State v Minister for Labour & Industrial Relations, Ex parte National Bank of Fiji [1994] FJHC 82; Hbj0018j.1993s (18 July 1994)

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 of the High Court Rules 1988)

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 and Industrial Relations
for referring this matter to Arbitration on 31st day of August, 1993

STATE

V

MINISTER FOR LABOUR AND INDUSTRIAL RELATIONS:

EX-PARTE: NATIONAL BANK OF FIJI

M. Narsey: For the Applicant
J. Udit: For the Respondent

Dates of Hearing: 6th January, 31st March, 17th June, 6th July 1994
Date of Judgment: 18th July 1994

JUDGMENT

On 3rd of January 1994 I gave the Applicant leave to judicially review two decisions of the Respondent, the first dated 22nd June 1993 accepting a report of a trade dispute between the Applicant and one Kishore Samy and the Fiji Bank Employees Union, and the second dated 31st August 1993 referring that dispute to an Arbitration Tribunal under Section 5(A)(5) of the Trade Disputes Act (Amendment) Decree No. 27 of 1992.

There is no dispute about the facts which briefly are these:

Mr. Kishore Samy was employed as a Manager by the Applicant in its International Section at its Head Office in Suva.

On 18th September 1991 Mr. Samy was notified by a letter of that date from the Applicant that he was being forthwith suspended from his employment on the ground of the suspected destruction of documents relating to customers' accounts. This was followed by another letter from the Applicant to Mr. Samy dated 20th December 1991 requiring him 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.

Mr. Samy replied by letter dated 9th January 1992 purporting to give an explanation of his conduct.

The Applicant did not accept his explanation and so on 13th January 1992 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.

Although no particular reasons were given by the Applicant in its letter I have little doubt that the Applicant had in mind particularly paragraphs (a) to (d) of Section 28 which refer to misconduct of an employee inconsistent with the fulfilment of the conditions of his contract of service; wilful disobedience to lawful orders given by an employer; lack of skill or habitual or substantial neglect of his duties.

Following this Mr. Samy was charged with stealing $8,235.30 from the Applicant but on the 17th of July 1992 a Resident Magistrate at Suva found him not guilty of the charge. Mr. Samy's solicitor then wrote to the Applicant on the 26th of August 1992 requesting that Mr. Samy be re-instated by the Applicant on the ground of his acquittal of the criminal charge.

The Applicant rejected this request for reasons which are immaterial here but which may well be material should the matter proceed further before the Arbitration Tribunal.

Mr. Samy then consulted his Union, the Fiji Bank Employees Union of which he had been a financial member from 1980 until at least 14th of January 1992 and on 10th June 1993 the Union reported a trade dispute between Mr. Samy, his Union and the Applicant to the Permanent Secretary for Labour and Industrial Relations under Section 3(1) of the Trade Disputes Act Cap. 97 as amended by the Trade Disputes Act (Amendment) Decree No. 27 of 1992.

On 22nd June 1993 the Permanent Secretary for Labour and Industrial Relations (the Permanent Secretary) wrote both to the Fiji Bank Employees Union and the Applicant acknowledging the report of the trade dispute between the Union and the Applicant over the Union's claim that the termination of employment of Mr. Samy was unfair, unreasonable and unjustified and requesting that he be re-instated without loss of benefits as of 18th September 1991.

The Permanent Secretary stated that he proposed to refer the dispute to a Disputes Committee in terms of Section 5(A)(1) of the Trade Disputes Act (Amendment) Decree No. 27 of 1992 for a decision.

He requested both the Applicant and the Union to recommend a person to be appointed to represent the Applicant and the Union on the Committee and asked to be informed of the recommendations within fourteen days.

