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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 7 OF 2016
BETWEEN
OIL SEARCH (PNG) LTD
Plaintiff
AND
BEVERLEY DOIWA as the Chairperson of the Industrial Arbitration Tribunal
First Defendant
AND
KEVIN KONGOI, STORMRY LIRU, JOB MULI, DAVID MATHIAS, MOSES GUMOI AND ALEX PAMINI
Second Defendant
Waigani: Nablu, J
2016: 7th September,
18th November
JUDICIAL REVIEW – Decision of the Industrial Aribitration Tribunal – Jurisdiction and powers of established Tribunal – Industrial Relations Act – Dismissal – Reinstatement whether Tribunal has jurisdiction to consider damages or compensation – Tribunal exceeded jurisdiction – Judicial Review granted.
Cases cited:
Clement Kilepak v. Ellison Kaivovo (2003) N2402
Courts (PNG) Ltd v. Beverley Doiwa in her capacity as the Chairperson of the Arbitration Tribunal (2011) N4286
Ela Motors Ltd v. McCrudden Ex-parte Hoepper [1973] PNGLR 436
Regina v. Smith, Ex-parte The Government of Papua New Guinea [1974] PNGLR 292
Steamships Trading Co. Ltd v. Dandify; Re James Taylor Skedden [1976] PNGLR 303
Counsel:
R. Bradshaw, for the Plaintiff
I. Mugugia, for the First Defendant
H. Wally, for the Second Defendant
18th November, 2016
1. NABLU J: The plaintiff, Oil Search (PNG) Limited was granted leave to review the decision of the Industrial Arbitration Tribunals’ Chairperson, Beverley Doiwa on 20th February 2016. The plaintiff challenged the decision of the first defendant which was made on 23rd December 2015. The first defendant sitting as the Industrial Arbitration Tribunal had decided that it had jurisdiction to determine the question or issue of damages or compensation payable by the plaintiff to the plaintiff’s former employees. Furthermore, the first defendant decided that the question or issue of damages or compensation payable by the plaintiff to the plaintiff’s former employees was an ‘industrial matter’ for the purposes of the Industrial Relations Act, Chapter No. 174.
2. According to the Notice of Motion filed pursuant to Order 16 Rule 5(1) of the National Court Rules, the plaintiff seeks an order in the nature of certiorari to quash two decisions of the first defendant which were made on 23rd December 2015. The plaintiff also sought orders prohibiting the defendant from proceeding to exercise or purporting to exercise power or jurisdiction over the question or issue of damages and compensation payable by the plaintiff to the second defendants, who were former employees and costs.
3. The second defendants were employed by the plaintiff company. The plaintiff alleged that the second defendants removed company property without proper authority. The allegations were also put to the second defendants in writing and they responded. The second defendants were then given an opportunity to be heard in accordance with the plaintiff’s Human Resources Policy Manual. However, upon consideration of the response and the allegations, the plaintiff terminated their employment on 6th June 2008. The second defendant lodged an appeal internally however the decision to terminate was affirmed.
4. The second defendants then invoked the review process under the Industrial Relations Act. The plaintiff and second defendants made several attempts to resolve and amicably settle the issues between them, however, the negotiations were unsuccessful. The Head of State then established the Tribunal on 20thOctober 2008 to determine the second defendant’s claim.
5. According to the appointment instrument published in the National Gazette Notice, the Arbitration Tribunal was established under the powers conferred on the Head of State pursuant to Section 18 and 29(2)(b) of the Industrial Relations Act to;
“(a)...to deal with the industrial dispute between of the other part concerning an alleged unfair, harsh, and unreasonable dismissal of Messrs Job Muli, Stormry Liru, Moses Gumoi, David Mathias, Alex Pamini and Kevin Kongol of one part and Oil Search (PNG) Limited of the other part, from their employments and claims for reinstatement to their former employments without loss of wages/salaries and other entitlements; and
(b) specify MS BEVERLY DOIWA, Chairperson to constitute that Tribunal...”
