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Unreasonable Delay by Luganville Municipal Council in Finalising Staff Disciplinary Proceedings [2003] VUOM 18; 2003.23 (18 September 2003)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

UNREASONABLE DELAY BY
LUGANVILLE MUNICIPAL COUNCIL
IN FINALISING STAFF
DISCIPLINARY PROCEEDINGS

18 September 2003

3048/2003/23

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PUBLIC REPORT ON THE
UNREASONABLE DELAY BY
LUGANVILLE MUNICIPAL COUNCIL
IN FINALISING STAFF DISCIPLINARY PROCEEDINGS

SUMMARY

This report describes the unlawful action by Luganville Municipality in keeping an employee suspended for over five years instead of finalising disciplinary proceedings against him. Even though regulations only allow suspension for up to six months, the worker remains suspended at the time of preparing this report.

In August 1997, Mr George Vora received a letter from Mr Karl Batick, concerning his suspension. In October 1997, Mr Vora asked for a meeting with Mr Havo Moli, Commissioner of Luganville Municipality to discuss his suspension. Mr Vora met with three members of a committee formed to consider his suspension on 6 October 1997. On December 2001, Mr Vora raised the matter by letter with Mr Paul Hakwa, however nothing happened. The Town Clerk sent Mr Vora a letter dated 26 February 2002 stating that the issue of his suspension would be discussed at the next council meeting. Mr vora approached Public Solictor Mr Hilary Toa who wrote to Mr Paul Hakwa twice in relation to the suspension on 5 July 2002 and 21 August 2002. On 26 August 2002, Mr Paul Hakwa issued a letter to Mr Hilary Toa concering Mr vora's suspension and termination.

Mr Vora has not yet been terminated as an employee.

The Ombudsman finds that the Luganville Municipal Council failed to follow proper disciplinary procedures when disciplining Mr Vora.

The Ombudsman finds that there is evidence showing that Lungaville Municipal Council has breached regulation 6.5 (e) of the Municipalities staff regulation order, in leaving Mr Vora suspended for over five years.

The Ombudsman therefore recommends that:

- Luganville Municipal Council formally terminate Mr Vora's employment;
- Luganville Municipal Council calculate the entitlements due to Mr Vora on his termination and, pay them to heim;
- Luganville Municipal Council apologise to Mr Vora for the unreasonable delay in finalising his termination; and
- The Town Clerk and Lord Mayor note the fact the staff can only be suspended for up to six months and ensure that any further disciplinary action is completed promptly.

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 FINDINGS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

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1. JURISDICTION

1.1 The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes the Luganville Municipal Council. The Ombudsman can also look into defects in laws or administrative practices, including disciplinary procedures of the Municipalities.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this report is to present the findings of the Ombudsman as required by the Constitution and the Ombudsman Act.

2.2 The scope of this investigation is to establish the facts about the delay in finalising disciplinary action taken by the Luganville Municipal Council against Mr George Vora and to determine whether the action was unlawful and/or ureasonable.

2.3 This report is not concerned with the Council's initial decision to suspend Mr Vora or the question of whether he committed the offences alleged against him.

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

3. RELEVANT LAWS, REGULATIONS AND RULES

Relevant parts of the following laws are reproduced in Appendix J:

MUNICIPALITIES STAFF REGULATION ORDER

4. OUTLINE OF EVENTS

4.1 On 23 August 1997, Mr George Vora received a letter from Karl Batick, Town Clerk of Luganville Municipality, concerning his immediate suspension as a Council employee (see Appendix A).

4.2 On 2 October 1997, Mr Vora asked for a meeting with Mr Havo Moli, then Commissioner of Luganville Municipality, to discuss his suspension.

4.3 As a result of the meeting, Mr Vora subsequently met with three members of a committee formed to consider his suspension on 6 October 1997.

4.4 On 2 December 2001, Mr Vora raised the matter by letter with Mr Paul Hakwa (see Appendix B) who was Commissioner of Luganville Municipality, however nothing positive happened.

4.5 The Town Clerk sent Mr Vora a letter dated 26 February 2002 (see Appendix C) stating that the issue of his suspension would be discussed at the next council meeting, after a report had been prepared. The letter also stated that, "Commission mo administration i considerem matter ia olsem priority blong solvem as soon as possible." However, no action was taken.

