National Union of Hospitality, Catering and Tourism Industries v Hotel Takia [2004] FJAT 26; Award 20 of 2004 (6 July 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 20 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIONAL UNION OF HOSPITALITY, CATERING AND
TOURISM INDUSTRIES

AND

HOTEL TAKIA

NUHCE: Mr T Naivaluwaqa
Hotel Takia: Ms A Prasad

RULING

This is a Ruling on an application by Messrs Gibson and Company to be provided with a copy of the Permanent Arbitrator’s handwritten notes of proceedings in a part heard dispute between the National Union of Hospitality, Catering and Tourism Industries (the Union) and the Hotel Takia (the Employer).

The Dispute was referred to the Permanent Arbitrator on 5 December 2002 with the following terms of reference:

" ... for settlement over the termination of Luisa McComber, Levi Matavesi, Ada Williams, Rajendra Kumar and Meli Bakoso with effect from 19 January 2002 which action the Union claims as unfair and unjustified and therefore seeks their re-instatement without loss of benefits".

The hearing of the Dispute commenced on 4 May 2004 at Labasa. Mr F Anthony with Mr T Naivaluwaqa appeared for the Union and Mrs Helen Jaduram appeared for the Employer. It would appear that Mrs Jaduram is and was at all material times the Manager of the Hotel Takia.

At the commencement of the hearing, Mr Anthony informed the Tribunal that he would be calling five witnesses and Mrs Jaduram advised that she would be calling six witnesses.

As this was a dispute where the Union was claiming unfair and unjustified termination, the Employer carried the onus of proof and adduced its evidence first. After the first witness, Mr Soma Mudaliar, had completed his evidence, it became apparent that the principal witness for the Employer would in fact be Mrs Jaduram herself although she had not initially intended to give evidence. After some discussion between and the parties, Mrs Jaduram indicated that she would be the next witness for the Employer. Mrs Jaduram proceeded to give her evidence and was then cross examined by Mr Anthony.

The Employer’s case continued into and up to the end of the second day of the hearing with a total of 8 witnesses having been called.

On the morning of the third day (6 may 2004) the Tribunal Secretary received a hand-delivered letter of the same date and signed by Mrs Jaduram indicating that she would not be able to attend the hearing as she was not in a good state of health. Enclosed with the letter was a medical certificate from Dr Daniel Jhinka dated "6 May 2004 at 8.30 am".

As a result the hearing was adjourned to a date to be fixed and the question of costs reserved pending the parties filing written submissions.

By letter dated 19 May 2004 the Labasa law firm of Messrs Gibson and Company advised the Tribunal that it had been instructed by Mrs Jaduram to take over the case. The author of the letter (whose signature is illegible) went on to request a photocopy of the record of proceedings for reasons which are specified in the letter and which included the purpose of determining the present position of the dispute.

At this stage it is necessary to indicate that this dispute was being heard in the office of the Divisional Labour Officer/Northern in Labasa. The parties had requested that the Tribunal sit in Labasa so as to avoid the expenses which the parties would otherwise have incurred had they been required to travel to Suva. There was no tape recording facility available and there was no shorthand writer available. Unfortunately, for this dispute there was no prospect of a transcript being available for either the Tribunal or the parties.

Mrs Jadurm was advised by the Tribunal Secretary prior to the commencement of the hearing that she should take notes. She was again advised to do so by the Tribunal during the course of the hearing. Mrs Jaduram indicated that this was the first time she had appeared before the Tribunal.

The only notes of the proceedings are, therefore, those taken by the Tribunal and those taken by the Union’s representatives.

By letter dated 20 May 2004 the Tribunal Secretary informed Messrs Gibson and Company that the Permanent Arbitrator’s notes were confidential and were not available to the parties.

By letter dated 24 May 2004, Messrs Gibson and Company took issue with the Tribunal Secretary on the question of the parties right to access the Permanent Arbitrator’s notes.

As a result, the Dispute was listed for mention on Friday 18 June 2004. On that day Ms A Prasad from Messrs Gibson and Company confirmed that a written ruling was sought on this issue.

It is the Tribunal’s opinion that the notes made by the Permanent Arbitrator are confidential and should not be made available to one of the party’s during the course of a part heard dispute before the Tribunal.

It should be noted that the Permanent Arbitrator’s notes are not and nor are they meant to be an official transcript or record of proceedings of any particular dispute. The notes do not and could not record all that is said by the advocates and witnesses. The notes may include comments and observations by the Permanent Arbitrator on the evidence as the dispute proceeds.

On the other hand a typed version of the proceedings will be made available to the High Court through the State Law Office for the purpose of any judicial review proceedings arising out of any Tribunal determination. However, this typed record of the proceedings is more likely to be prepared from the tape recording of proceedings, a facility which is present only in the Arbitration Hearing Room in Suva.

The Ruling of the Tribunal is that the application for a copy of the Permanent Arbitrator’s notes taken during the course of this part-heard dispute in Labasa on 4 and 5 May 2004 is rejected.

DATED at Suva this 6^th day of July 2004.

Mr W D Calanchini
ARBITRATION TRIBUNAL