6. The Tribunal commenced hearing into the matter on 5th November 2008. Then there was a long delay in concluding the matter which was primarily due to the Tribunal being locked out of its office by their landlord. On 19th June 2013, the Tribunal hearing recommenced. Parties presented their submissions on 21st June 2013. On 16th October 2015, the Tribunal handed down its decision. An Award was made in favour of the second defendants. The Tribunal decided that;
“...it was satisfied that the termination of the six (6) complainants by the plaintiff was actually unfair, harsh and unreasonable. Notwithstanding the finding of the Tribunal, it had given consideration to the long delay in making a decision for the reasons given earlier. The Tribunal noted the submissions from the respondent and considered as relevant in this case. In so doing, it has adopted the offer made by the respondent that the Tribunal “considers awarding damages instead of reinstatement of or in replacement of reinstatement”. The Tribunal noted also that the case of Courts (PNG) Limited (Applicant) and Beverly Doiwa 2008 (N4286). This case was submitted to the Tribunal in a letter dated 24th September 2014. The decision in this case ruled that this Tribunal had no powers to reinstate. This Tribunal was not a Court of Law. The Tribunal was also mindful that it has no power to award damages and its powers are defined in the Instrument of Appointment. Although this may be the case, the Tribunal is a Tribunal of fact and it is vested with the power to deal with and resolve issues or disputes pertaining to an Industrial Matter between the parties. The Tribunal believes that in the course of the hearing, should the parties wish to resolve the dispute through a consensus, it is the duty of the Tribunal to give effect to the intentions of the parties. The Tribunal has therefore adopted the offer made by the respondent and as a means to ensure that parties resolve their dispute in the manner they choose. In doing so it has made an Award to this effect and the parties are expected to resolve this issue by a Consent Agreement. The Tribunal has a duty to ensure that the dispute is resolved amicably and in the unlikely event that the parties are unable to reach a Consent Agreement, Tribunal will make a determination on their behalf (emphasis mine).”
7. It is clear from the decision of the Tribunal that it acknowledged that it did not have the power to consider the question of damages, however, they still proceeded to allow the parties to negotiate and come to an agreement. In compliance with the Tribunal’s decision the parties entered into negotiations on the question on compensation or damages. The parties were however, unable to reach an agreement. On 30th November 2015, the plaintiff raised the question of the Tribunal’s power or jurisdiction to determine the question or issue of compensation payable by the plaintiff. The Tribunal adjourned the matter to 18th December 2015 and directed the parties to continue their negotiations. When the matter returned to the Tribunal, the parties made submissions on the question of whether the Tribunal had the jurisdiction to determine the question or issue of damages or compensation payable by the plaintiff to the second defendants.
8. The plaintiff argued that at the Tribunal hearing, both parties agreed that the Tribunal did not have the jurisdiction to hear the question of damages or compensation. However, at the hearing of this judicial review application, the second defendants denied that they conceded to that fact at the Tribunal below and argued that the plaintiff misconstrued their submissions. The second defendants maintained their submission that the Tribunal was vested with the jurisdiction to determine the question of damages according to the affidavit of the principal plaintiff, Mr Keven Kongoi which was filed on 12th February 2016 and is contained at pages 305-615 of the Review Book. They maintained that after ruling on the issue of liability and finding that they were wrongfully dismissed, the Tribunal was to continue hearing the assessment of compensation incompliance with its’ Award and Orders.
9. The total compensation claimed was K5, 514,810.38. They proposed that another Tribunal should be set up to consider the issue of damages and compensation.
10. The plaintiff relied on the affidavits of Robert Bradshaw and Joseph Sumanop which were both filed on 14th of January 2016. The defendants relied on the affidavit of Kevin Kongoi which was filed on 12th February 2016. They also filed the affidavit of Michael Kuma on 15th April 2016. The first defendant also filed her affidavit on 28th April 2016. The affidavits were all contained in the Review Book.
11. The grounds of review relied on by the plaintiff were contained in the Statement of Support which was filed on 14th January 2016. There are two grounds of review. They are as follows;
(a) The defendant erred in law by finding that the Tribunal had the jurisdiction to determine the question or issue of damages or compensation payable by the plaintiff to the plaintiff’s former employees; and
(b) The defendant erred in law in the finding that the Tribunal had the power or jurisdiction to determine the question or issue of damages or compensation when the former employees (i.e., the Claimants before the Tribunal) objected to the Tribunal’s power or jurisdiction (to determine the question or issue).
12. There are six (6) legal issues identified by the parties for determination by this Court:
13. In my view, the crucial issue for determination is whether the Tribunal had exceeded its jurisdiction to determine the question or issue of damages or compensation payable by the plaintiff to the second defendants.
