IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Appeal Case No. 4 of 2008
Civil Case No. 65 of 2005

BETWEEN:

ATTORNEY GENERAL
Appellant
(Original Defendant)

AND

MICHAEL SHAW
Respondent
(Original Plaintiff)

Appearances:
Counsel for Appellant: Ms P. Prasad 
Counsel for Respondent: Dr S. Sahu Khan

Date of Hearing: 29 July 2008
Date of Judgment: 3 October 2008

JUDGMENT

Headnote

Terms and conditions of employment; Conditions and Rules of Employment for Government Unestablished Employees – Joint Industrial Council; Rewa Dredge Project; Ba Dredge Project; Labasa Dredge Project; Permanent or temporary transfer; Country allowance payable on temporary transfer only; Definition of ‘transfer’; ‘Permanent transfer’; Notification in writing ‘in clear terms’; Payment of transfer allowance – ‘lump sum disturbance allowance’; ‘Normal place of duty’; Effect of provision of accommodation; Crew quarters; Employee maintaining original residence; Payment of country allowance on trips to place of original residence; Offer of payment for transfer of ‘family and reasonable personal effects'; Constitution s. 33 (3); Appeal – principles binding appellate courts

Fox v. Percy [2003] HCA 22
Hadmor Productions Ltd and Ors v. Hamilton and Anor [1982] 2 WLR 322
House v. The King [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936)
Joselyn Deo v. The State (CrimApp No. AAU0025 of 2005S, High Ct Crim Action No. HAA 008 of 2005S, 11 November 2005)
Raibili v. Permanent Secretary, Ministry of Agriculture and Fisheries [2003] FJHC 43; Hbj0054j.1999s (13 March 2003)
Satterthwaite v. Satterthwaite (1948) 1 All ER 343
State Rail Authority of New South Wales v. Earthline Constructions Pty Ltd (In Liq.) [1999] HCA 3; (1999) 73 ALJR 306; 160 ALR 588
Warren v. Coombes (1979) 142 CLR 531, [1979] HCA 9

1.	Background

The Appellant, the Attorney General, appeals against the decision made on 13 June 2007 by Lautoka Magistrates Court in respect of the Respondent, Mr Michael Shaw, who began his employment with the Government of Fiji (Ministry of Agriculture, Fisheries and Forests – the Ministry) on 11 February 1985. Mr Shaw commenced work with the Ministry as a Dredger or Dredger Worker. He was employed initially on the Rewa Dredge Project in 1985. At that time, he was living in the Suva area (Lami then Nausori) and continued doing so until the Rewa Dredge Project ended in 1998. 

1.1	Upon the ending of the Rewa Dredge Project, some employees transferred to the Labasa Dredge Project whilst others transferred to the Ba Dredge Project. Still others went neither to Labasa nor Ba and being classed ‘redundant’ received redundancy payments: Raibili v. Permanent Secretary, Ministry of Agriculture and Fisheries [2003] FJHC 43; Hbj0054j.1999s (13 March 2003). It was by reason of the determination by His Lordship Justice MD Scott in Raibili v. Permanent Secretary that the Dredger Workers were classed as unestablished employees employed under the Conditions and Rules of Employment for Government Unestablished Employees, issued by the Joint Industrial Council for Government Unestablished Employees - ‘Revised Issue’ of March 1986 (Conditions and Rules of Employment): Court Record, pp. 35-36 

1.2	Mr Shaw was amongst those transferred to the Ba Dredge Project. He was advised of this transfer by letter of 15 June 1999. The parties agree that he and other employees in his position are ‘unestablished employees’ whose terms and conditions are governed by the Conditions and Rules of Employment. 

1.3	The 13 June 2007 judgment in the Magistrate’s Court (Michael Shaw v. Attorney General, Unreported, Civil Case No. 65 of 2005, 13 June 2007) sets out with clarity the nature of the dispute between the parties at trial:

1.	Mr Shaw claimed his transfer to Ba was on a temporary basis; the Attorney General claimed the transfer was on a permanent basis.

