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HERALD WEEKLY ISSUE 433 : 12 November 2008

Nandi loses his case, Crown not awarded costs

In court on Monday, the claim for wrongful dismissal brought by Nandi Glassie against the Prime Minister, the Public Service Commissioner and the Cook Islands Government was not upheld.
However, Justice Weston declined to award costs to the Crown saying it was the author of its own misfortune and that the procedures regarding the employment of Glassie had been ‘unduly casual’ and such as may have led to the litigation.
The decision of the court highlighted the fact that under the Public Service Act 1995, employment contracts for senior public servants is strictly according to the contract of employment. The contract specifically states that ‘nothing in this agreement shall be construed to create an expectation of reappointment or an entitlement to continued employment beyond the expiry date.’
In other words, the contract meant that despite any verbal promises by a Minister, the HOM cannot rely on that assurance, even if the person making the undertaking is in charge of the country.
The plaintiff was represented by Tevita Vakalalabure.
What was the basis of the claim?
In evidence, Glassie told the court that he had been dismissed from his political position as acting Chief of Staff in the Office of the Prime Minister (OPM) on 29 June 2006.
Prior to that Glassie had a 3 year contract as CEO at OMIA, after having previous experience at a high level with the Manukau City Council and before that in a Government department in NZ.
Glassie told the court that on Friday 4 November 2005, the PM had asked him to become his new Chief of Staff because he needed someone with his background in policy development and wanted the position filled immediately. The plaintiff asked to be given a fortnight to give notice and find a successor for OMIA.
On Thursday 17 November, he was informed that the PM had announced that Glassie would be his new Chief of Staff. After seeking confirmation of this announcement, he asked for a new contract of employment for the position, but was assured that was not necessary and the position would be his for as long as the PM remained in his post but would come to an end if he were ‘kicked out’ of office. He took up his new position on 24 November 2005 but was not officially ratified by Cabinet until 22 December.
In the meantime, Glassie was seeking the advice of the then PSC Commissioner, Joe Caffrey as to his contract of employment, and was advised to resign from OMIA and name a successor, which he did.
When he asked for a contract with the OPM, he was given a contract for the balance of the unexpired term of the former Chief of Staff, Denise Rairi who had been dismissed earlier and whose departure had created the vacancy at the OPM.
As the months went by, things went well until the morning of 29 June when he received a visit from Eugene Tatuava and Moetaua Boaza from the Demo Party and asked to become a candidate for Atiu in the upcoming September 2006 election which he declined. At 2pm that very day, the PM asked him to go to his office and told him that there had been a Cabinet decision that his position as Chief of Staff was at an end effective from that very day. There was to be no severance pay, or further notice given.
The dismissal was despite the assurances made to him by the PM when he had originally approached him to take up the position and leave OMIA.
Glassie was stunned and asked whether he had committed any offence, misappropriated any public funds or violated any staff member or brought the office into disrepute. There was no response except to maintain that the employment was at and end and was a decision of Cabinet.
After being dismissed, he found it difficult to find another position because of the stigma of having been ‘fired’ from the OPM with some people assuming that he must have been incompetent or otherwise acted in an appropriate manner in his job. At the time, he was the leader of the Atiu community in their fundraising efforts for their new building and his dismissal did not put him in a good light with the community.
Without an income, Glassie needed to dip into his superannuation which he called his ‘life savings’ to stay afloat during that time. A few months later, the Atiu community voted him into Parliament as an MP for one of the constituencies in Atiu.
The Public Service Commissioner is the employer
Crown counsel, Paul Lynch defended his clients in the action and told the court that the defendant in the case is properly the PSC Commissioner and not the PM or the Government as such.
The court was told that under the Public Service Act 1995-1996 the proper procedure for the appointment of a HOM: the vacancies are publicly advertised, a selection panel considers applicants and forward their recommendations for consideration by Cabinet after which the HOM is officially appointed on a 3 year contract.
In 2000, there were amendments to the PSC Act including a requirement for to ensure all contracts with HOMs ‘commence and expire as near as possible on the same dates directed by Cabinet’ and where the contract is terminated before the term expires, then the appointment created ‘shall be for the duration of the unexpired term’.
In other words, when Glassie was appointed to the OPM, his term was only until 30 June 2006 (the original expiry date for his predecessor, Denise Rairi).
According to the wording of the contract and the PSC Act, the plaintiff should not have based any reliance on verbal assurances unless it was in writing and signed by both parties and no such written agreement had been made.
Witnesses were former PSC, Joe Caffrey and current commissioner, Navy Epati who told the court that the PSC Act was specifically drafted to prevent deals being made without having gone through the proper procedures as per the Act.
Despite the dismissal of the case, Glassie was satisfied to have had his day in court to demonstrate that the Government has a duty to act as ‘a good employer in all of its dealings with the Head of Ministry’ as required in the employment contract and in the PSC Act. In his opinion, the employer had not treated him fairly or properly and had been anything but a good employer.