It is not clear whether the Union responded to this letter and in any event, for the purposes of this case, it is immaterial in the light of subsequent events but the Applicant replied almost immediately through its solicitors by a letter dated 24th June 1993. The solicitors stated that because Mr. Samy was a Management employee he was not entitled to representation by the Union. They submitted that accordingly there was no industrial dispute existing between the Applicant and Mr. Samy and the Union 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 that the Fiji Bank Employees Union had the right to represent Mr. Samy as he was at all relevant times a financial member of the Union. The Permanent Secretary again requested the Applicant to nominate a person to represent the Bank on a Disputes Committee under the Trade Disputes Act (Amendment) Decree No. 27 of 1992. The Applicant still refused to comply and therefore on 31st August 1993 the Respondent referred the matter to an Arbitration Tribunal under Sub-section 5(a). After receiving submissions, as I said at the beginning, on the 3rd of January 1994 I granted the Applicant leave to seek judicial review of the two decisions of the Respondent in the forms of Certiorari to quash the decisions and Mandamus requiring the Respondent to recognise that Mr. Samy was not entitled to membership of or representation by the Union.

The Applicant gives eight grounds on which it seeks relief against the Respondent but these may be summarised as:

(i) That Mr. Samy was a member of the Management of the Applicant and that consequently because of a memorandum from the Applicant to its Management staff dated 19th December 1991 the Union could not represent Mr. Samy.

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

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

(v) That the Respondent took into consideration extraneous matters in reaching his decision.

The Respondent claims that a trade dispute exists and relies on the definition of "trade dispute" given in Section 2 (vi) of the Trade Disputes Act as amended by Trade Disputes Act (Amendment) Decree 1992. This reads:

"'Trade dispute' means any dispute or difference between any employer and a trade union recognised under the Trade Unions (Recognition) Act or between a union of employers connected with the employment or with the terms of employment, or with the conditions of labour, of any employee."

It may be observed here that the amendment provides a narrower definition of 'trade dispute' than was in the original Act and appears to say that a trade dispute can only exist between a Trade Union or Union of employers and an employer with respect to the terms of employment or labour of any employee.

The Respondent also argues that although the Union may not be legally permitted to represent Mr. Samy 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 Union. This Agreement is dated 12th March 1987 and Clause 2 reads thus:

"The Employer hereby recognises the Union as the Representative of and the Agent for all locally recruited staff employed in the Bank in the matter of collective bargaining relating to salaries and conditions of employment with the exception of officers occupying the positions listed in the Schedule below:

SCHEDULE

. Chief Managers

. Regional Managers

. Managers

. Deputy Managers

. Assistant Managers"

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

Section 14 is headed "Protection of freedom of assembly and association" and sub-section (1) reads:

"Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests."

I have received submissions from the parties and have considered the various affidavits which have been filed in the proceedings.

In the first affidavit filed on behalf of the Applicant there is annexed a copy of a memorandum of the Applicant to its Managerial staff which it is desirable to set out in full together with the various annotations appended to it and which is as follows:

"To: ALL MANAGERS

19 December, 1991

The Chief Manager with the advice of the Executive Committee is requesting all Management Staff to withdraw their membership from the Union for the reason of confidentiality.

I quote for your information from the Trade Unions (Recognition) Act which states among other things: "The Trade Unions (Recognition) Act empowers the Permanent Secretary for Employment and Industrial Relations to exclude from union membership employees who are engaged in a confidential capacity or represent the employer in matters relating to industrial or staff relations."

Sgd.

M E Latianara

for CHIEF MANAGER

13/1/92 - If Mgrs do not resign by 1/2/92, they will be downgraded to Grade VI officers. CM's Instruction to follow.

Sgd

13/1/92

MA

Plse file away.

Sgd

13/1/92"

In this connection I should also mention an annexure to the Affidavit in Reply filed on behalf of the Respondent on the 17th of September 1993 namely Article 7 of the Fiji Bank Employees Union Constitution. Under Article 7 the Union is open to all residents of Fiji who are employed in "a bank, trading or otherwise" except persons who are members of another union.

The Applicant submits that by asking Kishore Samy to withdraw his membership of the Fiji Bank Employees Union the Applicant did not hinder his constitutional right of assembly and association. It says that it was not until Mr. Samy was suspended from his employment that the Applicant realised it had possibly committed a security lapse whereby matters confidential to the Management could be discussed with other staff of the Applicant or other banks whilst Mr. Samy continued to be a member of the Union.

