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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 11 OF 2002
Between:
THE STATE
v.
THE ARBITRATION TRIBUNAL
Respondent
FIJI PUBLIC SERVICE ASSOCIATION
1st Interested Party
MELAIA BALEIWAI
2nd Interested Party
Ex parte: LAND TRANSPORT AUTHORITY
Applicant
Mr. J. Apted for the Applicant
No appearance by the Respondent
Mr. H. Nagin for the 1st & 2nd Interested Party
JUDGMENT
The Land Transport Authority (the ‘applicant’) is applying for judicial review of the Arbitration Tribunal’s (the ‘Respondent’) decision/award of 28 February 2002.
The decision impugned reads:
“....in all the circumstances, I direct that the grievor is to be reinstated with effect from the date of the dismissal. In addition, she is to be paid eight (8) months arrears of salary and the balance of the period is to be deemed leave without pay.”
This Award of the Respondent is contained in Award No. 9 of 2002 by which the Respondent decided a dispute between the LTA (the applicant) and the Public Service Association (the ‘Association’) over the dismissal of Ms Melaia Baleiwai (‘MB’).
The Applicant’s grounds for challenging the decision
The grounds on which the Applicant challenges the decision are that:
The first and second Interested Parties, namely, the Public Service Association (the ‘Association’) and Melaia Baleiwai (“MB”) respectively opposed the application on the grounds, inter alia, that the Respondent’s decision is not invalid and void and does not contain any errors of law; that the discretion was properly exercised; that it did not take irrelevant matters into account and that no proper grounds for judicial review have been made out as the Respondent conducted a proper Arbitration hearing and allowed both parties to properly put forward their cases.
As ordered, all parties filed their written submissions.
Reliefs sought
The applicant seeks the following relief:
The Land Transport Authority (the applicant) is the corporate successor to the former Department of Road Transport (“the Department”). It was established by the Land Transport Act 1998 (No. 35 1998) and assumed the Department’s function with effect from 10 July 2000.
The Chief Executive in the person of Mr. Manu Korovulavula (the “CE”) was appointed earlier in October 1999 but his appointment was challenged by way of judicial review.
About the second Interested Party (Melaia Baleiwai)
The following matters pertaining to Ms Melaia (as stated in Mr. Apted’s written submissions at page 4) gave rise to a trade dispute culminating in arbitration proceedings when an Award was made:
Ms Baleiwai began work as a Clerical Officer with the Department on 11 May, 1992.
Following the settlement of the industrial problems in July, 2000, Ms Baleiwai together with other employees of the Department were accepted by the Authority as employees.
Subsequently, she received a letter of appointment signed for the Chief Executive on behalf of the Authority.
On 16 August, 2000, a letter appeared in the letters column of the Fiji Sun (“the Letter”). It was accredited to Ms Baleiwai, and S Baba (aka Safaira Tagivuni) and M Raibariki, also employees of the Authority.
The Letter lauded Mr. Tamani, the former Head of the Department for various claimed achievements in achieving the corporation of the Department. But more importantly for present purposes, it was extremely critical of the motives, personality, and suitability of the Chief Executive of the Authority, Mr. Manu Korovulavula, and of the Authority’s Board’s decision to appoint him. At the time, this appointment remained subject to the challenge by way of judicial review in the High Court by Mr Tamani. Various internal matters were referred to in the Letter.
It is alleged, inter alia, that by writing the letter the author’s (MB’s) clear intention was not only to make public matters which were internal and therefore confidential to the Authority, but also to show disrespect to and harrass the new Chief Executive, Mr. Korovulavula, as well as the Authority’s Board.
The Chief Executive caused a full investigation. The MB did not make any oral or written apology, explanation or denial of responsibility to the Chief Executive. Hence it was decided that formal disciplinary procedures should be instituted against M B.
On 18 September 2000 charges were laid against her pursuant to the Public Service Act 1999 (the ‘Act’) and the Public Service Regulations 1999. The charges 1 and 2 were respectively pursuant to section 6(11) of the Act and Regulation 22.
