Again I quote the relevant parts of this communication as they bear on the present application. "You will have now been informed of the decision of the Council on the athe appointment of the Manager of the Ba Campus. I know
you will be disappointed with the outcome and I am sympathetic to your feelings. I can only assure you that all aspects of your position
were fully considered and the Council committee made its judgement objectively on the basis of the facts before it.
The successful applicant was Yugeshwar Prakash who has recently been Regional Telecom Training Co-ordinator at the South Pacific Forum
and was formerly A/Chief Training Officer at FNTC.
Yugeshwar will be involved in planning meetings at Samabula next week and will come across to Ba with the Heads of Schools on Friday
17 May to familiarise himself with things at that end.
I expect him to take up his duties on Monday 20 June on which day you should arrange for for formal hand-over proceedings.
I have had a discussion with Santu Prasad concerning your return to the School of Building and Civil Engineering and there will be
a position here at Samabula as a Senior Lecturer, with your duties to be discussed in detail with Santu. As a Senior Lecturer your
substantive salary is currently $19,000, however I am instructing the Manager (Financial Services) to increase this by two steps
to $20,000 in recognition of your service to the Institute.
I am aware that your return to Suva involves you in domestic changes as w as well as professional, and I would like to make this as
easy as possible for you. You will not be under any pressure to relinquish your Ba accommodation immediately. However the sooner
the Manager's accommodation can be made available the better, so would you please inform the Manager (Corporate Services) of your
plans for moving and negotiate a date with her.
Council and r management of F.I.T. appreciate your work you have done ione in "holding the fort" during this time of transition
and thank you sincerely for your contribution.
Dr. John Harré, Director"
The Apnt claims to be aggrieved by the appointment of Yugeshwar Prakash to the position of Manageanager Ba Campus on the alleged grounds
that Mr. Prakash is not duly qualified to hold the position and that he has far less academic qualifications and experience than
the Applicant.
He alleges that Mr. Prakash's appointment is not based on merit but rather on criteria only known to the First Respondent. He alleges
that the First Respondent has shown bias against the Applicant.
The Second Applicant has also filed an affidavit swy Ted Young the General Secretary of the Second Applicant aant and sworn on the
5th of August 1996. Mr. Young states that the Second Applicant is a Trade Union registered under the Trade Unions Act and has amongst its members almost all Fijian teachers in schools throughout Fiji. The First Applicant is a member of the Second
Applicant.
By virtue of its functions the Second Applicant is twful representative of its members concerning their rights ghts and grievances
and the terms and conditions of their employment with their employer.
Mr. Young states that in 1992 the Government of Fiji passed the Fiji Institute Technology Decree whereby the F.I.T. Council was established
as a body corporate which would take over the management and running of the F.I.T. By virtue of this decree members of the F.I.T.
Staff were given choices of continuing in the civil service and be re-deployed elsewhere or continue with F.I.T. and be an employee
of the F.I.T. Council. Because of his seniority at F.I.T. the First Applicant chose to continue employment at F.I.T. under the F.I.T.
Council.
Since the enactment of the decree it was envisaged that the changeover by the F.I.T. Cl would be from the 1st of t of January 1996
and that prior to the changeover amongst other things the terms and conditions of F.I.T. employees were to be finalised.
Pursuant to the above, the First Respondent, the Second Applicant and the Fiji Teachers Union, astered trade union represenresentative
of mainly non-Fijian teachers on the 1st of November 1995 executed an agreement with the First Respondent on behalf of their respective
members concerning the terms and conditions of employment of their members with the First Respondent. This agreement was effective
from 1st January 1996 and a copy of it is annexed to Mr. Young's affidavit.
For presurposes Section 16.2.2 a paragraph under the heading of Section 16 "Appointment and Prnd Probation" and Section
26 are relevant. Section 16.2.2 is headed "Procedures" and reads:
"Procedurethe making of appointments, including part time appointmenttments will be determined by Council from time to time after
consultation with representatives of Institute staff nominated by the relevant union or unions."
Section 26 is headed "Procefor the Settlement of Personal Grievances" and contains eight sub-clauses. They are alre all
important to the question I have to decide and I now set them out:
"26.1 Settlement of Personal Grievances/p>
A personal grievance of any staff member to whom these terms and conditions apply shall be settled in accordance with the procedure
set out in sections 26.2 to 26.6 below.
26.2 Submission of Grievances to the Council
Any staff member who considers that she ohas grounds for a personal onal grievance may submit the grievance to the Council or a designated
representative of the Council.
26.3 Representation of Complainant
When a grievance has been submitted, the staff member who has submitted the grievance is entitled to be represented by a nominee of
the relevant union.
ass=MsoN=MsoNormal style="margin-left: 35.45pt; margin-right: 72.0pt; margin-top: 1; margin-bottom: 1"> 26.4 Time within which the Personal Grievance must be Submitted
The grievance shall be submitted wit period of forty-two days bays beginning with the date on which the action alleged to amount to
a personal grievance has occurred or has come to the notice of the staff member, whichever is later, so as to enable the Council
to remedy the grievance rapidly and as near as possible to the point of origin.