It submits that the notation at the bottom of the memorandum of the 19th of December 1991 was written well after the memorandum was sent out to the Managerial staff and could not have been part of the memorandum but a comment added later on. It therefore invites the Court to disregard the notation as a form of intimidation or threat to Mr. Samy or any other Managerial staff when adjudicating this matter on the question of whether or not the constitutional right of Mr. Samy was infringed. It is said that Mr. Samy was free to withdraw his membership of the Union but, as it is clear, he declined to do so and defied the request.

I find this submission somewhat strange. If the position be as counsel for the Applicant claims, it seems odd that no attempt has been made by the Applicant in any of the three affidavits it has filed in these proceedings to either explain or disown the first notation to the memorandum of the 19th of December advising that if any Manager does not resign from the Bank by the 1st of February 1992 he would be downgraded in his employment. All that is said by the Applicant in its affidavit sworn and filed on the 30th of September 1993 is that pursuant to the memorandum other persons in Managerial positions with the Applicant had withdrawn their membership from the Union. This seems to say that Mr. Samy should also have followed suit and resigned from the Union and that consequently the memorandum is not as intimidating as it appears to be.

In a third affidavit filed by the Applicant the Manager for Human Resources of the Bank says that he has been informed and believes that there is a body in Fiji called "The Fiji Institute of Management" whose membership consists of persons from various management positions but that he is unaware whether as at the 24th of January 1994 the Fiji Institute of Management is still active in its functions.

In reply to this submission counsel for the Respondent relied on Section 14(1) of the Constitution but in my view he might also rely on Section 2 which states that the Constitution is the supreme law of Fiji and any other law inconsistent with the Constitution shall to the extent of the inconsistency, be void.

It will be noted that Section 14(1) begins with the phrase "except with his own consent" no person shall be hindered in the enjoyment of his freedom of assembly and association and then goes on to emphasise that this means in particular the right to belong to trade unions for the protection of his interests.

It must be remembered that on the two relevant dates on the memorandum 19th December 1991 and 13th January 1992, Mr. Samy was still an employee of the Applicant. He states in an affidavit sworn on the 16th of September 1993 that at no time was he informed of nor did he ever receive the memorandum of the 19th of December because he went on leave from the 9th of September 1991 and later on the 18th of September 1991 was suspended from his employment by the Applicant. I see no reason to disbelieve him on this and indeed it was never suggested by the Applicant that I should. It follows that since Mr. Samy did not consent to the Bank's request to withdraw from the Union, his right to remain a member of it could not be restricted. I thus hold that the Applicant had no right to claim that Mr. Samy was not entitled to belong to the Union and that unless other reasons can be shown, the Union had the right to represent him and notify the existence of an industrial dispute to the Permanent Secretary for Labour and Industrial Relations. Had he remained in the employ of the Applicant it is possible that Mr. Samy may have thought it more politic to resign from the Union but this matter does not concern me.

I am also prepared to hold that should the Bank attempt to make it a condition of employment of any employee that he should not be or become a member of a trade union this would be in direct defiance of Section 59 of the Trade Unions Act and it seems to me that the memorandum of the 19th of December and its later notation of the 13th of January 1992 goes perilously close to such defiance.

The memorandum is also misleading in that it does not quote accurately, even in summary form, the relevant provisions of the Trade Unions (Recognition) Act. Whilst it is true that under Section 10 the Permanent Secretary may exclude from recognition in a compulsory recognition order as members of a trade union persons who are employed in a confidential capacity or who represent the employer in matters relating to industrial or staff relations, the memorandum fails, for reasons doubtless known only to the person responsible for its preparation, to state the fact that the Permanent Secretary is so empowered only after he has made a compulsory recognition order. He can do this only after the requirements of Sections 5 and 6 have been complied with. These stipulate that before the Permanent Secretary can make a compulsory recognition order he must inter alia have first received an application from a trade union for him to make such order, and, that done, he may then exclude from recognition employees holding positions of the nature mentioned.

There is no dispute in this case that no such compulsory recognition order has ever been made for bank employees employed by the Applicant.

If the Applicant had been honest it should in fairness to all employees in the categories mentioned have stated the conditions precedent in the Trade Unions (Recognition) Act for such exclusions to be made from a compulsory recognition order, it did not do so.

This omission in my view raises serious doubts about the credibility of the Applicant in these proceedings.

