IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
Miscellaneous Application No. 30 of 2009

BETWEEN:

BALRAM
APPLICANT

AND:

FIJI TEACHERS UNION
RESPONDENT

HEARING OF MOTION

P. Rae for the Applicant
V. Maharaj for the Respondent

This motion concerns the dismissal of Mr. Balram as President of the Fiji Teachers Union by the Union's Executive Committee on 26th August 2009. The Notice of Motion was filed on 7th August 2009 and seeks the following relief:

(a)	That an Order be issued declaring the decision of the Respondent's Executive Committee of 26 August 2009 purporting to dismiss the Applicant as President of the Fiji Teachers union null and void.

(b)	That the Respondent be ordered to show that it has fully complied with the provisions of its Constitution in the matter of the purported dismissal of the Applicant as President.

(c)	That a declaration be issued restraining Respondent, it's Executive Committee and/or its representative and agents from preventing the Applicant from performing his functions as the duly elected President of the Respondent Union in the meantime.

(d)	Any other orders deemed appropriate in this circumstances.

(e)	Cost

The Motion was heard on 10th September 2009 where Mr. Rae represented the Applicant and Mr. S. Chandra the Respondent and where the Tribunal ordered that the Respondent Executive Committee decision to dismiss the Applicant as President of the Fiji Teachers Union taken on 26th August 2009 be stayed.

The Tribunal further Ordered that – 

(a)	The Respondent file and serve its Affidavit in Opposition within seven days;

(b)	The Respondent, its Executive Committee and/or its representatives and agents be restrained from preventing the Applicant from performing his functions as President of the Fiji Teachers Union; and 

(c)	The Application to be listed for further directions on 17th September 2009 at 2:30 pm.

When the parties met on 17th September 2009 the Tribunal gave directions for them to engage in further social dialogue and try to resolve the issue, stressing the emphasis to the counsel for the Respondent as the rift in the union needs to be contained and resolved quickly. The parties then asked for further four weeks to iron out the issues and would forward a letter to the Tribunal to terminate proceedings.

When the matter was called for further mention on 23rd October 2009, the parties requested the Tribunal to give them seven days to confirm the settlement which was drafted along these lines – 

The parties hereto in this action have fully settled this matter by consent as follows: -

1.	That the Applicant is to continue in his position as the President of the Fiji Teachers Union until 5thday of May, 2010 or until the next AGM of the Union whichever occurs earlier.

2.	 The Applicant to relinquish his position as the President of the FTU on 5th day of May, 2010 or until the next AGM if occurs earlier. 

3.	 That the parties hereto agree that this settlement shall be a full and final settlement.

4.	That there be no order as to cost in this action.

After that date no sign of any settlement came to the Tribunal and the parties on 11th December 2009 were advised that the hearing of the Motion would be held on 11th March 2010.

The hearing commenced on 11th March 2010 and was adjourned part heard to 23rd April 2010. The closings submissions were made on 2nd May 2010.

For the hearing Mr. Balram gave evidence as the Applicant and Mr. Agni Deo Singh gave evidence for the Respondent.

The Applicant

The case of the Applicant revolves around the Affidavit in Support by Mr. Balram; that the Respondent has not complied with the requirement of the Fiji Teacher Union Constitution in purporting to dismiss him from the position of President of the Union, that the Union had acted beyond its powers and that he had been denied natural justice.

In its closing submission the Applicant referred to the ERP 2007 in particular section 133(c) which says that the Registrar of Trade Union must cancel the registration of a union if it continues to allow a rule that contravenes the ERP 2007 to be in force and that the Executive Committee acted beyond its powers when it dismissed Mr. Balram.

The Applicant seeks redress from the Tribunal on the issues of natural justice and legitimate expectation. The fundamentals of natural justice require that at the very least the person against whom a decision is directed has advance notice of it, has the opportunity to respond and to be respected. According to the respondent that did not happen as the notice requirement in Rule 80 of the Constitution was not complied with.

On legitimate expectation, the Applicant submits that he had been re-elected for the tenth year by the ordinary members of the Union in April 2009 by an overwhelming majority of votes and as such he had the legitimate expectation that he would serve his full two years.

The Applicant's Counsel did not agree to any settlement and even if there were suggestions for any settlement, that would be invalid in view of the authority of Din and Other Vs Westpac Banking Corporation. 

The Respondent

In so far as the Respondent is concerned the Applicant with effect from 26th August 2009 is no longer a member of the Fiji Teachers Union and is not permitted to hold any official position with the union but could remain a honorary member in terms of clause 9 of the Constitution.

