Public Bodies Appeal Tribunal

The Public Bodies Appeal Tribunal

When was the Public Bodies Appeal Tribunal (PBAT) established?

The Public Bodies Appeal Tribunal (PBAT) was established under Section 91A of the Constitution(Act No. 9 of 2008). The PBAT Act was passed by the National Assembly on the 20 May 2008 (Act No. 10 of 2008). The PBAT Act came into operation on Monday 1 June 2009 by Proclamation.

Who sits on the PBAT?

The PBAT consists of:

Ø    a Chairperson who is a Barrister of no less than 10 years’ standing

Ø    a law practitioner of no less than 5 years’ standing; and

Ø    a former public officer who, on ceasing to be a public officer, had reached at least the level of a Permanent Secretary or other Supervising Officer, or a higher level in the public service.

The members of the PBAT are appointed by the President of the Republic after consultation with the Prime Minister and the Leader of the Opposition.

The present panel of the PBAT was appointed by the President and comprises of the following members:

The PBAT is a quasi-judicial body and it hears and determines any appeal made by a Public Officer, or any Local Government Officer, against any decision of the Public Service Commission (PSC) or the Local Government Service Commission (LGSC) (hereinafter referred to as Respondent), as the case may be, pertaining to an appointment exercise or to a disciplinary action taken against that officer.

What are the limitations the PBAT?

The PBAT cannot entertain any appeal from any decision taken by a Commission where the decision has been taken after consultation with or with the concurrence of, or on the advice of, the Prime Minister.

The PBAT will not entertain any appeal where the appeal relates to an appointment made following a call for application for an office by public advertisement.

The PBAT only deals with final decisions.

The PBAT does not mediate or reconcile parties.  It must adjudicate.

Does the PBAT function like a court of law?

The PBAT is not bound by the procedures or legal forms of a court of law, and any rules of evidence.

It has to:

·                    observe the principles of natural justice;

·                    keep a written record of its proceedings, and

·                    give reasons for its decision on the appeal.

In compliance with the principles of natural justice, the PBAT is guided by four main parameters, namely:

Procedures:                 Were the procedures followed satisfactorily?

Substantive issue:       Was the Appellant treated fairly and reasonably by the decision-taker? The Tribunal can look at the merits of the decision.

Consistency:              Was anyone else in the same circumstances treated differently?

Proportionality:        (regarding sanctions taken): Did the situation warrant the penalty or the level of the action taken by the decisiontaker?

In cases of appointment is the Appellantallowed to look at the documents of the interviewing panel?

No. However, in exceptional circumstances, specially if the Appellant raises a Ground of Appeal concerning the assessment of his qualifications, experience or merit, the Tribunal can request the Respondent to let it peruse certain information. Normally the relevant information asked for will be the list of criteria, the weight attached to each criterion and the markings. In some cases the relevant qualifications and the experience of each candidate will be sought. Sometimes the Respondent will produce the criteria of selection during the proceedings.

Can anyone attend the hearing of the PBAT?

According to section 91A of the Constitution, the PBAT holds its proceedings in camera (not in public), except where the PBAT decides otherwise with the agreement of the parties to the appeal. Only parties to a case and their Legal and/or Trade Union Representatives will be allowed to attend any sitting of the Tribunal. Representatives of Ministries concerned or of a local authority may be called as witnesses.

Apart from the members of the Tribunal, is anyone else involved with the work of the PBAT?

The PBAT may appoint advisor(s) on an ad hoc basis to assist it where required.  However, the decision of theTribunal will be that of its members.

The decision of the PBAT will be by consensus among its members. In case of disagreement, the decision of the majority becomes the determination of the Tribunal.

The members of the Tribunal, or the advisors who may from time to time be enlisted on an ad hoc basis, must not have any interest on any case brought to the Tribunal.

Whenever a member of the Tribunal has an interest in a case, for example if one of the parties is a close relative of his or hers, he or she must declare that interest. An Ad Hoc member will then be appointed by the President of the Republic in the same way that the original member was appointed.The same rules will apply to the Ad Hoc member.

How can an officer appeal?

Any officer (hereafter referred to as Appellant) who feels aggrieved by a decision of the PSC or LGSC can appeal by filling, signing and submitting the relevant application form (PBAT Form 1) to the Tribunal. This form which is available at the Tribunal and also on this website, must be signed by the Appellant and deposited at the Tribunal against delivery of a receipt. It can also be sent by registered mail. In either case, it must reach the Tribunal not later than 21 days from the date of the notification to the officer of the decision, or of such public notification of the decision, as may have been made, whichever is the earlier.

Officers are advised to be careful in filling the application form as the onus of proof and the substantiation of the case rest with the Appellant. All forms MUST be signed by the Appellant and not a Legal Representative. They must be dated and the Appellants must give their Identity Card to check the details.

What constitutes Grounds of Appeal?

On submitting Form 1, the Appellant must give Grounds of Appeal which refer to the reasons for entering an appeal. e.g.

§    “I was more qualified”

§    “Appointee was not qualified or was less qualified”

§    “Appointee did not meet the requirements of the Scheme of Service”

§    “Appointee was under report”

§    Ï had more experience”

§    “The Respondent did not assess my qualification and experience properly”

The above are merely examples.  However, a general statement regarding the appointment will not suffice.

The points to be raised in the Grounds of Appeal must be concise and precise to allow the Tribunal to take a decision on the course of action. Any point that requires clarification can only lead to delays in the delivery of a decision and will not be in the interest of any party. Further the Appellant will NOT be allowed to introduce new Grounds of Appealin a statement of case (SOC), which will be sought later, in which Appellant can only expatiate on the grounds already submitted in PBAT Form 1 and any annex. Appellants must refrain from annexing other documents to their Form 1. The PBAT reserves the right to refuse documents at this preliminary stage.

The Appellant is also advised not to make an appeal which is trivial, frivolous or vexatious. Such appeal will be dismissed outright under section 6(4)(a) of the PBAT Act 2008. A large number of such cases can clog the system and cause harm to the proper administration of justice.

For example, seniority is not a ground per se in a selection exercise. If this is the only GOA, the Tribunal will apply sectrion6(4) (a) of the PBAT Act 2008.

The PBAT has been set up precisely for settling matters of dispute in an expeditious manner and the collaboration of all parties is important to respect the spirit behind the creation of such a Tribunal.

Does the Tribunal accept appeals lodged after 21 days?

If an Appeal has been lodged outside the delay of 21 days, it will be struck out forthwith. Time runs from the date that the Appellant was actually notified. The date of notification counts as day one. If the date is not certain the Appellant will be requested to give proof of the actual date when he received the circular. He may seek same from his employer, or from the Post Office, if it was sent by registered mail. In any case he will have to produce the notification letter or other relevant document regarding notification.

If the 21^st day falls on a Saturday, Sunday or Public Holiday, the appeal must be lodged on the next working day, otherwise it will be struck out.

What happens when an appeal has been accepted?

If the Appeal is accepted, the PBAT will notify the relevant Respondent (either the PSC or the LGSC) and invite it to state whether it has any objection for the appeal to follow its course. The Respondent is given a copy of the application form (PBAT Form 1) filled in and signed by the Appellant, and two weeks to file any Grounds of Objection(GOO)if it needs to raise a preliminary point in law. Any party to the case may at any time, raise a point of law as long as there is no prejudice caused to the other parties and that the case is not unduly postponed.

Respondent will also beasked to provide the Tribunal with the names and addresses of theappointees, whenever the case relates to an appointment. The Grounds of Appeal will then be sent to the Appointees hereinafter referred to as the Co-Respondents, and they will be requested to take a decision. They will have to inform the Tribunal whether they will be represented by a Legal or Trade Union Representative or they will conduct their own case. They may also decide to abide by the decision of the Tribunal.In this case the implications of abiding are clearly explained to them before asking them to give their final decision.

All those appointed in different batches previously will also become
Co-Respondents if their appointment concerns the same selection exercise. Those who have been appointed before the Appeal was entered are not concerned.

On the basis of the application form (PBAT Form 1) and the response of the Respondent, the Tribunal may have enough grounds to take a decision. This explains the need to have the case clearly stated in the application form. It can hasten a decision and bring redress, where required, more expeditiously.

