REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN

PMB 9081
Port Vila
Vanuatu

PUBLIC REPORT

ON THE

IMPROPER SUSPENSION AND NON-PAYMENT OF SALARY TO
NURSE PRACTITIONER
MR PHILIP TANAKE

15 March 2004

2080/2004/04

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
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

PUBLIC REPORT ON THE

IMPROPER SUSPENSION AND
NON-PAYMENT OF SALARY
TO MR PHILIP TANAKE

SUMMARY

The Ombudsman is issuing this report to show how some Directors of Government Departments could make improper decisions that are against the laws and legal administrative procedures of the Public Service that could affect the officers working under their supervision. 
This report is made against the Ministry of Health for improper decision to suspend Mr Philip Tanake (Tanake). His suspension did not follow the legal procedures that are outlined in the Public Service Staff Manual.

The Ombudsman finds that the procedures that the former Director General of the Ministry of Health, Mr Johnson Wabaiat (Wabaiat) used for suspending Mr Tanake from duty on 5 August 1999 were improper. 

The enquiry found that Mr Tanake was suspended for three (3) years and his termination was only made after the health authorities became aware that the Ombudsman is investigating his alleged improper suspension. Mr Tanake was not given an adequate opportunity to answer any of the alleged charges made against him before he was suspended or terminated. 

During the enquiry, the Ombudsman found that Mr Tanake was appointed only as a temporary officer when he was suspended. His claim that he was a permanent civil servant as per his appointment letter of 1 November 1995 cannot be justified in this enquiry since all health officers whose status were regraded on 1 November 1995 were revoked by the Public Service Commission. 

The Ombudsman has concluded in this enquiry that Mr Tanake was suspended when he was only a temporary officer. His salary was withheld by the health authorities contrary to the content of the suspension letter given to him. The letter stated that he was supposed to be on full pay during his suspension.

The Ombudsman also found that Mr Tanake’s suspension was only based on allegations and the health authorities did not provide proof or evidence to suspend Mr Tanake.

The Ombudsman further found that the reports about the reasons to suspend Mr Tanake was only made by the Health Department in February 2003, three (3) years after he was suspended on 5th August 1999. The suspension period lasted for more than 3 years. Mr Wabaiat, and other departmental heads involved in Mr Tanake’s suspension were negligent of the Public Service laws that guide the performance of their official duties.

The Ombudsman further found out that Mr Tanake’s employment was only terminated by Mrs Myriam Abel (Abel), current Director-General of the Ministry of Health on 26 February 2003, after three (3) years of suspension. Again, this action came about only after the Ombudsman’s enquiry into the matter.

The actions taken against Mr Tanake by the Health Officials were not considered to be within the laws that govern persons working in the Public Service.

Following the above findings, the Ombudsman recommends that Mr Tanake should be paid his back-dated salary because he was already terminated from the service. This payment should be immediately back-dated to the time when he was suspended. He should also be paid all outstanding entitlements prescribed by the Public Service Act.

The Ombudsman also recommends that if the Health Department fails to administer the payments of his entitlements, Mr Tanake should consider suing the Government for the improper actions done to him.

1. JURISDICTION

1 The Constitution, the Ombudsman Act and the Leadership Code allow the Ombudsman to investigate the conduct of persons working in the Government, government related bodies and leaders. This includes the former Director-General of the Ministry of Health, Mr Wabaiat and Mr Isom, the former Acting Director-General of Health and currently the Director, Southern Health Care Group, and the Health authorities.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

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

2.2 The scope of this investigation is to establish the facts about the improper suspension and non-payment of salary to Mr Tanake.

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

3. RELEVANT LAWS, REGULATIONS AND RULES

3.1 CONSTITUTION OF THE REPUBLIC OF VANUATU

Article 5(1)(k) of the Constitution states that everybody is entitled to equal treatment without discrimination. 

Article 66 states how a leader should conduct himself or herself both in his or her public and private life. 

Article 67 defines who are leaders and are expected to comply with Article 66 of the Constitution and other enactment that affect their leadership.

A full text of the above Articles can be viewed in Appendix A.

LEADERSHIP CODE ACT NO. 2 OF 1998

The Leadership Code is code of conduct for all leaders that are defined under section 5 of the Code in addition to Article 67 of the Constitution.

Section 5(e) of the Code defines that Messrs Wabaiat, former Director-General, Ministry of Health and Isom as Director of Southern Health Care Group are leaders and are expected to comply with section 13 of the Leadership Code Act. 

A full text of the above provisions of the Leadership Code Act can be viewed in Appendix B.

EMPLOYMENT ACT (Cap 160)

Section 50(4) states that no employee be dismissed without adequate opportunity to answer any charges made against him.