The said section and regulation read as follows:
s. 6(11) of the Act
“An employee must not, except in the course of his or her duties as an employee, or with the express authority of the Chief executive of his or her Ministry, department or parliamentary body, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge”.
s.6(3) of the Act
“An employee when acting in the course of employment in the public service, must treat everyone with respect and courtesy, and without coercion or harassment of any kind”.
Regulation 22
22 - (1) If the Commission is satisfied that the employee has breached the Public Service Code of Conduct, the Commission may –
(a) terminate the employee’s employment;
(b) reduce the employee’s grade;
(c) transfer or redeploy the employee to other duties;
(d) defer a merit increase in remuneration for the employee for a specified period;
(e) reduce the level of the employee’s remuneration;
(f) impose a penalty of not more than $500; or
(g) reprimand the employee.
(2) In deciding whether an employee has breached the Public Service Code of Conduct and if so what disciplinary action should be taken against the employee, the Commission must comply with the principles of natural justice.
(3) Without limiting subregulation (2), the Commission must –
- (a) allow the employee a reasonable opportunity to present information and to state his or her views about whether the employee has breached the Public Service Code of Conduct and, if so, what disciplinary action should be taken against him or her; and
- (b) consider any information presented, and any views stated, by the employee.
Contention of 1st Interested Party
For the Fiji Public Service Association (the ‘Association’) Mr. Pratap Chand, the Principal Industrial Officer of the Association filed an affidavit in support of MB.
He said, inter alia, that CE was appointed under very controversial circumstances and his action in terminating MB was ‘tainted with bias and personal vendetta and he used the opportunity to even scores. The decision to terminate M.B. was totally out of proportion to the deed of writing a letter to the Editor’.
Mr. Chand disagreed with the allegations against MB as they did not amount to misconduct of such a nature which justified summary dismissal.
The CE acted ultra vires as the power to discipline was still vested in the Public Service Commission.
Trade Dispute referred to Permanent Arbitrator
The trade dispute was lodged with the Permanent Secretary (now called Chief Executive) and after failure of the Disputes Committee to reach a consensus the trade dispute was referred to the Permanent Arbitrator (P.A.) with the following terms of reference:
“for settlement over the termination of MELAIA BALEIWAI with effect from 17th October, 2000. The Association views the actions of the Authority as harsh, unreasonable, discriminatory, unjustified and seeks her reinstatement from the date of her termination without loss of benefit.”
At the hearing the applicant adduced evidence and the Chief Executive and the parties provided written submissions to P.A.
The applicant’s view, in short is that evidence it adduced shows clearly that it has substantive justification for the dismissal in that the conduct of Ms. Baleiwai was conduct deserving of dismissal.
Whereas the Association’s view was that LTA acted beyond its powers and it did not have the authority to terminate MB and in any event the decision was unduly harsh.
The Tribunal gave the decision referred to hereabove after considering the evidence and submissions made by counsel on behalf of the parties.
Determination of the issues
(i) Principles pertaining to judicial review
In considering the application before the Court there are certain principles pertaining to judicial review which ought to be borne in mind.
It is important to bear in mind that judicial review is not an appeal from a decision but is a review of the manner in which the decision was made. It is concerned, “not with the decision but with decision-making process. Unless that restriction on the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power” (Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 1 W.L.R. 1155 at 1173]. Further in that case Lord Hailsham at 1160 commented on the purpose of the remedy under Order 53 as follows, which is apt:
“This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual, judicial quasi-judicial, and, as would originally have been thought when I first practiced at the Bar, administrative. It is not intended to take away from those authorities the powers and discretion properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner.”
Furthermore, it should be noted that in a judicial review the Court is “not as much concerned with the merits of the decision as with the way in which it was reached” (Evans, supra at 1174). Also, as put by Lord
Templeman in Reg. v Inland Revenue Commissioners, Ex parte Preston [1984] UKHL 5; (1985) A.C. 835 at 862:
“Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers.”
As was said by the Fiji Court of Appeal in The Permanent Secretary for Public Service Commission and The Permanent Secretary for Education, Women & Culture ex p. Lepani Matea Civil Appeal No. ABU0018 of 1998S at 12 that the Court:
“must not do is to determine the merits of the matter, or substitute its opinion for that of the body concerned upon the merits.”
