Mr. G.P. Lala for the Applicant
Mr. D. Singh for the Respondent
JUDGMENT
In an Award No. 7 & 8 of 1997 delivered on the 3rd of June 1997 the Arbitration Tribunal found that the decisions of Tropical Food Products Manufacturing (Fiji) Ltd's ('the Company') laying off five (5) employees on 22nd January 1996 and standing down seven (7) employees from 27th March 1996 (referred on 29th January 1997); and terminating fifty one (51) employees on 18th March 1997 (referred on 18th March 1997), all of whom belonged to the National Union of Factory and Commercial Workers ('the Union'), 'was arbitrary and contrary to the provisions of the collective agreement' between 'the Company' and 'the Union'. The parties were also 'directed to negotiate suitable compensation for the affected employees ... failing which the Tribunal will impose a solution'.
In the absence of any agreement between the parties, the Tribunal imposed the following 'solution' in a Further Award dated 15th July, 1997 which provided inter alia:
"1. Where the respective employees in the two disputes remain unemployed, they are to receive four weeks wages ...;
2. Where the respective employees in the two disputes have been re-employed they are to receive two weeks wages ..."
The Company then sought a further clarification of the above para.(2) of the Further Award and in a written Interpretation delivered on 1st August 1997 the Tribunal said:
"The basis for the passage cited is quite simple. All those re-employed by the Company are to be paid the two weeks wages as
compensation for the unfair dismissal. The Company cannot expect to act arbitrarily in such a fashion and escape some sanction for
its conduct. There may well be some disquiet that the Tribunal has compensated those fortunate to be re-employed but as has been
stated, the trigger for the payment was the nature of the dismissal."
On the 25th August 1997 the Company sought leave to issue an application for judicial review of the Tribunal's Further Award and Interpretation in particular, that part concerning the payment of compensation to re-employed employees. Leave was granted on 2nd September 1997.
The grounds on which the Company seeks to challenge the Tribunal's decisions are as follows:
"1. The Permanent Arbitrator has misdirected himself by considering the issue (?) and consulting the employees concerned and
permanent workers.
2. The Permanent Arbitrator has failed to consider the employers contention to this Arbitration regarding casual employees who are
aware that their employment will be during the ginger season.
3. The Permanent Arbitrator failed to consider that laying off of the employees was not dismissal as decided by the Arbitrator, and
further failed to consider that actual laying off was at the end of contract as terms of which were known to the employees, and as
the said terms were stated in the letter of appointment.
4. That award should only be made in respect of the workers that were not re-employed.
5. The award in regards to the workers who have returned to work, and the said have been awarded four (sic) weeks wages is not justified in view of Submissions made and the said decision be quashed.
6. The decision of the Arbitrator is also contrary to the Master agreement between National Union of Factory and Commercial Workers
and the Respondent in that there is no provision for payment in any form in case of redundancies."
I confess to some difficulty in understanding the 'grounds' as framed by the Company's solicitors. None of them is drafted in familiar judicial review terms nor has any attempt been made to clearly identify any reviewable error in either the Tribunal's decisions or the procedures leading thereto. Neither am I assisted in that regard by counsel's written submissions.
Be that as may the respective referrals by the Permanent Secretary to the Tribunal are, if I may say so, couched in the widest possible terms. It merely refers generally to a 'trade dispute' existing between the parties relating to the standing down and/or termination of named union member/employees and refers it to the
Tribunal 'for settlement'.
Section 5A(5)(b) of the Trade Disputes Act (Amendment) Decree 1992 requires a Tribunal upon referral of a 'trade dispute' to it, to hear the parties to the dispute before making its award. This the Tribunal plainly did.
Furthermore Section 18(b),(c) & (d) of the Trade Disputes Act (Cap. 97) gives the Tribunal extensive powers when dealing with any 'trade dispute' referred to it, including power 'to elicit all such information as in the circumstances may be considered necessary, without being bound by the rules of evidence
in civil or criminal proceedings ...' [See: Section 31(1)].
In so far as I am able to understand ground (1) I am satisfied from the above that there is no merit at all in it.
The 'nature' and 'details' of the 'trade dispute' between the parties are clarified in their respective written submissions which also provides a good deal of background information
and copies of relevant correspondence.
For instance, it is clear in the submissions that 'redundancy' of employees was an 'issue' in the 'trade dispute' and also, that the parties differ fundamentally as to the meaning and intent of the Company's letters and Internal Memorandum of 19th January 1996; 25th March 1996; and 28th October 1996 respectively.