PUBLIC SERVICE ACT NO. 11 OF 1998

INTERPRETATION

Section 5 gives the definition of the word "Employee" in relation to the Public Service includes temporary staff.

Section 17 states that all appointments, promotions, disciplinary matters and terminations in respect of the Public Service must be made in accordance with this Act.

Section 30 states that a temporary salaried employee either be given a minimum of 1 week’s notice or without notice in the case of misconduct or inability. The employee may be employed for a period not exceeding 6 months.

PUBLIC SERVICE STAFF MANUAL – 1998

Chapter 6 clearly states that it is important that when an employee commits a disciplinary offence, it is resolved promptly and effectively in accordance with the procedures of chapters 6 and 7.

It is alleged that Mr Tanake’s case was not carried out pursuant to the above chapters.

The full text of the relevant sections of the above Acts and Public Service Staff Manual can be viewed in Appendix C.

4. OUTLINE OF EVENTS

4.1 On 3 October 1994, Mr Tanake was appointed on temporary basis as a Nurse Practitioner. He was informed about this appointment in a letter dated 28 September 1994 by Public Service Department (PSD). His temporary appointment can be viewed in Appendix D.

4.2 The PSD in a letter of 4 April 1996 informed Mr Tanake that his appointment had been made permanent as of 1 November 1995. Refer to his permanent appointment in Appendix E. However, this permanent appointment could not be justified because the Public Service has revoked all permanent appointments of health officers on its meeting on 10 December 1999 whose status were regraded on 1 November 1995.

4.3 On 9 July 1999, the Public Service Commission (PSC) and the Ministry of Health approved his transfer effective from 30 August 1999, as directed by the then Director-General, Mr Wabaiat. Refer to his transfer letter in Appendix F.

4.4 On 5 August 1999, Mr Tanake was suspended from duty on full pay by the then Director-General, Mr Wabaiat, Ministry of Health. His suspension notice can be viewed in Appendix G.

4.5 On 15 November 1999, Mr Tanake wrote to Mr Wabaiat in regards to his suspension notice. Refer to letter in Appendix H which is self-explanatory.

4.6 On 3 February 2000, Mr Tanake was only informed of the revocation of his permanent appointment that was made by the PSC in its decision on 10 December 1999. PSC revocation letter can be viewed in Appendix I.

4.7 (i) On 14 May 2002, the Office of the Ombudsman received a complaint from Mr Tanake against the Department of Health and PSC on his suspension and non-payment of his salary. He alleged that he was suspended unfairly. The suspension notice was signed on 5 August 1999 by Mr Johnson Wabaiat, however, Mr Tanake was not informed until 21 October 1999 when he actually received his suspension notice. 

(ii) Mr Tanake alleged that several attempts through his superiors at Lenakel Hospital via tele-radio to get more information about his suspension failed because there was no co-operation with his superiors in the Health Department in Vila.. He even wrote to the Director-General on 15 November 1999, but he did not respond to his letter. So his suspension dragged on for two(2) years before he lodged a complaint to the Ombudsman’s Office. 

(iii) Mr Tanake stated in his complaint that due to the unjustified reasons for his suspension, he travelled to Vila at his own expense in May 2000 hoping to solve the issue. He went to the Ministry and the Department of Health. His aim was to see the Director-General, but Mr Wabaiat was in New Caledonia. 

In a letter to the Ombudsman dated 3 December 2003, he confirmed that his total expenses for coming to Vila was Vt42.362. Refer to Appendix S. 

Mr Tanake only met with Mrs Helsie Timataso (Timataso) and Mrs Judith Melsul (Melsul) who both confirmed that there was no report filed in his file on the reasons to suspend him. Mr Tanake claimed that he was given a Public Service plain form and was advised to fill it up and return it. He left the office discouraged.

(iv) The other issue raised was in regard to his salary. The first paragraph of Mr Tanake’s suspension letter states that "you are suspended from duty on full pay immediately from the date of this letter". Mr Tanake alleged that he didn’t receive any salary since April 2000 to December 2000. In 2001, there were only two(2) payments made for just 20 working days. The first was on 7 January 2001 and the second payment was made on 18 February 2001. He was not aware of all the allegations against him that is taking place, therefore, he wrote to PSC. He alleged that outside influence pressured the Director General to suspend him as there was no clear or proper investigation on the matter.

4.8 On 18 July 2002, the Ombudsman sent letters of enquiries to the following persons in the Health authorities and PSC.

(i) The Ombudsman wrote to Mr Isom, Acting Director-General, Ministry of Health to clarify the proper procedures of suspending an officer in the Department of Health; how long is the suspension period; the reasons for Mr Tanake’s suspension by the then Director-General, Mr Wabaiat; and if Mr Tanake was improperly suspended from official duty, and why the Department of Health stopped to pay his salary? 