Also to be borne in mind is that one of the purposes of judicial review is to ensure that that an applicant is given a fair treatment by the decision-making body in question. The judicial review jurisdiction is supervisory to nature. The Court confines itself to the question of legality when reviewing a decision.
(ii) Consideration of grounds of review
The applicant has raised a number of grounds for judicial review of the said decision and they are dealt with hereunder.
Is there an Error of Law?
The ground of error of law reads:
“The Respondent erred in law, misdirected itself and abused its discretion by applying the provisions of the Public Service Act, 1999 and Public Service (General) Regulations, 1999 as between the Applicant and Ms Melaia Balewai literally and as provisions of law, rather than as contractual terms and with necessary modifications”.
By memorandum of Agreement dated 28 July 2000 the parties had agreed that ‘the Public Service Terms and Conditions of Employment applicable to all staff shall continue to apply from 10 July 2000 to 31 December 2000 or until a new Collective Agreement is concluded between the Government side and the Association’.
Further, the Agreement provided that the Industrial Relations Code of Practice of 1973 or as amended from time to time was to apply.
I have considered the submissions made by both counsel on this aspect of ‘error of law’. Mr. Apted dealt with employment law principles at some length.
He said, inter alia, that ‘an employee does not have the right to be heard prior to a dismissal and there are no requirements regarding the procedure to be followed prior to a decision to dismiss and even if such procedures are set out in contractual terms, the only remedy is damages.’
Counsel further said that:
‘instead of the rigid formalistic administrative or criminal law approach, which we say he erroneously and unreasonably adopted in respect of the words used in the Charges, it is respectfully submitted he should have identified the parties’ contractual intention and upheld the Authority’s submission that that intention had resulted in enforceable contractual terms, and the contractual agreement had been performed as best they could in the circumstances.
It is respectfully submitted that the Learned Arbitrator erred in law and acted unreasonably in perceiving that in referring to the Public Service sections and regulations in the Charges, the Chief Executive was purporting to actually exercise those provisions as law and to exercise the PSC’s jurisdiction.
I find that P.A. had properly considered the provisions of the Act as reasoned out by him in his Award.
Bearing in mind the said Agreement and clause (b) of the said Industrial Relations Code of Conduct there was a correct and proper exercise of discretion on the part of the P.A.
The P.A. after considering the various sections of the P.S. Act and P.S. Regulations came to the conclusion that the ‘entire process of instituting charges against the grievor and her ultimate dismissal was fundamentally flawed.’
The P.A. goes on to say in his Award (pat p10) that:
Admittedly, it may well be that under the common law or even section 28 of the Employment Act, the grievor’s action could be characterized as serious misconduct, justifying the invocation of the CEO’s dismissal powers under his delegated authority (Exhibit 6), but regrettably this was not the basis of the Authority’s case against the grievor. In this connection the case of the State v Permanent Arbitrator – Esekaia Nawele and NUHCE Ex-parte Warwick (HBJ0019.1998) is of very little assistance to the Authority.
For completeness, in dealing with the issue of ‘error law’ I ought to state the final portion of the Award at p11 which reads as follows:
However, suffice it to say, that since the charges against the grievor are null & void and that in purporting to terminate her, the CEO was acting without jurisdiction then I have the gravest doubt that the Authority is able to prove the requirements of justification and procedural fairness.
Furthermore, the Tribunal is of the opinion that since the charges laid against the grievor are null & void and as such her dismissal would be devoid of any legal foundation, the remedy of reinstatement is fair and appropriate. In exercising its discretion to grant reinstatement, the Tribunal has also taken into careful consideration the CEO’s testimony on this specific question. It must also be remembered that the alleged actions of the grievor occurred at a time when a large number of the employees resented the statutory reforms that was taking place with the Authority. I believe that with the passage of time now, the same intensity of resentment is perhaps no longer in existence, and no doubt the workers and indeed the grievor would have come to terms with the inevitable changes in the Authority.
In the light of the fact that since all the actions taken by CE were under the P.S. Act and Regulations and MB was governed by the Public Service Terms & Conditions of Employment it is logical to conclude that in this case the disciplinary action was still vested in the Public Service Commission (the “Commission”).
