Home | Databases | WorldLII | Search | Feedback Vanuatu Ombudsman's Reports

Maladministration Relating to Permanent Appointments in the Forestry Department [1999] VUOM 3; 1999.03 (25 February 1999)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

MALADMINISTRATION

RELATING TO PERMANENT APPOINTMENTS
IN THE FORESTRY DEPARTMENT

25 February 1999

99.03

----------------------------------

PUBLIC REPORT ON THE MALADMINISTRATION

RELATING TO PERMANENT APPOINTMENTS

IN THE FORESTRY DEPARTMENT

PREAMBLE

'What doth the Lord require of thee but to do justly and to love mercy, and to walk humbly with thy God'.

Micah 6 v 8

SUMMARY

The Ombudsman has released a report concerning maladministration relating to permanent appointments in the Forestry Department. The Ombudsman's Office received a complaint from five Forestry Department employees on 9 May 1996. The complaint related to salaries not paid and backdated to their permanent status as public servants from 1 November 1995. These appointments were made with 18 other Forestry Department appointments and 193 Health appointments.

The Ombudsman conducted an inquiry into the matter and found that the appointments did not follow proper public service procedures and there was no budget for the appointments. This came about as a result of the failure of Public Service Commission to perform its constitutional and lawful duties. At that time PSC consisted of Messrs William Mael, Edwin Basil, Kalpovi Mangawai and Neil Steven. The Director of the Forestry Department also failed to perform his administrative duties in ensuring that there were sufficient funds before the appointments were made.

The Ombudsman in the course of inquiry found that the actions of Mr Maurice Michel, former Principal Management Officer were based on wholly improper motives when he instructed the Personnel Officer within the Public Service to process with an increase of salary of one of the complainants.

It is recommended that the appointments be cancelled by PSC and the positions be advertised following proper public service procedure. Also the Ombudsman recommended that all departmental heads and the PSC to ensure that proper and lawful procedures are used for recruitment, appointment and regrading of public servants.

---------------------------------------

TABLE OF CONTENTS

------------------------------------

1. JURISDICTION

1.1 The Constitution and the Ombudsman Act No.14 of 1995 allow me to look into the actions of the government and other organisations in which the government has interests. This includes the Forestry Department, Public Service Commission, Public Service Department and Finance Department.

1.2 The Ombudsman Act No.14 of 1995 still applies to this case even though it has been repealed recently as the investigation began while the Act was in force. (Interpretation Act [CAP 132] s. 11).

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this report is to present my findings as required by Article 63 of the Constitution and Section 24 of the Ombudsman Act.

2.2 The scope of this investigation is to establish the facts about the Forestry employees Public Service appointments and to determine whether appointment procedures in the Constitution, Public Service Act('PS Act') and the Public Service Staff Manual('Manual') were followed and why the complainants were not paid to the level of their permanent positions.

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

3. RELEVANT LAWS AND REGULATIONS

Appointment of public servants- jurisdiction of PSC

3.1 Arts 60(1) of the Constitution provides:

(1) The Public Service Commission shall be responsible for the appointment and promotion of public servants, and the selection of those to undergo training courses in Vanuatu or Overseas. For such purposes it may organise competitive examinations.

3.2 S 3(1)(f) of the PS Act provides:

(1) The Commission shall in respect of the Public Service, be responsible for-

(f) acting as the personnel authority for the Public Service.

3.3 Art.60(4) of the Constitution states that the Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.

3.4 Art 57(3) of the Constitution provides (and this is repeated in cl. 2.1[iii] of the Manual):

No appointment shall be made to a post that has not been created in accordance with law.

3.5 The PSC has a constitutional responsibility to appoint public servants. The PSC is the only body that can appoint a person to any permanent post within the public service. The procedure of recruitment is provided in Chapter 3 of the Manual.

PERMANENT APPOINTMENTS

Recruitment procedure

3.6 Clauses 3.11 to 3.19 in part B of Chapter 3 of the Manual set out the procedure for recruitment of staff for the Public Service. Without repeating these clauses in full the procedure is as follows:

∑ there must be an existing or forthcoming vacancy (cl. 3.11)

∑ PS Minister (PM) approves a vacancy for recruitment (cl. 3.12)

∑ PS Dept director notifies PSC of the approved vacancy (cl. 3.12)

∑ PSC decides whether the recruitment is by competitive examination or otherwise (cl. 3.12)

∑ PSC notifies Department of Labour and Employment of the vacancy and full details of it (cl. 3.13)

∑ PSC advertises vacancy on radio and in press, overseas if necessary and circulates it within the Public Service (cl. 3.13)

- Closing date for applications normally one month after advertisement (cl. 3.16(b))

- PS Minister can waive local advertisement:

- if satisfied no local candidate available; or

- if local candidate trained at public expense for specialised post.