The Counsel for the Respondent submits that the Supplementary Affidavit of Mr. Agni Deo Singh and the Affidavit of Mr. Mahendra Pal were not challenged and therefore are to be taken into consideration. There has been no rebuttal, no evidence in opposition and therefore the truth must be inferred from them.

Counsel for the Respondent referred to the need to engage in good faith bargaining which is the philosophy of the ERP 2007 and also the directions from the Tribunal for the parties to have further social dialogue in order to resolve the impasse. Counsel told the Tribunal that the parties were on the brink on reaching an agreement when the Applicant reported that he wanted further instructions from his Advocate and then walked out of the meeting.

The Respondent's Counsel submits that in this case the stay is totally inappropriate and cited cases of – 

In JOELI KALAU V/S THE FIJIAN TEACHERS ASSOCIATION (copy enclosed (No. 2) CIV ACTION 98 OF 1987

In dismissing an application for an injunction by the Applicant Justice Rooney said;

"It is not for this Court to dictate to the Association or any other trade union how it should conduct and manage its affairs within the law."

His Lordship went on to state;

"the Executive Committee is vested with the government of the union and conduct of its business in the periods between AGM. Rightly or wrongly, it has exercised that authority to dispense with the Plaintiff's service in accordance with the terms of his contract of employment. If they acted within this authority the Defendants have a good defence to this action. If they have acted in breach of their obligation to the Plaintiff be may be compensated by an award of damages."

In the case of PUBLIC EMPLOYEES UNION V/S MERESEINI RAKAI (2005) FJHC 472 Where Justice Singh gave an order for interim injunction to the Public Employees Union when the dismissed secretary of the union attempted to forcefully enter the Union's premises with the view to resuming her duties of General Secretary.

His Lordship said that the undertaking of damages given by the General Secretary was inadequate compared to the Union which had substantial assets and capable of paying any damages to the Defendant.

In QALIO V/S PUBLIC EMPLOYEES UNION (1994) where Byrne J in refusing an injunction by the sacked General Secretary of the Union stated and we quote;

"I had hoped that, having said that, the various parties would come to their senses and allow the rank and file of the Union membership to have their say as to who should manage the affairs of this Union and that there would be no further litigation between the parties."

DISCUSSION

The Tribunal wants the parties to focus on the matter at hand; that is the "stay order" and the Motion by the Applicant, Mr. Balram the dismissed President of the Fiji Teachers Union. 

The stay order is the result of a motion through an interlocutory application. During the hearing of the motion, the Tribunal was told that the substantive matter was being reported as an employment grievance and on inquires found out that was not the case. That virtually nullifies the whole interlocutory application as it did not comply with Order XXVI of the Magistrate Court Rules.

However, the Tribunal had to decide on the stay order which had been given through an application that has sort of sneaked its way in.

The Tribunal examined section 211(1)(b) that was cited by the Applicant. This section provides the following –

(1)	If a person has not observed or complied with an 

(b)	order, determination, direction, decision or requirement made or given under this Promulgation by the Tribunal or a member or officer of the Tribunal, the Tribunal may, by order, require a party to a proceeding to do or cease to do a specific thing or activity, for the purpose of preventing further non-compliance with the provision, order, determination, direction, decision or requirement, and must specify a time within which that order is to be obeyed. 

This stay order is an interim relief to enable the union to put its house in order as advocated by the Applicant and once the repair work is done everyone should revert to the status quo; that is the way of doing things as provided for by the Constitution and Rules. That is good faith and life must go on.

That was the reason why the Tribunal asked the parties to explore further social dialogue. This is a Union matter and the Union should be dealing with it without interference from the Courts or Government which cannot in anyway interfere in Union affairs according to the International Labour Organization Declaration of Fundamental Rights at Work.

 Through evidence adduced from the Respondent, the parties were on the verge of settlement when the Applicant walked out. That evidence was not challenged and similarly the evidence of Mahendra Pal that the applicant was given time to relinquish his position until the legal opinion was obtained which confirmed that he lost his membership of FTU by virtue of compulsory retirement. 

The Tribunal cannot decide on the Motion as it was not properly before it when the stay order was given but what it has recommended is that the Applicant lodge an employment grievance against the Fiji Teachers Union and seek some of the remedies in section 230 of the Employment Relations Promulgation 2007. More importantly the unchallenged affidavit evidence from the Respondent is fatal to the case of the Applicant.

RULING

For those reasons the stay order against the decision of the Respondent's Executive Committee taken on 26th August 2009 to dismiss Mr. Balram as President of the Fiji Teachers Union is uplifted forthwith.

DATED at Suva this day of May 2010

Sainivalati Kuruduadua
Chief Tribunal