A letter was sent to Mrs Melsul, Personnel Manager, Health Department stating that "in an attempt to obtain an explicit reason of his suspension notice, Mr Tanake had discussed the matter with her and Mrs Timataso in Port Vila. However, they both confirmed to Tanake that there was no report filed against him in his record". Mrs Melsul was also requested to confirm if she has received a report against Mr Tanake and to provide reasons why Mr Tanake was suspended from official duty, and why the Health Department stopped paying his salary?

(iii) A letter of enquiry was also sent to Mr Lui Naling (Naling), Officer-In-Charge, Lenakel Hospital. It was alleged that on many occasions Mr Tanake attempted to contact his superiors at Lenakel Hospital via tele-radio in order to have a clear explanation of his suspension notice but they did not cooperate. Mr Naling was requested to provide detailed information on Mr Tanake’s suspension. The information is:

(a) improper conduct as per the notice of suspension (Public Service Staff Manual, Chapter 6, section 4.1(i));

(b) failure to comply with the requirements of the Code of Conduct under Part V in the Public Service Act as per the notice of suspension (Public Service Staff Manual Chapter 6, section 4.2(a));

(c) wilful act of assaulting another staff member or any other person as per the notice of suspension (Public Service Staff Manual, Chapter 6, section 4.2(d)).

(iv) It was alleged that on many occasions, Mr Tanake attempted to contact both the Public Service and Health authorities in order to have a clear explanation of his suspension notice but there was no response from them. See letter to the Secretary of the PSC dated 16 November 2001 Appendix J. This letter was sent to Mr George Pakoasongi (Pakoasongi), Secretary, PSC and requested him to confirm if he had received the said letter and for him to provide the Office of the Ombudsman with his response about Mr Tanake’s suspension. 

4.9 On 22 August 2002, reminder letters were sent to the same people above: Mr Isom, Mr Naling, Mr Pakoasongi and Mrs Melsul.

4.10 On 2 October 2002, the Ombudsman received a response from Mr Pakoasongi who confirmed that PSC received Mr Tanake’s letter of 16 November 2001. He stated that:

(i) he had written twice to Mr Isom and his letters were dated 19 December 2001 and 15 July 2002 requesting an Employee Discipline Report (EDR) on Mr Tanake’s case so that it could be submitted to the PSC Board and the Disciplinary Board for a hearing. 

(ii) he gave Mr Isom an ultimatum to respond by 22 July 2002. Since no response was received, PSC closed its file on this case. He advised the Ombudsman to address any future enquiries regarding this matter directly with the Health authorities. Mr Pakoasongi stated clearly in his letter to Mr Isom that since no action is taken, he must take immediate steps to reinstate Mr Tanake on full pay. 

PSC’s response and relevant attachments can be viewed in Appendix K. 

4.11 On 4 November 2002, Ombudsman’s Office sent a second reminder to Mr Isom, Mr Naling and Mrs Melsul.

4.12 On 12 November 2002, Mr Naling advised the Ombudsman by fax that he has no idea on the matter and requested the Ombudsman to contact Mr Iasul Nalau (Nalau), Financial Officer in the Tafea Rural Health Office and Mr Judah Isaac (Isaac), District Health Manager at that time, who were involved in the decision to suspending Mr Tanake. (refer to Naling’s fax in Appendix L)

4.13 On 18 November 2002, the Ombudsman’s Office returned Mr Nalau’s telephone call to query about how he became aware of the issue. Mr Nalau responded that Mr Naling contacted him to brief him on Mr Tanake’s case as Mr Naling himself knows nothing about the case. Mr Naling told him that he needed to respond to the Ombudsman’s letter on the matter. The following information were given by Mr Nalau to the Office of the Ombudsman:

(i) Mr Nalau advised that he and Mr Tanake were suspended about the same period. At that time, Mr Tanake’s case was being dealt with on provincial level and later by the Aneityum community on Aneityum. Tanake was suspended due to political influences. 

(ii) His opinion was that Mr Tanake’s case was a personal matter (something to do with a female member of a family) and shouldn’t have been raised to the Ministry of Health and the Public Service. How the case reached the PSC, he admitted that he knew nothing about. He thought that it must have been the Aneityum community who processed the case to the PSC. Mr Nalau added that Mr Tanake should have been given an opportunity by the Health authorities or PSC (whoever suspended him), to respond to any allegations raised against him.