(cl. 3.13)

∑ The PSC is to make a background check of the applicants from authorities in each particular applicant’s province (cl. 3.16(a))

∑ After the advertised closing date for their receipt the PSC sorts through the applications received and identifies those that are eligible (cl. 3.16(b)); i.e. age, possesses required qualifications per Annex II, no criminal conviction

∑ The PSC gives all eligible applications to the relevant Head of Department for the vacancy concerned (cl. 3.16(b))

∑ Departmental Head lists eligible candidates in order of preference according to experience, qualification and suitability for vacant position (cl. 3.16(b))

∑ If more than one candidate PSC has option to hold competitive examination (but does not have to) (cl. 3.16(b))

∑ PSC meets and selects successful candidate and reports decision to PSD director (cl. 3.17)

- If applicable, PSD director to seek any other approval as may be necessary; e.g. Chief Justice (cl. 3.17)

- Selection process also to be used to keep a list in order of merit of unsuccessful candidates for future vacancies (cl. 3.5)

∑ PSD Director determines salary and conditions to be offered in accordance with policy directions of the PS Minister (cl. 3.18)

∑ PSD offers vacant position to successful candidate by Letter of Appointment, setting terms of engagement (cl. 3.19)

Daily Rated Appointments

3.8 A DR employee is someone who is paid from day to day as he/she attends work and performs his/her duties. According to the Casual Employees Manual('CE Manual') the qualifications required for DR appointment are decided by the Director of Public Service (s 1.1). Accordingly, Annex A II (CE Manual) provides the qualifications and/or experience required for the different grades/categories that apply to an individual. Annex II is therefore determined by the Public Service Director. The minimum level of education for a DR employee is elementary education. Assessment of individual applicants for employment from among those qualified (as per Annex II) is done by the head of the employing department (s 1.2).

3.11 A DR employee can not possibly be made a permanent employee while under the terms of the Casual Employees Manual. The recruitment of persons to permanent positions can only be done through the normal procedures as set out by the Constitution and the Public Service Act and the Manual. The DR employee must apply along with everyone else in the ordinary way for the majority of public service posts.

3.12 With regards to increments and wages, the CE Manual under Annex AI provides:

The incremental scales at Annex A.III correspond to grades based on the nature of the duties and responsibilities, the abilities and skills required. Annex A.II shows the various grades and job classification criteria.

For each grade the experience required on each wage point in order to qualify for an increment has been fixed as follows:

1 year on wage points C1.1 to C2.4 inclusive,

1 1/2 years on wage points C3.1 to C3.2,

2 years on wage points C3.3 to C4.3 inclusive.

Except that employees less than 18 years of age shall remain on wage point C1 X until they reach 18 years of age.

Heads of Departments shall give incremental credit for previous relevant experience with other employers.

Heads of Departments may promote employees who have the necessary skills and experience. On promotion an employee shall receive the minimum wage of the new grade.

4. OUTLINE OF EVENTS

4.1 On 9 May 1996, five employees of the Forestry Department lodged a complaint with the Office of the Ombudsman concerning their appointments as permanent public servants.

4.2 They were recruited by the department to permanent positions by the recruiting procedures under the CE Manual, not the mentioned procedures for permanent posts. Their names were then submitted by Mr Aru Mathias the Director of the Department to the Public Service Commission('PSC') for appointment to permanent status.

4.3 The complainants were appointed permanent officers along with 18 other employees of the Department on 1 November 1995. These appointments were made along with 193 Health Department appointments which became the subject of an Ombudsman's report published on 17 April 1998.

4.4 The complainants received their letters of appointment on 23 January 1996. The delay in communicating the decision of PSC was because Mr Andre Lesines, former Director of PSD left the post and the letters were not signed until Mr Waimini Perei replaced Mr Lesines. The decision of PSC is marked appendix 'A'.

4.5 The complainants reported to the Ombudsman that since receiving their letters of appointment they have not been paid according to their appointments. They asked the Ombudsman to assist them to get their salaries paid and back dated to 1 November 1995.

4.6 In an interview with Mr Mathias, he explained that his department's budget was cut and therefore priority was given to officers in order of seniority. Mr Mathias advised that in February 1996 he requested the PSC to inform the appointees about the whole situation and to withhold their appointments until a supplementary budget was approved.

4.7 In April 1996 the Director of PSD replied advising Mr Mathias that the PSC had decided in its meeting of 12 March 1996 that the staff who were appointed as permanent officers be paid on their new salary level as approved by the PSC and that the back pay be withheld pending approval of the supplementary budget. See appendix 'B'.

4.8 During the inquiry, the Ombudsman received information from PSD that Mr T (one of the complainants) was given an increment to his salary upon the instruction of Mr Maurice Michel, former Principal Management Officer of PSD. Below is a letter written in Bislama by the Personnel Officer in charge of Daily Rated employees to the Ombudsman. It reads:

Mr T we hemi bin recruited long namba 01/11/94 olsem Storeman/Driver, i bin stap kam planti taim long PS Depatmen.

