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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 16 OF 2001
IN THE MATTER of the Trade Disputes Act Cap. 97
AND
IN THE MATTER of the Decision of the Permanent Secretary for Labour and Industrial Relations
AND
IN THE MATTER of the Decision of the Disputes Committee dated 22 March, 2001.
STATE
v
1. THE PERMANENT SECRETARY FOR LABOUR
AND INDUSTRIAL RELATIONS
2. THE DISPUTES COMMITTEE
Respondents
FIJI AVIATION WORKERS ASSOCIATION
Interested Party
Ex parte:
AIR PACIFIC LIMITED
Applicant
Ms. G. Phillips for Applicant
Mr. S. N. Sharma for Respondents
Mr. R. P. Singh for Interested Party
JUDGMENT
Pursuant to leave granted on 3 May 2001, Air Pacific Limited (referred to as the >applicant=) has applied for judicial review of the following decisions: firstly, of the The Permanent Secretary for Labour and Industrial Relations (the first respondent - R1) and secondly of the Disputes Committee (the second respondent - R2):
Grounds of application - the applicant=s case
The application for judicial review is based on the following grounds (as stated by Ms Phillips in her written submissions 1.2 and 1.3):
1.2 First Decision: The Permanent Secretary erred in law in that:
(a) contrary to section 4(1)(a)(i) of the Trade Disputes Act, he purported to accept the report of a trade dispute which arose more than one year from the date it was reported by the Interested Party, having found no mistake or other good cause for failure to report it outside the prescribed time; and
(b) alternatively, he failed altogether when accepting the dispute to give consideration to or failed to give sufficient consideration or weight to the delay by the Interested Party in invoking the grievance procedure provided for in the Air Pacific/FAWA Senior Staff Collective Agreement (ACA@) and in reporting the dispute in terms of the Trade Disputes Act.
1.3 Second Decision The Disputes Committee erred in law in that:
(a) it misdirected itself in failing to apply to the Company=s actions the necessary test of fairness and reasonableness (such failure being evidenced by the bare reference in the Second Decision to the Company=s action as being >harsh=) and thereby wrongly concluded that the dismissal was unjustified;
(b) secondly, it failed to consider, whether in all the circumstances, the dismissal was fair and reasonable, by erroneously confining itself to considering that the Company=s action was harsh;
(c) thirdly, it failed altogether to give consideration to whether the misconduct resulting in termination was of such a serious nature so as to destroy the trust and confidence between the parties before ordering reinstatement;
(d) fourthly, it failed altogether to give consideration to or failed to give sufficient consideration or weight to the following relevant factors:
- (i) the delay by the Interested Party in invoking the grievance procedure provided for in the Air Pacific/FAWA Senior Staff Collective Agreement and in reporting the dispute in terms of the Trade Disputes Act;
- (ii) for the Company to reinstate the Interested Party was to condone behaviour amounting to serious misconduct warranting summary dismissal in terms of s.28 of the Employment Act.
1.4 In all the circumstances, the Decisions were so unreasonable that no reasonable Permanent Secretary for Labour & Industrial Relations or Disputes Committee could have come to it.
The Applicant contends that that there are clear errors of law in both the decisions.
The issues
In this judicial review the issues for the Court=s determination are:
Relief sought
The First Respondents= contention
The First Respondent (R1) in his Affidavit in Reply to Application for Judicial Review stated, inter alia, that the matter of dispute was brought as a grievance under the Grievance Procedure (clause 28 of the Collective Agreement - CA) which does not specifically provide a time period in which grievance considered as a trade dispute under item 28.2.3 be referred to a third party such as R1. He (R1) said that the Fiji Aviation Workers Association (AFAWA@) (The Interested Party) representing the employee JN gave sufficient consideration or weight to the delay in invoking the grievance procedure in that it was JN=s right not to choose union representation at the initial stage and that FAWA as a Union is not obliged to act or intervene unless and until a union member seeks the representation of the Union (FAWA).