4.14 On 19 November 2002, we had an interview with Hon MP Judah Isaac (Isaac). He said that Mr Tanake was working under his supervision. He worked in various health centres like Kerepei, Paunangisu, Vaemali and Lenakel Hospital. He alleged that Mr Tanake created problems in all of these health centres where he worked. These problems involved females. He was aware of such problems created by him, but he ignored the advice or instructions given to him by his superiors. After this there was no other choice to take but to suspend him. All the reports and records were kept in the office at Lenakel Hospital, unless they were destroyed.

4.15 On 28 November 2002, the Ombudsman’s Office contacted Mr Naling after the interview with Hon MP Isaac. Later during the same day, the Ombudsman received a fax from Mr Naling which he confirmed that they found no files or records on the allegation made against Mr Tanake which resulted in the decision to suspend him and stopped paying his salary. Copy of fax can be viewed in Appendix M.

4.16 On 18 December 2002, the Ombudsman wrote to Hon MP Isaac requesting him to clarify if proper procedures or steps were taken to suspend Mr Tanake; and whether Mr Tanake was given an opportunity to be heard and to respond to any allegations against him.

4.17 On 13 January 2003, Mrs Melsul stated in her Statement of Interview that Mr Tanake’s suspension was done by the office of the then Director-General, Mr Wabaiat. They have no copies of any reports whatsoever regarding Mr Tanake’s suspension and the reasons for suspending him. Mr Tanake was not at work, therefore, his salary was stopped. As daily-rated, if one is absent from work, automatically no salary is paid to them. Because health authorities do not have any records of the allegations made against Mr Tanake, they wanted Mr Tanake to report the reasons for his suspension.

A full text of Mrs Melsul’s responses to the Ombudsman’s enquiries can be viewed in the Statement of Interview in Appendix N.

4.18 On 17 February 2003, the Ombudsman received the signed Statement of Interview from Mrs Melsul. She indicated in her response that she couldn’t find a copy of the suspension letter. The request by the Ombudsman to provide the copy of Health Department’s letter to stop the payment of Mr Tanake’s salary was not given by Mrs Melsul. Refer to Mrs Melsul’s response in Appendix O.

4.19 On 20 February 2003, the Ombudsman received a memo from Mrs Melsul who enclosed reports on the suspension of Mr Tanake. The reports were provided by Mr Iou Frank Pusin (Pusin), Acting Provincial Health Manager for Tafea Community Health Services. Mrs Melsul commented that Mr Pusin has made a great effort in consulting the concerned community on this case. Refer to copy of Mrs Melsul’s memo and attachments in Appendix P.

4.20 On 24 February 2003, the Ombudsman had an interview with the Director-General, Mrs Abel. Mrs Abel referred to the reports in Appendix P and concluded that the case be closed as Mr Tanake was involved in a serious misconduct. 

The Ombudsman’s Office asked if Mr Tanake’s suspension followed proper procedures as his salary has been withheld contrary to his suspension notice.

Mrs Abel admitted that it was the Health authorities’ failure of not administering the suspension procedures properly. The Director-General stated that she will issue Mr Tanake his "termination" letter and added that Mr Tanake can bring it up again as another case. She confirmed to send a copy of Mr Tanake’s termination letter to the Ombudsman’s Office.

4.21 On 6 March 2003, the Ombudsman contacted Mr Pusin to confirm whether the reports referred to in Appendix P were the main reasons that were used to suspend Mr Tanake on 5 August 1999. These reports were only made in the year 2003. The reports provide no evidence of serious misconduct.

Mr Pusin confirmed that the above reports were done this year 2003. He also confirmed to have seen the actual reports used to suspend Mr Tanake in 1999. However, Mr Pusin stated that he has no copy with him as they were sent to the Health authorities in Vila.

It is concluded that the records received as allegations against Mr Tanake are not the actual records used in 1999 to suspend Mr Tanake. No records of allegations against Mr Tanake are available in the Health authorities’ files.

4.22 On 10 March 2003, the Ombudsman received a copy of Mr Tanake’s second letter of suspension from Mrs Abel, Director-General, Ministry of Health. The first suspension letter was dated 5 August 1999 signed by Mr Wabaiat, former Director-General, Ministry of Health. Letters of suspension can be viewed in Appendices Q and G respectively.

4.23 On 31 March 2003, after numerous correspondences between Health Department and Ombudsman ‘s Office, the Ombudsman’s Office made its findings and submitted them to the Director General of the Ministry of Health, Mrs Abel. The Ombudsman’s Office recommended that Mr Tanake is paid his outstanding salaries.

4.24 On 14 April 2003, the Ombudsman received a copy of the Director-General, Mrs Abel’s memo addressed to Thomas Isom, Judith Melsul and Iou Pusin urging the Human Resource Manager to work closely with the Director of Southern Health Care Group, to respond to queries and to furnish her office with correct information and actions to be taken with respect to Mr Tanake’s case as she is advised to submit the Ministry’s decision on that matter by the 28 April 2003 to the Ombudsman’s Office. Refer to copy of memo in Appendix R.

