IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Judicial Review No: HBJ 32 OF 2008

STATE

v

ARBITRATION TRIBUNAL

Ex-parte: SUVA CITY COUNCIL

BETWEEN:

SUVA CITY COUNCIL
Applicant

AND:

THE ARBITRATION TRIBUNAL
1st Respondent

AND:

SUVA CITY COUNCIL STAFF ASSOCIATION
2ndRespondent

AND:

REENA MAUREEN NARAYAN
3rd Respondent

Counsel: Mr. N. Lajendra for the Applicant. 
 Ms. S. Serulagilagi for the 1st Respondent. 
Mr. R. Singh for the 2nd and 3rd Respondent 

Date of Judgment: 27th October, 2011

JUDGMENT

1.	This is a claim for judicial review of the Permanent Arbitrator's ruling as contained in the Tribunal's Award No. 24 of 2008 of 19th May 2008.

2.	The relief sought by the applicant are as follows:

a)	An order of Certiorari to remove the said award into this Court and the same be quashed and/or set aside;

b)	A declaration in any event that the said award contained errors of law on the face of the record and/ was unreasonable and/ or failed to take into consideration and/or give adequate consideration to relevant matters and /or took into account irrelevant matters;

c)	An order that the 3rd respondent's termination of employment was justified in the circumstances;

d)	Further declarations or other relief as this court may deem just; and

e)	Cost of this action.

Background

3.	The facts of this case can be briefly summarised as follows:

4.	Reena Maureen Narayan (hereinafter referred to as the 3rd respondent) was an employee of the Suva City Council (hereinafter referred to as the applicant). 

5.	The 3rd respondent instituted proceedings against the applicant claiming damages in respect of an injury suffered when she fell over a telephone wire during the course of her employment. On 7th April 2003, when she was walking from the kitchen in the office to her desk she tripped over loose wires located on the floor between desks and landed on the floor. At the time of the fall, the 3rd respondent was employed by the applicant as a senior health inspector. 

6.	As a result of the injuries the 3rd respondent had been on sick leave for about four months and then returned to work on light duty.

7.	In the judgment dated 18.05.2007 the Court found that the applicant was in breach of its duty to the 3rd respondent in leaving loose wires on the floor. However, court stated inter alia that the 3rd respondent who was the plaintiff in that case had made a contrived attempt to impress the court that she suffered a serious injury with continuing and substantial pain. In that trial court refused to accept certain medical reports on which the plaintiff relied most.

8.	An investigation had commenced on 3rd October 2006, by the applicant and subsequent to that, the 3rd respondent was terminated from her employment on the basis that she attempted to mislead the applicant who was her employer, with the medical reports concerning her injury on 7th April 2003.

9.	Thereafter the matter was referred to the Arbitration Tribunal on 08.11.2007, in accordance with the Terms of Reference dated 08.11.2007.

10.	Before the tribunal, the Suva City Council Staff Association filed its submissions on 30.01.2008. The parties were directed to file a signed statement of agreed facts. Since the parties had indicated that they did not intend to call evidence, the hearing before the tribunal was concluded with the presenting of oral submissions on 29.04.2008.

11.	In the signed statement of agreed facts the parties have stated that the findings of the High Court in Civil Action No. 295 of 2005 were not disputed.

12.	 The tribunal in its award granted following orders:

a.	The summary dismissal of the 3rd respondent was unlawful and unjustified;

b.	The 3rd respondent is to be re-instated with immediate effect without loss of pay and benefits;

c.	The 3rd respondent's future employment with the applicant is to be determined by her medical condition, available work and the provisions of the collective agreement in consultation with the second respondent.

13.	Having aggrieved by the decision of the tribunal, the applicant on 02.07.2008, filed an application for leave to apply for judicial review of the said award.

14.	On 15.08.2008, the High Court granted leave to the applicant to proceed with its application for judicial review.

15.	The application for judicial review was brought on following grounds:

i.	The tribunal failed to consider relevant matters and took into account irrelevant matters;

ii.	Unreasonableness; and,

iii.	Misdirection of law.