2.	If Mr Shaw’s transfer was on a temporary basis, his entitlement included travelling allowance and country allowance. If Mr Shaw’s transfer was on a permanent basis, his entitlement was to transfer allowance alone.

3.	Mr Shaw initially claimed a sum of $342.00 as transfer allowance. On the day of the hearing he abandoned this claim, in cross-examination saying he was paid a transfer allowance of $342.00, albeit claiming it as ‘disturbance allowance’, not ‘transfer allowance’: Court Record, Pt 1, p. 33

1.4	His Worship further explains in his judgment that the case (as the parties agree) ‘is a test case and the outcome … will directly affect’ five other cases:

i.	Takayawa Vosataki v. Attorney General – 52/06

ii.	Lepani Matea v. Attorney General 64/05

iii.	Harry Lockwood v. Attorney General 66/05

iv.	Raduva Saumaki v. Attorney General 67/05

v.	Semisi Suluaqalo v. Attorney General – 69/05: Court Record, Pt 1, p. 34

1.5	His Worship found for Mr Shaw, saying:

The fact is that [the Attorney General] did not know the exact length of the Ba project and this is confirmed by Colin Simmons [a witness called by the Defendant at trial] when he said ‘it was a temporary job for a limited duration’. [Mr Shaw] maintained his place of residence in Nausori right throughout the Ba project and is therefore entitled to the country allowance [but] will not be entitled to country allowance for the nights that he spent at his usual place of residence [in Nausori]: Court Record, Pt 1, p. 39 (Emphasis in original)

1.6	In the upshot, His Worship calculated the amount to be paid as country allowance by the Attorney General to Mr Shaw in the total sum of $13,442.50. This was calculated by reference to the number of nights Mr Shaw spent in Ba, minus the weekends he spent at his home in Nausori. The amount was also limited by the Statute of Limitations as the claim was filed on 3 October 1999, meaning the period between 25 July 1999 and 3 October 1999 was so caught. Mr Shaw also was seen to have limited his claim by reason of the upward monetary limit set on the jurisdiction of the Magistrates Court: Court Record, pp. 39, 40

1.7	The Court concluded therefore:

Since [Mr Shaw] abandoned almost 1 year and 9 months to come within the jurisdiction of this Court I feel that justice demands that I shall not make any adjustments with the figures of $667.50 and $12,775.00 (with respect to nights [Mr Shaw] spent at his residence [in Nausori]) and I order that [he] be entitled to receive a total sum of $13,442.50 from the [Attorney General] as country allowance: Court Record, p. 40

2.	Grounds & Approach in Appeal

The Grounds of Appeal are:

1.	The learned Trial Magistrate erred in law and in fact to properly apply the principles of the Conditions and Rules of Employment for Government Unestablished Employees issued by The Joint Council for Government Unestablished Employees (JIC) in the following:-

a)	That [Mr Shaw’s] transfer was a temporary one and not a permanent one.

b)	The fact that the [Attorney General] did not know the exact length of the project made it a temporary transfer.

c)	That since [Mr Shaw] maintained his place of residence in Nausori right throughout the Ba Project he is entitled to Country Allowance.

d)	That [Mr Shaw] is entitled to Country Allowance for the duration that he was based at the Ba Dredge Project.

2.	Such further grounds of appeal as may be added upon receipt of the Court Record: Court Record, pp. 3-4

2.1	In the event, no further grounds were filed.

2.2	In the reading of His Worship’s judgment, the evidence presented at trial, the Conditions and Rules of Employment for Government Unestablished Employees, issued by the Joint Industrial Council for Government Unestablished Employees (Conditions and Rules of Employment), the whole of the Court Record, and the judgment delivered by His Lordship Justice MD Scott in Raibili v. Permanent Secretary, Ministry of Agriculture and Fisheries [2003] FJHC 43; Hbj0054j.1999s (13 March 2003), together with the Grounds of Appeal and the Written Submissions of Counsel for the Appellant and the Respondent, and taking into account oral submissions presented in the appeal, the proper approach to take in this appeal is:

(a)	To consider all the evidence and on the basis of it to endeavour to determine whether Mr Shaw’s transfer to Ba, to work on the Ba Dredge Project, was ‘temporary’ or ‘permanent’ within the meaning of the Conditions and Rules of Employment;