In case the matter is more complex and needs to be delved into further, the Tribunal will opt to have the case fixed for hearing. Prior to hearing, the parties will be called upon to prepare their Statements of Case, which in the case of the Respondent and Co-Respondent is termed a Statement of Defence. Any relevant documents may be attached to these Statements. But parties are invited to refrain from annexing too many bulky documents. Documents must be produced one by one at the Hearing of the Appeal if all parties agree.

Can an appeal be set aside before a Hearing?

An Appeal may be struck out as explainedif it has been made outside the mandatory delay of 21 days. It may be dismissed if the Respondent raises a preliminary point in law which enlightens the Tribunal on an issue of jurisdiction.Whereit appears to theTribunal that the Appeal is trivial, frivolous or vexatious, and after objections made to the appeal by the Respondent, the Tribunal may dismiss the appeal.

If in doubt, the Tribunal may have the case fixed for Arguments, in the event that the Tribunal rules in favour of the Respondent,then the appeal will not proceed any further. It may on the contrary give a ruling deciding that an appeal may be heard.

What is a Hearing?

A Hearing is required where the Tribunal feels that the case cannot be dealt with by exchange of documents and paper submissions only or that the response from the Respondent has not satisfied the Tribunal. At this stage, the Tribunal may seek some information from the Respondent as explained earlier. Sensitive information will be for the eyes of the Tribunal only.

Theprocedures for processing an appeal have been reviewed with a view to curtailing the number of appearances before the Tribunal. The total length of time for the fullprocessing of an appeal is expected to take five to six months as from date whenthe case is called Proforma to be in shape. The steps are as follows:-After receiving the Grounds of Appeal, same is sent to Respondent who must file Grounds of Objection if any, as explained above. The appeal may then be fixed for Arguments or a Ruling may be given to dispose of the case. Then, if the case proceeds,the PBAT proceeds with the exchange of Statements between the parties. In the case of an appointment, the Appointee/(s) is/are joined as Co-Respondent/(s).

(i)      Statement of Case

The Appellant is invited to submit a full Statement of Case to the Tribunal within a period normally not exceeding two weeks afterthe GOOhave or have not been submitted by the Respondent. The Statement of Case is simply to explain in more detail the Grounds of Appeal contained in the appeal form submitted earlier. The Appellant will not be allowed to travel outside the original Grounds of Appeal. The Appellant may decide in his own judgment that his/her submission in the application form and annex may be adequate and not submit a SOC. further points can be addressed at the hearing with the approval of the Tribunal. The decision on the matter rests with the Appellant.

(ii)     Statement of Defence:

Once the Appellant submits the Statement of Case, copies are sent to the Respondent and Co-Respondent(s) for them to file their Statements of Defence with the Tribunal within a delay of fourweeks. They should limit  themselves to responding to the GOA and to those paragraphs of the SOC which concern the grounds ONLY.

The Co-Respondent, as is the case with the Appellant, can retain the services of Attorney or Barrister, or be represented by a Trade Union Representative or conduct his/her own case. In addition, the
Co-Respondent may also decide to leave it in the hands of the Tribunal and abide by its decision. The decision to exercise his right to be heard or not lies with the Co-Respondent.

The Respondent is represented by the Attorneys and Counsel of the Attorney General’s Office (also referred to as the State Law Office or the Parquet).

(iii)    The Hearing:

When all the documents have been filed and circulated to parties and the case is in shape, the Tribunal will call the case pro forma to fix the date for Hearing and everyone will have to come to an agreement for a common date.  If a preliminary point in law is raised by the Respondent in its defence, the Tribunal may either have the case fixed for Arguments or, if the point is not really a preliminary point which can dispose of the case, decide to hear the parties and let arguments be held at the end of the Hearing.

Who should attend the Hearing?

At the Hearing the Appellant has to be present alone or with his Legal or Trade Union Representative and should answer questions from the Respondent, the Co-Respondent and the Tribunal. If he is absent without good reason, his case may be struck out or dismissed.