Relevant legal principles

16.	In an application of this nature, the court is mainly concerned with the procedure in which the decision was reached rather than the merits of the decision. Therefore, the court has to decide whether the tribunal has been influenced by considerations that cannot lawfully be taken into account, or had failed to take into account the relevant considerations, and also whether the tribunal has erred in law.

17.	In Associated Provincial Picture House Ltd –v- Wednesbury Corporation [1947] 2 AER 685, Lord Green states:-

" The Court is entitled to investigate the action of the local authority with a view to see whether it has taken into matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it". In such a case I think the court can interfere."

18.	The following dictum of Lord Hoffman in Tesco Stores v. Secretary of State for the Environment [1995] 1 W.L.R 759 at 780 is of much importance to this case.

"The question of whether something is a relevant consideration is one of law, but the weight to be given to any relevant consideration is a matter for the decision maker, with which the court will only interfere on the grounds of Wednesbury irrationality."

19.	Halsbury Laws of England at paragraph 86 under the heading 'manifest unreasonableness' states:

'A decision of a tribunal or other body exercising a statutory discretion will be quashed for 'irrationality' or as often said for Wednesbury unreasonableness; as grounds of review, bad faith and improper purpose, consideration of irrelevant considerations and manifest reasonableness run into another. However, it is well established as a distinct ground of review that a decision which is so perverse that no reasonable body, properly directing itself as to the law to be applied, could have reached such a decision will be quashed.' 

20.	The purpose of the remedy of judicial review was explicated by Lord Hailsham in Chief Constable of North Wales Police v. Evans [1982] 1 W.L.R 1155 at p. 1160, as follows:

"But it is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question."

21.	In Reg. V. Inland revenue Commissioner, Ex parte Preston (1985) A.C. 835 at 862; Lord Templeman stated the circumstances under which the remedy of judicial review is available as follows:

"Judicial review is available where a decision making authority exceeds its powers, commits and an error of law, commits a breach of natural justice, reaches a decision which no tribunal could have reached, or abuse its powers."

22.	In Re Amin [1983] 2 A.C.818 at 829, it was stated by Lord Fraser as follows:

'Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision, on the merits for that of the administrative officer.'

23.	The applicant averred that irrelevant matters were taken into account and relevant matters were omitted. It was further submitted that the tribunal's decision was unreasonable and there were errors of law.

24.	One of the most important issues for the tribunal to determine was whether the Council genuinely and honestly believed on reasonable grounds that the griever attempted to mislead the Council, Dr. Taloga and the court that her injury was more serious than that what was resulted from such a fall.

25.	I will first consider whether the tribunal had taken into account some irrelevant considerations while making its award.

26.	The applicant's counsel in his submissions has addressed a number of points in support of the applicant. However, I do not propose to deal with each of those points individually, but wish to address the issues which are most pivotal to the judicial review application. 

27.	Merely because it appears that the tribunal has considered some facts which are not that relevant, I do not think that its decision should be quashed unless it appears that the award so made was directly and effectively influenced by the considerations of such irrelevant facts.

28.	However, if the applicant established that some relevant facts were ignored by the tribunal and had those facts been taken into the account, the decision could have been otherwise, then it necessarily warrants court's intervention.

29.	The applicant submitted that it was totally incorrect for the tribunal to conclude that the council only pursued disciplinary proceedings after the judgment of the High Court had been delivered. The applicant further submitted that it had already initiated investigations prior to the judgment was delivered.

30.	However, when the award is scrutinized it does not appear that the findings of the tribunal were influenced by the above comment.

31.	The tribunal may have commented on certain facts which were irrelevant, but so long as its decision is not based on those facts, I see no reason to quash the award of the tribunal.

32.	The tribunal found [page 9 paragraph 5] 'on the material made available by the parties through their signed Statement of Agreed Facts, the tribunal is not satisfied that the council could honestly and genuinely conclude on reasonable grounds that the griever had attempted to mislead the council in dealing with her medical reports. Furthermore, the tribunal was not satisfied that the council could have honestly and genuinely concluded on reasonable grounds that the grievor had tried to mislead the council, Dr. Taloga as well as the court.'

33.	Referring to page 10 of the award the applicant further submits that it is inappropriate for the tribunal to express a comment of this nature and also the tribunal sympathized with the position of the grievor. 

