at Liro School on Paama after a complaint has been lodged with the Office of the Ombudsman . He was appointed as a permanent officer under s.11 of the Act as per the enclosed copy of his appointment letter (Appendix 'C').
4.2.6 The TSC has the authority to suspend a Teacher from duty, and if it does, it can suspend the Officer’s salary. However,
according to the provisions of s. 35 of the Teaching Service Act, when disciplining a teacher, the TSC must always inform the teacher of the nature of the alleged misconduct and grant the teacher
an opportunity to submit a statement about the allegations. The TSC took neither of these steps in
Mr. A’s case.
4.3 Mr. A’s Personal File.
Mr. A has served in the Teaching Service since 1983 as revealed in his employment background. (see above). It was impossible to obtain either from the Ministry of Education or the Teaching Service Commission, his personal file in order to verify his previous teaching Service standard. A request was made in writing or/and interviews to the heads of these government Departments but none of them were able to furnish this Office with appropriate documents in Mr. A’s personal file. We only received some documentation for 1997,98 and 99 but have received no evidence about Mr. A’s earlier employment, despite repeated request made to the appropriate authorities.
4.4 Members of the TSC.
Members of Teaching Service Commission at the time of Mr. A’s suspension were:
Chairman: Willy Tasaruru
Members: -Alfred Carlot
-George Pakoasongi
-Kaltang Sakari
Executive Secretary: Christopher Karu
5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM
5.1 The working paper of this investigation was sent to the following people for their response and/or comments:
-All members of the Teaching Service Commission as outlined above in paragraph 4.4.
-Mr Antoine Thyna
-Mr Thomas Simon
-MP Joe Natuman, former Minister of Education
-Mr George Firiam
We only received response from Mr Thyna (See appendix E). In his response, Mr Thyna raised to the Ombudsman eight points as his comments on the working report.
5.2 Ombudsman’s comments to Mr Thyna’s letter
5.2.1 Mr A was appointed under section 11 of the Teaching Service Act. Mr A’s complaint may uncover similar mal-practices that may have been in breach of the Teaching Service Act, but that those officers who fell victims to the whole course of mal-administration were not guided to bring their grievances to the appropriate authorities to redress.
The decision to publish a public report, should help as a guidance to the officers who have fallen victims to the past and help to prevent future mal-administration of the Teaching Services in Vanuatu.
5.2.2 The clause in his appointment letter on 17/09/97, appears that Mr A’s employment was on one year probation. This is in accordance with Section 13(1) of the Teaching Service Act. After such probation period only the Teaching Service Commission may decide on the officer’s appointment and/or termination (Section 13(a) &(b) of the Act).
In his response, MrThyna stated that 'it could be assumed that at the end of the school year the employment finishes' May we draw attention to section 13(6) of the Teaching Services Act. It says that where the appointment of an officer is terminated, the Commission shall as soon as practicable notify the officer in writing of the reasons for the termination. In this case, the Commission failed to informed Mr A of his termination, which then led him to lodged this complaint to this Office.
5.2.2 In response to point 3 in Mr Thyna’s letter, Mr A was legally appointed under s 11 of the Teaching Service Act. In our opinion, his appointment was legally effective after the 1997 school year finished, and his appointment continued to be effective in 1998 as long as the Teaching Service Commission did not served him with a written termination notice and/or letter. His termination would only appear to come into effect when he was given notice pursuant to s 13(6) of the Act. As he now alleges, he is legally entitled to be paid during the period that he has not been served with a written notice from the Teaching Service Commission. (Note that the provisions of the law does not provide for the Office of the Director to give notice to any officers)
In another opinion, Mr A was appointed on one year probation period in 1997 and his appointment was effective as of 19 May 1997. It may be held that one year probation ended on 18 May 1998. If the Commission failed to act in accordance with the provisions of s 13(6) of the Act, at the end of the school year in 1997, it may be held that Mr A is legally entitled to be paid until 18 May 1998, when his probation period ends.
5.2.3 Mr Thyna’s comment on point 4 refers to temporary appointment due to shortage of teachers in 1997 and in 1998, the TSC has enough qualified teachers and there was no further need to employ 'Mr A 'in 1998.