14. It is necessary for the Court to reproduce the relevant provisions of the Industrial Relations Act and the Industrial Organizations Act which go to the very issues in dispute between the parties.
15. Section 18 of the Industrial Relations Act states that:
16. Section 21 of the Industrial Relations Act states that:
A Tribunal shall deal with the industrial dispute in relation to which it was established without delay, and in any case within –
17. Section 32 of the Industrial Relations Act states that:
18. Section 35 of the Industrial Relations Act states that:
19. The term ‘industrial dispute’ according Section 1 of the Industrial Organization Act means a dispute or difference between;
“(a) an employer and an employee or employees; or
(b) employers and employees; or
(c) employees and employees; or
(d) employers and employers,
connected with an industrial matter and includes-
(e) a threatened, impending or probable dispute; and
(f) a situation likely to give rise to a dispute; and
(g) a dispute arising from a contract of employment the particulars of which are contested by either party to the contract within three months after the termination of the contract.”
20. The Industrial Relations Act is an act for the better development of industrial relations and the prevention and settlement of industrial disputes, to be incorporated and read as one with the Industrial Organizations Act.
21. It is trite law that an Arbitration Tribunal is duly established by the Head of State. The instrument which establishes a Tribunal shall specify the constitution of the tribunal and clearly outline its purpose and powers. The Head of State may either revoke the establishment of a tribunal and has the discretion to establish another Tribunal to deal with the dispute in relation to which the first-mentioned Tribunal was established in Section 18(3) of the Industrial Relations Act. The Supreme Court authorities of Ela Motors Ltd v. McCrudden Ex-parte Hoepper [1973] PNGLR 436; Regina v. Smith, Ex-parte The Government of Papua New Guinea [1974] PNGLR 292 and Steamships Trading Co. Ltd v. Dandi; Re James Taylor Skedden [1976] PNGLR 303, all appear to concede with the principle that an Industrial Tribunal may be established and has jurisdiction to deal with an “industrial dispute”. The meaning of the term “industrial dispute” was wide enough to include issues between an employee and employer whether related to the payment of entitlements under a terminated contract of employment, such as the payment of pro-rata leave.
22. Therefore, the necessary perquisite for establishing a tribunal is that there must be an “industrial dispute”. I note however, that there is no dispute as to establishment of the Tribunal or whether there is an existence of an “industrial dispute” in the instant case.
23. In the present case, the Tribunal was established to consider the issue of dismissal and reinstatement. The plaintiff submitted that the Tribunal was a creature of statute and could only exercise powers conferred to it by the enabling legislation. When determining disputes over dismissal or reinstatement. Counsel for the plaintiff referred the court to the case of Courts (PNG) Ltd v. Beverley Doiwa in her capacity as the Chairperson of the Arbitration Tribunal (2011) N4286 to support this contention.
24. In that case, the Court held at page 4 of the Judgment that;
“When the Tribunal exercises its jurisdiction to deal with disputes over dismissal or reinstatement, it has to do so in accordance with the law, and cannot go outside it. A Tribunal is not bound by rules of evidence or procedure, but it is bound by the law.”
25. I adopt the views expressed by Thompson, AJ (as she then was) as the correct proposition of law.
26. The first ground of review the plaintiff relies on to challenge the decision of the first defendant is that the first defendant erred in law when finding that the Tribunal had the jurisdiction to determine the question or issue of damages or compensation payable by the plaintiff to the second defendant.
27. The second defendant’s counsel argued that the Tribunal did have the jurisdiction to determine the question of damages or compensation payable because it had lawful authority to do so. Counsel also argued that the plaintiff had suggested the remedy of damages rather than reinstatement and therefore the Tribunal was only pursuing the settlement in accordance with the plaintiff’s offer.
28. In my view, the crucial legal issue for determination is whether tribunal had the jurisdiction to determine the issue of whether damages or compensation is payable to the second defendant.
29. The terms of reference of a tribunal are specified under the instrument of appointment which clearly states that the industrial dispute is the unfair dismissal of the second defendants and their reinstatement to their jobs without loss of salaries or wages.
30. In the case of Clement Kilepak v. Ellison Kaivovo (2003) N2402, Lenalia J, expressed the following views which I adopt. His Honour stated that;
“Administrative agencies exercising quasi-judicial powers are creatures of statute. The parliament through the enabling legislation
set the limits of the agency’s powers. It directs the method of their operations and determine the focus of their attention
and determinations. The most important aspect of judicial control of administrative authorities is exercised in accordance with
the limits, bounds and provisions of the enabling legislations (sic).”
