IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. 18 OF 1993

IN THE MATTER of an Application by the National Bank of Fiji
for a Judicial Review, (Order 53 r 3 of the High Court Rules)

AND

IN THE MATTER of Dismissal of KISHORE SAMY

AND

IN THE MATTER of Reference of Trade Dispute to Arbitration Tribunal

AND

IN THE MATTER of Decision of Minister for Labour, Industrial Relations
for referring this matter to Arbitration on 31st day of August 1993

AND

IN THE MATTER of FIJI BANK EMPLOYEES UNION

BETWEEN:

NATIONAL BANK OF FIJI
a body corporate duly constituted under
the National Bank of Fiji Act, 1973
Applicant

AND:

MINISTER FOR LABOUR AND INDUSTRIAL RELATIONS
1st Respondent

AND:

KISHORE SAMY
(s/o Krishna Samy Gounder) of Suva
2nd Respondent

AND:

FIJI BANK EMPLOYEES UNION
3rd Respondent

M. Narsey: For the Applicant
J. Udit: For the 1st Respondent
H.M. Patel: For the 2nd and 3rd Respondents

Dates of Hearing: 4th, 26th, 28th October, 4th November 1993
Date of Ruling: 3rd January 1994

RULING

The Applicant applies for leave to judicially review two decisions of the 1st Respondent, the 1st dated 22nd June 1993 accepting a report of a trade dispute between the Applicant and the 2nd and 3rd Respondents, and the second dated 31st August 1993 referring the said dispute to an Arbitration Tribunal under Section 5(A)(5) of the Trade Disputes Act (Amendment) Decree No. 27 of 1992.

I do not propose to canvass the facts in any detail at this juncture but briefly essentially they are these: The 2nd Respondent was employed as a Manager by the Applicant. On 18th September 1991 the 2nd Respondent was notified by a letter of that date from the Applicant that he was being suspended from employment as from that date. The reason given by the Applicant was the suspected destruction of documents pertaining to customers' accounts. This was followed by another letter from the Applicant to the 2nd Respondent dated 20th December 1991 which required the 2nd Respondent to show cause in writing within fourteen days of the date of receipt of the letter why his services should not be terminated because of three alleged acts of misconduct which were detailed in the letter.

The 2nd Respondent replied by letter dated 9th January 1992 purporting to give an explanation of his conduct.

The Applicant did not accept his explanation and therefore on the 13th of January 1992 it wrote to him stating that his services had been terminated under Section 28 of the Employment Act (Cap. 92) with effect from the date of his suspension, 18th September, 1991.

Following this the 2nd Respondent was charged with stealing $8,235.30 from the Applicant but on the 17th of July 1992 the Resident Magistrate at Suva found the 2nd Respondent not guilty of this charge. The 2nd Respondent's solicitor then wrote to the Applicant on the 26th of August 1992 requesting the 2nd Respondent's reinstatement by the Applicant on the ground of his acquittal of the criminal charge.

The Applicant rejected this request for reasons which I need not mention here whereupon Mr. Samy evidently consulted his Union, the 3rd Respondent, which, on 10th June 1993 reported a trade dispute between Mr. Samy, his Union and the Applicant to the Permanent Secretary for Labour and Industrial Relations under Section 4(1) of the Trade Disputes Act, Cap. 97.

The Applicant's solicitors then wrote to the Permanent Secretary on 24th of June 1993 stating that Mr. Samy was a Management employee and not entitled to representation by the 3rd Respondent. The solicitors submitted that accordingly there was no industrial dispute existing between the Applicant and the 2nd and 3rd Respondents and that the Permanent Secretary had not acted properly in accepting the dispute.

The Permanent Secretary replied to this letter on the 17th of August stating that he considered the 3rd Respondent had the right to represent the 2nd Respondent as he was at all relevant times a financial member of the 3rd Respondent. The Permanent Secretary requested the Applicant to nominate a person to represent the Bank on a Disputes Committee under Section 5(A)(5) of the Trade Disputes Act (Amendment) Decree 1992. The Applicant still refused to comply and therefore on 31st August 1993 the 1st Respondent referred the matter to an Arbitration Tribunal under Sub-section 5(a).

The Applicant seeks judicial review of these decisions of the 1st Respondent in the forms of Certiorari to quash the decisions and Mandamus requiring the 1st Respondent to recognise that the 2nd Respondent was not entitled to membership of or representation by the 3rd Respondent.

The Applicant gives eight grounds on which it seeks relief against the 1st Respondent. These may be summarised as:

(i)	That the 1st Respondent was a member of the Management of the Applicant and that consequently because of a memorandum from the Applicant to its Management staff of 19th December 1991 the 3rd Respondent could not represent the Applicant.

(ii)	That because the 1st Respondent was a member of Management of the Applicant there could be no dispute between the Applicant and the 3rd Respondent about the Applicant's termination of Mr. Samy's employment.

(iii)	The Applicant was not given an opportunity to be heard by the 1st Respondent before his decision to refer the matter to arbitration.

(iv)	That the 1st Respondent took into consideration extraneous matters in reaching his decision.

The 1st Respondent claims that a trade dispute exists and relies on the definition of "trade dispute" given in Section 2 of the Trade Disputes Act Cap. 97 which I need not quote here.

The 1st Respondent also argues that although the 3rd Respondent may not be legally permitted to represent the 2nd Respondent in any dispute as to salaries and conditions of employment, the matter in question here is of a disciplinary nature and therefore beyond the scope of clause 2 of a collective agreement between the Applicant and the 3rd Respondent.

Furthermore the 1st Respondent relies on Section 59 of the Trade Unions Act Cap. 96 which says that no employer shall make a condition of employment of any employee that the employee shall not belong to any trade union. In addition the 1st Respondent argues that any such agreement between an employer and employee is contrary to Section 14 of the constitution.

For their part the 2nd and 3rd Respondents argue that the Applicant's dispute is essentially with the 1st Respondent and that all the relief sought by the Applicant involves only the 1st Respondent and that consequently this action should be dismissed immediately against the 2nd and 3rd Respondents.

Having read the material and mindful of the fact that at this preliminary stage all the Applicant must do is to satisfy the Court that it has an arguable case, I am satisfied that it has such a case. It seems to me at least arguable that the Applicant has some cause to complain against the action of the 1st Respondent in referring the matter to arbitration and I consider also that the matters raised by the 1st Respondent as to the right of the 3rd Respondent to represent the 2nd Respondent and therefore the 3rd Respondent's reference of a dispute to the 1st Respondent require further legal argument.

I therefore grant the Applicant leave to judicially review the decisions of the 1st Respondent set out in the Notice of Motion dated 2nd September 1993.

On the material I fail to see how the Applicant can be said to have any claim for relief against the 2nd and 3rd Respondents and therefore dismiss them from this action. If necessary however I shall allow the 1st Respondent to use and rely on the affidavit of the 2nd Respondent sworn on the 16th of September 1993 if he so desires and I shall now make further orders as to the disposition of this case which will include the fixing of a date for hearing of the substantive application and amendment to the title of the application.

JOHN E. BYRNE
J U D G E
HBJ0018D.93S