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Ombudsman Investigation : Commissioner of Fire & Emergency Services Authority [2013] WSOM 1 (1 July 2013)

SAMOA

REPORT

SEVE TONY HILL - COMMISSIONER OF FIRE & EMERGENCY SERVICES AUTHORITY

This is a s19 (3) Ombudsman Act referral from the Prime Minister via Cabinet decision FK (13) 18 of 22 May 2013.

Background

Seve Tony Hill, incumbent Commissioner of Fire Services was interviewed for the advertised position of Commissioner, Fire Services by a panel set up for the purpose and was recommended for appointment. The panel’s attention had been drawn to certain allegations made in writing against the applicant. The panel had put these allegations to Seve who simply denied them as untrue.

The allegations had been made in the first place to the Chairman of the Fire & Emergency Services Board. The recommendation of the interviewing panel when subsequently considered by the Board was not endorsed. The Board determined not to support the re-appointment of Seve because of issues arising from the allegations.

In that the allegations had not been proven (nor even investigated), the Minister of Fire Services proposed to Cabinet to approve the appointment of Seve as per the recommendation of the special interviewing panel.

Cabinet decided to approve a four month contract extension but to suspend Seve at its outset while the allegations against him are investigated by the Ombudsman. The object of the activity requested of the Ombudsman obviously, is to assist Cabinet in deciding whether or not to approve a normal contract renewal for Seve.

Sources of Allegations

The allegations were made in writing (Appendices A and B) by two serving members of the Fire Service. Once however it was known that an investigation was underway, other people came forward to volunteer information on the issues raised in the submitted written allegations or to make fresh allegations.

A total of twenty two (22) people volunteered to be heard. All except two wanted in one way or another to confirm allegations of inappropriate conduct against Seve. Two (2) were laudatory of Seve and did not have any information to offer on the allegations against him. They wanted instead to make allegations against another contestant for the position of Commissioner, Fire Services. It became clear that these two people wanted to do this on a confidential basis only. It was explained to them that the focus of the investigation in progress was the allegations against Seve. It was explained further that if their purpose was for the Investigation to look into the allegations they seemed to want to make against someone else, then their submissions would need to be put to that person for him to respond. The two prospective informants did not wish to proceed on this basis.

All evidence was taken under oath and voice recorded.

The Allegations

It is not intended to list or to deal exhaustively with the allegations of different shades and degrees of seriousness that were brought to the Investigation by witnesses. They all had to do with inappropriate conduct. The following selected matters are considered sufficiently telling and relevant to mention:

Abusive Treatment of Staff

Physical attacks

Numerous allegations were made of physical attacks by Seve upon staff over the years. A number of the individuals involved have since left the Fire Service and have gone overseas. Written reports on incidents by victims were allegedly filed with the Fire Service at the time things happened but nothing apparently was made of them. A search of the Fire Service files for these reports turned up nothing at all. When Seve was asked why alleged reports could not now be located he said that the office is notorious for losing papers and reports.

Riki Tuamu who is still employed in SFESA told the Investigation that he was physically attacked in September 2010 during a bush fire operation at Tuanaimato. Eterei Pula confirmed to the Investigation that physical abuse of Riki Tuamu did occur in 2010 resulting in injury to the victim’s left arm. Elisapeta Salapo also confirmed this incident.

Aleaga Fuafiva , Eterei Pula and Elisapeta Salapo testified that the Commissioner assaulted Joe Lesa on 21 August 2011. This resulted in criminal charges being laid and some publicity including an appearance by the victim in the TV Programme “30 MINUTE”. On 2 March 2012, after several adjournments, the charges were withdrawn by leave and dismissed on Police application. Joe Lesa is said to have migrated overseas.

Meli Onesemo testified that he submitted a report to Afato Afato following a physical attack upon him by Seve in 2007. Afato confirms receiving a written report from Onesemo in the evening of the alleged assault. He gave the report to Seve. This report was not found in the SFESA records.

Leading Firefighter Kereta Samia testified that he was attacked by the Commissioner at Faleata. He was then called to assist at a fire at Matautu (Ah Kuoi’s Building). When after the fire he came to Headquarters at Apia, the Commissioner physically attacked him again while telling him that he didn’t want to see his face again. Maanaima Taua confirmed that this in fact took place and that he and Seve Tipaula Laupu’e were right there.

Kereta Samia testified that he witnessed Seve attacking the following staff members:

1. Werna Nickel was under his team leadership when he was man-handled and punched by Seve in 2007. He no longer works for SFESA
   
2. Maselino Collins another of his team members was attackedin March 2013, while trying to put out the Newsline fire.
   
3. Pesamino Mulipola was attacked in front of the Faleata entrance gate in late 2008 or early 2009. Seve was angry that the gate was not open on his arrival. This man is no longer employed by SFESA.
   

Verbal Abuse

A number of witnesses testified to the Commissioner’s proclivity for verbal abuse of staff and frequent use of bad language. In the, perhaps jaundiced, view of some witnesses, staff meetings were only called to indulge the Commissioner’s personal quirks in this regard. In operational situations, intemperate conduct and bad language was represented by witnesses to be routine behaviour for the Commissioner.

