Fiji Sugar and General Workers Union v General Machinery Hire Ltd [2007] FJAT 33; Award 35 of 2007 (21 June 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 35 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI SUGAR AND GENERAL WORKERS UNION

AND

GENERAL MACHINERY HIRE LIMITED

FSGWU: Mr F AnthonyG M H: Mr R Pra/i>

DECISION

This is a dispute between the Fiji Sugar and General Workers Union (the Union) and General nery Limited (the Empl Employer) concerning the termination of e of employment of Mr Chandar Kumar (the Grievor.).

A trade dispute was reported by the Union. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As the Employer failed to nominate within the prescribed time its representative to the Committee, the Minister authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 5A (5) (a) of theTrade Disputes Act Cap p>

The Dispute pute was referred to the Permanent Arbitrator on 2 August 2006 with the following terms of reference :

"- - - for settlemeer the termination of employment of Mr Chandar Kumar. The UThe Union contends that the actions of the employer were unfair, unjust and wrong and that Mr Kumar be re-instated without loss of benefits".

The Dispute was listed for a preliminary hearing on 1 September 2006. On that day the parties were directed to file their preliminary submissions within 21 days and the Dispute was listed for mention on 29 September 2006.

The Employer filed its preliminary submissions on 22 September and the Union did so on 25 September 2006. However, as neither party had served copies on the other side, they were directed to do so within seven days and the Dispute was relisted for mention on 27 October 2006. At the request of the parties the dispute was again listed for mention on 24 November 2006 and 19 January 2007.

The hearing of the Dispute commenced on 8 May 2007 in Suva. During the course of the evidence, the parties requested an adjournment to enable them to discuss the matter further.

Upon resumption of the hearing, the Tribunal was informed that the Dispute had been settled. The parties were directed to file signed terms of settlement by 11 May 2007.

The Tribunal subsequently received a letter dated 11 May 2007 from the legal practitioners acting for the Employer. Omitting formal and irrelevant parts, that letter stated:

"We wish to advise the Tribunal that we have experienced difficulties in obtaining the duly executed Terms of Settlement from our client. We have tendered legal advice to our client and may have to make certain applications before the Tribunal. If the Tribunal pleases it is our humble request to list the matter before the Tribunal as soon as it is convenient so that we may make the necessary application."

The Dispute was then listed for special mention on 18 May 2007. On that day leave was given to Mr Prakash to withdraw as representative of the Employer in the Dispute before the Tribunal. The Dispute was listed for further mention on 25 May 2007.

On that day the Dispute was listed for the hearing of oral submissions as to any outstanding applications on 5 June 2007. At the request of the parties and to enable the new legal representative for the Employer to obtain further instructions and for the parties to have further discussions, the Dispute was relisted for mention on 13 June 2007.

On that day the Tribunal was informed that the Employer had now signed Terms of Settlement dated 5 June 2007. The Union’s representative confirmed that the settlement was in accordance with the agreement reached by the parties during the hearing on 8 May 2007. The signed document was accepted by the Tribunal for filing.

In view of what has transpired, the Tribunal considers it appropriate to make some brief observations concerning the settlement of a dispute by the parties.

There is great value in the extra judicial conclusion of a dispute on terms which have been crafted by the parties to that dispute. It is desirable for Fiji to have in place practices which encourage self-determination and at the same time enable the Tribunal, as a state-funded entity, to allocate its resources where they are needed most – the determination of disputes which the parties themselves are unable to settle.

Principles have been developed to protect as privileged settlement negotiations which ultimately turn out to be unsuccessful. Those principles would not apply if the parties allegedly resolved their differences in the course of negotiations and the dispute then turned on the existence of an agreement. To hold otherwise would make it pointless in participating in settlement negotiations. Such an agreement to settle may be established by a party by the introduction of a document setting out the terms of settlement or by the evidence of a witness or witnesses who negotiated the alleged settlement.

The Tribunal has indicated to the parties that it considers the additional time spent on this Dispute since the hearing on 8 May 2007 to be regrettable and unnecessary.

CONSENT AWARD

The Award of the Tribunal is in the terms set out in the signed Terms of Settlement dated 5 June 2007, the contents of which the parties have agreed are to remain confidential.

DATED at Suva this 21 day of June 2007

Mr. W. D. Calanchini

ARBITRATION TRIBUNAL