Mobil Oil Australia Ltd v Kwaeria [2001] SBHC 116; HC-CAC 068 of 2001 (19 June 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case Number 68 of 2001

MOBIL OIL AUSTRALIA PTY LTD

-v-

RONNIE KWAERIA

High Court of Solomon Islands
(Palmer J.)

Hearing: 18th June 2001
Judgment: 19th June 2001

Sol-Law for the Appellant
D. Hou for the Respondent

Palmer J.: The facts concerning this appeal from the Trade Disputes Panel (“the Panel”) are not in dispute. The Appellant had dismissed the Respondent on 23rd April 1998. On 31st August 1998, the Respondent lodged a complaint for unfair dismissal with the Panel under section 6(1) of the Unfair Dismissal Act (Cap. 77) (“the UDA”). The Panel heard the complaint on 24th April 2001. The Appellant raised a preliminary point of law at the hearing under section 6(3) of the UDA that the Respondent was time barred to prosecute his claim. Subsection 6(3) of the UDA fixed a time limit of three (3) months, within which a complaint of unfair dismissal may be lodged. It is not in dispute complaint was lodged well outside time limit of three months. The three months period lapsed on 22nd July 1998.

Learned Counsel for the Respondent maintained before the Panel and this Court that the provisions of section 6(3) and Rule 13(1) of the Trade Disputes Panel (Unfair Dismissal and Redundancy) Procedure Rules (“the Unfair Dismissal Rules”) give discretion to the Panel to enlarge time for filing of Respondent’s complaint out of time. Learned Counsel for the Appellant contends otherwise.

Subsection 6(3) of the UDA provides:

“A complaint under this section may not be made after the end of the period of three months beginning with the date of dismissal.”

In my respectful view, subsection 6(3) is in clear mandatory terms. Contrary to what was submitted by learned Counsel for the Respondent, it does not give any discretion to the Panel to consider or entertain any complaint after the time limit had expired. Subsection 6(3) is directed to the person making the complaint not the Panel. In very plain and simple terms it says that such a person is not permitted to lodge a complaint after the three months time period had expired. The Panel has no discretion about that. If someone is not permitted to do something by Statute, then there is nothing any Panel can do. Obviously the Panel can only consider complaints, permitted under section 6(3). In my respectful view, a complaint lodged out of time is not one such complaint. If it does, then it is exercising power, which had never been conferred. Whilst it is accepted that the word “may” denotes the exercise of discretionary power there may be circumstances or situations in which that discretionary element is removed. Earl Cairns L.C. pointed this out in Frederic Guilder Julius v. The right Rev. The Lord bishop of Oxford (1880) 5 App. Cas. 214 at pages 222, 223:

“But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.”

See also statement of Lopes L.J. In re Baker. Nichols v Baker [1890] UKLawRpCh 45; (1890) 44 Ch. D. 262 at p. 273:

“. . . the word “may” is beyond all question potential, it implies a power; but, if it is coupled with a duty on the Court or the person to whom it is given to use that power in a certain particular way, it then no doubt becomes imperative.”

The word “may” in subsection 6(3) cannot be considered in isolation to the word “not”. The use of the word “not” which follows immediately the word “may” in my respectful view, removes any discretionary element associated with the word “may”. When used together they denote the denial of a power or permission which otherwise would have been available had the word “not” been added. It is like what Lopes L.J. says above, that by requiring the Respondent to act in a certain particular way, (that is, by lodging his complaint within three months) it then becomes imperative. The permission granted to the Respondent to lodge a complaint is for the period of three months allowed by the UDA. He may or not, lodge a complaint within that time period. After the statutory period expires however, the permission is removed from him by the use of the words “may not”. In Black’s Law Dictionary, sixth edition, the phrase “may not” is defined as:

“A phrase used to indicate that a person is not permitted to do or to perform some act,”.

This in my respectful view is consistent with the view that whatever permission had been granted to the Respondent is removed when the time limit expires. Permission is granted only for the time period of three months but not after.

Rule 13(1) of the Unfair Dismissal Rules does not assist the Respondent either. It is clear in my respectful view, Rule 13(1) is confined to the Unfair Dismissal Rules. I quote:

“An application to the Panel for an extension of the time appointed by these Rules for doing any act may be made by a party.”

Rule 13(1) cannot do what the Rules had not given. The Unfair Dismissal Rules did not fix the time limit of three months. That was fixed by the UDA under section 6(3). Rule 13(1) therefore cannot give to the Panel power to extend the time limit fixed under the Act. It is important to note that Rule 13(1) is confined only to time limits “appointed by these Rules”.

One of the submissions sought to be made on behalf of the Respondent was that the UDA was an Act, which amended the Trade Disputes Act (Cap. 75) (“the TDA”) and therefore to be construed as one [section 22 of the Interpretation and General Provisions Act (Cap. 85) (“the Interpretation Act”)]. Learned Counsel for the Respondent arrives at this conclusion in two ways. First it is submitted the UDA in effect or substance increases the jurisdiction of the Trade Disputes Panel by extending the power to make rules about the Panel. This it argues amounts to an amendment as defined under section 16(1) of the Interpretation Act. Whilst it is correct to say that the jurisdiction of the Panel had been increased to include the matters set out in the UDA, that does not necessarily mean the TDA had been amended. What the UDA had done was to incorporate and extend the application of certain provisions of the TDA to the UDA. That is not the same as amending the provisions of the TDA. In fact the TDA has not been amended at all by the UDA. All that the UDA has done, with particular reference to the provisions of section 11 of the UDA, is to extend the application of certain provisions of the TDA to the UDA. So on appeal matters for instance, the same provisions and rules, which applied to parties under the TDA, would also apply to parties under the UDA. These are not the same thing as an amendment, though it is accepted, that for purposes of construction certain provisions in both Acts may have to be read together. There is however nothing in the TDA or the Trade Dispute Panel Rules, which would affect or is of relevance in any way, to the time limit set under section 6(3) of the UDA.

The second way in which learned Counsel for the Respondent seeks to submit that the TDA had been amended by the UDA relates to section 11 of the UDA. It is submitted that by adopting or incorporating the relevant provisions of the TDA, that these have the effect of rendering the said TDA provisions operating as enactments under the UDA. Again whilst that may be so, it does not necessarily follow that the TDA had been amended by the UDA. Further, the application of those provisions cannot remove or usurp any power or matter that had been expressly provided for under the UDA. I fail to see how the Trade Dispute Panel Rules (“the TDP Rules”) even where it applied, as affecting the time limit set out under section 6(3) of the UDA. Any suggestion that section 6(3) is an additional rule pursuant to section 11(1) of the UDA is misconceived. All that section 11(1) imports in relation to the Trade Disputes Panel Rules is that they are to apply in any award or other decision of the Panel under the UDA as they apply in relation to awards or decisions under the TDA. I can find nothing in that to support any suggestion that section 6(3) thereby becomes an additional rule to either the TDP Rules or the Unfair Dismissal Rules and thereby a rule affected by Rule 13(1) of the Unfair Dismissal Rules.

In the circumstances the appeal must be allowed and the ruling of the Panel set aside. In lieu thereof order that the complaint be dismissed and the Respondent to pay the costs of the Appellant incidental to this appeal and in the Panel below to be taxed if not agreed.

ORDERS OF THE COURT:

1. Appeal upheld.
   
2. Set aside Ruling of the Trade Disputes Panel dated 2nd May 2001.
   
3. Dismiss complaint of the Respondent.
   
4. Allow costs of the Appellant incidental to this appeal and in the Trade Disputes Panel below to be taxed if not agreed.
   

THE COURT.