4.25 On 27 May 2003, the Ombudsman requested Mrs Abel, Director-General that if she has all the information available to submit them to the Office of the Ombudsman by 10 June 2003 for his pursuance.

No response received to date.

4.26 On 9 September 2003, after numerous correspondences on the issue, the Office of the Ombudsman sent a letter of enquiry to Mr Wabaiat, who is now Director-General, Ministry of Internal Affairs to assist in this investigation. However, at the time of writing this report, there was still no response from Mr Wabaiat. 

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1 A Working Paper on this matter was issued on 11 December 2003 in accordance with Article 62(4) of the Constitution which states that the Ombudsman must give an opportunity to those complained of an opportunity to respond to the findings made against them. 

5.2 On 29 December 2003, the Ombudsman received Mr Tanake’s comments on the Working Paper as follows: 

Outline of Events

4.14 (a) if the allegations made against him were true, the Health Department should have provided proof or evidence of the allegations. 

(b) since his 27 years of service with the Health Department, he had never been posted to Kerepei or Vaemali Health Centres until his suspension. 

4.19 as a registered midwife, Mr Tanake was surprised to see the report submitted by Mr Pusin on the subject of "Having intercourse with pregnant mothers in the work place." 

During his 27 years of his nursing carrier, he has never had sexual intercourse with any anti-natal patients who attended anti-natal clinic. If Mr Pusin was true, he should have provide names of pregnant mothers that he mentioned in his report.

The report in Appendix P produced by the temporary secretary, council of chiefs, Mr Tonny Keith (Keith), who claimed to be on behalf of community groups, was only done for his own personal interest. The reports have the same handwriting with no signatures of those concerned.

The reports were produced only when the Health authorities failed to submit the appropriate findings to the Ombudsman. Mr Pusin had to fly Tanna/Aneityum at the beginning of 2003 and contacted Mr Keith to assist him in compiling the reports. Mr Pusin then filed the reports to Mrs Melsul dated 10 February 2003. 

Mr Tanake made the following points:

-	why did Mr Pusin compiled the reports without the Aneityum chiefs and councillors?
-	why did Mr Keith produced the reports without those people concerned?
-	Mr Pusin is a responsible person in the Tafea Health region, however, work done by him is considered or perceived to be bribery. 
-	Mr Pusin is regarded as a leader and Mr Tanake’s boss as well. Why didn’t he discuss the matter with Mr Tanake while on Aneityum? 
-	in one of Mr Keith’s report, he mentioned that Mr Tanake refused to be transferred to Tanna. Mr Tanake requested Mr Keith to provide him with a copy of transfer letter issued by Mr Isaac.

4.20 Mrs Abel, Director-General, Ministry of Health terminated him without giving him adequate opportunity to respond to any allegations made against him. He was shocked when he received his termination letter dated 26 February 2003. 

Copy of Mr Tanake’s comments can be viewed in Appendix T.

5.3 Mr Isom, Director, Southern Health Care Group (SHCG) verbally stated during an interview that:

(i) although his name appeared in the Working Paper, Mr Isom was not part of or involved in Mr Tanake’s suspension. 

(ii) Mr Tanake’s case was raised way back in 1999. Mr Isom was appointed Director, Community Health Services in May while in Santo. 

Mr Tanake’s suspension was done by Director-General Wabaiat while Mr Isom was not actually in office. 

(iii) when Mr Isom took office in Vila, he was addressed to follow up this case. Several trips were taken to Tanna but could not locate the documents related to Mr Tanake’s suspension until this time. 

(iv) Mr Isom respected the Director-General, Mr Wabaiat as his superior, therefore, he could not override Mr Wabaiat’s decision. Mr Wabaiat was approached to assist and solve the matter. Nothing was done.

Mr Wabaiat signed Mr Tanake’s suspension letter, therefore he should also be the signature for withdrawal. 

(v) refer to Finding 4 – Mr Isom has not breached Section 13 of the Leadership Code for the above reasons. Mr Isom requested the Ombudsman to withdraw his name because

(a) it wasn’t his case;
(b) he wasn’t involved in it; 
(c) he knew nothing about; 
(d) he followed up the case, but it was difficult to proceed as they could not locate the relevant documents that led to Mr Tanake’s suspension.

Mr Isom elaborated more to prove himself that he knows the procedure of discipline when referring to Health cases taken to Court by him during past years. This is the only case that his name appears in it which is not the product of his work but someone else’s. 

