Antonia Martial Claimant v The Public Service Board of Appeal Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: WILKINSON J.
• Judgment Date: 22 June 2011
• Judgment citation (vLex): [2011] ECSC J0622-1
• Court: High Court (Saint Lucia)
• Docket Number: Claim No: SLUHCV 2010/0450
• Date: 22 June 2011

[2011] ECSC J0622-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No: SLUHCV 2010/0450

Between:

Antonia Martial

Claimant

and

The Public Service Board of Appeal

Defendant

Appearances:

Mr. Horace Fraser for the Claimant

Mr. George Charlemange for the Defendant.

WILKINSON J.

1 Ms. Martial, a qualified accountant by her amended claim form filed on 17 ^th November 2010, seeks the following relief:

• 1. An order certiorari to quash the decision of Public Service Board of Appeal (hereinafter the PSBA) on the ground of abuse of power.

• 2. An order certiorari to quash the decision of PSBA to uphold the decision of the Public Service Commission (hereinafter the PSC) on the grounds of unreasonableness and irrationality and error on the face of the record.

• 3. A declaration that the Ms. Martial is entitled to be restored to the Public Service.

• 4. An order mandamus directed to the PSBA to invoke the mechanism to ensure that Ms. Martial is restored to her office.

• 5. A declaration that Ms. Martial is entitled to be paid salaries from March 2008, to present 3 years and 10 months as at the date of trial.

• 6. Costs.

• 7. Such further and other relief as the Court deems just.

2 It is not disputed that Ms. Martial became a member of the Public Service in 1982 as a clerk. She subsequently qualified as an accountant and in December 2001, was appointed the accountant in the Police department accounts division. The Police accounts division was responsible for depositing with the bank the money paid into the Criminal Records Office (hereinafter the CRO) and the Immigration Department (hereinafter the ID). There was a surprise survey carried out on 28 ^th October 2003, by the Director of Audit and two (2) sums of money being three thousand three hundred and thirty two dollars ($3,332.00) and three thousand nine hundred and seven dollars ($3,907.00) were found to have been received from the ID on the 18 ^th September 2003 and 30 ^th September 2003, respectively, but not deposited in the bank and the location of the money was unknown to Ms. Martial. On the days of receipt a second officer, Mrs. Mathurin was responsible for receiving, verifying and organizing the deposit of the money to the Bank and on the date of the survey she was absent from office. Ms. Martial was sent on leave by the Permanent Secretary in the Ministry of Labour, Relations, Public Service and Co-operatives on 21 ^st November 2003 for the period 24 ^th November 2003, to 18 ^th December 2003. On 19 ^th December 2003, when she resumed duty, she was formally interdicted pending investigation of twenty-one (21) alleged acts of misconduct connected with her duties. She remained interdicted from duty from 19 ^th December 2003, until 30 ^th July 2007, when the PSC began investigation of the allegations of misconduct.

3 On 5 ^th March 2008, the PSC found her liable for five (5) acts of misconduct and ordered her immediate dismissal from the Public Service. She appealed that decision before the PSBA. It was heard on 3 ^rd February 2009, and the decision was rendered 6 ^th May 2010. The PSBA stated that it found her guilty of four (4) acts of misconduct. She appeals the PSBA's decision.

4 When the matter came on for trial, Counsel for the Parties informed the Court they there were prepared to proceed on the evidence set out in the affidavits and there would be no cross-examination. There was disclosed by Ms. Martial the decision of PSBA, the decision of the PSC, and a partial of the transcript of the proceedings before the PSC (pages 1–42, 241–321) and therein was set out the evidence of Ms. Martial, Mrs. Hyacinth, the Director of Audit, and Ms. Marie-Ange Louis, Deputy Permanent Secretary in the Ministry of Justice at the time. From the partial of the transcript disclosed, the Court was unable to determine whether cross-examination of the Ms. Marie-Ange Louis had been concluded since page 42 ends with Mr. Fraser stating "But we're talking about a period not necessarily a date." Also unfortunate is that while the PSC appears to have had before it a copy of the Director of Audit's report, and a copy of a subsequent report prepared by Ms. Marie-Ange Louis, and which report appears to have been instrumental in the commencement of proceedings before the PSC, those reports were not disclosed.

5 The decision of the PSBA was as follows:

"The Board having reviewed all the comments raised in the transcript is not satisfied that there was any bias on the part of the Commission, which would have impacted negatively on the Appellant getting a fair hearing.