On the evidence before me I do not find that there was ‘error of law’. When a point of law arises the reigning rule as stated by Wade, Administrative Law 5th Ed. at p817 is as follows and is apt to be applied to the facts and circumstances of this case:
“...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.”
The applicant has one view of the application of the Public Service Act and Regulations vis à vis the application of pure employment law as argued by Mr. Apted. The P.A. has given his own interpretation of the relevant provisions of the Act and Regulations and has reached certain conclusions as already stated hereabove.
It is my view that in the light of above-quoted ‘reigning rule’ the P.A. has come to a decision which is not ‘unreasonable’ to give rise to it being declared invalid on the ground of being an ‘error of law’.
I think this concept of ‘error of law’ as a ground for review could on the facts and circumstances of this case be properly explained and understood in so far as it is material here from the following passage from Notes. 48.1.5 Judicial Review Handbook 3rd Ed. by Michael Fordham:
“48.1.5. Need for material error of law/misdirection. R v Hull University Visitor, ex p Page [1992] UKHL 12; [1993] AC 682, 702 C-D (Lord Browne-Wilkinson, referring to a “relevant error of law, ie. an error in the actual making of the decision which affected the decision itself”; there, counsel contended that “the recent decision of this House in R v Independent Television Commission, ex p TSW Broadcasting Ltd [(1982) [1996] JR 185], has thrown doubt on the proposition that all errors of law vitiate the decision. In my judgment this is a misreading of that authority. This House was asserting that the mere existence of a mistake of law made at some earlier stage does not vitiate the actual decision made: what must be shown is a relevant error of law, ie., an error in the actual making of the decision which affected the decision itself”), applied in R v Governor of Brixton Prison, ex p Levin [1997] AC 741, 749A; R v Wolverhampton Coroner, ex p McCurbin [1990] 1 WLR 719, 730 H-731 A (Woolf LJ: “ The position here is that, in the case of any application for judicial review, the remedy is discretionary. If, albeit there has been a misdirection but the misdirection has not affected the outcome in any way, the court were to intervene, they would, in view, be misusing judicial review. Judicial review is required to put right a situation where things have gone wrong and an injustice requires to be remedied”); R v Knightbridge Crown Court, ex p Marcrest Properties Ltd [1983] 1 WLR 300 (remedy refused where errors of law in oral judgment had not affected the decision or caused any prejudice);]
Was the Chief Executive Biased?
The facts also reveal that the CE was biased against M.B. The alleged letters to Editor was critical of him and he himself went ahead and took disciplinary action against M.B. The procedure adopted by CE was highly improper and it was quite obvious that he showed his biased nature.
The grievor (MB), responded to the disciplinary charges and as stated by the applicant’s Human Resources Manager ‘following its receipt, the response was considered by a disciplinary panel and then the Chief Executive who in all the circumstances of the case decided under powers delegated to him by the Board of LTA that her employment should be terminated and MB was dismissed with immediate effect on 12 October, 2000’.
To start off with because the CE was biased against MB he should not have taken any part in dealing with the disciplinary charges against her.
In these circumstances I see no merit in the applicant’s argument that the Public Service Act and Regulations were merely used as a “convenient reference point as the source of terms and conditions which the LTA and FSPA had agreed in the Agreement should apply”. She was even warned that ‘she might be liable to one or more of the penalties set out in regulation 22 (1) of the Public Service Regulations, 1999, which included the termination of her employment.
Bias is another form of procedural unfairness. It is the appearance or suspicion of bias which counts.
In this case the CE, the decision-maker was prejudiced against his employee MB for she had written the alleged letter against CE who himself conducted the inquiry and came to the decision to terminate her employment immediately. Because of these facts CE may be led into taking into account irrelevant considerations.
The applicant was entitled to a fair hearing. Here the CE himself judged her, that is, by one who had an ‘interest’ in the matter as a consequence of the said letter to the newspaper.
