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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
Action No. HBJ 22 of 2008
STATE
-v-
ARBITRATION TRIBUNAL
a tribunal duly constituted under the Trade Disputes Act to adjudicate
on trade disputes referred to it by the Chief Executive Officer for the
Ministry of Labour in relation to an Award made by the Tribunal on 19 May 2008.
EX-PARTE SUVA CITY COUNCIL
a duly incorporated body constituted under the Local Government Act, Cap 125.
________________________________________
BETWEEN:
SUVA CITY COUNCIL
Applicant
AND:
THE ARBITRATION TRIBUNAL
First Respondent
AND:
THE LAND TRANSPORT AUTHORITY
Second Respondent
AND:
REENA MAUREEN NARAYAN
Third Respondent
Coram: Hickie, J
Date of Hearing: Wednesday, 6 August 2008
Appearances: Mr. N. Lajendra for the Applicant
Ms. S. Serulagilagi for the First Respondent
Mr. S. Singh for the Second and Third Respondents
Date of Decision: Friday, 15 August 2008
DECISION
THE APPLICATION AND AFFIDAVITS IN SUPPORT
[1] This is an application by SUVA CITY COUNCIL (“the Applicant”) filed on 4 July 2008 in the High Court at Suva, seeking:
1. That Leave be granted to apply for Judicial Review pursuant to Order 53 Rule 3 (2) of the High Court Rules in respect of the award of the Arbitration Tribunal (First Respondent) dated 19 May 2008 as follows –
(i) The summary dismissal of the Third Respondent was unlawful and unjustified;
(ii) The Third Respondent is to be re-instated with immediate effect without loss of pay and benefits;
(iii) The Third Respondent’s future employment with the Applicant is to be determined by her medical condition, available work and the provisions of the Collective Agreement in consultation with the Second Respondent; and
2. An Order of Certiorari to remove the said Award into this Honourable Court and the same be quashed and/or set aside;
3. A Declaration in any event that the said Award contained errors of law on the face of the record and/or was unreasonable and/or failed to take into consideration and/or give adequate consideration to relevant matters and/or took into account irrelevant matters; and
4. An Order that the Third Respondent’s termination of employment was justified in the circumstances;
5. Further declarations or other relief this Honourable Court may deem just; and
6. Costs of this action.
[2] The Grounds of upon which the Applicant is seeking relief were also filed on 2 July 2008 and are set out as follows:
1. “First Cause of Action: Failed to take into consideration and/or give adequate consideration to relevant matters, and took into account irrelevant matters”;
2. “Second First Cause of Action: Unreasonableness”;
3. “Third Cause of Action: Misdirection on issue of Law”.
[3] The Applicant also filed on 2 July 2008 an Affidavit in support from ILITOMASI VERENAKADAVU deposing in summary as follows:
(a) That he is the Town Clerk/Chief Executive Officer of the Applicant;
(b) That he has set out a chronology of events relevant to the Applicant’s application; and
(c) That the Applicant seeks judicial review of the First Respondent’s Award and prays for the Orders set out in the Application for Leave.
NOTICE OF OPPOSITION AND AFFIDAVITS IN SUPPORT
[4] The First Respondent filed a Notice of Opposition as did the Second and Third Respondents who filed a joint Notice of Opposition.
[5] The Grounds of Opposition of the First Respondent (the Arbitration Tribunal) were filed on 7 July 2008 and set out as follows:
“1. The Applicant does not have an arguable case established on any of the grounds sought for Judicial Review of the relevant decision.
2. This is not a proper judicial review but rather an appeal.
3. The Respondent submits that this Application for Judicial Review is an abuse of the process of the Court and it therefore should be struck out.”
[6] The Grounds of Opposition of the Second Respondent (the Suva City Council Staff Association) and the Third Respondent (Reena Maureen Narayan) were filed on 8 July 2008 and set out as follows:
“1. That the Tribunal acted reasonably and fairly when it held that the 3rd Respondents [sic] summary dismissal was unlawful and unjustified.