The R1 further deposed that although the termination of JN arose more than one year ago effective from 19 May 1999, it was first brought as a grievance as per CA and only became a dispute on receiving final response from the Management of the applicant confirming termination on 19 January 2000. R1 further stated that the applicant did not challenge his decision when he accepted the trade dispute on 13 February 2001 after considering all relevant facts and circumstances as required by s4 of the Trade Disputes Act. He says that by recommending their representation on the Disputes Committee the applicant had accepted R1's decision.
In clause 15 of his affidavit R1 gave his opinion which was unwarranted and uncalled for and should never have been made for it is not for him to decide on the issue before the Court.
Second Respondent=s contention
The second Respondent=s arguments are as stated in Sahadeo Singh=s affidavit in Reply to Applicant=s affidavit sworn 27 June 2001.
The deponent was the Chairman of the Disputes Committee; he states, inter alia, that the grievance under the Grievance Procedure was brought on 19 January 2000 and was only considered a trade dispute when it was reported to R1 as a trade dispute on November 2000. He is saying the same thing essentially as R1 in identical words and gives his own opinion on JN=s actions on the dispute and in his favour.
The deponent=s uncalled for and unwarranted opinion is irrelevant and should never have been made. The issue is for the Court to consider and not for him. His legal advisers should not have allowed him to put such an affidavit before the Court.
Submissions of Interested Party
In his written submission counsel for the Interested Party stated that the applicant raised no objection that R1 ought not to accept the >report=, nor sought Court decision at that stage as it was entitled to do so. The applicant elected to take full part in the proceedings and/or hearing before and/or by the Disputes Committee (R2) and therefore waived the time question and/or is deemed to have waived it by its conduct, and failing to raise the question before R1 and R2.
Counsel further submitted that R1 made a decision to accept the report after considering the matter correctly and properly. He says that it is a question of fact when the dispute arose. Having regard to the grievance procedure the dispute did not arise in May 1999 when JN was purportedly dismissed. He said that grievance procedure could only be invoked once there is a grievance on the part of aggrieved person or party. He said that the decision-making process on this point could not be attacked because R1 took into consideration the applicant=s >response=. Counsel said that because there was in existence a dispute between master and servant, R1 had jurisdiction and powers to consider the report.
On law, counsel submitted that the statutory provision in question here, namely, Trade Disputes Act, does not specifically refer to report to be made within specified time from the effective date of termination. What it says is that no trade dispute which is more than 12 months old is to be accepted by the Permanent Secretary unless there was a mistake or good cause.
Counsel further submitted when the Adispute@ arose, and if there was Agood cause@ for any delay it was entirely a matter for the Permanent Secretary (R1). It is a question of fact. The Permanent Secretary in his affidavit has set out his finding as to the date when the dispute arose. This finding of fact is correct, but even if it is attacked as being erroneous finding of fact, it could not be impugned.
Counsel submitted that there is no error of law in this case. He argues that Clause 28 of the Collective Agreement means that the employer responsible should endeavour to settle the grievance within 48 hours meaning within 48 hours from the time it is invoked but he says the applicant concealed that it delayed in resolving the grievance because of 19 May 2000 events.
Therefore, on the first issue counsel submits that the question of construction was authoritatively determined by R1 and his determination is final and conclusive.
On the second issue counsel submitted that one of the members of R2 was representative of the applicant and that the Committee=s decision was unanimous. He said that the approach taken in this matter by R1 and R2 has complied with the rules of natural justice, fair procedure, each side had its representative on the Committee, and significant factor is that the decision was unanimous; fairness and reasonableness were present at every stage.
The Interested Party asks the Court to dismiss the application with costs.
Consideration of the issues
In considering the issues, I have useful written submissions from all counsel in this matter as well as affidavit evidence from the parties.
