Court blocks disciplinary procedure upon breach of human rights claims

Alan Fiott filed for a warrant of prohibitory injunction on 29 May, 2014 against the Public Service Commission and the Director General of Education Services. The applicant asked the court to block the Commission from hearing, and going ahead with the pending disciplinary proceedings against him. 

Mr Justice Joseph Zammit McKeon examined the facts of the case, in which the applicant was subject to disciplinary proceedings according to the 1999 regulations of the Public Service Commission.

The charges against Fiott could result in his dismissal from the public service. The applicant defended himself by arguing that he was not employed by the Hal Tarxien Primary School, but by that of Marsa.

The Director General of Education Services (DG) asked for guidance from the Public Service Commission (PSC). The latter authorised a correction of the charges but the applicant was not aware of this correction and when he was notified of the changes he was informed that the charges were to be considered as those originally made. Fiott was informed of the Disciplinary Board sitting and the date of the hearing. The board found him guilty of the charges and the report was sent to the PSC.

The DG argued that the charges were issued according to Article 20(2) of the regulations, but accepted that there was a mistake and therefore new charges were issued. The PSC defended its position by saying that the amendment related to the locality of the school, but not to the circumstances of the case, and therefore the PSC’s independence and impartiality remained intact. 

Fiott argued that when the PSC gave instructions to the DG, it did not remain independent and impartial. He was excluded from the process which resulted in the corrections made. The decision by the DG to issue fresh charges was flawed. 

The court examined the law, particularly Article 873 of the Code of Organisation and Civil Procedure, which reads:

873. (1) The object of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant.

(2) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right of the person suing out the warrant, and that prima facie such person appears to possess such right.

Therefore the law allows the issue of the warrant to protect a right being sought and all that is required is prima facie evidence, according to a previous judgement, Grech pro et noe –v- Manfre, decided on July 14, 1988.  

According to sub article 3 of Article 873: 

(3) The court shall not issue any such warrant against the Government or authority established by the Constitution or any person holding a public office in his official capacity unless the authority or person against whom the warrant is demanded confirms in open court that the thing sought to be restrained is in fact intended to be done and the court is satisfied, after hearing the explanations given, that unless the warrant is issued the prejudice that would be caused to the person suing out the warrant would be disproportionate when compared with the actual doing of the thing sought to be restrained.

Therefore, when the warrant is sought against the government there is an additional element apart from those mentioned in sub articles 1 and 2. This is that the action which is to be blocked is disproportionate to that action which is to take place. Mr Justice Zammit McKeon pointed out that this sub-article was amended in 2006, which at the time held that the prejudice could not be remedied. Today the applicant must prove that the prejudice is manifestly a disadvantage and detrimental to him or her. These elements must all exist and are not alternatives to one another.

Then the court made reference to the minutes of the case where the DG declared that there were no further disciplinary proceedings against Fiott, because all he did was to issue the charge, and he then left the rest in the hands of the Disciplinary Board, which had already issued a report. In view of this declaration Fiott withdrew his claim against the DG. 

The court examined whether there was a prima facie right against the PSC and therefore, the court had to decide whether on the face of it the DG had the right to ask the PSC for a direction of the first declaration issued against Fiott. Mr Justice Zammit McKeon held that nowhere in the regulations is there mention that the Director General may refer to the PSC once the charges are issued and notified and therefore, on the face of it there is a claim on the legitimacy of this decision. 

With regard to disproportionality of prejudice, Fiott can be dismissed from work and therefore, the consequences outweigh the prejudice that the PSC may suffer if the warrant is issued.

As a result the court upheld  Fiott’s request to issue a warrant of prohibitory injunction against the PSC

Dr Malcolm Mifsud

Partner

Mifsud & Mifsud Advocates