2. That the Tribunal acted reasonably and fairly when it held that the 3rd Respondent is to be reinstated with immediate effect without loss of pay and benefits.
3. The Tribunal acted reasonably and fairly when it held that the 3rd Respondents [sic] future employment with the Council is to be determined by her medical condition, available work and the provisions of the Collective Agreement in consultation with the Association.
4. The Applicant does not have an arguable case established on any of the grounds sought for judicial review of the relevant decision.
5. The 2nd and 3rd Respondents submit that this Application for Judicial Review is frivolous and vexatious and therefore it should be struck out.”
HEARING OF APPLICATION FOR LEAVE
[7] The matter was listed on an inter-partes basis on 6 August 2008 to hear from the respective parties as to whether they wished to add anything further in relation to their submissions.
[8] Counsel for the parties spoke to their material previously filed as set out above.
[9] In addition, Counsel for the Applicant tendered “Skeleton Submissions” which he then addressed.
[10] The Skeleton Submissions on Leave by the Applicant filed in Court on 6 August 2008 emphasised (amongst other matters):
(a) That the Applicant is only required to establish that it has an arguable case to obtain leave based on the following –
(i) That the First Respondent failed to take into account relevant matters and/or give adequate consideration to relevant matters;
(ii) That the First Respondent took into account irrelevant matters;
(iii) That the First Respondent was unreasonable; and
(iv) That the First Respondent had misdirected himself on the issue of law.
(b) That the First Respondent misdirected himself in law and had not applied the correct test for determining that the summary dismissal of the Third Respondent was unlawful and unjustified. That is, instead of determining that issue from a no reasonable employer approach, the First Respondent determined the issue by making reference to the Applicant: see State v Arbitration Tribunal, Ex parte Fiji Electricity Authority (Unreported High Court, Civil Action No.HBJ 45 of 2005, 29 November 2006, Singh J).
(c) That the First Respondent applied the wrong test on reinstatement. Instead of applying an objective test, he applied a subjective test: see State v Arbitration Tribunal, Ex parte Fiji Electricity Authority (supra).
(d) That the First Respondent misdirected himself in law when he acted outside his terms of reference by taking into account the Third Respondent’s medical condition. If the First Respondent was convinced that the Third Respondent was to be reinstated, then the Terms of Reference required him to reinstate her to her substantive position and not order that her future employment with the Applicant be determined by her medical condition and available work: see State v Arbitration Tribunal, Ex parte Fiji Electricity Authority (supra).
[11] The matter was then adjourned with the parties advised that judgment would be on notice.
THE LAW
[12] The Court notes that an extensive judgment was handed down recently by the Court of Appeal in relation to a case of summary dismissal and a decision of the Arbitration Tribunal to order reinstatement: see Life Insurance of India v Arbitration Tribunal & 2 Ors (Unreported, Court of Appeal Fiji Islands, No.ABU0069 of 2006S, 17 July 2008, Byrne, Hickie and Bruce JJA). In considering the present Application for Leave, I have drawn upon the reasoning of the Court of Appeal.
[13] In Life Insurance of India v Arbitration Tribunal, the Court of Appeal noted that the learned judge in the High Court when examining the powers of the Tribunal to order reinstatement found that:
“within the strictures of the law relating to judicial review ... he could find nothing wrong with the Tribunal's reasoning or decision ... that a prudent employer acting reasonably and taking into account the relevant circumstances should have concluded that a lesser penalty was appropriate.”
And further:
“The real question, which the judge emphatically answered against the position taken by the Appellant, was whether there was anything wrong with the reasoning of the Tribunal in making the finding that it did.
[14] In Life Insurance of India v Arbitration Tribunal, the Court of Appeal was referred by Counsel for the Appellant employer “to a series of decisions of Fijian courts which considered whether, on the specific circumstances of the case under consideration, summary dismissal was justified”. The cases cited included:
(a) Varea v Fiji Times Ltd [2001] FJCA 16 “a case of gross dereliction of duty resulting in actual loss to the employer”;
(b) Bula v Housing Authority [2004] FJCA 41 “the employee was in a position of substantial responsibility and granted or restructured loans in direct contravention of well-established instructions” such that the Court of Appeal held “that the conduct amounted to grave and serious misconduct justifying summary dismissal”;
(c) Diners Club (NZ) Ltd v Prem Narayan (Civil Appeal ABU 4 of 1996), “the employee failed to disclose the reasons for leaving his previous employment” when “appointed to a position of high responsibility as the Fiji manager of ... an internationally-recognized credit card business”. The case concerned “the common law position about dismissal upon payment in lieu of notice”;
(d) Narayan v Westpac Banking Corporation [1996] FJCA 11, whereby “a bank manager who, contrary to standing instructions, mishandled a series of cheques over a substantial period of time and exposed the bank to risks of the order of $756,000”. Again, “the contract of employment was a purely common-law contract and had little to do with collective bargaining which might have attracted considerations similar to the ... Trade Disputes Act”;
(e) Awadh Narayan Singh v Fiji Posts & Telecommunications Ltd (Civil Action 210 of 1994) where a postal officer “faced summary dismissal for tampering with the mail”. As the Court of Appeal in Life Insurance of India noted:
“On any view, the case involved blatant dishonesty in that the plaintiff was caught red-handed when he was seen tampering with the mail. Small wonder he was dismissed. It is even less of a surprise that the courts upheld the dismissal.”
[15] Upon reviewing the above cases, the Court of Appeal in Life Insurance of India v Arbitration Tribunal, noted:
“ ... this possibly over-brief summary of the authorities referred to this Court demonstrates clearly how cases of summary dismissal are highly fact-sensitive ... Although there is a degree of artificiality in constructing any comparative table of gravity of conduct by employees, in regard to the cases cited ... we do not think that the conduct of Ms Kolikata was anything near the scale of the cases to which we have made reference. That, of course, does not finally address the issue of whether the learned Arbitrator was correct in his determination that summary dismissal was harsh, unjust and unreasonable. (My emphasis)
It must not be forgotten that this is an appeal from an application to judicially review the Arbitration Tribunal. All that we need to determine is whether the conclusion of the Arbitration Tribunal that the termination of employment was harsh and unjust, if correct in law, was on the facts found by the Tribunal within the range of conclusions realistically open to him. We have not the slightest hesitation in saying that it was well within the range of conclusions which the Tribunal could have reached.
Clearly in the context of more general terms and conditions awards, the Arbitration Tribunal would appear to be permitted by long-standing practice to interfere with the terms and conditions of employees. In other words, an employer in the position of the Appellant does not have complete freedom of contract to deal with its employees. While there is no doubt that the common law and many of the principles of the law of contract will inform the manner in which an Arbitration Tribunal proceeds, it is plain that the Tribunal is entitled to make awards outside that which would normally be within the ambit of a common law arrangement. Generally speaking the Arbitration Tribunal is empowered to make an award in a trade dispute connected with the employment, or with the terms of employment and to make orders incidental thereto. As mentioned above the dispute is referred to the Tribunal for settlement: section 5A.”
[16] In this regard, the present case again highlights the need not only for the Fiji law Reports to be kept up to date, but for all judgments of the Court of Appeal to be on a Court web site as well as on Paclii as soon as they are handed down so as to assist the profession as to the current developments in the jurisprudence of the Court. Hopefully, we will see a new system implemented for the final sittings of the Court of Appeal for 2008.
[17] Returning to the current Application for Leave, the brief background to the dispute is:
(a) That the Third Respondent (REENA MAUREEN NARAYAN) was recruited by the Applicant on 7 May 1990;
(b) That on 7 April 2003, the Third Respondent tripped over a telephone wire at work and allegedly suffered injury to her spine;
(c) That between 8 April 2003 and 11 August 2003, the Third Respondent was seen by a Dr SANIVALATI VEITOGAVI who provided medical certificates that she was deemed unfit for work;
(d) That on 16 August 2003, the Third Respondent was seen by Dr SITI VUDINIABOLA and deemed unfit for employment until 31 August 2003;
(e) That on 24 September 2003, the Third Respondent was review by another medical practitioner at Suva Private Hospital and deemed fit to resume work on light duties;
(f) That on 12 August 2004, Dr E.D. TALOGA, wrote a report that he considered that the Third Respondent had suffered “only a 5% permanent incapacity”;
(g) That between 22 November 2004 and 3 March 2005, worker’s compensation was offered of $3,902.73 which the Third Respondent rejected;
(h) That on 4 October 2005, the Third Respondent instituted civil proceedings for personal injury under the common law;
(i) That on 1 September 2006, Dr E.D. TALOGA, wrote a further report that he considered that the Third Respondent had suffered “only a 5% permanent incapacity”;
(j) That on 3 October 2006, the Applicant formed an Investigation Committee to look into matter with a report completed submitted on 12 February 2007 followed by an ongoing dispute between the Applicant and the Third Respondent as to basis of the Committee;
(k) That on 18 May 2007, Coventry J in High Court at Suva awarded the Third Respondent $385 in damages;
(l) That on 25 May 2007, the Applicant dismissed the Third Respondent;
(m) That on 27 June 2007, a trade dispute was reported by the Second Respondent (Suva City council Staff Association) on behalf of the Third Respondent as provided for under the Trade Disputes Act (Cap. 97), and the matter was then referred, on 19 July 2007, to a Disputes Committee;
(n) That subsequently, the Minister authorised that the dispute be referred to an Arbitration Tribunal for settlement pursuant to section 6(1) of the Trade Disputes Act (although, as the decision of the Tribunal notes, there is nothing in the reference as to why it was not referred pursuant to section 5(a)).
(o) That on 19 May 2008, the First Respondent (the Arbitration Tribunal) delivered its award:
(i) The summary dismissal of the Third Respondent was unlawful and unjustified;
(ii) The Third Respondent is to be reinstated with immediate effect without loss of pay and benefits;
(iii) The Third Respondent’s future employment with the Applicant is to be determined by her medical condition, available work and the provisions of the Collective Agreement in consultation with the Second Respondent.
[18] The Suva City Council has now applied for Leave pursuant to Order of 53, Rule 3 of the High Court Rules for leave to judicially review the award of the Arbitration Tribunal.
[19] It is noted that in applying for leave to judicially review the Arbitration Tribunal, the Applicant:
(a) dismissed the Third Respondent on 25 May 2007;
(b) is presently liable as per the orders of the Tribunal (of 19 May 2008) to reinstate the Third Respondent with immediate effect without loss of pay and benefits; and
(c) has not asked for a stay of the orders of the Tribunal.
[20] In view of the above, it is presumed (particularly as no stay was sought or granted by the Tribunal) that the Applicant has abided by the award of the First Respondent and that the Third Respondent has been reinstated “with immediate effect without loss of pay and benefits”. In this regard, it is noted that Section 24 of the Trade Disputes Act states:
“Award may be retrospective
24. Any award or agreement concerning a trade dispute which is made or effected by the Permanent Secretary, a Tribunal or otherwise, may be made so as to have retrospective effect.”
[21] If I have understood the submissions of the Applicant correctly, the thrust of their Application is that the Arbitration Tribunal erred in law in ordering reinstatement and, in so doing, by adding the condition that the “Third Respondent’s future employment with the Applicant is to be determined by her medical condition, available work and the provisions of the Collective Agreement in consultation with the Second Respondent”.
[22] Whilst I agree with the submissions of Counsel for the Applicant that it is not a high standard through which the Applicant must pass to be granted leave, that is, there is an arguable case (see R v Commissioner for the Special Purposes of the Income Tax Acts; ex parte Stipplechoice Ltd [1985] 2 All ER 465), it is important to recall on what grounds leave should be granted to apply for judicial review: (see para 53/1-14/12 from the 1988 White Book (Supreme Court Practice, vol. 1, Sweet & Maxwell Ltd, London, 1987) pages 796-798, which states that “the grounds on which judicial review can be granted fall under the following main headings” :
“1. Want or excess of jurisdiction ... “;
“2. Where there is an error of law on face of the record ...”;
“3. Failure to comply with the rules of natural justice ...”;
“4. The Wednesbury principle ...”;
“5. Court’s discretion ...”
[23] Returning to the First Ground upon which the Applicant is seeking relief, that is, that the Tribunal “failed to take into consideration and/or give adequate consideration to relevant matters, and took into account irrelevant matters”, despite the Applicant’s extensive submissions in support (points 1-4), it is the view of this Court that such detail instead supports what Counsel for the Respondents have submitted, that is, that the Applicant “does not have an arguable case” and it ” is not a proper judicial review but rather an appeal”. (My emphasis)
[24] As for the Second Ground upon which the Applicant is seeking relief, that is, “unreasonableness”, it is important to set out in full the Applicant’s short reasoning:
“That the decision of the First Respondent to reinstate the Third Respondent in all the circumstances was unreasonable, inconsistent with decision of the High Court in Civil Action No. 495/05 and the Awards delivered by the First Respondent in other similar cases and therefore flawed.”
[25] In dismissing this ground, the Court refers to the recent decision of the Court of Appeal in Life Insurance of India v Arbitration Tribunal (supra) set out above.
[26] As for the Third Ground upon which the Applicant is seeking relief, that is, “Misdirection on issue of Law”, again, it is important to set out in full the Applicant’s short reasoning.
1. “The Tribunal has concluded that the summary dismissal ... was unlawful and unjustified. The Tribunal is satisfied that there is no evidence that the Grievor would not continue to have the trust and confidence of the Council. As a result the Tribunal has concluded that re-instatement is appropriate in this case ...”
2. “The Grievor’s future employment with the Council is to be determined by her medical condition, available work and the provisions of the Collective Agreement in consultation with the Association.”
[27] On this ground, the Counsel for the Applicant directed his “Skeleton Submissions” as noted above. In support of the first part of this ground, Counsel submitted that the First Respondent applied the wrong test on reinstatement which should have been an objective test citing State v Arbitration Tribunal, Ex parte Fiji Electricity Authority (supra).
[28] In dismissing the first part of this ground, again the Court refers to the recent decision of the Life Insurance of India v Arbitration Tribunal (supra) set out above. In addition, the Court notes on page 6 of the decision, as Counsel for the First Respondent noted in her oral submissions the Tribunal stated that: “the question for the Tribunal to determine is whether the Council genuinely and honestly believed on reasonable grounds that the Grievor attempted to mislead”. What the Tribunal was saying was that the “genuine and honest belief” had to be reasonable, that is, an objective test. Further, the Court notes that on page 7 of the decision, the Tribunal whilst perhaps not spelling out in exact words that is was applying objective test made explicit reference to “common knowledge” and the reference to “an injured worker who is contemplating a claim of compensation” and that “under such circumstances it is not unusual for there to be a discrepancy in the assessment of disability by medical practitioners”. For these reasons, the first part of this ground is rejected.
[29] In support of the second part of this ground, Counsel for the Applicant submitted that the First Respondent by taking into account the Third Respondent’s medical condition acted outside of the terms of reference which was restricted the Tribunal to consider whether to reinstate the Third Respondent to her substantive position and not order that her future employment with the Applicant be determined by her medical condition and available work again citing State v Arbitration Tribunal, Ex parte Fiji Electricity Authority (supra).
[30] This is, perhaps, on the face of the material currently before me, the only ground upon which the Applicant has an arguable case. My understanding (from the chronology as set out earlier above) is that on 24 September 2003, the Third Respondent was reviewed by a medical practitioner at Suva Private Hospital and deemed fit to resume work on light duties which she then did. Presumably, she fulfilled such light duties from that date until her dismissal on 25 May 2007.