Seve makes the point that Fire Service employees are supposed to be trained professionals and that he has been amazed at how many of them still need to be told what to do when confronted with an emergency situation or disaster. According to the Commissioner such circumstances generate feelings of frustration in anybody.

Very credible evidence was given to the Investigation by Mr. Steven J Williams, an Australian serving a two year contract with SFESA as the Emergency Medical Response Officer (EMRO). Mr. Williams has 40 years of paramedic experience behind him. As an expatriate and having served as a Volunteer in FESA since 2009 before taking up his current contract, he is particularly well placed and sufficiently familiar with what has been going on in SFESA in the recent past to give valuable commentary on the subject matters of the investigation. A source with such attributes is rarely available in investigations. The fact of evidence from this source according fully with what others overwhelmingly portrayed in their evidence has been of bonus value to the confidence with which conclusions of this Investigation have been reached.

According to Mr. Williams, the general tenor of criticism levelled at the Commissioner’s management style, mistreatment and victimization of staff is real and extensive. He has seen it at close quarters and had needed on occasions to address the Commissioner on some of his habits when he encountered the Commissioner’s rudeness and unprofessional conduct on the job.

On one occasion he had to shout at the Commissioner to desist from improper and dangerous interference with the operations of staff who were working correctly and efficiently in his area of expertise and under his supervision. He shouted at the Commissioner not to be disrespectful to him but in the interests of an overriding duty to the victims of emergencies to maintain proper procedure and safety. The Commissioner stopped his unwanted and quite misguided interference and resorted simply to continuing abusive language as was his custom.

Sexual Harassment

Senior Station Officer Sefulu Siaosi claims to have been sexually harassed by Seve. She describes in writing two occasions on 6 November 2007 and 15 December 2012 when harassment allegedly took place while she was on duty. She elaborated on these events in oral evidence.

Since lodging her complaint, the officer has taken the matter to the Police and charges against Seve of assault and indecent assault have been set down for hearing in the District Court. These matters are then under judicial consideration and will not be discussed here except in the context of Sexual Harassment which is not about sex or assault as such but about abuse of a position of power. The following is quoted from an earlier Ombudsman Report^[1] on Sexual Harassment and victimization:

“What is Sexual Harassment?

In many countries today, sexual harassment is explained in legislation as unwanted or unwelcome behavior or attention of a sexual nature that interferes with an individual’s life. Two categories of sexual harassment in the work place have come to be well established in jurisdictions where sexual harassment has been extensively considered by the courts or special tribunals:

(i) Hostile Environment harassment subjects the employee to offensive or unwelcome sexual content or innuendo as a regular part of the work environment.

(ii) “Something for something” harassment occurs when a job benefit or disadvantage is tied to an employee’s response to unwelcome sexual advances.

It is interesting that apparent consent does not negate a claim of sexual harassment. This is because sexual harassment is not about sex. It is about abuse of power or authority in a sexual dimension or context. The Supreme Court of the United States^[2] notably, has maintained that an employee’s submission to a sexual act is not truly voluntary if the harasser has the power to fire, demote, blackball or to deny benefits to that employee.

Interference with a person’s life through sexual harassment in the work place can prevent that person from working effectively. It can threaten self-esteem and confidence, undermine dignity and affect health and happiness through embarrassment, humiliation, anxiety, stress and even depression. In plain language, sexual harassment in the work place can be deeply and materially harmful to the recipient.

Samoa ????

Sexual harassment in the work place has been under consideration by interested authorities in Samoa for some time with a view to promoting specific provisions against it in legislation.^[3] Does this mean that until then there is a vacuum in the law with regard to these things? Are Samoan workers thereby, in the meantime without rights against unwelcome sexual advances that affect employment, unreasonably interfere with work performance or create an intimidating, hostile or offensive work environment?

The common law of Samoa, by way of the employment contract, places a duty on employers to provide a safe system of work for their employees, safe equipment and competent co-workers. Samoan employees can therefore surely insist on protection from sexual harassment as part and parcel of a safe work system and to insist on competent co-workers and bosses even more so, in the work place. It would seem reasonable for “competence” in the work place to include capacity to focus on work and not to jeopardize efficiency by interfering in extracurricular fashion with the performance or welfare of other employees. The [Samoa Fire and Emergency Services Authority] like any employer is subject to these common law requirements and acts unreasonably when it ignores them.

[The Samoa Fire and Emergency Services Authority is also part of government administration.] Article 15(2) of the Constitution states that “...

no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex , ... or any of them”.

Many countries have moved beyond bare Bill of Rights provisions such as Samoa’s Article 5 (2) of the Constitution in defining prohibited discriminatory practices. Under Victoria, Australia, Equal Opportunity legislation for instance, it is unlawful under paragraph 18 (2) for an employer to discriminate against an employee on the ground of sex or marital status by denying the employee any benefits connected with employment.

