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Improper Termination of Mrs Estella Gihiala at the Penama Provincial Council [2003] VUOM 12; 2003.15 (26 June 2003)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

IMPROPER TERMINATION OF
MRS. ESTELLA GIHIALA
AT THE PENAMA PROVINCIAL COUNCIL

26 June 2003

9371/2003/15

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PUBLIC REPORT

ON THE

IMPROPER TERMINATION

OF MRS. ESTELLA GIHIALA

AT THE PENAMA PROVINCIAL COUNCIL

SUMMARY

On 3 April 1999 the Ombudsman received a complaint from Mrs. Estella Gihiala, President of Penama Provincial Women Council (PPWC). Mrs. Gihiala was appointed by the Minister of Internal Affairs as a nominated member to the Penama Provincial Council for a term of 4 years as from 25 August 1997. Mrs. Gihiala alleged that she was improperly terminated from the Council and was replaced by Mrs. Moriel Tari Tambeana. Prior to Mrs. Gihialla’s official appointment, the Penama Provincial Secretary General,
Mr. Steven Garae, notified Mrs. Gihiala [on 22 August 1995] that the Minister of Internal Affairs had appointed her as a Women’s Representative to the Council.

On 12 March 1999 Mrs. Gihiala received a phone call from the Secretary General of Penama Province, Mr. Keith Mala, informing her that she was terminated from the Council. Mrs. Gihiala had not received a termination letter from the Minister responsible for Internal Affairs nor was she given an opportunity to be heard for any allegations being made against her. By the time Mrs. Estella Gihiala was informed of her termination from the Council, the Penama Provincial Council of Women had already nominated Mrs. Moriel Tari Tambeana to replace her. Then the Minister of Internal Affairs appointed Mrs. Tambeana as their Woman’s Representative.

On 5 August 1999 the Ombudsman requested the Minister of Internal Affairs, Honorable Vincent Boulekone in a letter to provide information and documents regarding Mrs. Gihiala’s termination. On the same day the Ombudsman sent another letter to the Secretary General of Penama Province, Mr. Keith Mala, requesting him to furnish the reason for which Mrs. Gihiala’s employment was terminated and whether she was given 3 months notice.

In response to the Ombudsman’s letter dated 5 and 24 August 1999 the Acting Minister of Internal Affairs, Honorable Henri Taga, who was then Minister of Public Utilities & Infrastructure stated that the main reason given for her displacement was an alleged poor performance and lack of communication with the members of the Penama Provincial Council of Women.

After completing the investigation on the matter the Ombudsman finds that (1) the Minister of Internal Affairs and the Penama Provincial Council may have breached sections 48, 49 and 50 of the Employment Act [CAP 160] and (2) the Penama Provincial Council may have breached section 54 of the Employment Act for not paying a severance allowance to Mrs. Gihiala.

In the light of the above findings, the Ombudsman recommends that the Penama Provincial Council should immediately pay Mrs. Gihiala’s severance allowance that is due to her as well as her 14 days remuneration in lieu of notice.

TABLE OF CONTENTS

SUMMARY

1. JURISDICTION

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

3. RELEVANT LAWS, REGULATIONS AND RULES

4. OUTLINE OF EVENTS

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

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1. JURISDICTION

1.1 The Constitution and the Ombudsman Act and the Leadership Code Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes the conduct of the Penama Provincial Council in terminating a nominated Councilor without complying with the Employment Act. However, the Ombudsman can also look into defects in laws or administrative practices, including the Employment Act and the Provincial by-laws on procedures to be followed in case of dismissal.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this paper is to provide an opportunity for you to respond to its contents and, if possible, to resolve outstanding issues before this Office issues a public report.

2.2 The scope of this investigation is to establish the facts about the alleged improper termination of Mrs. Estella Gihiala at the Penama Provincial Council and to determine whether the Penama Provincial Council’s conduct was proper.

