S. Sharma for the Applicant
S. Kumar for the First Respondent
R. Matabalavu for the Second Respondent
Dates of Hearing and Submissions: 9th June, 8th and August 1997
Date of Juof Judgment: 18th November 1997
JUDGMENT
By consent of the Respondents on the 9th of June 1997 I gave the Applicant leave to apply for Judicial Review of the decision of the
Acting Permanent Secretary for Labour and Industrial Relations made on the 11th of December 1996 to accept a report of a trade dispute
lodged by the Second Respondent Viti Civil Servants Association concerning the dismissal of one of its members Temo Tukana on 15th
February 1995.
The Applicant seeks an order for certiorari to quash the decision of the First Respondent and declarations that his decision in accepting
the report was unlawful, and without jurisdiction and unreasonable and that he abused his powers and/or his discretion under the
Trade Disputes Act, Cap.97.
The grounds on which the Applicant relies are:
(i) that he had no power to accept the report in that it related to a trade dispute which arose more than 12 months from the date
of the report contrary to Section 4 of the Trade Disputes Act Cap. 97 as amended by Section 5 of the Trade Disputes Act (Amendment) Decree 1992;
(ii) that he failed to take into account that Viti Civil Servants Association had not shown to him that the failure to report the
trade dispute within 12 months was occasioned by mistake or other good cause;
(iii) that the Acting Permanent Secretary failed to observe the provisions of Section 3(l)(b) of the Trade Disputes Act Cap. 97 as amended by the Trade Disputes Act (Amendment) Decree 1992 in that he purported to accept the report of a trade dispute
from a Trade Union which was not recognised under the Trade Unions (Recognition) Act;
(iv) that he failed to take into account that Viti Civil Servants Association was not a Trade Union recognised by the Applicant in
terms of the Trade Unions (Recognition) Act;
(v) that the Acting Permanent Secretary denied the Applicant natural justice in that he did not give the Applicant the opportunity
to make submissions on the report of the trade dispute and on relevant matters before making his decision on 11th December 1996;
(vi) that the Acting Permanent Secretary failed to give any reasons for his decision.
Three affidavits have been sworn and filed on behalf of the parties, the first by Vishnu Prasad Baldeo the Secretary and Chief Executive
Officer of the Prices and Incomes Board on the 23rd of April 1997, the Second by Wing Kangwai the Chief Labour Officer for Labour
and Industrial Relations sworn on 23rd of May 1997 and the third by Taniela Tabu the General Secretary of the Viti National Union
of Taukei Workers formerly known as the Viti Civil Servants Association sworn on the 12th of August 1997. I shall shortly mention
relevant parts of each affidavit on which there is no dispute between the parties. Before doing so however it must be stated that
the Prices and Incomes Board is a body duly constituted under the Counter Inflation Act Cap. 73. By Section 3 of that Act the Board
was established as a body corporate having perpetual succession and a common seal. It may sue and be sued in respect of matters,
whether relating to contract, tort or otherwise, arising in connection with the exercise of its powers or the carrying on of its
functions under the Act.
By Section 4 the Board consists of one member appointed by the Minister for Labour and Industrial Relations for a term not exceeding
five years. Also by Section 4 the Board has a Secretary appointed by the Minister and in the exercise of its functions must act in
accordance with any general or special directions as to the policy to be followed by it given from time to time by the Minister and
published by him in the Gazette.
Under Section 8 the Board has power to do all things necessary or convenient in connection with, or incidental to, the performance
of its functions including the power to employ such employees as it may from time to time consider necessary for the efficient performance
of its functions.
On or about 26th January 1977 the Board appointed Mr. Temo Tukana as An Assistant Prices and Incomes Inspector with effect from 1st
February 1977. In his letter of appointment of 26th January 1977 Mr. Tukana was told among other things that his working conditions
would generally be similar to those provided under the General Orders of the Fiji Government; that he would be entitled to leave
privileges identical to those available to officers of equivalent rank in the civil service of Fiji and in addition to basic tax,
PAYE he would be required to contribute towards the Fiji National Provident Fund in accordance with the relevant Act.
Mr. Tukana remained in the employment of the Board until his employment was terminated on or about 14th February 1995 at which time
he held the position of Prices and Incomes Officer (Northern).