In applying that law it was held^[4] in the jurisdiction that “(a) benefit of employment is the entitlement to quiet enjoyment, that is, the freedom from physical intrusion, the freedom from being harassed, the freedom from being physically molested or approached in an unwelcome manner”. Justice Nathan went on to say that an offence under s.18 might be committed where “molestation, physical and sexual affronts” are permitted by an employer thereby “denying a benefit and permitting a detriment to those employees who suffer such unwelcome intrusions vis a vis those who do not.”

Furthermore, discrimination against women contravenes the provisions of international instruments such as CEDAW of which Samoa is a signatory. Even if they are yet to be incorporated into domestic legislation, international conventions that codify widely accepted principles and Samoa’s subscription to such conventions cannot simply be ignored. It is fitting that they be used as guidance. The judgment of Sapolu CJ in Wagner v Radke^[5] is welcome precedent in this regard.”

For obvious reasons people engaged in conduct amounting to serious sexual harassment normally take great care to ensure such conduct is not observed by third parties. For this reason collaborative evidence is not often available. The evidence of sexual harassment given to the Investigation by Sefulu Siaosi is very clear and believable. She explained that she had at first resolved to rely on her own devices of evasive resistance to cope with Seve’s abuse of position and power towards her. She determined on this course because of family connections to Seve through his wife that made it very difficult at the time for her to raise the alarm about what was happening.

However, the actions and comments of the Commissioner to her and about her to others in a staff meeting and other occasions during the period 11 March – 23 April 2013 caused Ms Siaosi to believe that the Commissioner was targeting her for a fall. Sensing victimization in the air, she decided to reveal the events set out in writing in her complaint of sexual harassment dated 1 May 2013.

Ms Eterei Pula gave evidence that Seve tried to take advantage of her in his FESA vehicle on18 January 2009.Riki Tuamu saw the Commissioner and Ms. Eterei arrive on that day at the Faleata Fire Station through the back instead of the more usual front drive. Peni Malu, Keresome and PJ Faaulu told the Investigation that afterwards, Eterei reported to them that Seve had tried to rape her. Eterei later requested the assistance of the Victim Support Group but matters did not proceed following a successful reconciliatory intervention towards her and her parents by the then Minister at the Minister’s office. Eterei explained that her parents’ respect for the Minister was the reason for this outcome.

Seve later acknowledged misconduct and apologized for his actions and behaviour in front of the whole staff at a meeting especially called by the Minister.

There can be no doubt in the face of these events and evidence given to the Investigation that Eterei had been subjected to unwanted advances of a sexual nature tantamount to harassment at the hands of the Commissioner. Eterei’s experience furthermore adds credence to the likelihood of similar experience such as that reported by Ms Sefulu Ioane being also true.

CONCLUSION:

It is not surprising that the Interviewing Panel, not having the benefit of an investigation, took the Commissioner’s denial of the allegations at face value and recommended appointment based on the panel’s evaluation of the interviews alone. This was done in accordance with pre-determined criteria.

The SFESA Board did not endorse the recommendation of the interview panel as to the most competent person for appointment. Bearing in mind that two of the three people on that panel were the Chairman of SFESA and another Board member, it is reasonable conjecture that even without an investigation the Board was confident enough from its close knowledge of SFESA to oppose the re-appointment of the incumbent Commissioner. The Board did not support reappointment because it feared that by so doing:

1. Morale within the organization would be adversely affected;
2. A safe system of work for staff could not be guaranteed.
   

Credible information brought to the investigation carried out by the Ombudsman’s Office was adequate to the satisfaction of the inquiry that during Seve’s tenure of office as Chief Executive Officer, he failed to deliver for the organization an important obligation of SFESA to its employees. He was not able to make manifest a safe system of work for the employees of the organization. Moreover, he failed in this because of his own actions and personal conduct.

He engaged in physical attacks upon staff that was unbecoming of the leader of SFESA. He abused his position of power over staff to make unwanted sexual advances. This, in the view of the Ombudsman, is unacceptable conduct for a CEO. It is conduct that calls into question the personal “competence” of any perpetrator to be among other people as a colleague in the work place.

The further point has to be made that not only is the conduct with regard to physical attacks and sexual harassment shown to have happened, it appears to have been or tending to be habitual.

The Investigation was satisfied furthermore that verbal abuse and use of bad language in the work place was routine behaviour on the part of the Commissioner.

All of the above elements in the habitual conduct of the incumbent Commissioner must surely undermine morale within SFESA.

All in all, I am satisfied that ample credible information has been submitted to me to confirm that the decision conveyed by the Board on 17 May 2013 not to endorse the re-appointment of Seve Tony Hill for the reasons stated was sound. This decision was prompted by the written allegations made by two staff members. The Board did not investigate such allegations at the time, acting presumably from its close knowledge of SFESA and events around it. The Board’s summary conclusion in this case has proven to be well founded.

Maiava Iulai Toma
Ombudsman 9 July 2013

^[1] 16 February 2007
^[2]Meritor Savings Bank v Vinson, 477 U.S. 57 (1986)
^[3] MWCD Draft National Policy for Women of Samoa 2007 – 2017.
^[4] Nathan J. in R v Equal Opportunity Board Ex parte Burns 91985) VR 317
^[5] [1997] WSSC2; Misc 2070]