The Company for its part claimed that the employees 'were sent on leave as from 22nd January 1996' and other workers 'were stood down from 27th March 1996' and 'were to come back and check on the availability of work on 10th April 1996'. As for the fifty (51) employees the Company says: '... they were considered as seasonal workers. They are employed as and when there is work available'.
The Union for its part views the Company's letters as amounting 'to the termination of employment of our members', and the Internal Memorandum as leading to '... the only conclusion one can arrive at is that the 51 employees were being terminated from work'.
In its Awards the Tribunal somewhat neutrally describes the Company's actions as: '(having) dispensed with the services of certain of its employees because of unavailability of work'. In its Interpretation however, the Tribunal categorises the Company's actions as amounting to 'unfair dismissal'. Quite plainly the Tribunal preferred the Union's submissions on this matter of interpretation.
There is no suggestion that such a conclusion was 'Wednesbury unreasonable' nor in my view could such a suggestion be made having regard to the contents of the letters and the Internal Memorandum, and bearing in mind Counsel's submission 'that the casual employees were hired on seasonal basis and were terminated on the conclusion of their contract'.
It is difficult to understand why, if the employees were not being terminated, would it be necessary for them 'to check back on the availability of work' or why management should suggest in its Internal Memorandum to its 51 employees '... that it might be prudent if you can find work elsewhere ... to accept the opportunity if work is available'.
Furthermore in terms of Clause 8(ii)(b) of the Collective Agreement between the Company and the Union an employee could only be 'stood down because of lack of work' for an 'aggregate of 30 working days in any one year'. Clearly this Clause was not being invoked by the Company when it wrote its letters and Internal Memorandum.
Finally a brief reference may be made to the sample 'Letter of Appointment' adduced by the Company in its submissions and which contains the following Clause 12:
"This appointment is seasonal only, and is in no way a permanent offer of employment and the above depends on the availability
of market of ginger products for processing, hence this appointment may be terminated by either party giving one week's notice and/or
on payment of one week's pay in lieu of notice."
On the above basis the Company claims 'that the actual laying offs was at the end of contract as (sic) terms of which were known to the employees, and as the said terms were stated in the letter of appointment'.
The 'sample letter' however, is dated 24th March 1997 and clearly post-dates the events and correspondence that gave rise to the present dispute between the parties. In simple terms it
is irrelevant.
In light of the above there is no merit at all in 'grounds 2 & 3' which are dismissed.
As for 'grounds 4, 5 & 6' Counsel submits firstly, that there is no provision in the Collective Agreement between the parties dealing with redundancies and secondly, the employees who were re-employed had a new contract thus they had to start over again and this does not justify the two weeks
wages awarded to them.
The submission if I may say so, begs the question and ignores the nature of the disputes that were referred to the Tribunal 'for settlement'.
True there are no provisions in the Collective Agreement dealing with redundancies but that does not mean that the Company has an entirely free-hand in deciding whether or not to make its
employees redundant. Nor does it mean that the Company can de-recognise the Union or ignore the requirements of Clause 22 of the Collective Agreement with impunity.
The legal position is correctly set out in the Tribunal's Award where it states at p.2:
"However, the Company has a Collective agreement in place with the Union. An Agreement that obliges it to negotiate conditions
of employment with the Union ... Therefore the Union was entitled to expect the Company to enter into negotiations with it about
dispensing with the services of its employees however temporarily."
Furthermore the mere fact that the re-employed employees were taken back on new contracts (which remains a moot point) does not mean that the Tribunal's decision to award them compensation for their earlier wrongful dismissal, is 'not justified'.
In this regard it is noteworthy that Clause 19(iv) of the Collective Agreement, provides:
"If it shall be proved that an employee has been unjustly suspended or dismissed, he shall be reinstated and paid all wages he
would have earned, without loss of benefits ..."
In this case although the Tribunal held that the re-employed employees were unfairly dismissed, it did not order that they be paid 'all wages they would have earned' as it might have done. Instead compensation of 'two weeks wages' was ordered.
There is, in my view, nothing unreasonable or unjustified in either the award of compensation, or the amount awarded, and accordingly
grounds 4, 5 & 6 are dismissed.
For the foregoing reasons the application is dismissed.
D.V. Fatiaki
JUDGE
At Suva,
24th February, 1998.
Hbj0024j.97s
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