Public Employees Union v Rakai [2005] FJHC 472; HBC0442.2005 (6 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0442 OF 2005

BETWEEN:

PUBLIC EMPLOYEES UNION
PLAINTIFF

AND:

MERESEINI RAKAI
1ST DEFENDANT

SUNIA CAMA
2ND DEFENDANT

Mr. A.K. Narayan for Plaintiff
Mr. D. Sharma for 1st Defendant
No Appearance for 2nd Defendant

Date of Hearing: 16th September 2005
Date of Decision: 6th October 2005

DECISION ON INTERLOCUTORY INJUNCTION

The first defendant was appointed General Secretary of the plaintiff union for a period of three years from 9^th August 2002 to 8^th August 2005. However, before the expiry of the three years she got sick. This was about 22^nd May 2005. The sickness was both lengthy and serious. She was given sick leave with pay. While she was away on sick leave, an interim secretary was appointed.

The plaintiff attempted to obtain first defendant’s medical certificate probably to assess her fitness to resume duty. The plaintiff was not successful in doing so as the first defendant did not want the hospital to release such information – see annexure DK-2 to affidavit of Dauniyatu Kautoga sworn on 1^st September 2005.

On 23^rd August 2005, the plaintiff terminated the services of the 1^st defendant. The first defendant’s reaction to the letter was not only uncharacteristic but also sharp and severe. She engaged the services of a security firm run by the second defendant, went to the plaintiff’s offices and proceeded to terminate eleven persons including the President and the interim Secretary of the Union. These eleven persons were locked out of the Union Office.

On 1^st September 2005, the plaintiff filed a writ of summons with only an endorsement together with an ex-parte summons seeking certain injunctory reliefs. I granted the interlocutory orders ex-parte on 1^st September 2005.

The first defendant is seeking to have the orders dissolved. The parties have filed following affidavits.:

(a) of Dauniyatu Kautoga filed on 1^st September 2005
(b) of Mereseini Rakai filed on 9^th September 2005
(c) of Mereseini filed on 14^th September 2005
(d) of Dauniyatu Kautoga filed on 14^th September 2005.

Since this is an application for interlocutory the usual principles of American Cyanamid v. Ethicon – 1975 1 ALL ER 505 guide the courts in considering such applications.

Mr. Sharma for the first defendant conceded that the material disclosed in the affidavits raised serious issues. The cause of action is in trespass according to the plaintiff. The defendant on the other hand asserts that she had the right to be on the premises because her termination of employment was not in accordance with the Constitution of the Union and unlawful. Hence the second possible serious issue which would need to be adjudicated upon as whether the first defendant’s termination of employment was unlawful. At this stage of proceedings I do not have to go further into the merits of the respective positions taken up by the parties.

Having come to the conclusion that the affidavits have raised serious issues, I have to consider whether damages would be an adequate remedy and if so whether the first defendant is in a position to pay.

I was told from the bar table that the plaintiff is one of the largest unions in Fiji having about 5000 members. The strength of a union lies in its membership and ability to retain membership which often depends on confidence members have in the executive committee. The first defendant’s medical report (annexure A) to first defendant’s affidavit sworn on 9^th September 2005 is guarded in what it states. It suggests that the first defendant needs to take things lightly for the time being, hardly a satisfactory state of affairs for Secretary of a large union. The report does not eliminate recurrence of psychiatric problem. Additionally the first defendant was on leave for three months prior to her termination and she would lack some knowledge of recent events at the plaintiff union. The Secretary would need to maintain records and register of members and carry out a large number of tasks. Given that the first defendant suffered from some form of psychiatric problem and the magnitude of the responsibilities the General Secretary has to conduct and the fact the medical report is equivocal, I consider that irreparable damage could be done to the Union. The first defendant further has the added difficulty in giving undertaking as to damages. The defendant on the other hand being a large union with fixed assets and regular membership fees is in a far better position to give an undertaking as to damages and be able to pay should it turn out at trial that it erred in obtaining the interlocutory injunction.

Some of the matters I have referred to also impinge on the balance of convenience. I believe the status quo should be maintained as it affects only the interest of one person compared to the twelve she tried to oust. Their families would be affected as well. If the first defendant believes her termination was unfair or wrong she can appeal to the Annual or Extraordinary General Meeting as stated in Clause 40 of the Constitution.

However I believe that to organize such a meeting is quite a mammoth task with membership scattered all over Fiji and the expenses involved are considerable. I believe that the costs involved in conducting such an exercise would far exceed damages, which the first defendant if she succeeds in unfair dismissal claim, will probably be awarded by the court. The most sensible course of action for the parties I suggest is to reach some form of a compromise.

The facts of this case and the balance of convenience militate against dissolution of the injunction. The application for dissolution therefore fails. The first defendant is to pay plaintiff costs in the sum of $400.00.

[ Jiten Singh ]
JUDGE

At Suva
6^th October 2005