Recent public comments by former prime minister and now Leader of the Opposition in Parliament, Voreqe Bainimarama, exhorting senior state service officials such as permanent secretaries to government ministries not to resign from their position have only served to create and fuel an air of suspicion about the ethical loyalty of these officials to the new coalition Government.
All current permanent secretaries were appointed during the term in office of the FijiFirst Government.
The new The People’s Alliance/National Federation Party/Social Democratic Liberal Party coalition Government that has taken office after winning the December 14, 2022, General Election wants to be assured that all ministers can count on, not just the professional competency and ethical integrity and probity of his or her permanent secretary, but above all, on their undivided loyalty in serving as the minister’s chief executive officer.
The Fiji Times approached former long serving permanent secretary in the public service, Jioji Kotobalavu, who presently lectures in public law at the University of Fiji School of Law, for his comments on this issue.
He said this was a justified and legitimate concern by the new Government.
“On the one hand, I feel sorry for these permanent secretaries,” Mr Kotobalavu said.
“I say this because when I was working in the civil service I committed myself at all times to serving impartially, and always to provide advice objectively and independently.
“But, conversely, the fundamental fact remains that all permanent secretaries serve and hold their chief executive officer positions only at the pleasure of the prime minister as head of the executive government.
“This power and authority of the prime minister in this regard has been strengthened under the 2013 Constitution.”
He said in relation to the present situation, one needed to first understand the relevant provisions of the Constitution.
“Under section 126-(1) of the 2013 Constitution, permanent secretaries are appointed by the Public Service Commission (PSC) and expressly with the prior agreement of the Prime Minister.
“The same section also empowers the PSC, in disciplinary cases, to remove permanent secretaries, again with the prior agreement of the PM.
“Section 127-(4) further empowers the PSC, with the agreement of the PM, to re-assign a permanent secretary to another ministry.
“Section 127-(5) makes provision for a permanent secretary to voluntarily tender his or her resignation to the PSC.”
He said the new coalition Government, for its part, had given assurances that a permanent secretary who voluntarily resigns may re-apply for consideration, along with others, in an open and fair competition based solely on professional merit.
The question which has arisen now, he added, is what happens if in pursuance of the public interest, the PSC decided to ask a permanent secretary to voluntary resign, but the public officer concerned refuses.
“In this circumstance, what can the PSC do, as the employer, to terminate his or her contract of service according to the relevant law.
“And further, what are the public law rights of the PS concerned?”
Mr Kotobalavu said here, one could draw from the relevant provisions of the Employment Relations Act 2015, and in particular sections 29 and 30.
“Under these two sections, an employer can lawfully terminate a contract of service by strictly following these five procedural steps:
(1) Give notice of termination in accordance with the termination clause of the contract (section 29-(1));
(2) The notice must be given in writing (section 29-(2));
(3) The employer must pay to the employee all wages/salary and benefits due to the employee under the contract by the end of the following day (section 30-(1));
(4) The employer, may, in lieu of requiring the employee to work out the notice period, opt to simply pay the terminated worker all the wages/salary and other benefits due to the worker during the notice period (section 30-(3)); and
(5) The employer must give a terminated worker/employee a certificate of service, setting out the nature of his or her employment and the
period of service (section 30-(6).
“The above five procedural requirements constitute the worker’s/employee’s public law rights under the Employment Relations Act.
“If the employer fails to comply with say, one or two, of the above procedural requirements, this would constitute a contravention of the employee’s public law rights under the Act.
“In administrative law jargon, the employer has acted with procedural impropriety.
“The consequence of this breach or procedural impropriety is that the terminated employee can claim that he or she has been unlawfully
dismissed.
“It is this dismissal which then gives the worker/employee the legal basis upon which to submit an employment grievance to the Ministry of Labour.
“If the ministry is satisfied that the grievance cannot be resolved in mediation between the employer and employee, it may then pass on the
grievance to the Employment Relations Tribunal for adjudication.
“Section 230 of the Employment Relations Act provides remedy in cases where the Tribunal accepts the employee’s/ worker’s employment grievance.
“In employment contracts involving the PSC and permanent secretaries, the prior legal advice of the Solicitor-General must, of course, be first sought.”