The Respondent is normally represented by one or two persons in the Tribunal. Here again the decision as to who will represent the Respondent rests with the Respondent itself. The Respondent is normally represented by somebody who can stand in and take position on behalf of the Respondent.

The Co-Respondent will attend, if he/she so decides, and can be accompanied by his/her Legal or Trade Union Representative.

At the Hearing, the Appellant is the first to make his/her case. The Appellant will depose under oath and will swear or solemnlyaffirm as to the correctness of theGrounds of Appeal andStatement of Case after which he/she will be examined, cross-examined and, if need be, re-examined.

It will then be the turn of the Representative of the Respondent to swear or solemnly affirm as to the correctness of Respondent’s Grounds of Objection and Statement of Defenceand be cross-examined by the other parties.

The Co-Respondent will also have a chance to intervene by cross examining anyone or seeking clarifications if need be.In this case Co-Respondent will have to undertake to come forward to either swear or solemnly affirm to the correctness of his/her Statement of Defence or if he/she has no Statement of Defence, at least to be cross examined by Appellant and Counsel for Appellant.

After the examination and cross-examination, there will be a final round where the parties will sum up and lawyers can make a submission, especially with regard to legal aspects.

The Tribunal will ask questions and seek clarifications as the case proceeds. In fact the whole exercise is to find out the exact stand of each party and what led to Respondent’s decision.

At the end of the Hearing the parties will leave and the Tribunal will give its Determination.

It needs to be stressed that the Appellant cannot bring in new issues at the Hearing and the Appellant must stay within the boundaries of the original application in particular as regards his grounds of appeal.

Can witnesses attend the Tribunal?

Any party can call a witness and must give prior notice to the Tribunal before the Hearing starts. Witnesses can attend and be questioned and be cross-examined. The Tribunal may also decide to call a witness. It will often summon a witness if it appears that the parties are unable to secure the attendance of someone, specially someone in theirown hierarchy. The Tribunal may also call anyone who can bring light to the case being heard.

The onus to secure the presence of Legal and Trade Union Representatives and theirwitnesses in the Tribunal rests with the Appellant, the Respondent and the
Co-Respondent/(s) respectively. The Tribunal will not delay the proceedings of the Tribunal in the absence of such persons and may decide to hold a Hearing without prejudice to the outcome of the case. This applies also to the advisor/(s) whom the Tribunal may have appointed for the case as well as witnesses summoned by the Tribunal. A case will be postponed only exceptionally for good reasons given since section 7(5) of the PBAT Act provides

“(5) In performing its functions, the Tribunal shall endeavour to combine fairness to the parties with economy, informalily and speed”

What happens after the Hearing?

The PBAT will communicate its determination to the parties.

The decision of the Tribunal is FINAL, unless any party is not satisfied, in which case, it can apply to the Supreme Court for judicial review and will have up to 21 days from the notification of the decision to do so, as per Section 9 of the PBAT Act.

What about confidentiality?

The parties can rest assured that the documents submitted to the Tribunal and the proceedings of the Tribunalremain CONFIDENTIAL and will under no circumstances be divulged to parties foreign to the issue at stake. Parties must also respect the principle of confidentiality and not communicate any documents which are part of the proceedings to anyone not involved with the case. The pleadings and documents filed will only be communicated to the Supreme Court in the eventuality that there is an application for judicial review. As regards the transcript of proceedings these will be provided if the Court orders for the productionof same. However,counsel may upon application, consult the transcript at the Tribunal.The Supreme Court has confirmed that the Tribunal has the right to refuse communication of its transcripts of proceedings as the proceedings are “in camera”.

Abstract of Rulingsand Determinations have been posted up on the Website but all references to names of parties and other details concerning their posts, dates etc...have been deleted. This is important so that parties and their counsel may take cognizance of the position of the Tribunal on certain issues and points of law but not on the parties actually concerned.

What about costs?

There is no charge for lodging an appeal before the PBAT.

No costs are awarded after determination of an appeal.

Can an appeal be withdrawn? If so when?

Yes an appeal may be withdrawn at any time. But the Tribunal will ensure that such withdrawal has not been provoked by another party to the appeal or been done under duress of any kind.