State v Disputes Committee, Ex parte Plantation Island Resort [2002] FJHC 278; HBJ0020.2001 (19 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW

ACTION NO. HBJ 0020 OF 2001

THE STATE

V

THE DISPUTES COMMITTEE AND PERMANENT SECRETARY FOR LABOUR AND INDUSTRIAL RELATIONS
Respondents

JOKAVETI LABALABA AND NATIONAL UNION OF HOTEL
AND CATERING EMPLOYEES
Interested Respondents

EX-PARTE:

PLANTATION ISLAND RESORT
Applicant

G.P. Lala for the Applicant
R.S. Singh on instructions from Iqbal Khan & Co. for Second Respondent

Dates of Hearing and
Submissions: 22nd June, 14th August, 14th September, 3rd October 2001

Date of Judgment: 19th February 2002

JUDGMENT

The Applicant is the owner of a hotel known as Plantation Island Resort. It seeks Judicial Review, with an object of setting aside and quashing an award given by a

Disputes Committee on the 9th of April 2001 under public law powers and jurisdiction given by the Trades Disputes Act Cap. 97.

The First Interested Respondent was an employee of the Applicant and a member of the Second Interested Respondent. The First Interested Respondent had four days sick leave commencing on the 10th of October 2000 until the 13th of October 2000.

At about 7 a.m. on the 14th of October 2000 she asked her supervisor, Mr. Bimal Deo to let her have the day off changing her rostered day off from the 12th of October 2000.

After her leave was approved she then went to clean the staff quarters and its compound at the hotel. The Applicant alleges that together with another employee a Mr. Ilaisa Vuinamotu she collected all the garbage and piled it up on the main road at the entrance to the reception area, in full view of the guests at the Resort. This area was not a designated rubbish station nor a rubbish collection place.

The Applicant alleges that when on the instruction of the General Manager Mr. Patrick Wong a Security Officer Mr. Simeli Gonewai started to clear the garbage the First Interested Respondent told him not to pick up the rubbish as she wanted the Health Department to see it. Hearing all this Mr. Wong asked the First Interested Respondent to see him in his office at 10.00 a.m. but she did not do so. Because of this the Applicant suspended the first Interested Respondent as she had not given him any explanation for her act.

As a result of her being suspended the First Interested Respondent was required to vacate her quarters and leave the Resort property by 3 p.m. on 14th October 2000. On the 17th of October 2000 the Management of the Resort had a meeting with the Second

Interested Respondent following which the First Interested Respondent was dismissed from her employment with the Resort.

A reference was made to the Permanent Secretary for Labour and Industrial Relations who then appointed a Disputes Committee to rule on the dismissal.

The terms of reference of the Disputes Committee were:

“Over the termination of Ms Jakaveti Labalaba with effect from 20th October 2000 which Union claims is harsh, unfair, unjustified and in breach of Clause 7 of the Collective Agreement. The Union therefore seeks that Ms Labalaba be re-instated without loss of benefits.”

On the 9th of April 2001 the Disputes Committee gave its decision which was as follows:

“(1) that Ms Labalaba shall be re-instated to her former position with immediate effect;

(2) that she be paid 50% of her benefits for the period 20th October 2000 to 8th April 2001.”

After reading affidavits filed on behalf of the parties, on the 22nd of June 2001 I stated that I would consider all the evidence and would accept submissions on the question of whether leave should be granted to apply for Judicial Review as submissions on a substantive Motion to apply for Judicial Review.

The grounds on which the Applicant seeks review and an order for certiorari to remove into this court and quash the decision of the Disputes Committee are:

(i) the Disputes Committee failed to give any reasons for its decision;

(ii) that the decision of the Disputes Committee to award 50% of the First Interested Respondent’s benefit for the period 20th October 2000 to 8th April 2001 was irrational having regard to the substance of the complaint against the First Interested Respondent and further, that the Disputes Committee did not have any power to make an award of 50% of the First Interested Respondent’s benefit set out above.

The affidavit of Mr. Patrick Wong the General Manager of the Applicant sworn on the 9th of August 2001 annexes to it statements from employees of the Applicant which if true support the Applicant’s case.

An affidavit in Reply on behalf of the Respondents denies the matters alleged on behalf of the Applicant. But the affidavits filed on behalf of the Applicant namely that of Sada Siwan the Manager of the Applicant and Mr. Patrick Wong satisfy me that the Applicant has at least established an arguable case and I therefore grant leave for it to apply for Judicial Review.

No submissions have been filed on behalf of the Respondents but Mr. Sahadeo Singh an Acting Senior Labour Officer in the Industrial Relations Department swore an affidavit on the 12th of September 2001 on behalf of the Respondents.

In paragraph 27 Mr. Singh states that the decision to award 50% benefit to Ms Labalaba was arrived at by consensus. Further it was made within the stipulated terms of reference of the Disputes Committee whose decision is deemed to be an award of the Permanent Arbitrator and is binding on the parties to the dispute by virtue of section 5(4) of the Trade Disputes Act Cap. 97.

I agree that unless there are reasons to the contrary that statement is true as a matter of law. However in my judgment 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.

Any administrative act or order which is ultra vires in the sense of being beyond the powers of the decision-maker to make is void in law, i.e. deprived of legal effect.

The Committee was given power only to re-instate the First Respondent without loss of benefits. However it had no power to re-instate her to her former position and be paid 50% of her benefit from the 20th of October 2001 to the 8th of April 2001. I therefore hold that the decision of the Disputes Committee must be set aside and quashed on the ground that it went beyond its terms of reference. I am also satisfied that the Committee erred in not giving reasons for its decision.

Like most Puisne judges, perhaps a fortiori Acting Judges, I am naturally reticent in mentioning one of my own judgments to support my holding here that the Committee should have given reasons. However, the Applicant cites my judgment in State v. Transport Control Board and Pacific Transport Ltd - Ex-parte: Mohammed Jalil Khan

HBJ0027 of 1994 in which I quoted from Professor Wade in his Administrative Law, Sixth Edition on page 547 where he said:

“A right to reasons is therefore an indispensable part of a sound system of judicial review. Natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man’s sense of justice.”

Earlier in HBJ No. 2 of 1991 Sydney Wright v. Minister for Immigration I had said that increasingly the courts were holding that Arbitration Tribunals should give reasons for their decisions where possible.

In the instant case I am satisfied that where a decision to dismiss an employee for an arguably serious breach of her employment conditions was overruled the Disputes Committee should have given at least brief reasons for disallowing the dismissal. Because it gave no reasons I also uphold this ground for Judicial Review.

The order of the Court therefore is that the decision of the Disputes Committee of the 9th of April 2001 is quashed. The Respondents must pay the Applicant’s costs which I fix at $750.00.

JOHN E. BYRNE
JUDGE