One of the principles applying to a ‘judge’ or ‘person judging’ is that everyone coming before him/her has a ‘fair trial’. One of the principles is that ‘a judge’:
Must have no interest himself in any matter that he has to try. He must be impartial. No person can be a judge in his own cause..... he must not have the slightest interest in the result of the case. (Book:The Road to Justice by Sir Alfred Denning, p19, 1955).
Another matter which should have been borne in mind by the CE is that ‘justice must be seen to be done’. He should have realised that ‘if there are any grounds, which they were here, on which anyone might think that he might be biased in favour of one side or the other, he must not sit to try the case’. (Denning ibid p.23).
The following passage from Denning, ibid at p23-24 is pertinent to the facts of this case:
“If in any of the cases by some oversight he should sit and then it is discovered that there was the mere possibility of his being biased, his decision will be upset, even though the decision, as a decision, was quite correct. The reason is because it is of the utmost importance that every person should be able to feel that his case has been tried by an upright and impartial judge. It is a settled principle of our law that justice must not only be done, but it must manifestly and undoubtedly be seen to be done”.
Therefore, on ‘bias’ alone the applicant and CE’s decision to terminate can be upset irrespective of whether there was an ‘error of law’ or not.
Denial of natural justice
When the applicant decided to terminate MB’s employment she should have been accorded natural justice by being heard.
Whichever procedure was applied by the applicant including the CE’s active participation in making the decision as an interested party, the fact remains that she was not heard on punishment.
On ‘rules of natural justice’ Lord Bridge in Lloyd v McMahon [1987] UKHL 5; (1987) AC 625 at 702 stated as follows and it is pertinent:
“The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the right of individual depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.”
Similar observations were made by Lord Lane in R v Commission for Racial Equality ex parte Cottrell and Rothon (1980) 3 All E.R 265, 271 as follows:
“Indeed, all that the rules of natural justice mean is that the applicant should be treated fairly.
Accordingly, before assessing the fairness of the manner in which the decision complained of was taken..., it is necessary to analyse the context in which [it] was made and the nature of the decision.”
Further on ‘opportunity to be heard’ in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584-565 Mason J (as his Honour then was) remarked that:
“What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the rules under which the decision-maker is acting ....
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual considered in light of the statutory requirements, the interests and purposes, whether public or private or which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations....”
On the facts in this case I find that natural justice was denied MB by the applicant.
In support of this proposition I refer to the following passage in the judgment of the Supreme Court in the Permanent Secretary for Public Service Commission and The Permanent Secretary for Education, Women and Culture and Lepani Matea (Civil Appeal No. CBV0009 of 1998 at p3 Supreme Court of Fiji):
The respondent brought in the High Court judicial review proceedings against his dismissal. By a judgment delivered on 18 March 1998 Byrne J. ordered inter alia that the dismissal be quashed on the ground of the Commission’s failure to give the respondent any opportunity to be heard and also on the ground that the penalty of dismissal was too harsh. On appeal the Court of Appeal (Casey, Savage and Dillon JJ) in a judgment delivered on 29 May 1998 confirmed Byrne J’s decision on the first ground. They pointed out that what is a fair hearing depends on the circumstances of the case: a right of personal appearance need not always be given. On the second ground they thought that, on judicial review at common law, the court is limited to considering whether a penalty was so severe and out of proportion that no reasonable body could have imposed it. The second ground has not been argued in the Supreme Court so we are not concerned to consider the relevant scope of the common law as to judicial review or any constitutional question such as the right to freedom from disproportionately severe punishment (article 25(1) of the Constitution of 1998).
It is also provided in Reg 22(2) of Public Service Regulations 1999 that the respondent must comply with rules of natural justice. It provides:
“In deciding whether an employee has breached the Public Service Code of Conduct and if so what disciplinary action should be taken against the employee, the Commission must comply with the principle of natural justice.”
And the following passage from Matea (supra at p4) is pertinent where a person’s livelihood is at stake:
“There are numerous authorities establishing, at common law, that where someone’s livelihood is at stake that person is entitled to a fair opportunity of a hearing unless the relevant legislation has clearly excluded it. There is a presumption that natural justice applies; or, as Lord Reid put it in Wiseman v Borneman [1971] A.C. 298, the courts supplement procedure laid down in legislation if the statutory procedure is insufficient to achieve justice and the additional steps would not frustrate the apparent purpose of the legislation.”