2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS, REGULATIONS AND RULES

3.1 The Constitutional and statutory provisions relevant to this report are mentioned in APPENDIX Q to this report.

4. OUTLINE OF EVENTS

4.1 On 3 April 1999 the Ombudsman received a complaint from Mrs. Estella Gihiala, President of Penama Provincial Women Council (PPWC). Mrs. Gihiala was appointed by the Minister of Internal Affairs as a nominated member to the Penama Provincial Council for a term of 4 years on 25 August 1997 (APPENDIX A.) Mrs. Gihiala alleged that she was improperly terminated from the Council and was replaced by Mrs. Moriel Tari Tambeana. Prior to Mrs. Gihialla’s official appointment, the Penama Provincial Secretary General, Mr. Steven Garae, notified Mrs. Gihiala [on 22 August 1995] that the Minister of Internal Affairs had appointed her as a Women’s Representative to the Council (APPENDIX B).

4.2 On 12 March 1999 Mrs. Gihiala received a phone call from the Secretary General of Penama Province, Mr. Keith Mala, informing her that she was terminated from the Council. Mrs. Gihiala had not received a termination letter from the Minister responsible for Internal Affairs nor was she given an opportunity to be heard for any allegations being made against her.

4.3 From 2 to 5 November 1998, the Penama Provincial Council of Women had officially nominated Mrs. Moriel Tari Tambeana to replace Mrs. Gihiala as their Woman’s Representative in the Penama Provincial Government Council at their conference being held at Saratamata, East Ambae.

According to the minutes of the conference, the reasons for Mrs. Gihiala’s replacement was clearly stated that:

1. Hemi no save mekem prokram blong hem blong reachem everi area.

2. Hemi no save mekem Badbet long womens allocation
3. Long channel blong wok, hemi no bin nominated, be Penama Womens Oficer nomo hemi submittem name blong hem iko long October 1996
4. Hemi self interest person
5. Hemi no qualify blong represent ol woman Penama
6. Hemi bin stanap long 9 Nasonal Womens Konference, mo againstem Penama Province, hemi bin daonem province ia long plante toktok mo attitude.
7. Hemi no save wok tuketa wetem P/Womens Officer mo Vavine Bulu President
8. Director blong Womens Affairs hemi usum hem blong formem division long Pentecost blong stopem Halan Sul Veveo blong no attendem Penama Womens Konference.
9. Director blong Womens Affairs hemi usum hem blong againstem Penam Womens Self Relience long nasonal konference, mo fosem Han blong Pentecost President blong no vot long issue ia" (APPENDIX C).
   

4.4 On 12 January 1999 the Minister of Internal Affairs, Honorable Vincent Boulekone ordered that:

Section 1 of the Local Government (Appointed Member) Order No.34 of 1997 is amended by removing the name "Estella Gihiala" as shown in the first column of the table representing women and substituting in place thereof "Moriel Tari Tambeana". (APPENDIX D).

Mrs. Gihiala was only informed of this ministerial order on 12 March 1999 by the Penama Provincial Secretary General, Keith Mala.

4.5 On 15 April 1999 the Acting Director of the Department of Provincial Affairs, Mr. Martin James Tete sought legal opinion on the matter from the Deputy State Counsel, State Law Office.

4.6 On 5 August 1999 the Ombudsman requested the Minister of Internal Affairs, Honorable Vincent Boulekone in a letter to provide information and documents regarding Mrs. Gihiala’s termination saying:

1. Avez-vous nomme Mme Gihiala comme representative des femmes au conseil provincial de Penama?
   2. Si oui, quels etaient les termes de son contrats?
   3. Etes-vous au courant de la mise a terme du contrat de Mme Gihiala?" (APPENDIX E) [Did you nominate Mrs. Gihiala as representative of women to the Penama Provincial Council? If yes, what were the terms of her contract? Were you aware of the signing of Mrs. Gihiala’s contract?].
      

