In Racal Communications Ltd (1980) 2 ALL ER Lord Diplock at p.637 said of concept of ultra vires t/span>
“It proceeds on the presumption that where Parliamenfers on an administrative tribunal or authority, as distinistinct from a court
of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to
answering the question as it has been so defined, and if there has been any doubt as to what that question is this is a matter for
courts of law to resolve in fulfilment of their constitutional role as interpreters of the written law and expounders of the common
law and rules of equity. So, if the adtrative tributribunal or authority have asked themselves the wrong question and answered that,
they have done something that thedoes not empower them to do and their decision is a nullity.”
Section 6 of the Trade Disputes Act Cap 97 provides that the Minister for Industrial Relations may, with the consent of the parties authorise the Permanent Secretary
to refer a trade dispute to a Tribunal for settlement. Section 3(2the Act provideovides that a trade dispute when reported to the
Permanent Secretary shall sufficiently specify “each and every matter over which the dispute hasen or is apprehended.”
The jurisdiction of the Permanent Arbitrator is ther limited to the trade dispute referred to him for decision. Hissdiction is limitlimitedmited
to his terms of reference. In va City Council -v- -v- Suva City Council Staff Association JR 3/1989, Byrne J found that the Permanent Arbitratord outhis terms of refe reference when he considered the individual merits of
the cases of compulompulsory retirement when he was only required to ask whether the consent of the Staff Association was required
before the retirement of any employee over the age of 55. His Lordship found that the Permanent Arbitrator acted beyond his jurisdiction
and that part of his Award was a nullity.
The Permanent Arbitrator’s terms of reference were in relation to the terminationhe officers. The dispute referr the Trie Tribunal
wasl was:
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “For settlement over the termination of Messrs Premila Devi Kumar and Allan Prasad with effect from 24th March 2000 which action the Union claims is wrongful and unfair and therefore seeks immediate reinstatement without loss of pay and benefits.” (my emphasis)
It is apparent that at the hearing of the Disciplinary Tribunal, the power of the Chief Executive Authority to terminate was not raised.
The officers charged and tand tried under the PSC (Constitution) Regulations 1990, and at that stage, the Chief Executive Officer’s
powers toend or terminate, was irrelevant. However those powers were relevant at the stage of e of mitigation, and they were not
disputed.
The question of whether he had those powers was raised for the first time by ssociation when the Chief Executive Officer was cross-examiexamined
at page 14 of the record. Hidence was that he had poad powers to discipline employees under section 17 of the Act, and that he had
taken legal advice from his legal section on this issue.; At page 18 of the record, it is apparent that the Arbitrabitrator was aware
of the issue and asked Ms Malimali for the Authority to provide evidence of a delegation of powers to appoint by the Authority to
the Chief Executive Officer. A copy of the Chiecutive Oive Officer’s contract of service was given to him, but not evidence of a
valid delegation.
The question of the legality of the terminations was then raised in submissions. In its submissions thociation submitted that thet
the Chief Executive did not have powers to deal with disciplinary matters and that only the Public Servimmission had such powers.
The Aation referred to theo the fact that the right of appe appeal under the Public Service (Amendment) Act No. 58 of 1998 was wrongfully
taken away when the Chief Executive decided to terminate the officers himself.
The Authority in its submissions, said that the question of the lawfulness of the terminatioas not within the terms of reference of
the Tribunal, but tbut that in any event the Authority had powers to appoint, promote and dismiss by virtue of section 17(1) of the
Fiji Islands Revenue and Customs Authority Act which transferred all employees to the employ of the Authority on 1st January 1999. The Aity submitted that that the Act gave the Authority powers to appoint under section 26, and gave the Chief Executive
Officer responsibility for the management of the functions and affairs of thhority, under section 27.
These submissions were therefore ventilated for trst time, at the hearing of the Arbitration Tribunal. The questf the lawfulness
ness ness of the terminations, under the 1999 Act, were not specifically referred to in the dispute referred to the Tribunal.
The question on judicial review, is whether the Tribunal exceeded its jurisdiction by considering the issue.