34.	Page 10 paragraph 7 of the award reads:

'In this case the medical evidence which was put forward on the grievor's behalf by her legal practitioner was incomplete and unfavourable. The court could do no more than rely on the evidence that was placed before it. The fact that court was not impressed by the demeanour of the grievour as a witness or by her evidence does not necessarily lead to the conclusion that she attempted to mislead the court. The judge's attitude towards the grievor was to some extent determined by the lack of favourable medical evidence.'

35.	However, it appears to this court that the tribunal by making the above comments has not undermined or stated anything contrary to the High Court judgment. What the tribunal has done was that it referred to a part of the judgment and expressed its opinion while coming to its finding.

36.	It must be noted that even in the high Court judgment, it never stated that the 3rd respondent had attempted to mislead the court or her employer. In para: 37 of the judgment it is stated as follows;

'Her action can only be regarded as a contrived attempt to impress the court that she suffered a serious injury with continuing and substantial pain.'

37.	It is apparent that court has accepted the medical report prepared by Dr. Taloga and rejected the opinion of Dr. Veitogavi on whom the applicant relied mostly.

38.	In other words the court has accepted one expert opinion over the other. Expert opinion is not conclusive proof of fact but it is the court which has the discretion either to accept it or not. The fact that the medical report issued by Dr. Veitogavi was rejected by the court does not suggest that the 3rd respondent had attempted to mislead the court or the applicant. Further, there was no evidence before the council that the 3rd respondent dishonestly tendered the medical report issued by Dr. Veitogavi. 

39.	The 3rd respondent when injured was at liberty to go to see a doctor on whom she placed confidence. Whether that particular doctor's opinion as to the extent of the injuries should be accepted or not is entirely a matter for court to determine. 

40.	In this matter, the applicant had accepted the medical report issued by Dr. Veitogavi and on the strength of that report, had approved the 3rd respondent leave. Subsequently, the 3rd respondent was assessed by Dr. Taloga and the said assessment was accepted by the court in the trial. 

41.	However, there is no evidence to show that the 3rd respondent had colluded with Dr. Veitogavi to get a medical report in her favour and therefore, it cannot be concluded that the applicant had acted dishonestly or had misled the court or its employer.

42.	In considering the gravity of the conduct, it is necessary to look at the type of business of the enterprise, the position of the employee and the actual conduct itself in particular the impact of the employee's misconduct on the employer.

43.	Further, it must be examined that whether the mutual trust and confidence which is so central to the employer and employee relationship would and could remain intact due to the conduct of the employee.

44.	In my view, the learned arbitrator correctly approached the issue as one involving his discretion. Under the circumstances there is no evidence for the tribunal to suggest that reinstatement would not be an appropriate remedy in this case.

45.	Finding of a discrepancy between the two medical reports, which has no connection whatsoever with the 3rd respondent's work, in my view, could not breach the mutual trust and confidence the 3rd defendant had with the applicant. This was considered in detail by the tribunal. There is no evidence to suggest that the 3rd respondent fraudulently got the medical reports prepared through a doctor known to her. 

46.	The discrepancy between the two medical reports has been dealt with by the tribunal very rationally and objectively, in the following manner. The tribunal found in [page 7 paragraph 2 and 3.];

'It is common knowledge that an injured worker who is contemplating a claim for compensation either under some legislative scheme or at common law will be referred to and rely upon assessments and medical reports from a sympathetic medical practitioner.

It is also common knowledge that an employer or its insurer will require the injured worker to be examined by a medical practitioner of its choosing. Such medical practitioners are chosen on the basis that they usually assess the injured worker as having a disability which is less than that assessed by the medical practitioner who first examined the injured worker. Under such circumstances it is not unusual for there to be a discrepancy in the assessment of disability by medical practitioner.'

47.	Therefore, it is apparent that the tribunal has not misdirected itself while coming into a conclusion that the discrepancy in the assessment of the 3rd respondent's disability is not indicative of any act of misleading of the employer by the 3rd respondent and did not breach the mutual trust and confidence she had with the applicant.

48.	 The applicant submits that the tribunal in deciding the issue of reinstatement had applied the subjective test instead of objective test and thereby erred in law. The applicant relies on State v. Arbitration Tribunal and FEA and another HBJ 35 of 2005. However, it can be easily distinguished from the present case. 