4.7 On the same day the Ombudsman sent another letter to the Secretary General of Penama Province, Mr. Keith Mala, requesting him to furnish the subsequent information and documents:

1. Why was Mrs. Gihiala’s employment terminated before the expiration of her 4 year term?
   2. Was she given 3 months notice for the termination of her employment?
   3. Please provide an employment record for Mrs. Gihiala (APPENDIX F).
      

4.8 In response to the Ombudsman’s letter dated 5 and 24 August 1999 the Acting Minister of Internal Affairs, Honorable Henri Taga, who was then Minister of Public Utilities & Infrastructure stated that:

"The main reasons given on the displacement of Estella Gihiala as their woman representative in the Penama Provincial Government Council is as summarized as per their letter addressed to me [copy attached] dated 24th of November 1998" (APPENDIX G).

4.9 In a letter dated 23 September 2002 the Assistant Secretary General, Mr. Roger Boe, said to the Ombudsman that "the payment of 108,000 VT is paid to Mrs. Estella Gihiala as her Gratuity for two years in the Council" (APPENDIX H).

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1 The Ombudsman encloses copies of the working paper that outlines a description of the facts, relevant laws and the preliminary findings on this inquiry to the following people for comment(s):

The former MP for Pentecost and former Minister of Internal Affairs, Mr. Vincent Boulekone is the only person who provided his comments as follows:

Mi saenem niufala amended orda ia blong tekem into account democratic desisen blong Council blong ol women blong PENAMA. Hemi stap afta long responsabiliti blong administratif offisa blong PENAMA PROVINCE, we hemi General Secretari blong PENAMA PROVINCE blong followup ol diferen administratif step blong Ministerial Orda ia. I minim folem Law mo proseja blong wan elected or nominated memba insaet long Council blong wan PROVINCE. Mi bin bilif se offisa in charge hemi folem Law ia bifo terminesen blong Misis Estella GIHIALA I cam effectif long wan stret leta blong terminetem Misis Estella GIHIALA.. I have signed the Order in order to take into account the democratic decision of the Penama Council of Women. It is the responsibility of the administrative officer of Penama Province who is the Secretary General of Penama Province to follow up on the different administrative procedures as ordered by the Ministerial Order. This means compliance with the law and procedures applicable to any elected or nominated councilor of any province. I thought that the officer in charge would comply with the law in terminating Mrs. Estella Gihiala.

6. FINDINGS

6.1 Finding 1: The Minister of Internal Affairs and the Penama Provincial Council may have breached sections 48, 49 and 50 of the Employment Act [CAP 160] which is a breach of a 4 year contract and the notice of termination of contract.

6.1.1 Part II Section 7(2)(a) of CAP 127 implies that appointed members should hold office for a period of four years and shall be eligible for reappointment. However, the ministerial order dated 12 January 1999 which substituted Mrs Gihiala for Mrs Moriel Tambeana was only made known through a phone call to Mrs. Gihiala two (2) full months later – that was on 12 March 1999 by the Penama Provincial Secretary General, Mr. Keith Mala. Furthermore, Mrs. Gihiala did not receive a termination letter from neither the Minister of Internal Affairs nor the Penama Provincial Council. She appealed to the Acting Director for the Department of Provincial Affairs but received no response.

6.1.2 The reason for termination appears to be alleged poor performance and lack of communication with the members of the Penama Provincial Council of Women. Mrs. Gihiala was not given a fair hearing for serious misconduct before her termination and she did not receive proper notice of her termination.

6.2 Finding 2: The Penama Provincial Council may have breached section 54 of the Employment Act for not paying a severance allowance to Mrs. Gihiala.

6.2.1 Mrs. Gihiala was not given a hearing for serious misconduct and therefore it appears from the facts of her case that her termination was in breach of her employment contract and accordingly she should be paid severance allowance.

7. RECOMMENDATIONS

7.1 Recommendation 1: Pursuant to section 54(1) of the Employment Act [CAP 160] the Penama Provincial Council should immediately pay Mrs. Gihiala’s severance allowance that is due to her.