There can be no doubt at all that if the Tribunal acted within his jurisdiction, and if he was righteciding that the Chief Executive
had no powers to disciplinipline or terminate, that the terminations of the employment of the officers are null and void.
Does “wrongful” include “unlawful”? The Authority saydoes not, and that all the Tribunal was required to do was to consider whether
the employerloyer “genuinely and reasonable believed the grievor was guilty of serious misconduct.” In its supplary submissionssions,
the Authority said that the real dispute was the circumstances of the dismissal, and that it was never the intention of the parties
to refer the lawfulness of the dismiss the Tribunal.
The First Respondent says that the Oxford English Dictionarynes “wrongful” as “contrary to law, statute or established rule, unlawful,
illegal”, that that the Tribunal was required to deliberate on lawfulness, and that section 31 gave the Tribunal wide powers to illicit
all relevant information.
The Second Respondent says that the issue of lawfulness in respect of the penalty imposed was inclun the Authority’s submissions before
the Tribunal, and that that the Authority could not therefore now argue that lawfulness was irrelevant.
I do not agree with the First Respondent that section 31 of the Trasputes Act allows the Permanent Arbitrator to consider issues outside
his terms of referencerence. The purpose of section 31 is to allow the Permanent Arbitrator to obtain evidence in order to allow
him to properly consider the terms of reference of the de, referred to him by the Permanent Secretary.
The issue, as I see it, is whether the terms of reference included jurisdiction to consider the lawful powers of the Authority and
the Chief Executive.
The word “wrongful” in terms of employment law, and the word “unfair” have their ownnitions in the common law. The “unfair” is commocommocommonly
used, in both statute and common law to refer to dismissals which are not based on; 1) the capability or qualifications of the employee;
2) the conduct of the employee; 3) reasonableness; or 4) good faith. Employment tribunae usuallsually required to consider whether
in all the circumstances, having regard to equity and the substantial merits of the case, the employer acted reasonably in dismissing
the employee, and for a valid reason.
An investigation into the fairness of a dismissal, involves an examinationhe substance of the dismissal, including a co a consideration of the employer’s needs, the circumstances of the employee’s length of service,
and other factors in mitigation of the employee’s misconduct. The Hof Lords in Smiu>Smith -v- City of Glasgow District Council (1987) 1 RLR 326, said that the employer must show that he/she genuinely believed thatissal was reasonable and the reasons for such
dismissal, wel, were valid.
The test is not entirely subjective, because the employer also has to show that his belief was based on reasonable grounds (see ing & Co. Ltd. -v- Rich Richardson (1978) 1 CR 1049, also Smith & Wood “Industrial Law” p.299). Ad Denning said in > Alidair Ltd. -v- Taylor (11 RLR 82, at pp.84-85:
“If a man is dismissed for stealing, as long as the employer honestly believes it on reasonarounds, that is enough to j to justify
dismissal. It is not necy for the empe employer to prove that he was in fact stealing. ver a man is dismissed ford for incapacity
or incompetence it is sufficient that the employer honestly believes on reasonabounds the man is incapincapable or incompetent.
It is not necessary he empe employer to prto prove that he is in fact incapable or incompetent.”
It was this test that the Tribunal referred to at page 5 of itsd. The Tribunal said:
“In cases involving unjustifismissals the Tribunal has to be convinced that the employer genuinely and reasonably beliebelieved that
the grievor was guilty of serious misconduct.”
This then is the legal meaning of the word “unfair.”; The word “wrongfully” logically, was intended to have some other meaning.
In common law and statute, the word has developed a special meaning. The common law action forgwrongful dismissal was andased on
form rather than suan substance. Thus a wrongful dismissal in a case where employee and employer share contractual rela, may be
termination in a way not envisaged by the contracttract, or before the contract expires (see McClelland -v- Northern Id General Health Services Bces Board (1957) 2 ALL ER 129). The concept of wrongful dismissal may include an argument that the dismissal was invalid either because of breaches of natural justice,
or on the ground of ultra vires.
In Vine -v- National Dock Labour Board (1957) AC 488 a registered dockworker employedhe Board under a statutory scheme, was dismissed for refusiefusing a valid order. His dismissaleffected
by a by a committee which, on a true construction of the statutory scheme, did not have powers to dismiss. The House ods held that
that the dismiwas ultra vires and a nullity.
