Constitutional Court declares null the determination and orders of the PSAB in two separate matters |30 March 2020

The Constitutional Court, in two separate but similar judicial review cases, on Friday quashed the orders of the Public Service Appeal Board (PSAB), on the grounds that it exceeded its jurisdiction in considering the complaints and making orders pertaining to transfers in the Police Force.

In both matters, heard by Justice Gustave Dodin, Justice Mohan N. Burhan and Justice Melchior Vidot, between the Government of Seychelles against the PSAB and an employee of the Police Force, court declared null the orders of the PSAB, on account that its jurisdiction is limited to only five instances listed under Article 146 (1) of the Constitution, and transfers are not included in that list.

In the first case, the respondent had been employed as a Constable since 2012 and was stationed at La Digue Police Station in 2013. In March 2018, she was informed that she was being transferred to Response Services on Mahé and was ordered by the Commissioner of Police to take up the position. However, she failed to follow that order and was warned that disciplinary action could ensue. In May 2018, she lodged a complaint with the PSAB and contested her transfer citing personal reasons as grounds for non-compliance with the order.

Upon receipt of the complaint the PSAB sought a response from the police. In the meantime since the then-Constable had failed to comply with the Commissioner’s order for transfer, the Police suspended her salary for August 2018. It was only after this suspension that she complied with the order and presented herself for service, so her salary was reinstated.

The PSAB considered the complaint and on September 13, 2018, issued its determination and Order. While acknowledging that the Police had its own policy, the PSAB considered that the transfer of the employee would create inconvenience and difficulties for her to be relocated. In its Order it called upon the Police to re-examine her situation and consider her social difficulties. It was also determined that she should be refunded 2 months’ salary and her salary reinstated with immediate effect. The Police being dissatisfied with the determination and Order lodged an application to the Supreme Court asking the Court to exercise its supervisory jurisdiction pursuant to Article 125(1)(c) of the Constitution and quash the determination of the PSAB.

The Justices pointed out Section 15 of the Police Force, makes it clear that complaints about transfers have to be directed to the President, declaring the determination and the order a nullity as per the precedent set in Mancienne v Government of Seychelles (2005).

The respondent in the second matter was also a Constable with the Police Force in 2012 who was transferred to the La Digue Police Station in 2013. His employment was on contract from 2012 until 2016. In March 2017 he was employed as a Constable and in March 2018, the Commissioner ordered that he be transfer from La Digue to Anse Royale Police Station. Being aggrieved by that order, which he refused to comply and failed to report for duty on March 26, 2018 and as a result thereof he filed a complaint contesting the order. In the complaint he cited his family circumstances; particularly that together with his family they have established themselves on La Digue. He contended that the order of transfer was arbitrary and that he should have been consulted. He added that he was not granted the possibility of putting forward his case as to the impact that the transfer would have on his family.

As a result the PSAB called for a response from the Police Force, who responded stating that the transfer was in accordance with the Police Force Act. The then Constable further failed to comply with a letter instructing him to report to duty in July 2018, and his salary suspended for July and August. He then reported for work at the Anse Royale Police Station and his salary was reinstated. In this matter the PSAB ruled that the police should have taken into account prior to effecting the transfer the employee’s circumstances and social situation, ordering that “he be refunded his salary for the months that he was not paid and his salary be restored immediately”.

As with the first matter, the precedent applies and the determination and order of PSAB declared null.

In both instances, the Police lodged an application with the Supreme Court to exercise its supervisory jurisdiction to quash the determination of the PSAB.

The Justices in both rulings cited the Article 146 (!) of the Constitutions which sets out the instances when the PSAB can exercise its jurisdiction.

“The Public Service Appeal Board shall hear complaints by person aggrieved by;

(a) An appointment made to an office;

(b) A promotion to an office;

(c) Disciplinary proceedings taken in respect of that officer;

(d) The termination of an appointment of a person who was holding an office;

(e) Any decision relating to the qualification of a person who has applied for an office or serving in an office in the public service”.

Laura Pillay