4.6 Mr Vora thenf approached Public Solicitor Hilary Toa who wrote to Mr Paul Hakwa twice in relation to the suspension on 5 July 2002 and 21 august 2002 (see Appendices C and D).

4.7 On 26 August 2002, Mr Paul Hakwa issued a letter to Mr Hilary Toa concerning Mr George Vora's suspension and termination (see Appendix E).

4.8 During an interview with an officer of the Ombudsman on 30 April 2003, Mr Andrew Ala, a member of the committee which interviewed Mr Vora on 6 October 1997, said that Mr Vora was supposed to have received a termination letter, but no decision had been made about who would prepare and send the letter. He thought that each member of the committee assumed one of the other members had already sent an official termination letter.

4.9 In response to the working paper issued before this public report was finalised, Mr Andrew Ala stated that the then Town Clerk, Mr Karl Batick, was supposed to have issued a termination letter (see Appendix G).

4.10 At the date of preparing this public report (August 2003) Mr Vora remains "suspended" an has not been officially terminated from his employment with Luganville Municipal Council, nor have his entitlements been determined and (if any) paid.

5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM

5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also a working paper was provided prior to this public report to give another opportunity to respond. Below are the responses that were received in response to the working paper.

5.2 A letter dated 17 July 2003 (see Appendix G) was received from the Environmental Health Officer, Mr Andrew Ala. Mr Ala stated that the Town Clerk, Mr Karl Batick was supposed to have issued a termination letter to Mr Vora following that meeting. He also requested other changes to paragraph 4.8 above, which the Ombudsman has declined to make as they are not supported by other evidence.

5.3 A letter dated 18 July 2003 (see Appendix H) was received from the Luganville Lord Mayor, Me Paul Hakwa. He stated that, at the time of the suspension, Luganville Municipality was managed by a commission, consisting of Mr Havo Moli and Mr Karl Batick as Town Clerk.

5.4 Mr Hakwa also attended the Ombudsman's Office to discuss the matter with a member of staff. He made four points:

- He was not very familiar with the suspension, as it had happened before he became commissioner;
- He felt the suspension was the responsibility of the commission in charge of Luganville Municipality at the time of the suspension;
- The report should explain the difference between the alleged misconduct by Mr Vora leading to his suspension and the nature of the disciplinary action taken subsequently; and
- In the context of the letter reproduced as Annexure F, he stated that he believed a termination letter had already been issued to Mr Vora, hence his comment to this effect in the letter.

5.5 A letter dated 22 July 2003 (see Appendix I) was received from Mr George Vora. In his response, Mr Vora referred to annexure F and reiterated that he had never received any termination letter from the Luganville Municipality.

5.6 The Ombudsman did not receive any response from the Minister of Internal Affairs, Mr Joe Natuman, or the Town Clerk of Luganville Municipality Council, Mr Barry IIIaisa.

6. FINDINGS

6.1. Finding 1: The Ombudsman finds evidence that the Luganville Municipal Council failed to follow proper disciplinary procedures when disciplining Mr Vora.

6.2 Finding 2: There is evidence that Luganville Municipal Council has breached regulation. 6.5 (e) of the Municipalities staff regulation order in leaving Mr Vora suspended for over five years

7. RECOMMENDATIONS

Based on the above findings, the Ombudsman makes the following recommendations:

- Luganville Municipal Council formally terminate Mr Vora's employment.

- Luganville Municipal Council calculate the entitlements due to Mr Vora on his termination and pay them to him.

- Luganville Municipal Council apologise to Mr Vora for the unreasonable delay in finalising his termination.

- The town Clerk and Lord Mayor note the fact that staff can only be suspended for up to six months and ensure that any further disciplinary action is completed promptly.

Dated the 18th day of September 2003.

Hannington G ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

A Letter dated 23.08.97 from Mr Karl Batick to Mr George Vora

B Letter dated 02.12.01 from Mr George Vora to Mr paul Hakwa

C Letter dated 26.02.02 from Mr Prosper Buletare to Mr George Vora

D Letter dated 05.07.02 from Mr Hilary Toa to Paul Hakwa

E Letter dated 26.08.02 from Mr Hilary Toa to Paul Hakwa

F Letter dated 26.08.02 form Mr Paul Hakwa to Mr Hilary toa

G Letter dated 17.07.03 from Mr Andrew Ala

H Letter dated 18.07.03 from Mr Paul Hakwa

I Letter dated 22.07.03 from Mr George Vora

J Relevant Laws