During taem ia Mr Michel. Mi bin talem long mi se hemi no glad long salari skel we Forestry Dept. i givim long ofisa ia (Mr T) folem post blong hem. Mo hem iI askem mi blong mekem inkremen. Mi no bin mekem ani samting from mi save se ofisa we i stap long skel olsem Mr T, bae massevem 1 yia fastaem bifo i gat inkremen. (Salari skel CO2.1, 1.120vt long wan dei)

From we Mr Michel iI wan senior ofisa long mi mo tu hemi wan Prisipal we i incharge long ol grading, therefore mi filim se mi ni save ignorem hem olsem.

Long namba 19/04/95 nao, hemi askem long mi bagegen nao, mi disaet blong mekem inkremen ia, long wei we mi respekem posison blong hem (Mr Michel).

5. RESPONSES TO THE PRELIMINARY REPORT

5.1 The preliminary report in this matter was issued on 14 March 1997 to give the person or body complained about an opportunity to reply.

Responses were received from:

(a) Mr Waimini Perei, former Director of PSD. In his response Mr Perei said the Director of Forestry, Mr Mathias, was responsible for making sure there were adequate funds in his budget for the appointments of his officers. PSC made the appointments following his recommendations.

(b) Mr Aru Mathias, Director of Forestry Department. Mr Mathias said he was following the advice of PSD and the Prime Minister's Office recommending staff to be made permanent. He stated that he received the advice by memo. The complainants were eligible for permanent appointment so he sent their names to PSC with the rest of his officers who were to be re-graded. Regarding the advertisements, Mr Mathias said it was his understanding that PSD did the advertisements of the positions and not his department. He also stated that he did not have control over his department's budget. At that time the department's budget was cut so priority was given to officers in order of seniority.

6. FINDINGS

Finding 1: IMPROPER APPOINTMENTS BY PSC CONSISTING OF MESSRS WILLIAM MAEL, NEIL STEPHEN, EDWIN BASIL AND KALPOVI MANGAWAI

6.1 PSC acted improperly by appointing these forestry officers without making sure that proper public service rules were followed and that there was budget for these appointments. This conduct was contrary to the Constitution and Public Service Act.

6.1(a) Following the above finding the complainants do not have grounds to enforce their permanent status as their appointment from casual employees to permanent civil servants is unlawful and in breach of the procedure relating to recruitment as specified in Clauses 3.11-3.19 in the Manual.

Finding 2: IMPROPER DEALING WITH APPOINTMENTS BY MR ARU MATHIAS

6.2 Mr Mathias failed to perform his administrative duty in ensuring that his department had sufficient budget to pay all his staff before they were appointed. Mr Mathias' conduct was blatantly unreasonable.

Finding 3: IMPROPER AWARDING OF INCREMENT BY MR MAURICE MICHEL

6.3 Mr Michel acted improperly based on wholly improper motives by instructing the Personnel Officer to process Mr T's increment in violation of the procedures set out in the CE Manual. The recommendation and authorisation for increment to Mr T's salary should have come from Mr Mathias, the Director and not Mr Michel, a staff of the PSD.

7. RECOMMENDATIONS

RECOMMENDATION 1: PSC to revert the positions to daily rated and advertise the permanent positions following proper procedures

7.1 The PSC to cancel these appointments immediately and advertise the positions without too much delay. This is to be done in consultation with the Director of Forestry. The complainants have no responsibility in these wrongful appointments therefore the procedures should be corrected urgently to save them delays and hardships as it is likely that some of them could fulfil the requirements of the advertised post.

RECOMMENDATION 2: All departmental heads and PSC to ensure that proper and lawful procedures are used for recruitment, appointment and regrading of public servants.

7.2 Mr Mathias being new to the job and having no senior administrative officer with him did not know the procedures of appointment. The laws and rules of the public service are to be made accessible to all public servants. Promotion of awareness in all departments is necessary to avoid improper appointments, promotions, etc.

8. CONCLUSION

8.1 To comply with Article 63(2) of the Constitution and Section 22 of the Ombudsman Act, the Ombudsman requests the Prime Minister and his Director General, PSC and the Director of Forestry to consider these recommendations and to put them into effect.

8.2 The Office of the Ombudsman must be notified of the decision and proposed steps to implement these recommendations within thirty (30) days of the date of this report

Dated the 25 day of February 1999

Marie-Noëlle FERRIEUX PATTERSON

OMBUDSMAN OF THE REPUBLIC OF VANUATU

9. INDEX OF APPENDICES

1. Minutes of PSC meeting (in French)
   
2. Letter from the Director PSD to Mr Mathias
   

------------------------------------------------------------