(b)	If it appears on balance that Mr Shaw’s transfer was temporary, then to dismiss the appeal;

(c)	If it appears on balance that Mr Shaw’s transfer was permanent, then to determine against that backdrop, whether the determination by His Worship that Mr Shaw’s transfer was temporary is one that should be sustained or overturned, in accordance with the principles governing the appellate process as enunciated in the authorities, including Joselyn Deo v. The State (CrimApp No. AAU0025 of 2005S, High Ct Crim Action No. HAA 008 of 2005S, 11 November 2005); Hadmor Productions Ltd and Ors v. Hamilton and Anor [1982] 2 WLR 322; House v. The King [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936); Fox v. Percy [2003] HCA 22; Satterthwaite v. Satterthwaite (1948) 1 All ER 343; and Warren v. Coombes (1979) 142 CLR 531, [1979] HCA 9

2.3	In an appeal against sentence on a charge under the Bankruptcy Act 1924-1936 (Cth), the principles by which appellate courts should determine to sustain or dismiss an appeal were stated by the Australian High Court in House v. The King [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936) in the following terms:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, [the High Court of Australia] has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone, LCJ said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow [(1908) 1 Cr AppR 28, at 29]). Lord Reading, LCJ said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff [(1914) 10 Cr AppR 107]). Lord Hewart, LCJ has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar [[1928) 21 Cr AppR 19, at 20]). See, further, Skinner v. The King [[1913] HCA 32; (1913) 16 CLR 336, at 340, per Barton, J. and 342, per Isaacs, J. ] and Whittaker v. The King [[1928] HCA 28; (1928) 41 CLR 230, at 244-50), at 244-50: at 2, per Dixon, Evatt and McTiernan, JJ. 

2.3	In Joselyn Deo v. The State (CrimApp No. AAU0025 of 2005S, High Ct Crim Action No. HAA 008 of 2005S, 11 November 2005) the Court of Appeal said that the appellate process in regard to judicial discretion is the same in criminal and civil appeals, citing House v. The King and Hadmor Productions Ltd and Ors v. Hamilton and Anor [1982] 2 WLR 322, at para [19], per Ward, P., Wood and Ford, JJA

2.4	In Joselyn Deo v. The State the Court of Appeal dealt with findings of fact that had, in a criminal appeal to the High Court, been reversed. Two matters caused the Court of Appeal concern. The first was the High Court finding on remorse:

When passing sentence the magistrate had properly first decided that a sentence of imprisonment was correct in a case of this nature. Having reached that decision he needed to consider whether there were exceptional circumstances which could justify an order suspending that sentence. He refereed to the plea of guilty, the fact [Ms Deo] was a first offender and that full restitution had been made. Those were matters possibly pointing to genuine remorse and his decision to suspend shows that he found they did so point. That was a finding of fact and, as such, is one an appellate court will be hesitant to change. This applies generally normally where the advantage to the lower court arises from the fact it has seen and heard witnesses: at para [17], per Ward, P., Wood and Ford, JJA (Emphasis added)

2.5	The Court said that an appellate court will interfere ‘only if there is no evidence upon which the sentencing magistrate could properly have based his decision or it was based on a wrong principle or mistake of law or is plainly unreasonable’: at para [20] 

2.6	The Court relied on Hadmor Productions Ltd and Ors v. Hamilton and Anor [1982] 2 WLR 322, where the English House of Lords, in addressing the exercise of discretion and the appellate process in a case involving the issue of an injunction, reiterated ‘the long standing position’:

… the function of an appellate court … is not to exercise an independent discretion of its own. It must defer to the judge’s exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently … It may set aside the judge’s exercise of his discretion on the ground that it was based on a misunderstanding of the law or of the evidence before him … there may also be occasional cases where even though no erroneous assumption of law can be identified the judge’s decision to grant or refuse the injunction is so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court has reached the conclusion that the judge’s exercise of his discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own: at 325, per Lord Diplock

2.7	The second matter in Joselyn Deo v. The State was the reversal by the High Court of the magistrate’s suspending of the sentence. This was based upon the High Court judge’s determination that there were ‘no exceptional circumstances justifying a suspension’ – again, a matter going to a finding of fact, by reference to the authorities cited. The Court of Appeal restored the original decision in both instances.