26.5 Written Statement
If the gnce is not settled in discussion between the staff member aber and the Council or the representative of the Council, the staff
member shall promptly give the Council a written statement setting out:
(a) &nnbsp; &nsp; thu natf e o gthe grievancevance; and
(b) p;&nbbsp;&nsp; tsp; the facts giving to t to the grievance; and
man">
(c) &nbbsp;& &nsp; tsp; the remedy sought.
26.6 Council's Response
If the Council is not prepared to grant the remedy sought and the parties have not otherwise settled the grievance, the Council shall
as soon as possible, but in any event not later than the fourteenth day after the day on which the Council receives the staff members's
written statement, give to the staff member a written response setting out:
/p>
ass=MsoN=MsoNormal style="text-indent: -34.35pt; margin-left: 106.35pt; margin-right: 108.0pt; margin-top: 1; margin-bottom: 1">i>(b) &nbssp; &nsp;&nbp; the reasons whyCouncil is l is not prepared to grant the remedy sought.
&nn">
26.7 Referral trievance Committee
/b>
Where the staff r who has lodged a personalsonal grievance is not satisfied with the outcome after the procedures laid out in sections
26.2 to 26.6 he or she may refer the grievance to a Grievance Committee consisting of two members nominated by the staff member and
two members nominated by the Council and chaired by a person mutually agreed up by the individual and the Council.
26.8 Decisions of the Grievance Committee
A decision reached by a majority of the memberembers of Committee (not including the person chairing the Committee) shall be the decision
of the Committee; but if the members are equally divided in opinion the matter shall be referred to the Permanent Secretary of Labour
and Industrial Relations."
According to Mr. Young, the Seconlicant, the Fiji Teachers Union and the First Respondent commenced consultations to determitermine
the appointment procedures in accordance with Section 16.2.2. He alleges that prior to completion of the consultative process the
First Respondent proceeded to make appointments to positions within F.I.T. Such appointments were allegedly based as stated by the
First Respondent on interim appointment procedures.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Mr. Young deposes that the Consultative Process between the relative Teachers Unions and the First Respondent dates back to about
1973 and continues today in the civil service. The process is designed to primarily ensure that all relevant considerations are taken
into account before an appointment to a leading position is made and at all times ensures fairness and transparency of any appointment
being made.
Mr. Young says it was the intention of the parties to the agreement of the 1st of Jan1996 that this Consultativeative Process would
continue at F.I.T. upon the establishment of the F.I.T. Council as the new employers.
Mr. Young then alleges that in breach of the express provision of the Agreement the First Respondent proceeded to make appointments
to the positions at the Fiji Institute of Technology without consultation. He claims that the interim appointment procedures which
the First Respondent has adopted are a deliberate breach of the Agreement and says that the appointment of the Second Respondent
by the First Respondent is a breach of the Consultative Process.
He also claims that the First Applicant has been the Acting Ma of Ba Campus since 1994 and is the most appropriate candidandidate
for appointment to the substantive position.
I say immediately thas Court is not concerned with the merits of the respective Applicants for the position but but is concerned
only with the appointment-making process, that is to see whether the Respondent followed proper procedures in that among other things
it gave the Applicant an opportunity to present his case to the Council adequately; that the Respondent did not display bias in failing
to appoint the Applicant and that it only took into account relevant considerations before making its decision.
The Applicant filed notice s application for leave to judicially review the First Respondent's decision not to appointpoint him as
Manager Ba Campus on the 7th of August 1996.
The First Respondent through his Director John Harré has filed an Affidavit in Reply sworn on the 27th of August 1996 and the Applicant
has filed a further Affidavit in Reply to Dr. Harré's on the 12th of September 1996.
I shall now mention relevarts of Dr. Harré's affidavit.
First Dr. Harré denies that the Second Respondent is less qualified for the position than the Appli He annexes to his affidaviidavit
a summary of the relative qualifications and experience of both the Applicant and the Second Respondent. I note that the Second Respondent
has had total management experience of 7 years (1 year acting) whereas the Applicant has had total management experience of 2 years,
all acting.
Dr. Harré denies that the procedures of Clause 16.2.2 were not adhered tthe Council. First he says says that the First Respondent,
through its Director, duly consulted with the representative of the Institute staff nominated by the Union on 15th February 1996
and offered an opportunity for further consultation with the full Council on 21st February 1996. Secondly he alleges the First Respondent
then determined the appointment procedure in a quorum meeting held on 21st February 1996 according to Clause 16.2.2.
Dr. Harré states that there is no provision, either in the Terms and Conditof Employment or in the Appe Appointment Procedure determined
by the Fiji Institute of Technology Council in terms of that agreement which requires that there be consultation between the Council
and the Union in the making of any particular appointment. He then says that the Applicant was given a fair hearing in so far as
(i) p;&nssp; he was ed to submit his Cuis Curriculum Vitae and other documentary eviy evidence of his suitability for the
position and this material was copieall ms of ntervommit/span>
(ii) & &nsp; he was formally interd by d by the members of the committee established to make appointments;
man">  (iii) &nhsp; s waitenvat t e inte interview to provide the committee with any other information he considered relevant.
