Riza & Co.’s client, Ishaq Ahmed, has prevailed in an unfair dismissal dispute against the Maldives Civil Service Commission (CSC) at the Employment Tribunal, in which the Tribunal has ruled that CSC’s power to dismiss employees based on irregularities in recruitment process cannot be attributed to cases of its own negligence.
Relevant facts
Mr. Ahmed was employed at the Ministry of Communication, Science and Technology in the position of Director General of Corporate Affairs on 10 April 2019 upon achieving the highest score from the recruitment process conducted by the Ministry following its public announcement for the position on 13 February 2019.
On 23 April 2019, the candidate who ranked second place from the Ministry’s recruitment process lodged a complaint with the CSC to review the marking process. Following this complaint, CSC launched an investigation in which it found that the Ministry had not awarded marks to the complainant’s employment experience. Based on this finding, CSC decided to review all applications and upon review it found that the complainant achieved the highest marks. CSC also noted that despite the review, the total percentage marks initially awarded to Mr. Ahmed remained unchanged.
The complaint was later withdrawn by the said candidate on 5 September 2019. However, CSC continued with the investigation about which Mr. Ahmed was unaware of. After several months, on 30 January 2020, CSC dismissed Mr. Ahmed without notice relying upon section 47 of the Civil Service Act and sub-section 103(d) of the Civil Service Regulation.
Issue
Under section 47(c)(4) of the Civil Service Act and sub-section 103(d) of the Regulation, the law grants CSC the power to dismiss permanent employees of Civil Service where its proven in an investigation by CSC that the employment was awarded to the employee in breach of the Act, its regulation and the Code of Conduct of Maldivian Civil Service.
The issue that was raised before the Tribunal was that Mr. Ahmed was dismissed over an occurrence that had happened without any fault of his own and that he was dismissed unfairly as CSC failed to establish both procedural and substantive fairness in its decision.
Tribunal’s decision
In the decision issued by the Tribunal on 18 February 2021, it ruled that Mr. Ahmed was unfairly dismissed and ordered CSC to reinstate Mr. Ahmed and to pay him the salary and allowance for the duration he was dismissed from his employment.
In reaching to the conclusion that CSC had failed to establish substantive fairness, the Tribunal noted the following:
- Section 47(c) of the Civil Service Act should be interpreted in the broadest sense and in a manner that does not contradict with the rights guaranteed under the Constitution.
- In reference to High Court Case No: 2011/HC-A/01, where the Court had deliberated on a matter in which a civil servant had to be dismissed without a cause attributed to the employee but rather to the employer, the Tribunal noted that the Court’s stance in that case was to protect the fundamental right to employment in its broadest sense.
- Accordingly, the Tribunal noted that it is highly unlikely that the purpose of Section 47 is to allow dismissal of employees due to an occurrence that had happened because of an error or negligence on the part of the CSC or its staff. In this regard, the Tribunal cited High Court Case No: 2010/HC-A/255, where a similar issue was dealt with and the High Court had stated that it does not see why any action should be taken against the employee due to the negligence of the civil service staff in the recruitment process.
- Citing section 23 of the Employment Act, which specifies that an employee shall be dismissed without a notice only when an employee’s work ethic has been deemed unacceptable and further continuation of the employment is seen to be unworkable to the employee under reasonable grounds, the Tribunal noted that the investigation conducted by CSC was not due to any complaint submitted against Mr. Ahmed but rather due to a complaint submitted in relation to the recruitment process of his post. In its decision, the Tribunal stated that it did not find that Mr. Ahmed did anything in violation of recruitment process and that in fact, CSC was the party negligent during the process.
- Additionally, the Tribunal noted that the fact that Mr. Ahmed was made a permanent employee of the Ministry on 1 July 2019 was evidence that the Ministry had found Mr. Ahmed as having the skills and characteristics fit to undertake the duties and responsibilities of the position of Director General of Corporate Affairs.
Moreover, considering the long period it took for CSC to take action and the failure of CSC to justify this prolonged delay, the Tribunal noted that the dismissal was not in line with Article 43(a) of the Constitution that guarantees the right to administrative action that is lawful, procedurally fair, and expeditious.
On the issue of procedural fairness, as no evidence was submitted by CSC to prove such fairness, the Tribunal concluded that CSC had failed to establish procedural fairness in dismissing Mr. Ahmed.
Mr. Ahmed’s win against CSC for his unfair dismissal upholds similar decisions made by the upper courts in this regard.
Mr. Ahmed was represented in the Employment Tribunal by Riza & Co.’s Junior Associate Ms. Gatheelath Adam.