During the 1994 General Election, the Commissioner Northern requested the Board to release some of its vehicles to help the Commissioner
carry out election duties. The Board agreed to release one vehicle (Land Cruiser registration No. CN954) to the Commissioner Northern
on terms and conditions set out in a letter dated 15th February 1994. So far as relevant the letter stated:
(i) that Mr. Tukana was to be the only authorised driver and would be responsible for the vehicle;
(ii) the Board would not be liable for any injuries or deaths or subject to any claims arising from the use of the vehicle in the
period commencing at 4.30 p.m. on Thursday 17th February 1994 until Saturday 26th February 1994 inclusive;
(iii) any such claims were not to be covered under the Board's comprehensive insurance so that the Commissioner Northern was to be
liable for the cost of any repairs to damage on the vehicle during that period;
(iv) all fuel and operating costs were to be the responsibility of the Commissioner Northern.
During the latter part of 1994 the Board received information regarding payment irregularities in connection with vehicle use during
the 1994 General Elections and accordingly made a written enquiry to the Prime Minister's office by a letter dated 2nd December 1994.
One of these enquiries related to the Toyota Land Cruiser CN954 and particularly about the sum of $710.00 mentioned on a payment
voucher dated 1st of March 1994.
On or about 5th December 1994 Mr. Vishnu Baldeo instructed two officers of the Board to investigate irregularities in the Northern
Division Office.
On the 6th of December 1994 the Permanent Secretary of the Prime Minister's office replied to the Board's letter of 2nd December stating
that on the 1st of March 1994 a net sum of $710.00 was paid to Mr. Temo Tukana for hire charges in respect of Vehicle No. CN898.
As a result of its investigations the Board caused 12 disciplinary charges to be laid against Mr. Temo Tukana under the Prices and
Incomes Board's Rules and Conditions of Service for Salaried Staff.
Summarised these were:
(1) That between the 18th and 24th of February 1994 he committed a disciplinary offence by using the Board's motor vehicle No. CN898
for the 1994 General Elections when that vehicle was expressly excluded by the Board's Secretary's instructions dated 15th February
1994 and as such amounted to wilful omission to comply with the Board's instructions.
(2) That on or about the 1st of March 1994 he submitted a claim to the Department of Regional Development for the sum of $800.00 being
the hire charges of vehicle CN898 which he knew to be false and untrue and as such amounted to improper conduct in his official capacity.
(3) That on or about 2nd of March 1994 he received the sum of $710.00 from the Commissioner Northern Division for the hire of vehicle
No. CN898 which he failed to account for or lodge or deposit into the Board's account.
(4) That on or about the 2nd of March 1994 he converted for his own use the sum of $710.00 which belonged to the Board.
(5) That on or about the 17th and 18th of February 1994 he authorised the use of 46.65 litres of diesel fuel for vehicle CN898 when
it was being used for an unauthorised purpose namely the 1994 General Elections.
(6) That between 18th and 24th February 1994 he directed one Mukesh Chand a Prices and Incomes Inspector of the Labasa office to falsify
the entries in the daily running record of vehicle CN898, such action being calculated to cause unreasonable distress to subordinates.
(7) That between 18th and 24th February 1994 he improperly directed one Sheik Yusuf an Assistant Prices and Incomes Inspector of the
Board at its Labasa Office to enter false entries into the daily running sheets of vehicle No. 954.
(8) That between 14th and 16th of February 1994 he authorised the use of Board's motor vehicle No. CN954 for General Elections duties
without first seeking official authorisation for such use, this amounting to wilful disregard of the Board's instructions given by
the Secretary.
(9) That for the month of February 1994 he approved mileage records for vehicle No. CN954 without regard to its accuracies.
(10) That he approved entries in the Log Book as Controlling Officer for the mileage of vehicle No. CN954 in that he understated such
mileage by 1284 kilometres.
(11) That between 14th and 28th February 1994 he approved the driving of vehicle No. CN954 by one Gyaneshwar Prasad, a Messenger/Cleaner
without obtaining prior approval of the Secretary.
(12) That he failed to maintain discipline, law and order in the Board's office in Labasa to such an extent as was likely to affect
adversely the standing of the Board or bring the Board into disrepute.
The Memorandum containing the charges was dated 16th January 1995. It concluded by telling Mr. Tukana that he was required to state in writing within 14 days of receipt of the charges
whether he admitted or, denied each of them and giving any explanation that he might want to be taken into account when his case
was considered.
Mr. Tukana's response was very prompt. On the 20th of January 1995 he wrote from his home in Labasa to the Secretary of the Board
admitting all charges and in view of subsequent events it is desirable to set out his reply in full. It was received by the Board
on the 24th of January 1995.
"Dear Sir,
Subject : Disciplinary Actions
I wish to acknowledge your interoffice memorandum dated 16th January 1995 on the above subject.
Firstly, I wish to convey my sincere gratitude and thanking you for giving me a chance to respond to the allegations I have been implicated
with.
Secondly, I will be indebted if I do not thank the Senior Research Officer and the Accountant for conducting the investigations in
the friendly manner up to the hour I received my suspension letter.
Thirdly, I also wish to thank the Senior Prices and Incomes Officer for his words of encouragement during my last minutes in the office
before departing for home.
AS TO THE ALLEGATIONS THAT I HAVE BEEN IMPLICATED WITH, I WILLINGLY ADMIT AND PLEAD GUILTY TO ALL THE TWELVE CHARGES THAT HAVE BEEN
LAID AGAINST ME. I do not wish at any time to deny any of them.
It is most unfortunate that the well known reporter's calculated move to discredit me alone sir, and to the Board for all what bad
happened thus likely to affect adversely its standing.
I must also apologise for the considerable pain I have brought to the Board that these things happened at a time when you were fighting
bard for the Board's existence.
With all those things stated above sir, I also wish to make an explanation if it could be entertained when considering my case.
1. I have been an employee of the Board for 18 years now and my record of performance is that of dedication and hard work compared
to others.
2. My relationship and friendliness to all employees and the Secretariat is always maintained even when problem arises.
3. I am encountering my first stage of punishment which is six weeks now with very less contact with the outside world. At times,
it becomes unbearable thinking of my wife and children and our future, but I always strive to stay calm and normal.
4. I am willing to be surcharged and pay back all the amount involved laid in the charges.
5. I am also willing to be transferred to the Headquarters to be under your scrutiny as in the past cases.
6. From what had happened, it has taught me a great lesson. If the Board think it fit to prove my worth once again, I promise that
I will carry out the responsibilities with more care, obedience and dedication.
7. Please think of my family and our future. I plead to you sir, and to the Board if I could be given one more chance to prove myself.
I hope and trust that the Board's decision will be fair and favourable and I pray to the Lord for its guidance.
Sgd.
Temo Tukana"
On or about l4th February 1995 the Board terminated the employment of Mr. Tukana with effect from 15th February 1995. A copy of the
termination letter, omitting formal parts is now set out:
RE: TERMINATION OF APPOINTMENT
Your letter of 20 January, 1995 admitting all twelve disciplinary charges against you as in our memo dated 16 January, 1995 was duly
considered by the Board.
I am directed to advise that the said 12 charges are major offences committed by you in accordance with the Rules and Conditions of
Service of the Board. The Board has therefore, decided that in view of the seriousness of all 12 major offences and in particular
to charge 4 dealing with misuse of the Board's Funds of seven hundred and ten dollars ($710.00) contrary to provisions of the Financial
Regulations of the Board, your appointment with the Board be terminated with effect from 15th February, 1995, i.e. you have ceased
to be employed in the Board forthwith.
Enclosed please find a NBF Cheque No. 742492 of 14 February, 1995 for $2,834.66 being salary for period 11/02/95 to 14/02/95; leave
pay of 78 days on pro-rata basis and leave allowance due to you as at 14 February, 1995.
Yours faithfully
Sgd.
(V.P. Baldeo)
Secretary
PRICES AND INCOMES BOARD"
That between March 1995 and June 1995 representations were made to the Board by Mr. Tukana, the Viti Civil Servants Association and
the Federation of the Indigenous People of Fiji Limited for reinstatement of Mr. Tukana but the Board maintained its decision to
terminate him.
On or about Nth November 1996 Viti Civil Servants Association reported an alleged trade dispute concerning Mr. Tukana's dismissal
to the Permanent Secretary for Labour and Industrial Relations. The letter or the report made comments and allegations about the
charges against Mr. Tukana and in what appears to be a separate letter of the same date noted that since his dismissal had occurred
more than a year previous pleaded with the Permanent Secretary to accept the report. This was because Section 4 of the Trade Disputes
Act (Amendment) Decree 1992 states that no trade dispute which arose more than one year from the date it is reported shall be accepted
by the Permanent Secretary where the delay or failure to report the dispute within the specified period was occasioned by mistake
or other good cause. The letter said:
"The delay in its lodgement has been caused by the difficulties encountered in trying to gather supporting documentary evidence most
of which had remained in the P.I.B. Office and with Commissioner Northern Office at the time of his dismissal. Now we have managed
to get only some and not all and these have helped us in deciding to report a trade dispute."
On or about the 11th December 1996 the Acting Permanent Secretary for Labour and Industrial Relations purported to accept the report
of the trade dispute and referred the dispute to a Disputes Committee for a decision.
Both the Association and the Applicant were requested to nominate a representative on the Committee within 14 days of the 11th of
December 1996.
The Board nominated a Mr. Raja Ram and the Association a Mr. Tuifagalele.
The Disputes Committee met on or about 29th January 1997 to consider the dispute but was unable to resolve it. The Committee communicated
its decision to the Permanent Secretary who in turn referred the matter to the Arbitration Tribunal for settlement.
The Tribunal held a preliminary hearing in the matter on which directions as to the filing of submissions and the procedure at the
substantive hearing were given. That hearing was scheduled for 8th May 1997.
It is common ground that there is no collective agreement or any other agreement between the Board and the Association concerning
employment or labour or industrial matters in relation to its staff.
The Applicant alleges, and it is not denied by either of the Respondents, that the Board as at 23rd April 1997 had on its staff approximately
60 employees Fiji wide and that of this number, more than 50% of the staff are members of the Fiji Public Service Association (FPSA).
The number of Board staff who are members of the Viti Civil Servants Association is negligible. Thus it is stated that as at January
1994 8 staff members belonged to VCSA, at January 1995 there were 9 members, at January 1996 there were 6, at January 1997 there
were 2 and after March 1997 there was none.
It is also common ground that the Board has not granted voluntary recognition to the Association and that the Association has never
applied for nor has it ever been granted a Compulsory Recognition Order by the Permanent Secretary under the Trade Unions (Recognition)
Act (Amendment) Decree 1991.
Here Section 3 of the Trade Unions (Recognition) Act is relevant. Sub-sections (1), (2) and (4) read as follows:
"(1) Where there is a trade union of which more than .fifty percent of the persons eligible for membership thereof in the employment
of an employer are voting members and there is no rival trade union claiming to represent these persons the trade union shall for
the purposes of collective bargaining be entitled to recognition by the employer in accordance with the provisions of a recognition
agreement voluntarily executed by the employer and the trade union.
(2) The application for recognition shall be in writing which should be either sent to the employer by registered mail or hand delivered
with a copy to the Permanent Secretary. If the employer fails to accord recognition within seven days from the receipt of application
the union may apply to the Permanent Secretary for issuance of a Compulsory Recognition Order.
(4) The Permanent Secretary on receipt of a reference made to it under the preceding sub-section shall consider the reference taking
into account All the facts and circumstances appearing to him to be relevant, and may subject to the provisions of Section 10 of
this Act, make an order under this part referred to as "A Compulsory Recognition Order"
(a) declaring that a trade union is entitled to recognition under this Section; and
(b) specifying the manner in which the employer shall accord recognition to the trade union."
The Applicant concedes that its application for an order of certiorari was not made within 3 months after the date of the proceedings
as required by Order 52 Rule 4 of the Rules of High Court and gives various reasons for not making the application in time which
I need not set out because no issue is made by the Respondents on this.
In its reply to the affidavit of the Applicant the two Respondents have sworn and filed much shorter affidavits. In the affidavit
filed on behalf of the First Respondent Mr. Wing Kangwai admits that the Board has never granted voluntary recognition to the Association
and that the Association has never applied for nor been granted a Compulsory Recognition Order under the Trade Unions (Recognition)
Act (Amendment) Decree 1991. As to the delay in reporting the dispute by the Association Mr. Kangwai says that he used his discretion
in accepting the report after the lapse of one year from the date the dispute arose. For the Association Taniela Tabu deposes that
no objection or question whatsoever was raised by the Applicant before the Arbitration Tribunal regarding the issue of recognition
or otherwise of the Association by the Applicant. He then says that at all material times the Association firmly believed that as
a fully funded Government organisation the Prices and Incomes Board conformed strictly with the terms and conditions of service applicable
to civil servants who come within the purview of the Public Service Commission. As such, and given the recognition by the Public
Service Commission of the Association as lawful representative of its members the Prices and Incomes Board also gave recognition
to the Association in respect of Prices and Incomes Board employees.
Mr. Tabu says that this understanding was confirmed to the Association by the Board on or about 18th July 1991 in a letter of that
date written by the Board to the Association. Omitting formal parts that letter reads as follows:
"I am directed to advise you that Terms and Conditions of Service of the salaried staff of the Board are identical to those of the
Public Service Commission. The Board has been following the leave, salary and other conditions of our staff strictly in line with
the Civil Service since its inception as it is fully funded by the Government."
The letter was signed by the Secretary of the Board.
Earlier, on or about 25th March 1988 the Public Service Commission wrote to the Interim Secretary of the Association confirming the
recognition by the Commission of the Association for collective bargaining purpose in respect of the members of the Association.
Thus, Mr. Tabu states that it would seem that the Arbitration Tribunal is properly seized of the present dispute.
Two comments are called for about these last two letters. First that the Board has been following the leave, salary and other conditions
of its staff strictly in line with the civil service. There can be no dispute about that but in my judgment there can be and is a
valid matter for dispute regarding the meaning to be given to the letter by the Public Service Commission of 25th March 1988. That
letter clearly states that the Public Service Commission (my emphasis) and not the Prices and Incomes Board recognises the Association for the purpose of collective bargaining. In my judgment
referring back to the sections of the Counter Inflation Act which I quoted earlier the Prices and Incomes Board and not the Public
Service Commission is the employer in this case and in my view it matters not whether the Public Service Commission recognises the
Association when clearly the Prices and Incomes Board does not and never has according to the evidence. In my view the submissions
by the Association on this question are based on a misunderstanding of the position of the status of the Board vis-a-vis Mr. Tukana.
It seems to me that the Association's argument is based on the fact that because the Public Service Commission has recognised the
Association it follows inevitably that the Applicant has also or that in the circumstances there was never any need for the Applicant
to recognise the Association. I do not accept this argument. In my opinion Section 8 of the Trade Unions (Recognition) Act as amended by the Decree of 1991 puts the matter beyond doubt. It must be accepted in my view that the Prices and Incomes Board was
Mr. Tukana's employer at all times and that consequently the employer for the purposes of Section 3 of the Trade Unions (Recognition) Act must be the Prices and Incomes Board. Thus in my judgment, absent any Compulsory Recognition Order binding the Board to recognise
the Association, the Permanent Secretary wrongly accepted the report of a dispute by the Association on behalf of Mr. Tukana. Furthermore
Mr. Kangwai does not cavil with the lack of a collective agreement registered by the Permanent Secretary pursuant to Section 34 of
the Trade Disputes Act Cap. 97.
In my judgment the question of locus here is vital to the resolution of this case. Section 34 lays the foundation for the terms of
employment of the parties in any employment relationship, thus providing a framework on which adjudication may occur. In my judgment
the failure by the parties in this case to have such an agreement indicates the absence of any industrial relations between the Applicant
and the Association. More importantly the failure by the Association to obtain recognition either voluntarily or compulsorily means
that the Association has no standing to act for Mr. Tukana in this dispute. It thus follows in my judgment that there is no means
by which the Disputes Committee could be seized of the matter if the party moving for relief before it has no standing to so move.
It is submitted by the Association that by appearing before the Tribunal the Board has waived its rights to dispute the jurisdiction
of the Tribunal. I do not agree. In Wade's Administrative Law, 6th Edition, p.264 the learned author says:
"Waiver and consent are in their effects closely akin to estoppel, and not always clearly distinguishable from it. But no rigid distinction
need be made, since for present purposes the law is similar. The primary rule is that no waiver of rights and no consent or private
bargain can give a public authority more power than it legitimately possesses. Once again, the principle of ultra vires must prevail
when it comes into conflict with the ordinary rules of law."
At p.265 the author refers to the House of Lords decision Essex Incorporated Congregational Church Union v. Essex County Council (1963) A.C. 808 and quotes Lord Reid as saying:
"In my judgment, it is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction
any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal
has acted without jurisdiction."
In my view these two passages must resolve the issue in this case in favour of the Applicant. However in deference to the submissions
I have received I must refer to two other matters, first concerning the discretion of the Permanent Secretary whether to accept the
report of the dispute at all even if he wrongly believed the Association had any locus to report the dispute. It was held in Reg. v. Aston University Senate, Ex Parte Roffey and Another (1969) 2 Q.B. 538 that in as much as prerogative orders were discretionary remedies they should not be made available to those who sleep upon their
rights. The Divisional Court there applied Durayappah v. Fernando (1967) 2 A.C. 337.
For this reason on the facts of this case I would also find for the Applicant.
The second matter concerns the Permanent Secretary's acceptance of the dispute, apparently based on the letter by the Association
of 7th November 1996. In my judgment the reasons given by the Association for the late reporting of the dispute are too vague and
the Permanent Secretary should have requested more detailed reasons before accepting the report.
There is what I have always regarded in this case a the primary reason why the Permanent Secretary should not have accepted the report,
namely the unequivocal letter of Temo Tukana of 20th January 1995. I cannot understand how there can be any dispute when the employee
immediately after he received the charges against him should have admitted his guilt.
Significantly in my view he makes no allegation of any duress on him by any body to make these admissions but instead frankly agrees
that he has no defence to the charges. I note that Mr. Tukana has not sworn any affidavit in support of the Association's case here
even though the Association could have sought leave from this Court for him to do so. For him to seek reinstatement now through his
Union is in my view patently unreasonable.
For these reasons I grant the Applicant Judicial Review of the decision of the Permanent Secretary for Labour and Industrial Relations
dated Ruth December 1996 to accept a report of a trade dispute lodged by Viti Civil Servants Association concerning the dismissal
of memo Tukana. I order that certiorari issue to remove into this Court and quash the decision of the Acting Permanent Secretary
to accept a report of a trade dispute in the terms of the Notice of Motion herein dated 11th June 1997. The Respondents are to pay
the Applicant's costs to be taxed if not agreed.
JOHN E. BYRNE
JUDGE
Legislation and authorities referred to in judgment:
Trade Disputes Act Cap. 97.
Trade Unions (Recognition) Act (Amendment) Decree 1991.
Trade Disputes Act (Amendment) Decree 1992.
Reg v. Aston University Senate, Ex parte Roffey and Another (1969) 2 Q.B. 538.
Wade Administrative Law Sixth Edition.
The following cases were referred to in submissions:
Coal Miners' Industrial Union of Workers of Western Australia v. Amalgamated Collieries of Western Australia Limited [1960] HCA 68; (1960) 104 C.L.R. 437.
Colonial Bank of Australasia v. Willan (1874) LR 5PC 417.
R. v. Hickman Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598.
R. v. Murray Ex parte Proctor [1949] HCA 10; (1948-49) 77 C.L.R. 387.
Hoffman La Roche & Co. v. The Secretary of State for Trade and Industry (1975) A.C. 395.
R. v. Kensington General Commissioners of Income Tax Ex parte Polignac (1917) 1 K.B. 486.
Ex parte Fry (1954) 1 WLR 730.
R. v. Stafford Justices Ex parte Stafford Corporation (1940) 2 K.B. 33.
Ridge v. Baldwin [1963] UKHL 2; (1964) A.C. 40.
White v. Kuzych (1951) A.C. 585.
London Corporation v. Cox [1867] UKLawRpHL 17; (1867) LR 2 HL 239.
Broad v. Perkins [1888] UKLawRpKQB 165; (1888) 21 Q.B.D. 533.
HBJ0009j.97s
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