Having reviewed all the evidence and having heard both Counsel, the Board is of the view that there is no reason to interfere with the findings of the Public Service Commission in relation to the four complaints arising out of the audit conducted by the Audit Department on October 28 ^th, 2003, and the appeal is dismissed in relation to those complaints.

In relation to ground (2) (b) (v) the Appeal the Board accepts the submission of the Appellant's Counsel, the matter having been investigated by the Office of the Director of Public Prosecutions and resolved long before the institution of proceedings against the Appellant. The Appeal on this matter is therefore upheld."

6 In relation to the issue of punishment the PSBA said:

"Counsel for the Respondent submits that the Appellant's actions are in breach of the conditions of her service and of Section 45(1) of the Financial Regulations and warrant her dismissal, as they constituted conduct inconsistent with the faithful discharge of her obligation under her contract of employment. The Board takes Mr. Fraser's point that the Regulations do not create an offence, but rather set a standard. But what is the consequence of that standard? In a recent case before the Board Enrico Lewis v. Public Service Commission Appeal No.7 of 2007 the Appellant was charged in a manner similar to complaints (i) and (ii) on which the Appellant was found guilty by the Respondent and he was dismissed from the Public Service. In that matter the Appellant personally received the monies at the end of the day and was the one responsible for the bank deposits as well. In this instant case the Appellant as far as the evidence shows did not personally receive the monies, but as the Accountant, she had overall responsibility for the monies collected and for ensuring its safe transfer or deposit to the account of the Accountant General….The Board is of the view that the breach of Section 45(1) of the Financial Regulations when taken together with the principal complaint of not being able to account for money collected on behalf of the Government satisfies the test of due and faithful discharge of duties found in Pearce v. Foster (1886) QBP 536 at 542 and Laws v. London Aumich (1959) 1 WLR 698 which justifies immediate dismissal. The Board is bound by its decision in Enrico Lewis v. Public Service Commission and the Appeal in relation to the first four counts is not allowed. It therefore, follows that the decision of the Public Service Commission in relation to the Appellant stands."

7 The pertinent grounds of appeal before the PSBA were set out in a notice of appeal dated 13 ^th March 2008, and as abstracted from the decision of the PSBA were as follows:

"(a) In relation to the allegations proven against the Appellant as set out at 2(i) to (iv) of the written decision:

• (i) The decision goes against the weight of the evidence.

• (ii) The Commission misdirected itself by treating the allegations as being in the nature of strict liability offences thus totally and unreasonably rejected the Appellant's explanations.

• (iii) The decision of the Commission is totally unreasonable and irrational and perverse. Further the Commission took an irrelevant consideration into account in arriving at this decision.

• (iv) The Commission in arriving at the said decision was actuated by bias and did give the appearance at the hearing of the matter that it was biased.

• (v) The punishment of immediate dismissal of the Appellant as ordered by the Commission was excessive and unreasonable in all circumstances."

8 The PSC's decision was set out in a letter dated 5 ^th March 2008, it stated:

"Guilty of conduct inconsistent with the fulfillment of the condition of her contract of service on two counts viz:

(a)That on September 18 ^th, 2003 monies in the amount of $3,332.00 were collected by the Immigration Department on behalf of the Government of St. Lucia and you failed to reasonably account for the said monies which were missing when the Office of the Director of Audit conducted an audit of the Police Department on October 28 ^th, 2003.

(b) That on September 30 ^th, 2003 monies in the amount of $3,907.00 were collected by the Immigration Department on behalf of the Government of St. Lucia and you failed to reasonably account for the said monies which were missing when the Office of the Director of Audit conducted an audit of the Police Department on October 28 ^th, 2003.

(2) Guilty of conduct in breach of Regulations 45(1) of the Financial Regulations 1997 on two counts viz:

(a) That on November 3 ^rd, 2003 you deposited at the First Caribbean International Bank, monies in the amount of $3,907.00 which said monies were collected on behalf of the Government of St. Lucia on September 30 ^th, 2003.

(b) That on November 12 ^th, 2003 you deposited or caused to be deposited monies in the amount of $3,332.00 which said monies were collected on behalf of the Government of St. Lucia on September 18 ^th, 2003'.

AND

(3) Guilty of conduct tending to bring the Government into disrepute in breach of Order

4.1 of the Staff Orders on one count viz:

That she presented to the Customs & Excise Department cheques dated January 5 ^th, 1996 and December 16 ^th, 1999 in the amounts of $8,786.25 and $1,202.54 respectively for payment of customs duties where said cheques...