National Bank of Solomon Islands Ltd v Trade Disputes Panel [1999] SBHC 97; HC-CC 267 of 1999 (29 September 1999)

High Court of Solomon Islands

Civil Case No. 267 of 1999

NATIONAL BANK OF SOLOMON IS

v

TRADE DISPUTES PANEL

High Court of Solomon Is

Before: Kabui, J

Civil Case No. 267 of 1999

Hearing: 27^th September, 1999

Judgment: 29^th September, 1999

A. Radclyffe for the Applicant

1"> Respondent not represented

JUDGMENT

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> (F.O. Kabui, J):

The Facts

The Law

The panel is empowered to hear and determine unfair dismissal caseer section 6(1) of the Unfa Unfair Dismissal Act (Cap. 77). The legal obligation of the Panel to make a decision in unfair dismissal cases is contained in subsections 4 and 5 of section 6 above. Subsections 4 and 5 state–

“(4) lf the Panel-

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(a) find the complaint is well-founded; and

(nsider that it would be both practicable and fair forr for the complainant to be re-engaged by the employer,

the Panel must make a recommendation to that effetating the terms on which tich they consider that it would be reasonable for the complainant to be re-engaged.

(5) lf the Panel find that the complaint is well-founded but either -

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(a) do not make a recommeon under subsection (4); or); or

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(b) having made a recommendation, it is not complied with,

the Panel must make an award of compensation to be o be paid by the employer to the complainant in respect of the dismissal, unless the complainant has been re-engaged by the employer on terms which the Panel consider reasonable.”

The Unfair Dismissal Act above is however silent upon the time within which the Panel must make a decision. However, section 54(1) of the Interpretation and General Provisions Act (Cap. 85) says that “Where no time is prescribed in an Act for the doing of any act or thing, it may or shall be done, as the case may be, with all convenient speed and as often as the occasion arises”. I think in practical terms, this means the doing of any act or thing must be done within a reasonable time. Then there is the question of whether or not the Panel as a statutory body can be forced to perform a public duty by way of an order for mandamus. This is not the first time that an application for an order for mandamus is being made against the Chairman of the Panel. The first time was the case of George Kuper v The Trade Disputes Panel (Civil Case No. 257/97) where Awich, J. granted an order for mandamus in His Lordship's Judgment delivered on 27th March, 1998. Awich J. also dealt with the law applicable in this sort of cases in England. At page 2 of the judgment, Awich J. said “The first legal issue is whether mandamus is available against the Panel. Mandamus may issue only when a person or body is required to perform a public duty. It is most commonly used to compel the exercise of discretion required to be made by a person or body performing public duty. An example is order compelling a subordinate court to do its work, not to compel it to make a particular decision - see R -v- Graham Campbell Ex Part Herbert [1963] 1 WLR279 ... The order of mandamus can issue to compel statutory tribunals that exercise some judicial discretion such as the Trade Dispute Panel does, to discharge its duty, if the tribunal refuses, ignores or neglects its duty. see The King v Housing Tribunal [1920] 2 KB 334. There are numerous cases of mandamus having issued against bodies created by statutes.... The order of mandamus is discretionary and consideration may be given to factors such as whether the applicant has other remedies or has made demand for the performance of the duty he has applied to compel. The second case was Mark Maesimae v Trade Disputes Panel (Civil Case No. 281/97) where Awich J. again granted an application for an order for mandamus against the Trade Disputes Panel. In both these cases the reason for applying for an order for mandamus was the same. That is, the Trade Disputes Panel had not made its decision as expected of it by the law for excessive periods of time.

Conclusion

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This is the third time. History ry repeats itself. Again, the Trade tes Panel has not made a de a decision since the 16th July 1997, the date it promised to hand down its decision. The affidavit filed by Mr. Titiulu on 17 August 1999 speaks for itself. That is, despite his telephone calls and a written letter dated 8th June 1999, addressed to the Secretary to the Panel, the Trade Disputes Panel still has not made a decision. The most recent letter, addressed to the Chairman was dated 9th August 1999. It was written by Mr. Radclyffe, the solicitor for the Applicant. The last paragraph of that letter clearly warned the Chairman of the Panel that failure to make a decision within 7 days would certainly result in an application to the High Court for an order for mandamus. The Chairman of the Panel responded on the 16th September 1999 to Mr. Radclyffe’s letter 38 days later but saying she had only sighted it on that day she responded to Mr. Radclyffe’s letter. She said in the last paragraph of her letter that she would attend to the matter in question when she got back from leave. The tone of the Chairman’s response was non-committal and non-serious about the Applicant’s concern. A decision was 2 years and 2 months overdue at the time of the Chairman’s response. I am appalled at the attitude of the Panel’s Chairman. It is simply unacceptable. The failure by the Panel to make a decision is a breach of section 6(4) and (5) of the Unfair Dismissal Act and strikes at the heart of the system of resolving disputes under the Unfair Dismissal Act. It is most unfair and frustrating for the parties to have gone through the required procedure for resolving disputes and get nothing at the end of the hearing of the dispute. As a matter of law, it is a denial of justice. I would therefore in the exercise of my discretion grant an order for mandamus to issue against Alamu Nuatali Tongarutu being the Chairman of the Panel. I further Order that the Panel make its decision and deliver it within 14 days of today. I order accordingly. Costs be the Applicant’s costs. That is, the Respondent will pay the Applicant’s costs. F.O. Kabui

Judge