31. In the evidence before me, I am convinced that the first defendant did exceed its jurisdiction in the manner as contended by the plaintiff.
32. In the affidavit of Beverley Doiwa filed on 28th April 2016, she stated that she had jurisdiction to determine damages and compensation payable by the plaintiff to the second defendants. She also stated that she had jurisdiction. Following on, from a finding that the dismissal was harsh and unfair, and taking into consideration the long delay, she was barred from considering the issue of reinstatement but she could consider damages or compensation as relief in lieu of the request for reinstatement. She stated further that she would only determine the issue of damages and compensation only if the negotiations had failed.
33. In the evidence before me, it is clear that the first defendant did exceed her lawful jurisdiction. The powers of the tribunal are conferred to it by the Industrial Relations Act and the appointing instruments. I take judicial notice of the National Gazette Notice which clearly states the tribunal’s terms of reference. There is no objection to the gazettal notice. The tribunal had powers to determine whether the second defendant was dismissed unfairly and whether they should be reinstated.
34. I reject the first and second defendant’s submission that the determination of the reinstatement could extend to and or include a determination of damages. Reinstatement is not the same as determining an issue of damages or compensation payable by the parties. The principles for consideration of whether to reinstate an aggrieved employee and the principles of considering the amount of damages or compensation payable to a successful applicant are not the same. For reinstatement, a principal consideration is the status of the relationship between the employee and employer. For damages or compensation, the applicable principles are measure of damages, remoteness of damages or whether there was any mitigation of loss and damage are some of the paramount considerations. Clearly, both issues are not identical so, it erroneous of the Tribunal to proceed as if they were the same issue.
35. I am of the view that the Tribunal exceeded its jurisdiction. The jurisdiction of the Tribunal is conferred to it by the enabling legislation which is the Industrial Relations Act. To say, it was given jurisdiction by the plaintiff suggestion or offer amounts to an error of law. Counsel for the first and second defendant has not referred the Court to any legislative provision that empowers the Tribunal to consider the issue of damages or compensation when it was clear that reinstatement was impossible.
36. Furthermore, even if I am wrong, after determining the dispute, the Tribunal has discharged its duties and is functus officio. It cannot then assume jurisdiction without proper legal authority in terms of an appointing instrument. From the evidence before me there is no subsequent instrument of appointment. According to Section 18(3)(b) of the Industrial Relations Act, the Head of State has the power to establish another Tribunal to continue dealing with the dispute. That option was available to the parties to explore.
37. Therefore for the reasons alluded to, I uphold the plaintiff’s first ground of review.
38. Upon perusal of the second ground of review, I am of the view that the ground is repetitious, the fact that the plaintiff has proved the first ground of review is sufficient to grant the application for judicial review. Therefore, it is not necessary for this Court to consider that ground of review after finding that the Tribunal has exceeded its jurisdiction.
39. In regard to the relief, I am of the view that the decision that the Tribunal has jurisdiction should be quashed as it is a serious error of law committed by the Tribunal. I must reiterate however, that the award decision of the Tribunal was not the subject of review and therefore, it appears that Award decision by the Tribunal remains in force.
40. By way of obiter, the second defendants still have other options of redress available to them. They may either seek another tribunal to determine the issue of damages or file legal proceedings to enforce the industrial award. That is a matter for them to consider.
41. In regard to costs, whilst it is the norm that costs follow the event, and the awarding of costs is discretionary, I exercise my discretion to order that each party bear their own costs for the reason that the plaintiff led them to believe that they would enter into bona fide negotiations but then decided to revert back on their decision. The Tribunal made a decision on 16th October 2015, it was subsequently registered on 26th October 2015. Also the long delay in determining the issues in the Tribunal is also a factor which has persuaded me to rule that each party bear their own costs, because of circumstances it would not be fair to order the unsuccessful parties to pay costs. Given those considerations, I will order that each party is to bear their own costs.
42. For the foregoing reasons, the plaintiff’s application for judicial review is granted and each party is to bear their own costs.
Court orders
________________________________________________________________
Bradshaw Lawyers : Lawyers for the Plaintiff
Office of the Solicitor General : Lawyers for the first Defendant
H Best Wally Lawyers : Lawyers for the second Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2016/337.html