The Respondent submits further that under the Memorandum of Agreement between the Union and the Bank the Union is entitled to represent Mr. Samy before an Arbitration Tribunal in any matter relating to discipline. I accept this submission. Clause 2 of the Agreement does not mention disciplinary offences of which dismissal is obviously one and I therefore hold that even under the Agreement Mr. Samy as a Manager was entitled to ask the Union to represent him and that the Union was thus entitled to notify the Permanent Secretary of the existence of an industrial dispute between the Union and Mr. Samy.

The situation in my judgment is covered by the definition of "trade dispute" in the Trade Disputes Act (Amendment) Decree 1992 and, to paraphrase the words of Kearsley J. in Action No. 33 of 1984 Air Pacific Limited v. The Attorney General of Fiji on page 6 of his judgment delivered on the 25th of April 1984, here we have the Union contending on behalf of one of its members that the termination of his employment by the Applicant was unfair and that he should be re-instated and referring the matter to the Permanent Secretary. The Applicant on the other hand is counter-contending not only that the termination was justified but that the Union had no right to refer the matter to the Permanent Secretary because of Mr. Samy's status with the Applicant.

In my judgment such a situation constitutes a trade dispute both at common law and under the Trade Disputes Act and I therefore hold that the Permanent Secretary was entitled to accept the report of the Union of the dispute and that the Respondent has committed no error in not seeking to withdraw the referral from the Arbitration Tribunal.

I also reject the claim by the Applicant that it was not given any opportunity to be heard by the Respondent before his decision to refer the matter to Arbitration. In my judgment the Applicant was given ample opportunity to do so and in fact did so. This is borne out by the letters of the Applicant's solicitors to the Permanent Secretary dated 24th of June 1993 and the 26th of August 1993. The latter letter so far as relevant reads as follows:

"We are instructed to inform you that Mr. Kishore Sami was a management staff and hence he was not entitled to membership of the Union. The Union does not represent managerial staff nor are they part of the union. If a member of the managerial staff wishes to join the union he is in breach of his terms of employment.

The bank is not prepared to accept the dispute as no dispute as defined can exist between the Bank and the union on the lawful termination of Mr. Samy. There is no relevant connection between what is now demanded and the relationship between the employer and employee in this matter.

Therefore, please be advised that we cannot accede to your request. We are instructed to advise you that any further action taken will be challenged in Court."

The Applicant was given an opportunity to nominate a representative to a Dispute's Committee. For what I consider to be the wrong reasons it declined to do so. When such an opportunity is given but not availed of for reasons which in my judgment were wrong, the Applicant cannot be heard to complain that it was not given a chance to present its case to the Permanent Secretary.

I accordingly reject the Applicant's submission that it was not given any opportunity to be heard by the Respondent before referring the matter to arbitration.

I am likewise unpersuaded that in making his decision to refer the matter to arbitration the Respondent took into account any extraneous matters. The evidence satisfies me that he was fully aware of the arguments for and against a referral to arbitration and took these into account in making his decision to refer the matter.

For these reasons I hold that the application for judicial review must be refused. I order the Applicant to pay the Respondent's costs to be taxed if not agreed.

JOHN E. BYRNE
J U D G E

Authorities cited in judgment:

(1) Constitution of Fiji.
(2) Trade Disputes Act (Amendment) Decree 1992.
(3) Employment Act Cap. 92.
(4) Trade Unions Act Cap. 96.

(5) Action No. 33 of 1984, Air Pacific Limited v. The Attorney General of Fiji. (Unreported judgment of Kearsley J. dated 25th April 1984.)
(6) Trade Unions (Recognition) Act (Amendment) Decree 1991

The following additional cases and legislation were cited in argument:

(1) State v. Arbitration Tribunal; Ex-parte - Fiji Bank Employees' Union and Maikali Naikawakawavesi - Judicial Review No. 44 of 1991.

(2) Fiji Court of Appeal decision - Fiji Bank Employees Union and Maikali Naikawakawavesi v. Arbitration Tribunal and National Bank of Fiji. (Unreported judgment dated 27th May 1994.)
(3) Tesco Group of Companies (Holdings) Ltd. v. Hill (1977) IRLR 63.

HBJ0018J.93S