(vi) Mr Isom knows that Mrs Melsul is also involved in Mr Tanake’s suspension and she should be mentioned in the report (findings and recommendations). All documents concerning discipline, recruitment, housing allowances etc., she is the officer responsible. Mr Isom doesn’t understand why Mrs Melsul failed to produce the relevant documents on Mr Tanake’s suspension. 

(vii) Mr Isom has no objection to the Recommendations concerning his former Director-General, Mr Wabaiat. Mr Tanake has the right to proceed or follow up the Recommendations. Health authorities failed to provide or maintain facts or proof of relevant documents that led to Mr Tanake’s suspension. Correspondences received from the Ombudsman were brought to the attention of the former Director-General, Mr Wabaiat and Mrs Melsul. 

(viii) Some of the Health officers know about the case but they did nothing about it. 

5.4 Mr Iasul Nalau phoned to say that he agreed with the contents of the Working Paper. 

5.5 Mrs Melsul stated that she has no comments to make on the working paper. See copy of her response in Appendix U.

5.6 Mrs Abel advised that the Ministry does not have any further comments to add to the report. Refer to Appendix V. 

5.7 Appendix W is the Ombudsman’s copy of the Ministry of Internal Affairs’ letter to the Ministry of Health on the same. 

5.8 No responses were received from the following: 

Mr Wabaiat, former Director-General, Ministry of Health
Mr Pusin, Acting Provincial Health Manager, Tafea Community Health Services
Mr Naling, Nursing Manager, Lenakel Hospital
Honourable Judah Isaac, former District Health Manager, Tafea
Mr Pakoasongi, Secretary, Public Service Commission

6. FINDINGS

6.1 Finding 1: Former Director-General of the Ministry of Health Mr Johnson Wabaiat may have breached Section 50 of the Employment Act.

Mr Wabaiat may have breached Section 50(4) of the Employment Act when he failed to give Mr Tanake an opportunity to be heard and to answer the charges made against him. Such action could give rise to doubt in the public mind and Mr Tanake whether he has carried out his duty fairly or have followed the law. He acted unfairly resulting and causing him distress and depriving him of natural justice. 

6.2 Finding 2: Mr Wabaiat suspended Mr Tanake without grounds.

In his letter of 5 August 1999 to Mr Tanake, the Director General Mr Wabaiat failed to provide proper explanations as to his reasons for suspending him. All that he stated were sections of the Public Service Staff Manual and the Public Service Act. 

Despite having been sent a letter by Mr Tanake on 15 November 1999 asking that copies of the complaints be sent to him, Mr Wabaiat failed to send him copies of the complaints to give Mr Tanake an opportunity to respond to the complaints.

Up to now Mr Wabaiat did not respond to the Ombudsman giving the reasons for suspending Mr Tanake. 

6.3 Finding 3: Mr Wabaiat may have breached Section 13 of the Leadership Code.

Mr Wabaiat failed to observe and comply with section 13 of the Leadership Code Act. That is, he failed to observe and comply with the provisions of the Public Service Staff Manual and the Employment Act. As the overall supervisor of a Ministry, he failed to allow Mr Tanake an adequate opportunity to answer the charges made against him before he was suspended. By not observing these laws, he has committed an offence under the Leadership Code.

6.4 Finding 4: Mr Isom may have also breached Section 13 of the Leadership Code.

Mr Isom failed to observe and comply with section 13 of the Leadership Code Act. That is, he failed to observe and comply with the provisions of the Public Service Staff Manual and the Employment Act. As the overall supervisor of Southern Health Care Group and the immediate supervisor of Mr Tanake, he failed to allow Mr Tanake an adequate opportunity to be heard and to answer the charges made against him before he was suspended. By not observing these laws, he has committed an offence under the Leadership Code. 

7. RECOMMENDATIONS

The Ombudsman makes these recommendations based on the above findings to resolve this complaint and prevent such practices to occur again in the future. 

7.1 Recommendation 1:

The Ministry and the Department of Health make immediate payment of Mr Tanake’s salary, back-dated to the time when his salary was withheld to the date of his termination letter, plus other entitlements, since his suspension and termination was not done according to proper Public Service Staff Manual procedures and law. 

7.2 Recommendation 2:

The Public Service Commission should impose disciplinary actions against the health officers who failed to carry out their responsibilities efficiently and according to the laws.

7.3 Recommendation 3:

The Ministry and Department of Health refund Mr Tanake for all his costs totalling to Vt42.362 when he travelled to Vila in May 2000 and the time and trouble he took in writing letters and making radio calls without achieving anything in regard to his suspension. 

7.4 Recommendation 4:

The Ministry and Department of Health apologise to Mr Tanake.