49.	In the above case, the alleged conduct upon which the employee was terminated was directly related to his employment, whereas in the present case there is no such close proximity between the act of the 3rd respondent and her work.

50.	The tribunal dealt with that issue and stated that the genuine and honest belief had to be reasonable which in my view an objective test. Although the tribunal did not specifically state that it was applying the objective test, the tribunal's way of analyzing the discrepancy between the medical reports and whether the 3rd respondent had misled the applicant, clearly evinces that it had considered those issues objectively.

51.	 It is true that the court refused to accept the medical reports issued by Dr. Veitogavi upon which the 3rd respondent was granted 4 months leave by the applicant. Also, the court placed reliance on the medical report issued by Dr. Taloga.

52.	Further, the court came to a finding that the 3rd respondent has not suffered disability as alleged by her. As I stated earlier, merely because the court rejected one expert opinion and accepted another, it is incorrect to state that the 3rd respondent had dishonestly produced any medical certificate or committed any fraudulent act, which had the effect of breaching the mutual trust and confidence that she had with the applicant.

53.	Unless there is cogent evidence to show that the 3rd respondent had acted dishonestly and tried to mislead the applicant by tendering the medical reports issued by Dr. Veitogavi, it cannot be concluded that the 3rd respondent's conduct warranted a termination of her employment.

54.	The real question, which the tribunal emphatically answered against the position taken by the employer, was whether there was anything wrong with the reasoning of the employer in making the finding it did when it summarily dismissed the 3rd respondent.

55.	As I stated at the beginning, in a judicial review application, it is not the duty of the court to substitute its opinion in place of the tribunal's decision. The court's duty is to see whether there is any irrationality on the decision or whether any irrelevant considerations were taken into account or any relevant considerations were omitted while the decision so challenged were arrived at.

56.	If the tribunal while arriving at its decision, has taken all the relevant considerations into its account and avoided taking into account any irrelevant considerations the court should not intervene with the decision of the tribunal, unless it is manifestly irrational or unreasonable, because it is the procedure rather than the merits which is scrutinized by the court in a judicial review application.

57.	When court is generally able to discern the reasoning of the tribunal, which led to the decision, then it will not interfere on the ground of want of or deficient reasons with that decisions, unless the reasoning is so defective that the result is that the decision is wholly unreasonable or irrational.
58.	The applicant also submitted that the tribunal acted outside its Terms of Reference by ordering that the griever's future employment with the council was to be determined by her medical condition, available work and the provisions of the Collective Agreement in consultation with the Association.

59.	The tribunal stated in its Award:

'The summary dismissal of the grievor was unlawful and unjustified. The grievor is to be reinstated with immediate effect without loss of pay and benefits.'

'The grievor's future employment with the council is to be determined by her medical condition, available work and the provisions of the Collective Agreement in consultation with the Association.'

60.	The 1st respondent submitted that the arbitration tribunal is empowered to make an award in a trade dispute connected with the employment, or with the terms of employment and to make orders incidental thereto. Therefore, it was argued that this award was incidental to the resolution of the trade dispute. The 1st respondent relies on Life Insurance Corporation of India v. Arbitration Tribunal, Fiji Bank and Finance Sector Employees Union & Aseri Kolikata Court of Appeal No. ABU 69 of 2006.

61.	However, I am not inclined to affirm the second part of the award because in the absence of clear medical evidence that the 3rd respondent requires further medical treatment or her condition would aggravate in future, the tribunal cannot in its award give such a direction to the applicant.

62.	Further, the second part of the Award when perused appears that the tribunal did not restrict itself to making a finding within the ambit of the Terms of Reference referred to it, but rather made findings in addition to the Terms of reference. Therefore, the second part of the Award cannot be considered as an incidental to the resolution of the trade dispute.

63.	Upon consideration of the above, the judicial review is allowed to the extent only that the part of the award of the tribunal dated 19.05.2008 which ordered that the 'The grievor's future employment with the council is to be determined by her medical condition, available work and the provisions of the Collective Agreement in consultation with the Association' is quashed.

64.	Parties are to bear their own costs.

Pradeep Hettiarachchi
JUDGE

At Suva
27th October 2011.