The word “wrongful” is therefore different to the “unfair.” A dismissal may be wul on l on the basis of form and procedure. An u
An unfair dism may beay be challenged on the question of whether the employer believed on reasonable grounds that the employee’s
conduct justified dismissal.
As Smith & Wood in the text “Industrial Law”, saw at p.232:
“The obvious contrast between the two is that the statutory action for unfismissal involves an inquiry into the overall merits of
thef the dismissal whereas the common law action for wrongful dismissal looks basically to the form of the dismissal.”
In the light of these definitions, it is apparent, that the concept of ultra vires is included in the question of the wrongfulness
of a dismissal. I t that the thrust of thef the trade dispute referred to the Tribunal related to unfairness. How the use of the
word “frd “ful” in addition to “unfair” in the referred dispute, defined the bounds of the Arbitrationation Tribunal’s jurisdiction.
Furthhe Auty’s powers to d to discipline were raised at the Arbi Arbitration hearing by the Authority itself, in the course of the
hearingp; When the parties continuously referred to the Authority’s powers to discipline, and to t to the provisions of the PSC (Constitution)
Regulations 1990, it was inevitable that the Arbitration Tribunal would consider those provisions, and their applicability to the
dismissals of the officers. Indeed, it was the Tribundl’s duty to do so, despite the Association’s apparent concessions initially
as to the lawfulness of the dismissals.
In all the circumstances, I find that the Tribunal did not exceed its jurisdiction in considering whether the Chief Executive Officer
of the Authority had lawful powers to dismiss. The Ais therefore not a nu a nullity on this ground.
Error on the face of the Record
The Applicant says that the Permanent Arbitrator erred in finding that the Chief Executive Officer had no powers to terminate. I
t agree. Although judiciudicial review proceedings do not permit the reviewing court to consider the merits of the decision, and
must only be concerned with thesion-making process, there are some errors of law, which, ich, if made, may nullify the entire proceedings
under review. Althouere is considerable able authority for the view that an inferior tribunal has jurisdiction to adjudicate incorrectly
and correctestions of law which go to the merits of a case, there is also considerable authority for tfor the view that all errors
of law are reviewable (see Professor Wade Administrative Law 6th Ed. p.302). >South-East Asia Fire Bire Bricks SDN.BHD -v- Non-Metallic Mineral Products Manufacturing Employees Union (1981) AC 363, the Privy Council also took position. Byrne J in Stat Arbi Arbitration Trib Tribunal of the Republic of Fiji ex parte Ports Authority of Fiji J/R Action No. HBJ0008 of 1996 referred with approval to the view of Lord Denning M.R. in Pearlman -v- Harrow School Governors [1978] EWCA Civ 5; (1979) QB 56 when he said:
“The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision
of the case depends. If it makes such aor, it g it goes outside its jurisdiction and certiorari will lie to correct it.”
I do not consider that the Permanent Arbitrator made an error of law in this case. Tji Re and Customs Authorithority Act certainly
transferred rred employees to the employment of the Authority, but section 17(2) of th provided that rules as to conduct and discipline
were to apply in the same way as they appy applied to State employees. The Auty was undoubtedly gdly given powers to appoint. This
arguably ded dismissamissal pursuant to the Interpretation Act. ever, section 27(2) of the Act, which provide for the powers and function of the Chief Exec Executive, do not include a power
to appor dismiss. Nor Nor can sower be impl implied from meetings of the Authority, or from the words “The Chief Executive Officer
shall .... perform such other functions or duties as the Authority, from time to time may determine.”
The dismissal of an employee has serious consequences for both employee and employer. Statutory provi for ssal msal must be stri
strictly read. Section 24 of the Act pro ides that the powers of the Authority may be delegated to son or committee. However, there
wasuch dele delegation of the power to appoint to thto the Chief Executive.
In the circumstances I do not consider that the Permanent Arbitrator erred in law in finding that the CExecutive Officer had no powers
to dismiss. This grou ground foiew alsw also fails.
Irrelevant and Rand Relevant Considerations
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