&nn"> He says that the First Applicant has not exhausted the grievance procedure available in the Terms and Conditions of Employment Clause
26.
Finally he claimed that the Applicants have failed to provide any evidence that:
(i) &nbssp;&nnbsp;;&bsp; bsp; the decision was il;
(ii) &nnbsp;;&nspp; tsp; the dece decision was unreasonable;
(iii) &nnbsp;;&nbsere here was pras procedural impropriety.
That as such Dr. Harré claims the decision is not susceptible to challenge.
Ted Young swore aidavit in Reply to Dr. Harré's on the 11th of September 1996.
In essence he denies Dr. Harré's claims that the procedures of Clau.2.2 were complied with. He alleges that at the material tial time
of the First Respondent's decision, negotiations were taking place as to who would be the representative or representatives of the
Institute Staff to be nominated by the relevant Unions.
Mr. Younerts that the First Respondent refused to accept the Unions' nomination of their representasentatives of the Institute Staff
and insisted that any representation to be nominated by the Union must be made from, and within, the Fiji Institute of Technology
working Staff, whereas the Unions represented to the First Respondent that the prerogative of such nomination lay with the Unions
and could not be dictated by the First Respondent, thus leading to a deadlock in the Consultation Process prior to the determination
of the procedures for the making of appointments.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The grounds on which the Applicants seek leave to apply for Judicial Review arse already stated namely thly that the First Respondent
failed to comply with Clause 16.2.2 and did not give the First Applicant a fair hearing and was biased against him and that it failed
to give him any or any proper reasons for its decision.
They make the usllegation of failing to consider relevant matters or of taking into consideration irrelevanlevant matters and lastly
that it acted unreasonably and in breach of the doctrine of Legitimate Expectations.
On the 21st of August the Respondents issued a Summons to stout the Applicants' Motion on the grounds that it disclosedlosed no reasonable
cause of action, that it is scandalous, frivolous or vexatious and that it is otherwise an abuse of the process of the Court.
In their written submissions filed on the 18th of Septembe Respondents repeat their claim that this application is a is an abuse of
Court process on the ground that the Applicants have not exhausted the grievance procedure in the Terms and Conditions of Employment
applying to the First Applicant.
Although this submisappears towards the end of their submissions it is convenient to deal with it immediately. ely. They referred
me to my recent decision in Fiji Bank Employees Union v. The Minister and Permanent Secretary for Labour and Industrial Relations and Another HBJ0013 of 1996.
On the 5th of August last I delivered an ex tempore judgment in that case which I have not found necessary to commit to writing. As
the litigation in question attracted much public interest it is unnecessary to state the facts in any detail. Briefly they were that
the Fiji Bank Employees Union had gone on strike and had sought Judicial Review of a decision of the Minister authorising the Permanent
Secretary to refer the dispute between the Union and the National Bank of Fiji to an Arbitration Tribunal. I held that the application
for Judicial Review was premature in that under the Trade Disputes Act I considered the Permanent Arbitrator was the person best suited to deal with the matter at that stage, the hearing having already
begun before him and he having indicated that he could resume it almost immediately. In the end the Union agreed with my suggestion
that the matter continue before the Permanent Arbitrator and it was eventually resolved.
The facts of that case however are different from those e instant and what I said there in my opinion does not appl apply here. It
is important to remember the exact words of Order 53 Rule 3(6) of the High Court Rules. Sub-rule (6) reads:
"Where leave is sought toy for an order of certiorariorari to remove for the purpose of its being quashed any judgment, order,
conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn
the application for leave until the appeal is determined or the time for appealing has expired."
In this case there is no appeal to any Courthe Applicants from any judgment, order, conviction or othe other proceedings.
In Action No. HBJ0014 of 1994 Charan and Another v. and Others in my unreported judgment of the 17th of Augf August 1994 I refused to entertain an application for leave to judicially review a
decision of the Suva Magistrate's Court constituted by Mr. S.M. Shah on the ground that the Applicants had not exhausted their rights
of appeal to this Court from the decision of the Magistrate's Court. That case clearly fell within Sub-rule (6) whereas it must be
obvious that the instant case does not. I therefore reject the submission that the present application is an abuse of the Court process.
On an application for leave to judicially review a decision of some administrative tribunal or Minister of State Order 53 Rule 3(5)
provides that the Applicant must have a sufficient interest in the matter to which the application relates before the Court will
grant leave. The evidence before me satisfies me that both Applicants have a sufficient interest in this matter to enable them to
apply for leave for Judicial Review.
In the case of the First Applicant this is his very natural int in obtaining appointment to a position which would give hive him a
higher salary than he is at present earning.
The interest of the d Applicant is that the First Applicant belongs to it and the Union is charged with the rese responsibility of
representing the First Applicant and ensuring that his rights under the Terms and Conditions of Employment of the 1st November 1995
are not breached or contravened.
Clause 1 of Part I Memorandum of Agreement between the parties stipulates:
Clause 1.4 states:
