REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON

DELAY WITHIN THE LABOUR DEPARTMENT

19 November 1999

2000.04

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SUMMARY

This report provides an overview of the inefficiency of the Labour Department illustrated by Assistant Labour Officer Mr Lamai Ware’s unjustified delay in attempting to settle a labour dispute.

Mr A worked for Mr B during 1994, building a water tank, and was paid less than he believes he should have been paid. He lodged a complaint with the Labour Department on or around 15th June 1995. Several scheduled meetings with both parties did not take place because of failed communications. Despite being asked by Acting Commissioner of Labour, Mr Ephraim Mathias, in 1996 to settle the dispute as quickly as possible, Mr Ware took no further effective action until he transferred the files to Senior Labour Officer Mr Edwin Kalorisu in March 1998.

Following the inquiry, the Ombudsman found that:

	The response of the Labour Department to Mr A’s complaint was delayed for unjustified reasons; and
	The administrative practice used by the Labour Department in resolving disputes is defective

Under s.4 of the Trade Disputes Act, labour officers have a duty to promote settlement of individual labour disputes without delay. There were no justifiable reasons for the almost-three year delay in dealing with this matter. Furthermore, the administrative systems within the Department are obviously deficient since a single case sat for such a long time without being noticed or monitored by a senior labour officer.

During the course of the inquiry, the Ombudsman recommended (among other things) that the Labour Department apologize for this delay. To Senior Labour Officer Mr Kalorisu’s credit, he has apologized on behalf of the Labour Department and has taken action on the complaint.

The Ombudsman has further recommended that:

	The Acting Commissioner of Labour Mr Mathias should review this case with a view to recommending disciplinary action against and/or providing training for Officer Ware.
	The Acting Commissioner of Labour should together with the Director General of the Ministry of Internal Affairs institute a form of case management or other monitoring system within the Labour Department to ensure that individual cases don’t 'fall through the cracks' and to ensure that complaints are regularly informed of the progress on their complaints.

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TABLE OF CONTENTS

1.	JURISDICTION
2.	PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3.	OUTLINE OF EVENTS
4.	RESPONSE TO THE PRELIMINARY REPORT
5.	RELEVANT LAWS
6.	FINDINGS
7.	RECOMMENDATIONS
8.	CONCLUSIONS

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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. I can also look into defects in the law or the administration of the law, discrimination and breaches of the Leadership Code. This includes the conduct of the Labour Department and the Assistant District Labour Officer, Mr Lamai Ware.

1.2	The Ombudsman Act 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, METHODS USED

2.1	The purpose of this report is to present my findings as required by Article 63 of the Constitution.

2.2	The scope of this investigation is to establish the facts about a complaint of Mr A, to determine whether the conduct of the Labour Department in addressing the issues was proper, and to consider any defects revealed in the practices of the Labour Department.

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

30	OUTLINE OF EVENTS

3.1	Mr A worked for Mr B during 1994, building a water tank for Mr B in his village. Mr A was paid approximately 46,000 VT for his work but he believes he ought to have been paid approximately 1,200,000 VT. As such, Mr A lodged a complaint with the Labour Department on or around 15 June 1995.

3.2	Assistant District Labour Officer Mr Ware was responsible for dealing with the complaint, and scheduled a meeting to be held with both parties on 4 July 1995. The parties did not show up at the same time for this meeting. According to Mr Ware he scheduled three meetings in 1995 but the parties did not arrive together at the scheduled times because of difficulties in communicating quickly to get one of the party who is living on an island.

3.3	According to Mr Ware, at the beginning of 1996, Mr Mathias asked him to settle the case quickly after Mr A had been to see him. Despite this request, Mr Ware took no further steps to address the complaint. He referred the matter to Mr Edwin Kalorisu, Senior Labour Officer, on 17 March 1998.

3.4	In March 1998 Mr A complained to the Ombudsman Office. On 7 April 1998, Senior Labour Officer, Mr Kalorisu wrote in response to the Ombudsman's correspondence of 9 March 1998. He indicated that he took over the case on 17 March 1998, and provided a detailed response respecting Mr A's complaint. He also provided an apology for the delay in dealing with the complaint.