2.8	Satterthwaite v. Satterthwaite (1948) 1 All ER 343 enunciated the principles in these terms:

We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appellable. It is only where the decision exceeds the general ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere: per Asquith, LJ, at 345

2.9	This does not mean that an appellate court cannot apply its own mind upon an equal basis with the trial court, despite the latter having had the opportunity of seeing and hearing the witnesses in person, an opportunity denied to a court of appeal. Hence in Warren v. Coombes (1979) 142 CLR 531, [1979] HCA 9 the majority of the Australian High Court said:

[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it: at 551 

2.10	In Fox v. Percy [2003] HCA 22 the Australian High Court addressed the need to ‘resolve the dichotomy’ between an appellate court’s obligation to properly review the findings of the court below, whilst exercising ‘appellate restraint’:

From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

… In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusions. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But … [where] a judgment of the appellate court is required both on the facts and the law [it] is not forbidden … by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process: at para [29]

2.11	At trial, in Fox v. Percy the District Court judge found certain facts proven, yet contrary to them (albeit founded in trial evidence as to markings on the road in respect of an accident scene – where a horse and van collided), he found against the party whose claim was ‘uncontestibly’ supported by those facts and ‘for’ the party whose version they refuted. This finding was made upon the basis of the latter’s credibility, upon which the judge relied. The New South Wales Court of Appeal (by majority – Beazley, JA, Handley, JA concurring; Fitzgerald, JA in dissent) reversed the decision. On appeal, the Australian High Court had to consider whether this reversal was consistent with the principles applying to the exercise of the Court’s appellate role.

2.12	Observing that the majority had taken into account State Rail Authority of New South Wales v. Earthline Constructions Pty Ltd (In Liq.) [1999] HCA 3; (1999) 73 ALJR 306; 160 ALR 588 where the High Court had reversed a New South Wales Court of Appeal decision affirming the judgment of the court below, on the basis of its resting upon the primary judge’s evaluation of witnesses’ credibility, the High Court observed that it had, in State Rail Authority:

… unanimously concluded that the Court of Appeal was not … precluded [from reversing a decision simply by reason of the credibility question] but was obliged, by the proof of objective documentary evidence, to give attention to all of the evidence of the case: at para [33], per Gleeson, CJ, Gummow and Kirby, JJ.

2.13	The Court went on to analyse the basis upon which the majority in Fox v. Percy had reversed the trial judge’s decision, commenting that it was not that there was ‘incontrovertible evidence … found in a series of documentary records’. However, ‘… it was illustrated in an uncontested, contemporary document that verified the police evidence which the primary judge accepted as truthful’. This was evidence of skid marks, shown in a contemporaneous record (the police officer’s notebook): 

If this objective evidence correctly recorded the trajectory of the respondent's vehicle to the point at which it stopped, it afforded evidence that confirmed the respondent's version of the events immediately prior to the collision and contradicted the evidence of the appellant and [a witness]. 

There were other uncontested facts that tended to support the respondent's version of events … [being] objective fact[s] …

In the end, it was not logic and the assessments of probable behaviour in the circumstances that persuaded the majority of the Court of Appeal … Such considerations might not alone have warranted disturbance of the primary judge's conclusion. It was the objective fact of the skid marks which, to the close of the trial, remained unexplained, or insufficiently explained, by the appellant. 

The only explanations offered by the appellant in that regard were, as Beazley, JA pointed out, unconvincing. The direction of the skid marks … contradicted the only hypothesis offered to this Court to support the final resting place of the vehicle and the appellant … The skid marks showed objectively the direction of the respondent's vehicle from the application of the brakes to the place of rest at the point of the collision with the appellant's horse. Alike with Beazley JA, we regard the skid marks as an incontestable fact that rebuts the claim of negligence propounded by the appellant. Clearly, it was open to the Court of Appeal … to reach that conclusion. Once it did so, that Court was bound to give effect to its opinion. 