The issues have been argued before me with ability from all sides. The Respondents are not judicial bodies in the ordinary sense. This is a judicial review application. Judicial review is a process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.
The Court=s function is to review not the merits of the decision in respect of which this application for judicial review is made, but the decision-making process itself.
In this case the main complaint is that there is an error of law in coming to the first decision as a result of misinterpretation of the said section 4 of the Trade Disputes Act (the >Act=). In a judicial review the Courts are very much alive to the possibility of the decision-making bodies acting unlawfully by exceeding their powers, committing errors of law, or breaches of natural justice, reaching decisions which no reasonable tribunal could have reached, or otherwise abusing its powers.
Chronology of Events
In this case it is important to bear in mind the Chronology of Events which is set out hereunder (as stated in Ms. Phillip=s written submission at 1.5):
15 May 1999 Duty travel to Sydney by Interested Party.
17 May 1999 He returned to Fiji one day earlier without trainees.
18 May 1999 He didn=t report for Duty and boarded the late evening flight to LA.
24 May 1999 The Company wrote to him advising of Disciplinary Inquiry.
28 May 1999 Disciplinary Inquiry conducted.
1 June 1999 Termination letter with effect from 19 May 1999.
22 December 1999 FAWA letter purporting to activate the Grievance procedure on behalf of Interested Party.
19 January 2000 Company=s letter to FAWA confirming termination.
20 November 2000 FAWA letter to Permanent Secretary reporting trade dispute.
22 November 2000 Company=s letter to Permanent Secretary responding to FAWA report of 20 November 2000.
13 February 2001 Permanent Secretary accepting report of trade dispute and reference to Disputes Committee. First Decision.
27 February 2001 Reference of dispute to Disputes Committee by Permanent Secretary.
27 February 2001 Permanent Secretary=s letter to parties referring dispute to Disputes Committee s.5A(2).
22 March 2001 Hearing before the Disputes Committee and decision was given.
22 March 2001 Second Decision.
Consideration of the First Decision
On the first issue the question is did the Permanent Secretary for Labour and Industrial Relations (the 1st Respondent - R1) act in accordance with the prescribed statutory limitation contained in section 4(1)(a)(i) of The Trade Disputes Act which provides:
4. (1) AThe Permanent Secretary shall consider any trade dispute of which he has taken cognisance and may take any one or more of the following steps as seen to him expedient for promoting a settlement:-
(a) inform the parties that he accepts or rejects the report of the trade dispute, having regard to the sufficiency or otherwise of the particulars set out in the report, to the nature of the report, or to the endeavours made by any of the parties to achieve a settlement of the dispute, or having regard to any other matter which he considers to be relevant in the circumstances:
Provided that:
(i) no trade dispute which arose more than one year from the date it is reported under Section 3 shall be accepted by the Permanent Secretary except in cases where the delay or failure to report the trade dispute within the specified period was occasioned by mistake or other good cause.@ (emphasis added)
It is the applicant=s submission that the correct date for the purpose of s4(1)(a)(i) is the date of termination of employment of Jese Naka (>JN=) i.e. 19 May 1999 and not 22 December 1999, 19 January 2000 or 20 November 2000. It submits that the computation of time commences from the date of termination of employment.
The Respondents and the Interested Party do not agree with the applicant in this regard and I have already traversed their arguments hereabove.
Background facts
The facts are not in dispute and have been well summarised by the Respondents in one of their submissions and they are as follows:
AIn terms of section 4(1)(a) of the Trade Disputes Act, Cap. 97, I have considered your report together with the response from Air Pacific Limited, and have decided to accept the report of the trade dispute and shall refer the dispute to a Disputes Committee constituted by me under the provisions of section 5A(1) of the Trade Disputes Act, Cap.97 for a decision@.
Interpretation of section 4(1)(a)(i)
It is the interpretation of section 4(1)(a)(i) on which the whole question turns. It is the applicant=s contention that R1 Ashall not@ accept a >trade dispute which
arose more than one year from the date it is reported under section 3' (to use the words of section 4).