3.5	Unfortunately for Mr A, it appears that he has no recourse for further compensation unless his time sheets indicate that he was paid less than the minimum wage or a wage agreed upon by both parties (or, alternatively through court action, if he contracted with Mr B for a certain amount that was not paid). Mr Kalorisu could not conclusively determine whether Mr A was an employee or contractor.

4	RESPONSES TO THE PRELIMINARY REPORT

4.1	The preliminary report was sent to the following people for their information and/or comments:

	Mr Masing Lauru (former Commissioner of Labour)
	Mr Edwin Kalorisu (Senior Labour Officer)
	Mr Lamai Ware (Senior Labour Officer)
	Mr Ephraim Mathias (Acting Commissioner of Labour) 

4.2	Mr Ware came in for an interview. He said that the parties involved never sat down to discuss the issues. There was supposed to be a meeting between Mr A, Mr B and Mr Ware, but communication problems prevented this. Furthermore the District Labour Office did not have a secretary or transport, and could only receive incoming telephone calls from 1997. Mr Ware did not provide any justifiable explanation for the delay between 1995 and 1998.

4.3	No further response was received from Mr Kalorisu, beyond the information noted above

4.4	No response was received from Mr Mahtias.

5	RELEVANT LAWS

5.1	TRADE DISPUTES ACT [CAP 162]

PART II
INDIVIDUAL DISPUTES BETWEEN EMPLOYERS AND WORKERS

3	Where a dispute other than a trade dispute as defined in section 1, between a worker and his employer arises from, or in connection with, the terms and conditions of a contract of employment or the manner of its performance, either party may request a labour officer to assist with a view to bringing about a settlement of the dispute by conciliation.

4	Where a request referred to in section 3 is made to a labour officer, and the labour officer considers that he can act upon such request with a reasonable prospect of success, it shall be his duty without delay to endeavour to promote a settlement of the dispute without its being determined by a Court.

[emphasis added]

5.2	PUBLIC SERVICE STAFF MANUAL

4. DISCIPLINARY OFFENCES

A employee commits a disciplinary offence who:

(b)	in a course of his…..duties disobeys, disregards…..in carrying out any lawful order or instruction given by any person having authority to give the order or instruction

(c)	is negligent, careless, indolent, inefficient, or incompetent in the discharge of his …duties

6	FINDINGS

6.1	Finding 1: The conduct of Labour Officer Mr Lamai Ware was contrary to law.

Mr Lamai Ware was found to have failed to comply with the provisions of s 3 & 4 of the Trade Dispute Act. Mr Ware had a duty and obligation under s 4 to promote a settlement of the dispute without a delay when Mr A made a complaint to him. Instead, Mr Ware did not attempt to settle the dispute urgently as asked but sat on the matter until the file was transferred to Mr Kalorisu in 1998. Mr Kalorisu settled this dispute and apologised to Mr A for the unjustifiable delay. Mr Ware never made a justified explanation for the delay to settle the dispute.

6.2	Finding 2: Mr Ware may have committed a disciplinary offence under the Public Service Staff Manual 

Mr Ware was found to have committed a disciplinary offence under s 10.1 of the PS Staff Manual (now s 4(b) of the new revised Manual). He disobeyed the instruction given to him by Mr Mathias in 1996 to settle the dispute. In not obeying instructions to perform his duties in accordance with the law, Mr Ware was also found to be inefficient and incompetent in the discharge of his official duties.

6.3	Finding 3: The administrative practice used by the Labour Department in resolving disputes is defective.

It is found that the present administrative practice used by the Labour Department to settle dispute is defective. The fact that an unresolved dispute could sit within the Labour Department for almost three years without action indicates that the administrative practices utilised by the Department are defective. There are no effective systems in place to avoid such unjustified delays. Section 4 of the Trade Dispute Act clearly specifies the duty of the labour officer to settle the dispute without a delay.

7	RECOMMENDATIONS

7.1	Recommendation 1: The Acting Commissioner of Labour Ephraim Mathias should review this case with a view to recommending disciplinary action against and/or providing training for Officer Ware.

7.2	Recommendation 2: The Acting Commissioner of Labour together with the Director General of the Ministry of Internal Affairs should institute a form of case management or other monitoring system within the Labour Department to ensure that individual cases don’t 'fall through the cracks' and to ensure that complainants are regularly informed of the progress on their complaints.

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, the Director General of Internal Affairs and the Acting Commissioner of Labour to consider these recommendations and 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 day of 19 November 1999

Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU