JUDGMENT
It is dble that proceedings in Judicial Review should be heard as expeditiously as possible for thor the reason given by Thompson
J.A. in his unreported decision of 12th May 1998 in ABU0024 of 1998 Minister for Information, Broadcasting, Television and Telecommunications v. Fiji Television Limited namely:
"The public interest in judiceview proceedings being heag heard expeditiously is even greater than it is in respect of private
law actions. The governance of the country is affected, and also in many instances the personal interests of citizens."
The principal reason why this jnt has been delayed is the failure of the Interested Party to deliver a reply to the Applicpplicant's
final submissions of the 16th of October 1998 despite numerous promises by its counsel and extensions of time given by the Court
in which to do so. The last extension given to the Union was on the 24th of August 1999 requiring its reply by the 15th of September.
No reply has even yet been delivered and as I am not prepared to countenance any further delay I now deliver my judgment.
On the 8th of August 1996 I gav Applicant leave to apply for Judicial Review of an Award of the Arbitration Tribunal No. 1No. 15/95
made on the 27th of February 1996 relating to compensatory payments of $500.00 per employee of Lautoka Casual Dockworkers for the
years 1988, 1989 and 1990 following the introduction of bulk importation of fertiliser to replace the previous system of manual unloading
of bags of fertiliser from ships calling at the port of Lautoka.
The Tribunal held that the Applicant as a government-owned corporation had an obligato take a broader approach oach to employment
issues than that required by law.
The Tribunal also declined to change the years for whimpensation was awarded to the dockworkers after the introdutroduction of bulk
fertiliser, and varied the Award regarding the extent to which Lautoka dockworkers who were in the casual pool could claim payments
and did not make any ruling as to whether any casual dockworker joining the pool after the introduction of bulk importation of fertiliser
in January 1991 was covered by the Award.
The Applicant seeks the following relief:
(a) & p;&nssp; asp; an of of Certiorari quashing theg the Award;
(b) a declaration thatTrhe nalbunal exceeded his jurisdiction;
; (c) &nnbsp;;&nspp; asp; a decladeclaration that the Applicant does not have any obligation to adopt a broader approach than that
required by law to employment issues; and
: 1"> bsp; cspa><
I have received very full submissions from the parties, particularly from the Applicant of some 28 pages. The first part of the submissions
discusses legal theory on the earlier distinction made in the English cases between error of law going to jurisdiction which until
the House of Lords decision in Anisminic Ltd. v. Foreign Compensation Commission [1968] UKHL 6; (1969) 2 A.C. 147 was a requirement for judicial review and error of law not going to jurisdiction. There had been two schools of thought - by Lords
Denning and Diplock that Anisminic abolished the distinction so that every error of law amounts to excess of jurisdiction; if the decision was founded on an erroneous
proposition of law, it follows that the body must have asked itself the wrong question and no such body has jurisdiction to base
its decision on the wrong question. Professor Wade in his Sixth Edition at p.302 considers that the main current of judicial opinion
is running in favour of holding all error of law to be reviewable.
The other school of thought was that where an inferior court has jurisdiction to adjudicate upon a particular type of case it also
has jurisdiction to decide incorrectly as well as correctly questions of law which go to the merits and do not go to jurisdiction,
and such a decision was not reviewable judicially. This was Lane, LJ's dissenting view in Pearlman v. Harrow School Governors [1978] EWCA Civ 5; (1979) Q.B. 56 which was preferred by the Privy Council in South East Asia Fire Bricks SDN.BHD v. Non-Metallic Mineral Products Manufacturing Employees Union (1981) A.C. 363 which was decided ten days before the House of Lords gave judgment in Re Racal Communications Ltd. [1980] UKHL 5; (1981) A.C. 374.
It is possibly not clear in Fiji yet which school of thought prevails but it d be noted that Lord Denninenning M.R. who was supported
by Eveleigh LJ in the Pearlman case said:
"I would suggest that this distinction should now be discarded.... The way toay to get things right is to hold thus: no court
or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it
goes outside its jurisdiction and certiorari will lie to correct it."
Speaking of course only as a P Judge it seems to me with respect that Lord Denning's remark is very practical and also maso makes
common sense. From my experience I tend to think Lord Denning's view is now followed in Fiji.
Lord Diplock put it this way in Re Racal (1981) A.C. at pp.38:
"Where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular
questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been
so defined: and if there has been any doubt as to what that question is, this is a matter for courts of law to resolve in fulfilment
of their constitutional role as interpreters of the written law and expounders of the common law and rules of equity. So if the administrative
tribunal or authority have asked themselves the wrong question and answered that, they have done something that the Act does not
empower them to do and their decision is a nullity."
The Applicant's contention in the present case is that the Tribunal exceeded its powers and committed error of law when he held that
the Authority as a government-owned corporation has an obligation to adopt a broader approach to such issues. One can understand
the social thinking behind that statement - that a government-owned corporation should be a more generous employer than a private
corporation where the predominant motive is profit. However much one may sympathise with such a view, unfortunately it cannot be
justified in law.
Clearly, the Authority is bound to fulfil its functions under Section 10 of the Ports Authoof Fiji Act and pursuant tont to those
functions to exercise the powers, inter alia, conferred by Section 11. Section 11(1)(m) gives the Authority power to provide accommodation
and recreational facilities for its employees and generally to promote their welfare. The Union in its Response before the Tribunal
submitted that the Authority was legally bound to make redundancy payments but the Tribunal rejected this submission. At p.197 of
the Award he denied the Union's claim for a guaranteed weekly system of employment for casual dockworkers at Lautoka and held that:
p class=MsoNormal stal style="margin-left: 36.0pt; margin-right: 72.0pt; margin-top: 1; margin-bottom: 1"> "Section 11(1)(m) mu read with the broad intentntentions of the Act which establish the Authority to handle port operations in
the competent, efficient and responsible manner."
It has been held in various cases that public money must be administered with responsty and without extravagancegance. Professor Wade
again at p.426 of his Sixth Edition said:
That the Authority's money is public money is unded by the requirement in Section 27 of the Act that in any any year a proportion
of the surplus revenue of the Authority shall be transferred to the Consolidated Fund. I therefore find that in holding that the
Authority was entitled to be a more generous employer than a private employer and so justify his
decision to make the payments complained of, the Tribunal committed an error of law which must vitiate his Award.
The second ruling which the Applicant attacks is p.196 of the Award which reads:
"Bearing in mind the casual nature of work, the loss in income atte attributable to such factors for the years 1988, 1989 and
1990 the Tribunal awards a figure of $500 for each year per employee to be treated not as a redundancy payment but to be categorised
as compensatory because bulk importation of fertiliser meant a permanent and quantifiable loss of work the dockworkers would otherwise
have handled."
The Applicant submits, and it is not disputed by the Respondent, that ttatement is factually incorincorrect. Bulk importation of fertiliser
did not commence until December 1990. (Affidavit of Bhoo Prasad Gautam, General Manager of South Pacific Fertilisers Ltd., 3rd September
1996 paragraph 5.)
Secondly the Applicant argues that thding there was so-called permanent and quantifiable loss ofss of work for casual employees cannot
be supported in law. I agree. At common law casual employees have no entitlement to be provided with work or compensation for its
loss. Furthermore in Fiji no statute allows compensation for permanent loss of work or income, apart from wrongful dismissal or workmen's
compensation for personal injuries.
I consider the Tribunal was correct in holding that there should not be redundancy payments to the employees because casual workers
are generally not eligible for redundancy payments. Such payments have been defined in a New Zealand Labour Department Paper quoted
by A. Szakats, Introduction to the Law of Employment, 2nd Edition (1981), 242 as:
"An excess of manpower resulting from mechanisation, rationalisation, or , or from decrease in business activity, including the
closing down of any enterprise or changes in plant, methods, materials or products, or reorganisation, or other like cause requiring
a permanent reduction in the number of workers employed on other than a casual, temporary or seasonal basis."
Moreover, even in other jurisdictions where workers have been given some entitlement by statute to payments for dismissal by way of
redundancy, the eligibility for such payments require the fulfilment of qualifying criteria such as the worker having been in "continuous
employment", a minimum number of hours of work per week, etc. For example, in England where such payment is considered compensation
for loss of a right which a long term employee has in his job (Szakats: 431) a 1965 statute required the worker to have been in continuous
employment for 2 years prior to being made redundant, and to have worked not less than 21 (later changed to 16) hours a week (Halsbury,
Fourth Edition, Vol 16:451-478) and disqualified male workers who were nearly sixty years old.
Were the Employees Entitled to a Payment of Compensation?
The Fiji Employment Act defines "casual employee" as meaning "any employee the tof whose engagement provideovide for his payment at the end
of each day's work and who is not engaged for a longer period than 24 hours at a time" (Section 2). Under sections 22 and 24
such employment is determinable at the close of each day without notice.
At common law, there is no basis for payment by way of loss of work or income, unless there has been a wrongful dismissal in which
case the measure of damages is from the date of dismissal to the end of the period for which notice should have been given, less
such amounts by way of a duty to mitigate. As the Employment Act does not require any notice to be given to determine the employment of a casual worker, such casual workers would not be entitled
to any damages for wrongful dismissal even if they had been dismissed.
The Applicant submits, and I agree, that the Arbitration Tribunal's Award is unreasonable because it has the effect of treating these
casual workers as if they were on fixed-term contracts which still had three years to run, rather than daily contracts determinable
at the end of each seven-hour shift of work. In this respect the Award appears to be inconsistent with the Employment Act in terms of Section 25 of the Trade Disputes Act Cap. 97 which reads:
&qhere any trade dispute referred to an Arbitration Tribunal unal involves questions as to wages, or as to hours of work or otherwise
as to the terms or conditions of or affecting employment which are regulated by or under any written law other than this Act, the
Tribunal shall not make any award which is inconsistent of the provisions of that written law or which is less favourable to the
employees than any award or order lawfully made in pursuance thereof."
In his Interpretation Award of the 22nd of 1996 the Tribunal declined to act on the statement of the the Authority in its letter
seeking interpretation that the bulk importation of fertiliser did not occur until 1991 and a similar statement from the Union in
its letter of 12th of March 1996 to the Authority because he said that information was supplied by the Union itself. In so holding
I consider the Tribunal erred and that before deciding the matter should have called the parties before him to see whether they agreed
on this. On the evidence I have no doubt they would have.
The last ground alleged by the Applicant in its statement is that the Tribunal in not intimating to the parties that he was considering
awarding payment not by way of redundancy but by way of compensation for loss of work and income, failed to accord the Applicant
natural justice in giving the parties an opportunity to make submissions as to entitlement to compensation for loss of work and income.
I accept this ground. It has been held that where a Tribunal desires to make a finding on somnt which has not been put bput before
it the person whose case is being considered by the Tribunal and any other persons represented at the hearing who are likely to be
affected by an adverse finding on the new matter should be alerted to the possibility of the Tribunal taking the point concerned
into account so that all those affected by the decision have the opportunity to put forward any material which might persuade the
Tribunal differently:
R. v. Mental Health Review Tribunal Ex-partetworthy (1985) 3 ALL E.R. 699, per Mann, LJ at 704 following the observations of Lord Diplock in Mahon v. Air New Zealand Ltd. (1984) A.C. 808 at 821.
For these reasons I hold that the nal's Award must be set aside and I grant the orders sought in the Notice of Motion of the the
14th of August 1996. The Respondent must also pay the Applicant's costs which are to be taxed if not agreed.
JOHN E. BYRNE
JUDGE
Cases referred to in Judgment:
Administrative Law by Professor Wade, Sixth Edition p.426.
"> Anisminic Ltd. v. Foreign Compensation Commission [1968] UKHL 6; (1969) 2 A.C. 147.
Civil Appeal No. ABU0024 of 1998 Minister for Information, Broadcasting, Television and Telecommunications v. Fiji Television Limited - unreported decision of Thompson J.A. of 12th May 1998.
Introduction to the Law of Employment, 2nd Edition (1981) 242 - New Zealand Department Paper quoted by A. Szakats.
Mahon v. Air New Zealand Ltd. (1984) A.C. 808.
Pearlman v. Harrow School Governors [1978] EWCA Civ 5; (1979) Q.B. 56.
R. v. Mental Health Review Tribunal Ex-parte: Clatworthy (1985) 3 ALL E.R. 699.
Re Racal Communications Ltd. [1980] UKHL 5; (1981) A.C. 374.
South East Asia Fire Bricks SDN.BHD v. Non-Metallic Mineral Products Manufacturing Employees Union (1981) A.C. 363.
Hbj0008j.96s
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