In this case JN (the employee) was by letter dated 1 June 1999 terminated from employment with effect from 19 May 1999. The circumstances in which his employment was terminated is contained in items 4 to 14 of Affidavit of Isake Komailevuka, General Manager Human Resources with the applicant sworn 10 April 2001. In short JN walked off the job and without permission went to Los Angeles, USA to watch rugby. He elected not to be represented at the disciplinary inquiry. He told the inquiry that he needed a break from work because he was overworked, but otherwise offered no explanation for his absence.
It was not until seven months later on 22 December 1999 a letter was received by the applicant purporting to invoke the grievance procedures of Collective Agreement (hereafter referred as CA) under clause 28 thereof.
I agree that although the said clause 28 does not set out that the procedure must be activated within a specific time, the tight timetables it sets for resolution, should be understood as requiring the Union (the FAWA) if it wishes to invoke it, to act promptly. The employee Jese Naka was a member of the Union and the Collective Agreement is between the Employer (the Applicant) and the Union (FAWA) and its grievance procedure should have been invoked without delay. Even section 3(3) of the Act, on the need for promptness states that >the party reporting a trade dispute shall without delay furnish by hand or by registered post a copy of the report of the dispute to each party to the dispute@. This was done by the Interested Party which >reported the dispute= but well out of time.
It was incumbent on the union member (the employee) to seek the assistance of his Union and invoke the provisions of Clause 28 of the CA. What was he doing for about seven months before referring the matter to FAWA? JN never disclosed his motive for not doing so. He cannot go about the way he wishes in the face of the Collective Agreement. By the same token if the Union knew about the fate of this member in June 1999 then it was incumbent on the Union to invoke the provisions of clause 28 otherwise it would leave the door open to the Union to apply Clause 28 at any time it wishes which could be years after dismissal, as Ms. Phillips the learned counsel for the applicant submitted. That could not be the intention in the CA and the time factor of >one year= set by the Legislature in section 4 of the Act.
It was not until 22 December 1999 that FAWA raises the grievance in accordance with the Grievance Procedure under CA. On 19 January 2000 the applicant employer upheld the decision of its General Manager Human Resources to terminate JN.
Then on 20 November 2000 (10 months later which is 18 months after termination) FAWA reports to R1 the existence of a Trade Dispute between the applicant (the employer) and FAWA (the Union) claiming that the termination of employment with effect from 19 May 1999 was >harsh and unfair and seeks his reinstatement without loss of benefit=. The FAWA raised the matter as a grievance in accordance with the >grievance procedures= in CA. It was on the said 19 January 2000 that the applicant/employer made its final response.
Then by letter dated 22 November 2000 the applicant wrote to R1 explaining the reasons and the circumstances leading to the termination of JN. It stated that the Company >is equally concerned with the length of time it took the Association to contest this case as the events occurred some 18 months ago, brought up as grievance in January this year and reported as a dispute in November 10 months later. If the Association was serious about its position in this dispute it should have activated the dispute settlement mechanism immediately after the incident. Its preference to do so now raises various uncertainties=.
Contrary to R1's view on time in Clause 28, I agree with Ms. Phillip=s submission that clause 28 contemplates that time is of essence. The R1's failure to read in the requirements of urgency contemplated by Clause 28 of the CA amounts to an error of law. I agree that clause 28 cannot be interpreted in isolation to clause 27 of the CA. Clause 27 contains the disciplinary procedure machinery. Clause 27.4 states that >If the employee is not satisfied with the action taken he may pursue the matter in accordance with the Grievance Procedures in Clause 28.0.=
Section 4(1)(a)(i) talks about >trade dispute= and provides that Ano trade dispute which are more than one year old from the date it is reported under section 3 shall be accepted by R1".
