Four Government Entities Slapped with ST$1million tala Lawsuit

By Lagi Keresoma

APIA, SAMOA – 27 APRIL 2022: Four Government entities have been slapped with a ST$1.07 million tala lawsuit filed by a former Government public servant, Faafetai Alisi claiming unlawful termination.

The Government entities include the Fire & Emergency Services Authority (FESA –First Defendant), Ombudsman (Second Defendant), Ministry of Finance (MOF- Third Defendant) and the Ministry of Public Enterprise (MPE-Fourth Defendant).

The complainant’s counsel Kirstin Drake filed the Statement of Claim in December 2021.

Yesterday, counsel Deejay Fong for the Attorney General’s Office filed a strike out motion against the statement of claim against MOF, MPE and the Office of the Ombudsman.

For FESA, he asked for more time to finalise a statement of defence and the matter will be recalled on 16 May 2022.

The Statement of Claim highlighted Breach of Contract, Breach of Labour & Employment Relations Act 2013, Breach of Ombudsman’s Act 2013, Breach of Article 9 Constitution of Samoa and Defamation.

Background to the Million Tala lawsuit
Alisi was a former Manager of Corporate Services for FESA and she worked under a contract signed on 22 September 2017 and the contract commenced 01 October 2016 and expired 30 September 2019.

She claimed that despite the contract clearly providing for payment of overtime, FESA failed to pay for her extra hours of work during the period 3 October 2016 to 22 September 2017.

FESA later paid for the overtime and the contract ended 30 September 2019.

Her affidavit stated that around October 2019, she was re-appointed as Manager Corporate Services on the same terms and conditions as the first contract. However, the actual written contract (“the second contract”) had yet to be forwarded from the Office of the Attorney General to the Plaintiff for execution.

Despite the delay from the Attorney General’s Office, Alisi said she continued to work and performed the same roles and functions as she had done under the first contract.

During the course of her employment under the second contract, she claimed overtime from time to time and was approved by the FESA Commissioner.

Ombudsman office investigation
Around March 2020, the Commissioner informed Alisi that she was the subject of an investigation conducted by the Ombudsman office but did not provide any particulars of any allegations or accusations against her or who the complainant was.

Around November 2020, Alisi was interviewed by the Ombudsman’s team and she said that she:

• was not informed of the identity of her accuser(s);

• was not informed of the particulars of (any) allegations or accusations;

• was not informed of what administrative decision the Ombudsman was investigating;

• was not given the opportunity to properly prepare any responses;

• was not given an opportunity to be heard.

Suspension
In a letter dated 17 December 2020, FESA suspended Alisi for four weeks on full pay citing the investigation conducted by the Office of the Ombudsman.

She was not provided a copy of the Ombudsman’s Report that FESA based its suspension decision.

On 5 January 2021, FESA extended the suspension for a further 2 weeks without pay.

Ministry of Finance launched own investigation
On 20 January 2021, the Ministry of Finance conducted their own investigation based on allegations of misappropriation of public funds and properties in the Ombudsman’s Report.

At this point, MOF also refrained from disclosing the identity of the complainant and the actual allegations.

When MOF interviewed Alisi, they did not reveal any specifics of the allegations, or whether she was being charged which resulted in her not being able to prepare a defence statement during the interview.

Alisi then engaged a lawyer who accompanied her to the interview, but this time, the Ministry of Public Enterprises had joined in.

It was during this interview that the Alisi realised that the allegations of funds misappropriations stemmed from her overtime payments which MOF and MPE claimed she was not entitled to.

In her affidavit, Alisi stated that at all times, she informed MOF and MPE that overtime was stipulated in her contract and furthermore, approved by the Commissioner.

Termination effective immediately
On 30 June 2021, she wrote to FESA about her suspension status.

In a letter dated 4 August 2021, FESA terminated her employment based on findings of misappropriation of funds and recommendations made in Reports of MOF and MPE.

Alisi said that neither the defendants informed her or disclosed their findings or recommendations nor disclosed the relevant reports.

“MOF’s Report stated that there was a misappropriation of public funds in the amount of $42,957 of which $19,640 was paid to the Plaintiff and recommended disciplinary action against the Plaintiff,”

The MPE Report stated that the Plaintiff had taken advantage of the On Call allowance and was not entitled to request, claim and receive overtime and allowance payments and therefore found the Plaintiff to have breached her contract and recommended the Plaintiff’s Contract of Employment be terminated immediately.

The matter is scheduled to be heard 16 May 2022.