The action of suspending Mr Tanake for over three years without reasons, the right to be heard was unfair and prevented him from natural justice. As an employer they fail to demonstrate fair and proper treatment to Mr Tanake. The two agencies fail to demonstrate the ethics of a good employer. 

7.5 Recommendation 5:

That Mr Johnson Wabaiat be punished under Section 40 of the Leadership Code for breaching Section 13 of the same Act.

Dated the 12th day of March 2004.

Hannington G ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

A Constitution

B Leadership Code Act 

C Employment Act, Public Service Act and Public Service Staff Manual

D Copy of temporary appointment

E Copy of permanent appointment

F Copy of letter of transfer

G Copy of 1st Notice of Suspension 

H Copy of Mr Tanake’s letter to Mr Wabaiat

I PSC revocation letter

J Copy of Mr Tanake’s letter to the Secretary, PSC

K Copy of PSC’s response & relevant attachments

L Copy of Naling’s fax

M Copy of Naling’s fax

N Copy of Mrs Melsul’s Statement of Interview

O Copy of Mrs Melsul’s response

P Copy of Mrs Melsul’s memo & reports from various people

Q Copy of 2nd letter of Suspension from employment

R Copy of DG Mrs Abel’s memo to Mr Isom, Mrs Melsul & Mr Pusin

S Copy of total expenses for Mr Tanake’s travel

T Copy of Mr Tanake’s comments 

U Copy of Mrs Melsul’s response 

V Copy of Mrs Abel’s response 

W Copy of the Ministry of Internal Affairs’ letter 

Appendix A

CONSTITUTION OF THE REPUBLIC OF VANUATU

FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

Article 5(1)(k) equal treatment under the law or administrative action …

CONDUCT OF LEADERS

Article 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

Article 67. 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. 

Appendix B

LEADERSHIP CODE ACT NO.2 OF 1998

LEADERS

5. In addition to the leaders referred to in Article 67 of the Constitution, the following are declared to be leaders:

. . . (e) directors-general of ministries and directors of departments. . . .

DUTIES OF LEADERS

13.(1) A leader must:

(a) comply with and observe the law;
(b) comply with and observe the fundamental principles of leadership contained in Article 66 of the Constitution; and
(c) comply with and observe the duties obligations and responsibilities established by this Code or any other enactment that affects the leader.

Appendix C

EMPLOYMENT ACT (Cap 160)

50(4) 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 …

PUBLIC SERVICE ACT NO.11 OF 1998

INTERPRETATION

Section 5 "Employee" in relation to the Public Service means a person employed therein whether on the permanent staff or temporarily or on probation or as a casual employee or daily rated worker, whether by way of written contract or otherwise but does not include a director-general or director other than for the purposes of section 27. 

APPLICATION TO PUBLIC SERVICE

Section 17 All appointments, promotions, disciplinary matters, and terminations in respect of the Public Service must be made in accordance with this Act. 

TEMPORARY SALARIED AND CONTRACT EMPLOYEES

30. (1) The Commission may engage such temporary salaried employees as may from time to time be required and may dismiss a person so engaged with not less than 1 week’s notice. No action shall lie in any Court in respect of the dismissal of any temporary salaried employee except in the case of a breach of the Commission’s obligation to act as a good employer, during the course of the employment. 

(2) Temporary salaried employees may be employed for a period not exceeding 6 months and shall be paid such remuneration and be subject to such conditions of employment as may be determined by the Commission. 

(3) Where, due to the nature of the employment (such as short term specialist services) to be performed, and where it is inappropriate for that person to be employed on a permanent basis, the Commission may employ persons pursuant to a contract of employment. 

(4) The contract may, in the discretion of the Commission, exclude the person so employed from being subject to this Act or from provisions of this Act. 

PUBLIC SERVICE STAFF MANUAL – 1998 

CHAPTER 6 – MANAGING EMPLOYEE DISCIPLINE

1. Introduction 

Under section 4 of the Public Service Act, employees of the Public Service are to have the highest ethical standards; be accountable for their actions; and observe the law in all they do as public servants. Consequently, to ensure that highest standards of appropriate and ethical behaviour are maintained in the Public Service, it is important that when an employee commits a disciplinary offense, it is resolved promptly and effectively … . 

At the same time, the Commission also has a responsibility under the Public Service Act to be a good employer. This requires that employees are treated fairly in all employment related matters, including discipline. To ensure that all of these requirements are met all discipline matters must be dealt with in accordance with this chapter. These procedures are based on the Public Service Act with additional procedures authorized by Commission. 