His appointment letter of 1997 by the Commission did not specify appointment on temporary basis. In fact it stated that his appointment was on probation for one year on such terms and conditions as the Commission from time to time determines. However, the Commission failed to satisfy the provision of s 13(6) of the Act to notify him of his termination in writing as soon as practicable when you have decided not to need his services in 1998.
5.2.5 The issue in this case is about Mr A’s appointment as an officer of the Teaching Service Commission in 1997, his termination without written notification pursuance to s 13(6) of the Act and the suspension of his salaries in which he was held to believe that he was legally entitled. Point 5 of Mr Tyna’s response is not relevant to this case under enquiry and therefore we would not make any comment.
5.2.6 Your response in to point No. 6 is also not relevant to the issue under enquiry. No comments shall be made to this.
5.2.7 In point 7 of Mr Thyna’s response, he referred to the laws applicable in this enquiry. The Teaching Service Act was passed by Parliament and enacted in 1983. The provisions of this law covers the Teaching Service Commission, the whole departmental administration and all officers appointed under this Act.
It is very essential for the administrators to perform their responsibilities in a professional manner. To achieve this, they should study and understand the provisions of this law. It is also essential and proper that officers who are appointed under this Act study and understand the provisions of this Act as a guidance to their duties and responsibilities when they serve as teachers.
This enquiry is about the incident that happened when Mr Thyna was the executive director of the secondary education in 1997 and first half of 1998. As such, this enquiry is directed to Mr Thyna, because as a director, he should be familiar with the provisions of the Teaching Services Act.
5.5.8 In his last point, Mr Thyna stated that the notification of teachers’ posting by the radio has been a practice of the Teaching Service Commission or the Ministry of Education due to scattered locations of the teachers. While this could be recognized, there is no provision under the Act that provides for a suspension or termination of an officer to be verbally announced through the radio.
Sections 13(6) and 32(1) of the Act clearly states that any teacher who is suspended or terminated must be notified within one month and/or as soon as practicable in writing and given the reasons of his suspension or termination. In this enquiry, it is alleged that no written notice was given by the Commission to the complainant Mr A.
6.1 FINDING 1: THE ADMINISTRATIVE PRACTICE OF THE TEACHING SERVICE COMMISSION WAS DEFECTIVE IN NOT KEEPING IN SAVE MR A’S PERSONAL FILE.
Section 8 of the Teaching Service Act gives the TSC the responsibility of acting as the personnel authority for the Teaching Service. Mr. A has served in the Teaching Service since 1983. He has also completed several teaching courses. However his personal file could not be located at the Teaching Service Commission to determine the terms of MrA’s appointment and the standard of his teaching service.
6.2 FINDING 2: THE SUSPENSION OF MR A WAS UNJUST AND CONTRARY TO THE TEACHING SERVICE ACT (CAP 171 ).
Mr. A was appointed under s.11 of the Teaching Service Act, Cap 171, as an officer to perform educational duties. Permanent officers are appointed under this section and the Minister should allocate positions to them after they have been appointed. Mr. A was not allocated a position even though he was appointed permanently.
According to section 32 and 35 of the Teaching Service Act, only TSC or the Minister responsible have the power to suspend any officer, not the Director. Suspension relates only to a disciplinary matters. Mr. A was neither notified of his termination, nor given reasons for the termination as required by s. 13(6) of the Act. This would have provided him the opportunity to respond to any allegations made against him.
6.3 FINDING 3: THE CONDUCT OF MR THYNA IN ORDERING THE SUSPENSION OF MR A’S SALARY WAS UNJUST AND CONTRARY TO THE TEACHING SERVICE ACT.
Mr. Thyna, the former Director of Secondary Education acted independently and without the consideration of the TSC and the Minister responsible by writing to the salary section at the Ministry of Education to suspend the salary of Mr. A along with the salaries of two other teachers. As a result Mr. A was not given a post in the year 1998.
7. RECOMMENDATIONS
The Ombudsman makes the following recommendations:
Recommendation 1: That, Mr A claims for unpaid salary during the period that he was not served with the notice in writing of his termination. (19 May 1997-18 May 1998)
Recommendation 2: That, the Teaching Service Commission and Mr Thyna accept responsibility for any compensation claim that Mr A may request from the Ministry of Education based on maladministration, negligence and alleged breaches of relevant provisions in the Teaching Service Act (Cap 171).