What is a >trade dispute=? It is defined under section 2 of the Act as follows [as amended by Trade Disputes Act (Amendment) Decree 1992]:
AAny dispute or difference between any employer and a trade union recognised under the Trade Union (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: ......@ (emphasis added)
In my view the >trade dispute= arose when JN was terminated with effect from 19 May 1999 within the meaning of the words as defined. Because JN was a member of the Union (FAWA), it cannot be denied that that there was a >dispute= or >difference= between the employer and union although the member did not approach his Union to take any action pertaining to his termination until some months afterwards. I do not agree with R1's argument that >the one-year time ..... for reporting a trade dispute ..... does not commence until there is a dispute or difference between the employer and the recognised trade union, not between the employer and the individual employee@. Hence, when the trade dispute was reported to R1 by FAWA it was well out of time. Therefore, on the correct interpretation of the section R1 could not have accepted this as a trade dispute as it was out of time.
Error of law
There clearly was an error of law on the part of R1 in interpreting section 4 under which trade dispute was reported to him.
One has to look to see what the intention of the legislature was when it stated the time limit of one year in section 4. It was to see that disputes or differences between an employer and an employee is decided as soon as possible. By the employee or his Union in not invoking clause 28 within a reasonable time defeated the whole purpose of section 4 and at the same time making the time table in clause 28 meaningless. Here the employee and his union should have been alert to preserve their rights by complying with the time limit provided by clause 28 and section 4, and if there is no time stated to act promptly. Here JN (employee) was dismissed and was not even at work and took no steps on his dismissal until 7 months later. No explanation was given as to why there was this delay.
When a point of law arises the reigning rule as stated by Wade, Administrative Law 5th Ed. at p.817 is:
A...the reigning rule today is more sophisticated and less legal. It is designed to give greater latitude to tribunals, where there is room for difference of opinion. The rule is, in effect, that the application of a legal definition or principle to ascertained facts is erroneous in point of law only if the conclusion reached by the tribunal is unreasonable. If it is within the range of interpretations within which different persons might reasonably reach different conclusions, the court will hold that there is no error of law.@
In this case on the primary facts the First Respondent drew a wrong conclusion thus interpreting the statute, as Lord Denning M.R. said, that they went wrong in law (Woodhouse v Brotherhood Ltd [1972] 2 Q.B. 520 at 536). Even though there was some room for exercise of discretion in section 4, Courts will interfere if R1's decision produces >manifest injustice= or is >plainly wrong= (Instrumatic Ltd v Supabrase Ltd [1969] 1 W.L.R. 579) and as Wade (supra) at 81 says: >In any case, unreasonableness, self-misdirection, and so forth are grounds which are >so many and so various that it virtually means that an erroneous exercise of discretion is nearly always due to an error in point of law=. (Re D.J.M.S [1977] 3 All E.R. 582 at 589; Lord Denning M.R.)
In the outcome, I find R1 did not give a correct interpretation of section 4 on the facts of this case. R1 also did not exercise his discretion properly and accepted the report of a trade dispute out of time. I agree with Ms. Phillips that failure to comply with s4(1)(a)(i) is fatal and is a jurisdictional issue and not merely procedural (Halsbury Laws of England 4th Ed. at para 505 footnotes 2 and 10). Therefore it was unlawful for R1 to accept the report of trade dispute well out of time. The R1 cannot waive the time requirement. He did not reach a decision which a reasonable tribunal would reach. It was Wednesbury unreasonable and is a good ground for quashing the decision.
