Fiji Posts and Telecommunications Employees Association v Telecom Fiji Ltd [2008] FJAT 34; Award 36 of 2008 (23 June 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 36 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI POSTS AND TELECOMMUNICATIONS EMPLOYEES ASSOCIATION

AND

TELECOM FIJI LIMITED

FPTEA: Mr A Singh
TFL: Mr I Sagoa

RULING

In Award No 73 of 2007 dated 24 October 2007 the Tribunal settled a dispute between the Fiji Posts and Telecommunications Employees Association (the Association) and Telecom Fiji Limited (the Employer) concerning the termination of employment of Mr Jone Kelo (the Grievor).

By letter dated 25 April 2008 the Association applied for an interpretation of that Award pursuant to section 27 (1) of the Trade Disputes Act Cap 97. The issue concerns the entitlement, under the award, of the Grievor to payment of wages since his dismissal.

The application was listed for mention on 29 April 2008. On that day the Tribunal, with the agreement of the parties, fixed a schedule for the filing of written submissions. The Employer filed its submissions on 14 May 2008. The Association filed an answering submission on 18 May and the Employer filed a reply submission on 2 June 2008.

The Tribunal’s Award in this Dispute was dated 24 October 2007. On that date a number of actions were required to be implemented. First, the Grievor was to be re-instated with effect from the date of his dismissal which was 20 June 2006.

Secondly, he was to be paid six months wages and the balance of the period between 20 June 2006 and 24 October 2007 was to be treated as leave without pay.

Thirdly, with effect on and from 24 October 2007 he was to receive his salary.

As the parties have noted the decision of the High Court in Judicial Review No 45 of 2007 delivered on 7 March 2008 did not in any way whatsoever affect the Tribunal’s Award. The High Court dismissed the Employer’s application for judicial review.

Under Order 53 Rule 3, an application for leave to apply for judicial review may operate as a stay of the proceedings if the Court so directs.

However in these proceedings the expedited procedure was utilized whereby the application for leave and the substantive application were dealt with together. No stay had been granted by the Court.

Even if a stay had been granted by the Court, it ceases to have any effect when the Judgment has been delivered. As the application for Judicial Review was not successful the parties were left with the Award which took effect (backdated) from the date on which it was made. There is no hiatus or gap in the operation of the Award between the date it was made and the date of the High Court Decision.

The parties are required to give effect to the Award on and from its date.

This means that under the Award the Employer is required to re-instate the Grievor from 20 June 2006. The Employer is required to pay the Grievor six months salary for the period between 20 June 2006 and 24 October 2007. The Employer is required to pay the Grievor his salary on and from 24 October 2007.

The Tribunal does not propose to make any comment on the imposition of a warning on the Grievor as it is not strictly a matter relating to the interpretation of the Award.

DATED at Suva this 23 day of June 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL