Solomon Taiyo Ltd v SI National Union of Workers (No 2) [1986] SBHC 20; [1985-1986] SILR 235 (3 October 1986)

1985-1986 SILR 235

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 148 of 1986

SOLOMON TAIYO LTD

v

SOLOMON ISLANDS NATIONAL UNION OF WORKERS (NO.2)

High Court of Solomon Islands
(Ward C.J.)
Civil Case No. 148 of 1986

27 August 1986 at Honiara
Judgment 3 October 1986

Trade Dispute - Unfair Dismissal - Trade Disputes Panel - procedure - whether Panel may deal with unfair dismissals where complaint registered as a trade dispute - whether Panel acted properly in consolidating unfair dismissals claims - jurisdiction of High Court on appeal from Panel - whether extends to questions of procedure

Facts:

The appellant appealed against a finding of the Trade Disputes Panel that the appellant had unfairly dismissed fifteen of its employees on the grounds that the Panel erred in treating the fifteen unfair dismissal cases as one and that the procedure adopted by the Panel was irregular and prejudiced a fair opportunity for the parties to present their cases.

The appellant had dismissed fifteen employees found drinking during working hours. The respondent protested and demanded their reinstatement. The appellant failed to reinstate them and a strike followed whereupon the appellant reported a trade dispute to the Panel alleging that the strike was unjustified. The Panel heard the matter as a trade dispute and decided that it would resolve the dispute by deciding the question of the fifteen unfair dismissals consolidated into a single hearing.

On appeal the appellant argued that these were really cases of unfair dismissal, even though registered as a trade dispute, therefore by s.6(2) of the Unfair Dismissal Act 1982 the Panel could not deal with the unfair dismissals until the trade dispute had been settled. Moreover, the Panel should not have heard the cases together because it did not consult the parties on this and because this was in fact a representative action, not a consolidated action, which prejudiced the appellant in the presentation of its case.

Held:

1. The Panel dealt with the matter as a trade dispute and a claim for unfair dismissal at the same time which is not allowed under section 6(2) of the Unfair Dismissal Act 1982. In this case, however, it was sensible and economical to consider the matter as a whole because resolution of the unfair dismissals claims would resolve the trade dispute. Moreover, the procedure adopted was clearly stated and was not prejudicial to either party.

2. Although bound by the rules, the Panel must be allowed considerable discretion as to how to inquire into a dispute and the court will not lightly interfere with such discretion.

3. Where there is a mandatory requirement, e.g., that before the Panel may consolidate cases the parties must be given an opportunity to show cause why such an order should not be made, compliance with that requirement should be clearly noted on the record.

4. Although consultation with the parties as to consolidation was not noted on the record, the general consensus of the parties regarding the procedure adopted was so noted which reflected discussion having taken place on that issue.

5. The appellant gave evidence against all the employees en bloc just as it dismissed them all en bloc and did not confine its evidence to the one employee who gave evidence. Accordingly, the appellant knew that it was a consolidated and not a representative action.

Accordingly, the appeal was dismissed.

6. (Obiter) The jurisdiction of the High Court on appeals from the Trade Disputes Panel is limited to questions of law only. Questions of procedure are in the discretion of the industrial tribunal and only genuine points of law are appealable. (Medallion Holidays Ltd v. Birch (1985) Times 15 May, EAT, as referred to in Harvey on Industrial Relations and Employment Law, Bulletin 83 (June 1985) at p.7, followed).

Cases considered:

Medallion Holidays Ltd. v. Birch (1985) Times 15 May, EAT

Kenneth Brown for the Appellant
Clement Waiwori for the Respondent

Ward CJ: This is an appeal by Solomon Taiyo against a finding by the Trade Disputes Panel on 20th December 1985 that 15 employees had been unfairly dismissed.

The Notice of Appeal dated 6th January 1986 lists 3 grounds of appeal but ground 1, which clearly relates to a question of fact, has not been pursued in this court.

The remaining grounds are:-

2. The Panel erred in treating the fifteen unfair dismissal cases as one matter and proceeded to determine the matters on that basis.

3. The procedure adopted by the Panel in determining these cases between the Applicant and Respondents was irregular and wholly prejudiced a fair opportunity for the parties to present their cases properly before the Panel.

Before considering these in detail, it is necessary to take brief note of the order of events leading up to the finding complained about.

There is a singular lack of dates on the record but, on 19th November 1985, fifteen employees of Solomon Taiyo (“Taiyo”) were dismissed for having been drinking during working hours on, it appears, the 18th November.

On 28th November the Assistant General Secretary of the Solomon Islands National Union of Workers (“the Union”) wrote to the General Manager of Taiyo in the following terms –

“Further to our discussion this morning in relation to summary dismissal of fifteen (15) workers of Soltai No.5 from your employ, it is apparent in this case that the dismissal was unfair in that:-

1. That there was no proper investigation into the matter before effecting the dismissal.

2. The Solomon Taiyo Limited had contravene regulation 8 as per working rules.

3. That the workers were not given chance to defend their case, or explain the whole situation.

(Refer Natural Justice).

Please be adviced that because of the foregone reasons, we have no alternative but seek re-instatement of the 15 workers by 8 o’clock tomorrow morning.”

It would appear there was no re-instatement and the next day, 29^th, Taiyo wrote to the Secretary, Trade Disputes Panel (“the Secretary”) enclosing the letter from the Union and stating in the second paragraph:-

“This morning at 0700 hours our workers at the Tulagi Base went on strike. As far as we are concerned there is no dispute, as the procedure for handling unfair dismissal cases are provided for under the appropriate Act.”

The letter then sets out the basis of the dismissals and concludes:-

“We wish therefore to report a trade dispute with the Solomon Islands National Union of Workers for calling our workers out on strike for unjustified reasons.”

The same day the Union wrote to the Secretary:-

“We wish to confirm that as suggested by Mr Manakako in his second paragraph of his letter of 29th November 1985, there is no Trade Dispute between both parties. The current dispute is over unfair dismissal effected by Solomon Taiyo Limited. Therefore the report should not be accepted as there was no trade dispute.”

Also on 29th there was a letter from the Secretary to Taiyo:-

“I refer to your letter of 29/11/85 reporting to the Secretary to Trade Dispute Panel the dispute between the above mentioned parties. Under Rule 3(1) for settlement. Under Rule 3(2) you are given notice that the dispute is now formally referred to the Panel for resolution, from the date of this letter.

You will be informed as soon as possible when the Panel will hear the dispute.”

Whether that was sent before or after the arrival of the letter of the same date from the Union is not clear.

The next communication appears to be from the Secretary to the Union dated 2nd December,

“I confirm, as stated to you this morning that the dispute between yourselves and Solomon Taiyo Limited was deemed referred to the Panel as of 29th November, 1985.

I understand that you have now asked the workers to return. I note that no complaints of unfair dismissal have yet been received by the Panel. This would appear to be the appropriate way of resolving the dispute.”

This was followed by one to Taiyo dated 3rd December:-

“This is to confirm to you that the Trade Disputes Panel have arranged to hear your case on 20th December 1985 at 8.30 a.m. at the Honiara Magistrate Court.

Please prepare your submissions and other relevant documents ready for that day.”
.
All these letters were copied to both parties.

It would appear that the hearing took place on 20th December.

Evidence was called by Taiyo and was followed by evidence from one of the fifteen dismissed employees.

A finding was given that day orally and delivered in writing subsequently on a date I have been unable to ascertain.

Mr Brown, for the appellant, argues (and I deal with his grounds in reverse order) in support of ground 3 that the matter was registered as a trade dispute although it was clearly unfair dismissal and the Panel purported to deal with it as the latter. However, by section 6(2) of the Unfair Dismissal Act, the Panel could not deal with it as unfair dismissal until the trade dispute had been settled.

Further, the first sentence of the record does not show clearly under which act the Panel was proceeding and it is not clear under which act the award is made in the findings of the Panel.

In support of ground 2, he says the Panel should not have heard all the cases together because the record shows no consultation with the parties on this. The Panel purported to consolidate all the actions but, in fact, this was a representative action and the uncertainty about this prejudiced the appellants in the presentation of their case.

Whilst these grounds overlap to a great extent, I shall try to deal with them separately.

Procedure is governed by the Rules under each act and rule 2 of the Trade Disputes Panel Rules, 1981, states:-

“Subject to these rules and the requirements of natural justice, the Panel may determine its own procedure”.

Similarly Rule 11(1) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules, 1983, reads:-

“(1) The Panel conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of proceedings.”

However, section 6(2) of the Unfair Dismissal Act restricts that. It reads:-

“6(2) In the case of an employee dismissed in connection with a trade dispute that is referred to the Panel, no complaint by the employee under this section may be considered by the panel while the dispute stands referred to them.”

Whilst it is clear that the Secretary was suggesting on 2nd December that this was really a case of unfair dismissal, it is equally clear that, on 3rd December, it was listed for hearing on 20th as a trade dispute.

The record of these proceedings is headed:-

“Solomon Taiyo v. S.I. National Union of Workers

(Trade Dispute)

The panel members and representative of each side are then listed and it continues:-

“Parties agree that Panel should hear case as if unfair dismissal and will abide by the award as if decisions had been reached in the ordinary way following complaints and TDP 2’s.

Taiyo agree that the 15 workers were dismissed. Burden of proving that fair is on Taiyo.”

Mr Brown suggests the use of the word “award” here suggests it was being considered under the Trade Disputes Act which requires the Panel in certain circumstances to inquire into a dispute and made an “award”.

I cannot accept that argument. The Unfair Dismissal Act also requires that where the Panel finds a complaint well founded and there is no re-engagement, it must make an “award” of compensation. The use of that word does not advance the matter one way or the other.

It seems clear on the passage quoted that the Panel was dealing with this as a case of unfair dismissal and the reference to complaints and TDP 2’s supports that view. It is also clear that Taiyo presented its evidence entirely on the basis of justification of the dismissals with no reference to a dispute.

The Findings of the Panel start:-

“A trade dispute was referred to the Panel by Solomon Taiyo Limited on 29th November, 1985. The background to the dispute was that fifteen workers had been dismissed and, in protest at this SINUW had given notice of industrial action.

The Panel finds that this is not an appropriate response in cases of alleged unfair dismissal and that, in the ordinary course of events, complaints should be brought under the Unfair Dismissal Act, 1982.

Clearly, however, this course of events amounted to a trade dispute and the Panel agreed to hear the case at the earliest opportunity. With the agreement of the Parties, the Panel decided to resolve the dispute by deciding the question of whether or not these men were unfairly dismissed. Thus, the Panel has, in effect, heard fifteen complaints of unfair dismissal consolidated into a single hearing. The Parties have agreed that our findings will be of the same effect as if complaints had been made and heard in the usual way. It appears that complaints and TDP 2’s have, in any event now been filed.”

Having then considered the main facts, the Panel moved on to rule that the dismissals as a whole were unfair and recommends that they be re-engaged under section 6(4).

The finding then concludes:-

“The Panel repeats that it does not regard industrial action as an appropriate way of resolving allegations of unfair dismissal and that, to that extent, the argument set out in the letter of 29th November, 1985, from Solomon Taiyo is, we find correct. This is particularly so if, as appears to be alleged there, the strike itself was in breach of the collective Agreement. These findings amount to an award under the Trade Dispute Act, 1981, and should be regarded as resolving the dispute. The Panel assesses its costs at $120 and orders Solomon Taiyo to pay $80 of that and SINUW $40 within 14 days.

There is a right of appeal which should be exercised, if at all, under the provisions of the Unfair Dismissal Act, 1982, rather than under the Trade Disputes Act, 1981.”

It does appear from this that the Panel was, in effect, dealing with the matter as a trade dispute and a claim for unfair dismissal at the same time. Clearly section 6(2) does not allow this. However, in order to resolve the trade dispute, in the circumstances of this case, the Panel would have needed to consider the dismissals and appear to have felt it was sensible and more economical, therefore, to consider the matter as a whole. A decision on the latter would resolve the former as was stated in the findings.