R1 having made this error of law it follows that R2 lacked jurisdiction to deal with the matter. In Dedman v British Building [1974] 1 All E.R. 521 at 524 Lord Denning on time limit stated as follows:
AAccording to the decisions of the Industrial Court, the time limit is so strict that it goes to the jurisdiction of the tribunal to hear the complaint. By that I mean that, if the complaint is presented to the tribunal just one day late, the tribunal has no jurisdiction to consider it. Even if the employer is ready to waive it and says to the tribunal: >I do not want to take advantage of this man, I will not take any point that he is a day late=; nevertheless the tribunal cannot hear the case. It has no power to extend the time: see Westward Circuits Ltd v Read; Rogers v Bodfari Transport Ltd. The complaint must actually reach the tribunal itself within the four weeks. It is not sufficient for the man to put it into the post-box. He must see that it is >presented= and delivered into the hands of the clerks of the tribunal themselves within the four weeks. If it arrives a minute after midnight on the last day, the clerks must throw it out. The tribunal is not competent to hear it: see Anglo-Continental School of English (Bournemouth) Ltd v Gardiner. In counting the time, too, the man is not even given the full four weeks. According to the decision of the Industrial Court, the first day includes the very day on which his employment terminates so that he must deliver it to the tribunal within 27 days thereafter. Else he is out: see Hammond v Haigh Castle & Co Ltd; Haigh v Lewis & Co (Westminster) Ltd@.
(emphasis added).
His Lordship goes on to say that although:
Athe time limit is so strict, it is a comfort to find that there is an >escape clause=. The man is not barred by the time limit if >the tribunal is satisfied that in the circumstances it was not practicable for the complaint to be presented before the end of that period.@
On time >it is of paramount importance in dealing with Industrial Relations that timetables should be strictly adhered to= (per Sir John Donaldom in Marshall v Harland & Wolff Ltd (1972) and applied in Duke v Prospect Training Services Ltd [1989] IRLR 197.
For these reasons the first decision cannot stand and it ought to be quashed.
Consideration of the Second Decision
The second Decision is that of the Disputes Committee. Under the Trade Disputes Act (Amendment) Decree 1992 >disputes Committee= is defined as meaning the >Disputes Committee constituted under this Act=. Under s5A(1) of the Act it is provided as follows (in so far as it is relevant for the present purposes):
5A - (1) The Permanent Secretary shall refer a dispute of rights to a Disputes Committee for settlement.
(2) There shall be constituted a Disputes Committee consisting of three persons as follows:
(a) a Chairman who is not a party to or concerned with the dispute appointed by the Permanent Secretary;
(b) a member approved and appointed by the Permanent Secretary on the recommendation of the trade union affected by the dispute of rights;
(c) a member approved and appointed by the Permanent Secretary on the recommendation of the employer or the trade union of employers affected by the dispute of rights;
Provided that the recommendations for membership under paragraphs (b) and (c) shall be submitted to the Permanent Secretary within fourteen days from the date of acceptance of the trade dispute.
(3) The Disputes Committee shall hear the parties to the dispute and make its decision without delay and in any case within fourteen days from the date the trade dispute was referred to it;
Provided that the Permanent Secretary may extend the period within which a decision is to be made if in his opinion the circumstances of a case require that the extension be given.
(4) A decision of the Disputes Committee that is arrived at by consensus shall be binding on the parties and be deemed an award.
I have already set out hereabove in considerable detail the facts and circumstances which led to JN=s dismissal. In this case pursuant to the said section 5A(i), R1 referred the report of the trade dispute to R2.
The Record of Proceedings before R2 and also what the Terms of Reference for the Disputes Committee (hereafter referred to as the ACommittee@) were is not before this Court except that FAWA said that the decision was >harsh and unfair and seeks his reinstatement without loss of benefit=.
It was emphasized in argument by the Respondents and the Interested Party that because the Applicant took part in the deliberations of the Committee and nominated its representative and the decision of the Committee was unanimous, the Applicant cannot now object to the decision.
This line of argument, in my view, has no merit whatsoever as I find that there was denial of natural justice; the second decision arrived at was Wednesbury unreasonable, there was error of law, ultra vires and no reasons were given for the decision.
The question here is whether there was a proper exercise of the statutory jurisdiction conferred on the Committee in deciding the matter of dismissal of JN.
The Committee, without giving any reasons for its decision that the dismissal was >harsh= is a clear indication that it misdirected itself in the test of >fairness= and >reasonableness= as there is no indication in the evidence whether it considered that the employer=s (applicant=s) conduct was reasonable or not in the circumstances.
The fact that the applicant=s representative appeared before R2 is no reason for refusing it the full and fair opportunity of stating its case before R2, particularly in relation to the order to pay JN portion of his salary. When I say this I keep in mind that the Committee is >not a court of law=, that >no particular procedure is prescribed= for it and it >can determine its own procedure=. >It has not the usual powers of a court of law. It has no power to compel the attendance of witnesses or take evidence on oath or to order discovery of documents or the production of documents. It is not bound by the laws of evidence= [Lord Wright in General Medical Council v Spackman [1943] AC (H.L) 627 at 640]. However, it is interesting to note that according to s5A of the Act a decision arrived at by consensus >shall be binding on the parties= and >be deemed an award=. As stated by Lord Wright (supra at p640) the Court has control over the Committee by exercising its power by >way of certiorari= which >is not an appellate power=. Its use may >nullify or discharge an order made= by, in this case the Committee, but the >grounds on which certiorari may be granted are strictly limited=. For the purposes of this case limited to the grounds (a) that the proceeding was ultra vires and (b) a departure from >natural justice=.
A duty was cast upon the Committee of deciding or determining questions of various kinds usually of an administrative nature which will involve matters of law and fact. If the Committee has not acted >judicially= or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari=. (Lord Wright, supra p642).
In the present case on the facts, it appears that the Committee did not give adequate or proper consideration to the rights of an employer in dealing with an employee of longstanding >absconding= in the manner he did. What is harsh about his dismissal in such circumstances has not been explained. Surely some reasons must be given for the decision particularly when it affects severely the rights of the employer as well. Ms Phillips referred to W & H Newspapers Limted v R Oram (Court of Appeal of New Zealand 3.5.01) where it is stated: AThe dismissal might have seemed harsh, but the correct issue was whether it was open to the employer, acting fairly and reasonably, to have seen that as the appropriate response to Mr. Oram=s conduct?@
I agree with Ms. Phillips that the Committee failed altogether to consider the seriousness of JN=s conduct, namely abandonment of employment, and thus failed to address whether it was a course open to the employer reasonably to take the view that dismissal was an available response to JN=s conduct.
As in the first decision of R1, similarly in R2's case the latter also erred in law in its finding.
Duty to give reasons
Failure to give reasons for the decision is another ground to quash the decision herein. All that the Committee said was that the decision to dismiss JN was >harsh=.
Although there is no statutory requirement for the Committee to give reasons for its decision, nevertheless in a case such as the present where the employee showed sheer disregard for the interest of his employer and had absconded without permission cries out for a detailed commentary from the Committee. The Committee appears to have taken the matter very lightly as if some minor incident has taken place. This kind of approach to such a serious misconduct reflects very badly on the members of the Committee; their scanty remark i.e it is >harsh= is not a consolation to employers and is bound to give out a wrong signal to them in so far as the workings of a Disputes Committee is concerned.
To put it very bluntly I do not think the committee knew how to go about dealing with the situation which was before it for a decision. The Committee even went further and acted ultra vires when it ordered payment of part of JN=s salary to him. This ultra vires act has resulted in paying out to JN hundreds of dollars to which he may not have been entitled had the committee handled the matter as it should have.
If that is how the Disputes Committee is going to function there will be no proper resolution of disputes or disagreements. This will result in the Arbitration Tribunal being burdened with many disputes for resolution.
While I am on the subject of the workings of Disputes Committee under the Act, I notice that Mr. John Semisi, the Permanent Arbitrator (vide Article >Are our Industrial Dispute Resolutions Process Adequate? in the Legal Lali, December 2001 at p19 et seq,) is also concerned with the malfunctioning of such a Committee resulting in what he says is the Aunprecedented development of parties pursuing judicial review of the Disputes Committee=s awards@. He is suggesting an urgent review of the >role and effectiveness of the Disputes Committee and Conciliation needs by all the stakeholders for the sake of burgeoning Industrial Relations strife= and rightly so in my opinion.
Going back to the giving of reasons, I refer to the following passage from de Smith=s Judicial Review of Administrative Action 4th Ed. (1980) at 148 where the author says:
AIf moreover no reasons for an administrative decision are preferred at all, it does not follow that the courts are powerless to intervene. For if a person seeking to impugn such a decision establishes a prima facie case of misuse of power by the administrative authority, failure by that authority to answer any allegation may justify an interference that its reasons were bad in law or that it had exercised its powers for an inadmissible purpose@.
This is one such case where reasons ought to have been given. >An administrative body which was obliged to act fairly had to give reasons to those affected by its decisions=. (Regina v Lambeth London Borough Council, Ex parte Walters, The Times Law Reports 6.10.93 p483)
In Regina v Ministry of Defence, Ex parte Murray TLR CA 17.12.97 p.33) it is stated that:
Although there was no general overriding principle of law which required a decision-making body to give reasons for its decision, fairness would in the particular circumstances often demand that it did so.
However, >judicial review was unlikely to succeed where the reasons were easily discernible albeit not expressed or where no other conclusion than that reached was realistically possible.= (Murray, supra)
Ultra vires Decision
A situation similar to the one before me arose in The Disputes Committee and Permanent Secretary for Labour and Industrial Relations (Respondents), Jokaviti Labalaba and National Union of Hotel and Catering Employees (Interested Respondents) Ex parte Plantation Island Resport (Action No. HBJ 0020/01. There Byrne J stated that section 5A(4) of the Act is true as a matter of law, but he said that:
A.....there is a very strong reason for disallowing the decision of the Disputes Committee, namely that in awarding a 50% benefit to Ms. Labalaba the Committee went outside its terms of reference and that consequently its decision is a nullity.@
I agree with his Lordship in this regard. He went on to say that:
Any administrative act or order which is ultra vires in the sense of being beyond the powers of the decision-maker is void in law, i.e. deprived of legal effect.
As held by Byrne J the power in the present case was to re-instate JN to his former position but not to payment of certain percentage of the salary.
In the circumstances this Court has no alternative but to set aside and quash the decision of the Disputes Committee as it was ultra vires the terms of reference. The Committee misdirected itself in failing to ascertain the position of the parties in regard to reinstatement. The applicant should have been given the opportunity to address on remedy as failure to do so was a fundamental breach of natural justice.
For these reasons the second decision is quashed.
Conclusion
In the outcome for the reasons given hereabove both the first and second decisions are quashed.
No reasonable tribunal could have come to the decisions to which the Respondents came. As stated by Ms. Phillips that in failing to accord any weight to the prejudice caused by the Interested Party=s delay is so unreasonable as to be irrational. Also the failure to adequately deal with the issue of delay in the context of employment disputes evidence the proposition that the respondents= conclusions were not reasonably open to them and were in fact incorrect. The Disputes Committee misdirected itself in failing to ascertain the position of the parties in respect of the question of reinstatement resulting in breach of natural justice. Hence the decision was Wednesbury unreasonable. The order for payment of part of the salary should never have been made.
In this regard I conclude with the following passage from Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 K.B. (C.A.) 223 at 233-234:
AThe court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.@
For these reasons the relief sought are granted. I make an order of certiorari quashing both the decisions as they were unlawful, invalid, an abuse of the Respondents= powers, void and of no effect. The respondents and the Interested Party are each ordered to pay $500.00 costs to the applicant within 14 days.
D. Pathik
Atg. Judge
At Suva
3 April 2002
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