7.2 Recommendation 2: The Penama Provincial Council should also pay Mrs Gihiala’s 14 days remuneration in lieu of notice.

Dated the 26th day of June 2003.

Hannington G. ALATOA

OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

1. Copy of Mrs. Gihiala’s official appointment letter dated 25 August 1997
   
2. Copy of Mrs. Gihiala’s appointment letter dated 22 August 1995
   

100. Copy of minutes of the Penama Provincial Council of Women’s conference
     

4. Copy of ministerial order
   
5. Copy of Ombudsman’s letter to Honorable Vincent Boulekone, Minister of Internal Affairs dated 5 August 1999
   
   6. Copy of Ombudsman’s letter to Secretary General, Keith Mala
      
7. Copy of letter from Acting Minister of Internal Affairs in response to the Ombudsman’s letters dated 5 and 24 August 1999
   
8. Copy of letter dated 23 September 2002
   

Q Relevant laws, regulations and rules

APPENDIX Q

RELEVANT LAWS, REGULATIONS AND RULES

3.1 CONSTITUTION OF THE REPUBLIC OF VANUATU

CONDUCT OF LEADERS

66.(1) Any person defined as a leader in Article 67 has a duty to

conduct himself in such a way, both in his public and private life, so as not to-

(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b) demean his office or position;

(c) allow his integrity to be called into question; or

(d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

(2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1).

DEFINITION OF A LEADER

2. For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.
   

3.2 EMPLOYMENT ACT [CAP 160]

NOTICE OF TERMINATION OF CONTRACT

49. (1) A contract of employment for an unspecified period of time shall terminate

on the expiry of notice given by either party to the other of his intention to terminate the contract.

3. Notice may be verbal or written, and, subject to subsection (3), may be given at any time.
9. The length of notice to be given under subsection (1) –
5. where the employee has been in continuous employment with the same employer for not less than 3 years, shall be not less than 3 months;
6. in every other case –
3. where the employee is remunerated at intervals of not less than 14 days, shall be not less than 14 days before the end of the month in which the notice is given;
4. where the employee is remunerated at intervals of less than 14 days, shall be at least equal to the interval.

(4) Notice of termination need not be given if the employer pays the employee the full remuneration for the appropriate period of notice specified in subsection (3).

MISCONDUCT OF EMPLOYEE

50. (1) In the case of a serious misconduct by an employee it shall be lawful for the employer to dismiss the employee without notice and without compensation in lieu of notice.

3. None of the following acts shall be deemed to constitute misconduct by an employee –
5. trade union membership or participation in trade union activities outside working hours, or with the employer’s consent, during the working hours;
6. seeking office as, or acting in the capacity of, an employees’ representative;
7. the making in good faith of a complaint or taking part in any proceedings against an employer.
4. Dismissal for serious misconduct may take place only in cases where the employer cannot in good faith be expected to take any other course.
5. No employer shall dismiss an employee on the ground of serious misconduct unless he has given the employee an adequate opportunity to answer any charges made against him and any dismissal in contravention of this subsection shall be deemed to be an unjustified dismissal.

(5) An employer shall be deemed to have waived his right to dismiss an employee for serious misconduct if such action has not been taken within a reasonable time after he has become aware of the serious misconduct.

SEVERANCE ALLOWANCE

54.(1) Subject to section 55, where an employee has been in continuous employment for a period of not less than twelve months, with an employer on a contract of employment entered into before or, on or after the date of commencement of this Act, and –

(a) the employer terminates his employment; or
(b) on or after the employee reaching the age of 55, the employer retires him; or
(c) the employee ceases to be employed by reason of illness or injury and is certified by a registered medical practitioner to be unfit to continue to work;

the employer shall pay severance allowance to the employee under the Act.

For the purpose of this subsection, ‘medical practitioner’ means a medical practitioner registered as a health practitioner under the Health Practitioners Act, to practice medicine and/or surgery.