2. Procedures to be followed in all discipline matters

The following procedures must be followed by all persons involved in dealing with discipline matters. These procedures require that: 

2.1 Departments are to have appropriate management systems in place for preventing disciplinary matters from arising and that concerted attempts are made to resolve any discipline matters that arise first within the department;

2.2 Employees are suspended from duty (on full pay) only in very serious discipline cases and can only be suspended by a Director, Director-General or the Commission;

2.3 Discipline matters are only referred to the Public Service Commission after attempts have been made to resolve it within the Department within ten working days if the employee has been suspended from duty for a serious discipline matter; 

2.4 The Commission considers which discipline matters should be dismissed or referred to the Disciplinary Board, with the employee being provided with an opportunity to respond to any allegations made against them. 

2.5 Only the Disciplinary Board is authorised to hear and determine discipline cases and must provide at 28 days notice to the employee of the hearing date.

2.1 Attempting to first resolve the matter within the department

(a) Directors-General and Directors are responsible for ensuring that there are appropriate work management systems in place within Departments, so that employees clearly understand what duties they should be doing and what level of work performance is expected of them. 

(b) Directors-General and Directors are responsible for ensuring that employees within their departments know what forms of behaviour may lead them to being charged with a disciplinary offense under the Public Service Act or the Public Service Staff manual. 

(c) Except in cases of serious disciplinary cases requiring immediate suspension of the employee (for example, theft; fraud; misappropriation of funds; serious misuse of Government property; assault; and sexual harassment) under the next section, if an employee commits a disciplinary offense, his or her supervisor must attempt to resolve the matter first with the employee directly through informal discussion and counselling. The aim must be to resolve the matter within the Department and avoid it becoming a discipline case that needs to be referred to the Disciplinary Board. 

(d) If this is unsuccessful, and the employee continues to commit the disciplinary offense, the Supervisor shall, through his or her manager, inform the Director of the Department. 

(e) The Director shall warn the employee in writing up to two times, warning the employee that if the alleged behaviour continues or re-occurs, the matter will be referred to the Commission for possible referral to the Disciplinary Board. 

(f) The employee must be provided with an opportunity to respond to the allegations in writing within seven days. 

(g) The Director’s warnings and any written response from the employee shall be placed on the employee’s personal file within the Department and the Office of the Commission. 

2.2 Suspending the employee from duty immediately in serious discipline cases

(a) No prior written warnings or verbal counseling need to be given where the employee commits a serious disciplinary offense requiring immediate suspension, but no employee shall be suspended except in accordance with this section. 

(b) If an employee commits a serious disciplinary offense (for example, theft; fraud; misappropriation of public funds; assault; or sexual harassment), the Director (or authorized delegate) of the Department where the employee works, shall suspend the employee on full pay and immediately inform his or her Director-General of the suspension who shall confirm or vary the Director’s decision within 24 hours (see model "Notice of Suspension" letter for department use in Chapter 8, schedule 5). 

2.3 Referring the matter to the Public Service Commission

2.3.1 Documentation required for discipline cases

(a) In all alleged discipline offenses, the Director-General shall refer the matter formally to the Commission in writing, providing an Employee Discipline Report (PSC FORM 6-1) on the offense and what steps have been taken by the Department to resolve the matter. 

(b) Before submitting the report to the Commission, it shall be provided by the Director to the employee, who shall be given seven (7) calendar days to submit a written response to the allegations made in the Director’s report, which shall be forwarded in full to the Commission with the Director’s report. 

(c) If the employee fails to make a written response, it may be assumed by the Commission that the employee agrees with the Director’s report. 

2.3.2 Time limits for referring discipline cases

(a) In cases where the employee has not been suspended from duty, but the employee continues to commit or repeats the disciplinary offense, the Director-General shall refer the matter to the Commission after the process in section (1) has been undertaken. This should be done as promptly as possible. 

(b) In cases where the employee has been suspended on full pay, the matter shall be referred to the Commission as soon as practicable but not later than 10 working days after the Director has become aware of the alleged discipline offense committed by the employee. 

CHAPTER 7 – MANAGING CESSATION OF EMPLOYMENT

4. General employee entitlements

Required Periods of Notice and Employee Entitlements

3. End of temporary salaried employment	One week or as specified in employee’s written contract	-Standard payments or as specified in employee’s written contract
- If applicable, payment in lieu of notice of termination	

5.3 Temporary employees

(a) Temporary employees may only be employed for a period not exceeding six months and must be provided with a minimum of one week notice of termination (Public Service Act, section 30(1)), although if possible, two weeks notice should be provided.

(b) In the case of serious misconduct or serious inability to perform their duties, their employment may be terminated without notice but subject to the Commission’s obligation to act as a good employee (Public Service Act, section 30(1)).

(c) Temporary salaried employees are entitled to the standard range of entitlements specified in Section 4.1 of this chapter or, if applicable, as specified in their written contract of employment.