Further, when a person’s livelihood is affected natural justice should be extended as shown by the following extract from Annetts v McCann 170 CLR 596 at 598, the High Court of Australia said:
“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interest and legitimate expectations the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.”
An opportunity to be heard should be accorded as Dixon CJ in The Commissioner of Police v. Tanos [1958] HCA 6; 98 CLR 383 at 395 said –
“For it is deep rooted principle of the law that before anyone can be punished and prejudiced in his person or property by any judicial or quasi judicial proceedings he must be afforded an adequate opportunity of being heard.”
In the light of the principles pertaining to natural justice its denial has led to procedural impropriety.
Relevant and irrelevant considerations
It was the duty of the Permanent Arbitrator to have regard to all relevant matters, and not to any irrelevant matters for failure to comply may render the decision invalid.
Upon perusal of the record of proceedings before me, the Permanent Arbitrator had done what was required of him with reference to ‘settlement of dispute’ referred to him.
I therefore hold that there is no merit on this ground.
Is it a case of Wednesbury unreasonableness?
The applicant asserts as one of its grounds that no reasonable tribunal would have come to the said decision.
An unreasonable decision is one which no reasonable tribunal or decision maker acting with due appreciation of his/her responsibilities would have arrived at. It is when a decision is “manifestly unreasonable” that unreasonableness is declared. It is this ground of review which was highlighted by Lord Green MR in a leading case Associated Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 K.B. 223 at 230, 233-234; hence the term “Wednesbury unreasonableness”.
The guiding principles as stated in Wednesbury at 233-234 is as follows:
“The 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 appellant 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.”
Taking into account all that I have stated hereabove on the principles involved in the matter of unreasonableness, I find that the whole approach of the Respondent to the applicant’s case has not been Wednesbury unreasonable.
The Permanent arbitrator did not act ultra vires. He properly directed himself on the relevant law and acted reasonably.
For these reasons this ground of review fails.
Conclusion
I agree entirely with the reasoning and the procedure adopted by the Arbitrator in making the Award. The applicant itself followed the provisions of the Public Service Act and Regulations in dealing with the disciplinary charges against the employer. It acquiesced in the procedure laid down in the said Regulations and therefore it cannot have any room to complain about ‘error of law’ on the part of the Permanent Arbitrator.
A somewhat similar situation as in this case arose in Fiji Islands Revenue & Customs Authority v The Permanent Arbitrator & Another (Judicial Review No. HBJ0011 of 2001S). There the principles governing employment contract was raised and argued.
In this case also, I do not see any merit in the applicant’s argument about the applicability of principles governing law of employment along the lines argued by Mr. Apted.
On the evidence before me all relevant considerations were taken into account and nothing irrelevant was introduced by the Permanent Arbitrator in considering the issue before him in line with terms of reference for his consideration. He heard submissions from both the applicant and the Interested Party (the Association).
No question of ‘Wednesbury Unreasonableness’ arises in this case on the Award. If anything it was the Chief Executive who was unreasonable in that he was biased as I have observed hereabove and he denied the employee natural justice.
Irrespective of what procedure was adopted by the Land Transport Authority on the conduct of M. Baleiwai, the fact that CE was biased against her and denied her natural justice before pronouncing termination of her employment are sufficient and strong enough grounds in themselves to quash the CE’s decision.
In these circumstances the applicant’s coming to Court for judicial review makes no sense when it itself did not give a fair hearing to its employee particularly when it affected her livelihood. It was an abuse of power on the part of CE to dismiss her from employment ‘forthwith’ without according her natural justice.
For these reasons I find that there are no merits in any of the grounds for judicial review. Not only the applicant had not accorded natural justice to the dismissed employee but also meted out a punishment which did not appear justified in the circumstances. This situation would not have arisen had the employee been heard before punishment was imposed.
The application for judicial review is therefore dismissed with costs against the applicant (Land Transport Authority) in the sum of $500.00 to be paid to the solicitors for the interested parties within 14 days.
D. Pathik
Judge
At Suva
15 September 2004
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