[31] The problem is this, according to Counsel for the Applicant, as the Arbitrator’s Award noted at page 2:
"The Dispute was referred to the Permanent Arbitrator on 8 November 2007 with the following terms of reference:
‘... over the termination of employment of Ms Reena Maureen Narayan with effect from 25 May 2007. The Association claims that the termination is unlawful, unjustified and unwarranted and therefore seeks her re-instatement to her substantive position without any loss of pay and benefits from the date of termination’".
[32] In response, it was submitted by Counsel for the First respondent in her oral submissions, that the first paragraph of the Award was the decision and the second paragraph was purely guidance being provided by the Tribunal. Counsel for Second Respondent agreed, stating in his oral submissions that surely this was just the Arbitrator stating the law, that is, that the Third Respondent’s reinstatement is obviously subject to the operation of the Award. As such, Counsel submitted, this was not outside the provisions and of no effect.
[33] I am prepared to allow judicial review noting there is an arguable case that "there is an error of law on face of the record" in relation to the Award made by the Tribunal. I note that none of the Counsel before me referred to any case law on the issue and it may well be that the Applicant has an arguable case in that while the Arbitration Tribunal found in favour of reinstatement to her substantive position, it is up to the Applicant and the terms of the Collective Agreement it has with the Second Respondent as to how that is to be implemented not for the Tribunal.
[34] I have not, however, been requested by the Applicant to grant a stay of the Award and decline to do so. As such, the Applicant is put on notice that time is running and should the Application for Judicial Review ultimately fail, then the Third Respondent will be entitled to the fruits of her Award in the Tribunal, that is, to be re-instated with immediate effect without loss of pay and benefits" which will be, as the terms of reference noted, "from the date of termination".
[35] In granting leave for judicial review, I must mention that I was concerned at the action of the Applicant (as set out in the Award of the Arbitration Tribunal) that when the Third Respondent "rejected the offer of a workers compensation lump sum payment and exercised the option of proceeding to claim for damages in the High Court", this was followed by the Applicant continuing with its own investigation of the Third Respondent. As the Tribunal concluded at page 8 of the Award:
"However, it was not until 3 October 2006 that the Council advised the Grievor that she was to be investigated for misleading the Council in dealing with medical reports.
The Tribunal is left with the conclusion that the Council only took that step after the Grievor had declined the workers compensation lump sum offer [10/02/2005] and had commenced common law proceedings [04/10/2005] in the High Court for damages." (My emphasis)
[36] Even if this conclusion is not correct, it is surprising that the Applicant continued with this investigation whilst common law proceedings were pending in the High Court. In this regard, I note, as I have recently mentioned elsewhere (see Singh v Commander Naupoto & 2 Ors (Unreported, Civil Action No. HBC 199 of 2008, 8 August 2008, Hickie J) that there is a "public interest in preventing the application of pressure to the parties to pending litigation": Attorney-General v Times Newspapers Ltd (1973) 3 All ER 1136 at 1145h. Indeed, "What is not permitted is an attempt to break the deadlock by applying pressure to one party with a view to inducing him [or her] to settle" (page 1146a), and if such "interference is intended" and "would create a serious risk of interference with ... freedom of action in the litigation" then "it would therefore be a clear contempt" (page 1146c-d). I am not saying that this has happened in the present case, but in the course of the judicial review I will be interested in the views of Counsel for the respective parties as to the behavior of the Applicant during that time and what action, if any, the Arbitrator should have taken upon becoming aware of it.
[37] Accordingly, the Orders of this Court are as follows:
Thomas V. Hickie
Judge
Solicitors:
Lajendra Law, Barristers and Solicitors, Suva, for the Applicant
Attorney General’s Chambers, Suva, for the 1st Respondent
Kohli and Singh, Barristers and Solicitors, Suva, for the 2nd and 3rd Respondents
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