Recommendation 3: That, the Ministry of Education provides copies of the Teaching Service Act (Cap 171) to all senior staff of the Ministry of Education to use as a guide for their work in the Ministry or Departments of the Ministry.
Recommendation 4 That Mr Thyna and the Executive Secretary of the TSC write a letter of apology to Mr A.
Dated the 8th day of June 2000
Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU
8. INDEX OF APPENDICES
7. RELEVANT LAWS AND REGULATIONS
TEACHING SERVICE ACT (CAP 171)
Function and duties of the Commission
4.10 Section 8
Subject to this Act, the Commission shall in respect of the Service be responsible for–
. . .
(e) acting as the personnel authority for the Service;...
Definition of an Officer .
4.9. Section (1)
'officer' means a person appointed under section 11(1) an officer and includes a transferred officer.
Appointment of Officers
4.1 Section 11
(1) Subject to this section, the Commission may appoint to the Service as officers to perform educational duties such number of persons as the Minister, after receiving a report from the Commission, determines.
(2) A person shall not be appointed as an officer unless-
(a) he has such qualifications as determined by the Commission;
(b) he is, in the opinion of the Commission, healthy and physically fit; and
(c) he is, in the opinion of the Commission, a fit and proper person to be an officer
(3) Subject to this Act, officers hold office on such terms and conditions as the Commission from time to time determines.
(4) The Commission shall not determine terms and conditions of employment in respect of transferred officers that are less favourable than the terms and conditions of employment enjoyed by such officers under any Government service at the time of their transfer.
Appointment to be on Probation
4.2 Section 13
(1) Unless the Commission, in a particular case or class of cases, otherwise directs, the appointment of every officer shall be on probation for a period not exceeding 1 year commencing from the date on which the officer commences duty.
(2) A person appointed as an officer on probation remains on probation until his appointment is confirmed or terminated in accordance with this section.
(3) The Commission may at any time during the period of the probation of an officer, terminate the appointment of the officer.
(4) As soon as practicable after the expiration of the period of the probation of an officer, the Commission shall:
(a) confirm the appointment of the officer;
(b) terminate the appointment of the officer; or
(c) direct that the officer continue on probation for such further period, not exceeding one year, as the Commission thinks fit.
(6) Where the appointment of an officer is terminated under this section, the Commission shall as soon as practicable, NOTIFY the officer in writing of the reasons for the termination.
Temporary appointment or Employees
4.3. Section 14
(1) Where the Minister so requests, the Commission may engage temporary employees to perform education duties.
(2) Subject to this Act, persons engaged as employees are employed on such terms and conditions as the Commission from time to time determines.
(3) Notwithstanding the position occupied by an employee, he may perform duties as directed by the Minister.
Allocation of officers and employees to positions.
4.4. Section 18
Where an officer is appointed or an employee is engaged, the Minister shall allocate the officer or the employee to a position.
Tenure
4.5 Section 27
(1) The employment of an officer in the service shall NOT be terminated except by resignation or retirement as provided by this section or by retirement or dismissal as provided under Part VI of this Act or section 41(3).
[s. 41(3) addresses the procedure for hearing appeals.]
Suspension of an officer by the Minister.
4.6 Section 32:
(1) If in the opinion of the Minister, an officer-
(a) is inefficient, incompetent or unfit or unable to perform his duties; or
(b) is guilty of misconduct,
the Minister may, by notice given to the officer specifying the grounds for suspension, suspend him from the duty for a period not exceeding 1 month.
(2) Where the Minister suspends an officer -
(a) The Minister shall, in writing, immediately inform the Commission of the suspension and the ground for suspension;
(b) the Minister may at any time remove the suspension; and
(c) the Minister may determine that the officer shall not be paid his salary during the period of the suspension.
Disciplinary Action for Misconduct by TSC
4.7 Section 35:
the Commission may suspend an officer from the duty.
Effect of suspension
4.8 Section 36:
Where an officer is suspended under section 32(1) or 35(3)-
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