The purpose of both Acts is to provide a more flexible and informal procedure of inquiring into disputes of this nature than would be provided in the normal courts of law. The Trade Disputes Panel was set up with this in mind. Similarly the flexibility given to the Panel in relation to procedure aims to achieve the same purpose.

Whilst they are, of course, bound by the rules, the Panel must be allowed considerable discretion as to the best manner of inquiring into a dispute especially where the parties are not represented by lawyers. This court will not lightly interfere with such decision. In this case they should, strictly, have heard the trade dispute before the claim for unfair dismissal but the procedure they adopted was manifestly sensible, clearly stated and I do not accept (despite the magnanimous concern for the respondents shown in ground 3) that either party was prejudiced in any way.

The appeal on ground 3 is dismissed.

Ground 2 deals with the question of consolidation.

Mr Brown does not dispute the Panel has power to consolidate actions. He makes two complaints, first, that there was no consultation and, second, that this was a representative action not consolidation and, as a result of the uncertainty about this, the appellants were unable to present their case.

Rule 15 of the Unfair Dismissal Rules gives the Panel power to consolidate subject to the proviso:

“Provided that the Panel shall not make an order under this Rule without giving to all parties an opportunity to show cause why such an order should not be made.”

It is correct, as Mr Brown, points out, that the beginning of the record does not mention such an opportunity being given. However, the third paragraph of the Findings (above) suggests that agreement was sought. It is important that, where there is a mandatory requirement such as this, the Panel should ensure it is noted clearly in the record. In this case it is not stated but I feel satisfied the general description of consensus between the parties reflects a discussion having taken place and clearly this would have formed part of that discussion.

Mr Brown’s complaint that this was a representative rather than a consolidated action appears to hinge on the fact that only one of the employee gave evidence.

The Panel had no doubt they were dealing with a consolidated action and the evidence led by Taiyo related to all the dismissed men en bloc in the same way as they dealt with them at the time of the incident - the main basis of the Panel’s finding against them. Far from showing uncertainty, it is clear Taiyo realised they were dealing with a consolidated claim.

The appellants say that the talk of consolidation led them to expect all the employees to give evidence and that they would thus have a “crack” at each one (as Mr Brown puts it).

Whilst the silence of the remaining employees may have been frustrating for Taiyo, the burden was on Taiyo to prove that the dismissals were unfair. This they sought to do in relation to all fifteen dismissed employees. There was no obligation on any of the employees to give evidence. The fact only one chose to do so does not mean he was a representative of the others. There is no suggestion at any stage that he was appearing on behalf of the others.

Had there been, no doubt Taiyo would have confined their evidence to his case as in a representative action. Why the others chose not to give evidence is something about which I cannot speculate but the appellants had no reason to assume that each would submit himself to cross-examination. The fact that all but one chose not to do so did not alter the nature of the proceedings.

There is no merit in ground 2.

The appeal is dismissed with costs to the respondent to be taxed if not agreed.

Before leaving this case, I would add the following note.

Appeals lie to this court on a question of law only. Recent authorities in England have appeared to accept that decisions of the Panel on procedure were an exception to this rule.

However, it would appear that the decision in Medallion Holidays Ltd v. Birch has taken a stricter view.

I have been unable to see a report on this case and have only seen a reference to it in Harvey on Industrial Relations and Employment Law, Bulletin 83 (June 1985) p. 7:

“Medallion Holidays Ltd v. Birch (1985) Times 15 May, EAT

The current emphasis by the Court of Appeal and the Employment Appeal Tribunal on only genuine points of law being reviewable on appeal from an industrial tribunal pervades almost all of modern employment law. Paradoxically, however there appeared to be an exception that decisions of a tribunal on matters of procedure were fully reviewable on appeal, even though the industrial tribunal rules seemed to put procedure (above all things) into the discretion of the tribunal: Dean v. Islamic Foundation [1983] ICR 36, CA; British Library v. Palyza [1984] ICR 504, EAT. However, the Employment Appeal Tribunal in the instant case has held that this view is mistaken and that nothing in those cases cuts down the basic principle that in any appeal an error of law is necessary before the Employment Appeal Tribunal can interfere. As no such error had been shown on the facts, the appeal was dismissed.”