The reasons of Beazley JA, disposing of the contrary arguments are also convincing. The evidence of [the witness], a friend of the appellant, is inconsistent with the skid marks. Against his oral testimony, the objective facts speak volumes, even disregarding the matters brought out in cross-examination of him. The suggestion that [his] horse took him over the embankment and then returned to the road is not, as the primary judge thought, decisive. It is also dependent on the accuracy of [the witness’s] recall. In any case, [other objective facts were present to be relied upon]: at paras [34]-[39], per Gleeson, CJ, Gummow and Kirby, JJ. 

2.14	In the present case, there was evidence from Mr Shaw and from Mr Simmons, called for the Attorney General. There was also documentary evidence consisting of correspondence, memoranda, timesheets and pay records, and other relevant material. In reaching a conclusion, this Court has had regard to it all.

3.	Factors Going to Employment Status

Various factors go to the status of Mr Shaw as an employee. These include primarily the Conditions and Rules of Employment, along with Mr Shaw’s employment on the Rewa Dredge Project and then on the Ba Dredge Project, the letter advising him of his employment on the Ba Dredge Project, and other aspects of his employment there, including the provision of accommodation, his travel to his home in Nausori, and trips to Suva in the context of the Ba Dredge Project.

3.1	(a)	‘Transfer’ Defined: The Conditions and Rules of Employment refer to ‘transfer’ in the definitions contained in ‘Section 1 – Introduction’:

3.	Definitions –

(i)	‘Officer-in-Charge’ means the holder of any senior post designated as such by the Head of Department.

(ii)	Transfer means ‘permanent transfer’, the proposition of which has been put in writing to an employee in clear terms and at not less than 14 days notice, i.e. it means a situation which a man does not have to maintain two homes.

3.2	‘Transfer’ appears again in section 10, relating to ‘Country Allowance’, precisely the same terms as in the definitions:

10.	Country Allowance
…
(d)	Transfer: Transfer means ‘permanent transfer’, the proposition of which has been put in writing to an employee in clear terms and at not less than 14 days’ notice, i.e., it means a situation in which a man does not have to maintain two homes.

3.3	Further, if the transfer is a ‘permanent transfer’, then:

… an employee on permanent transfer will be paid a lump sum disturbance alliance of $200 (effective 1.10.81). Transferred employees are not eligible for transport [which applies to employees on outstation duty under] paras (c) and (d) of Clause 11: para 10(e)

3.4	Under para 10(f):

In the event of a transfer, the employee, his family and reasonable personal effects will be transferred at the department’s expense.

3.5	(b)	Letter of Transfer: 

When Mr Shaw transferred to the Ba Dredge Project, he received a letter dated 15 June 1999 (Exhibit D1), quoted in the judgment, which said:

With the mobilization of dredger Manabatibati to undertake dredging works in the Ba River, it has become essential to transfer you to Ba River Dredge Project under your existing terms and conditions of employment with effect from 05/07/99.

In this posting, you will be entitled to transfer allowance as well as other travelling expenses and cartage of personal effects. You will also be provided accommodation in the Crew Quarters in Ba: Court Record, Pt 2, p. 77

3.6	His Worship sets out this letter (Court Record, Pt 1, p. 36), but does not address is content nor make any findings in relation to it. Reference is, nonetheless, made to it in the parties’ Written Submissions. Mr Shaw relies substantially upon the framing or terms of this letter (or its ‘lack of terms’). The terms are directly relevant to the question of Mr Shaw’s employment status. Hence, the Written Submissions in respect of the letter are referred to here in some detail. 

3.7	For the Attorney General it is said:

The Plaintiff’s transfer to Ba was a permanent transfer. As given in evidence by Mr Colin Simmons, if it had been a temporary transfer then it would have been stated as such in the transfer letter as ‘temporary transfer’ and not just transfer. Also, the duration of the time spent outstation would have been stated. This was not the case here.

If this had been a temporary transfer there would have been a permanent station to go back to for [Mr Shaw] after the duration of temporary transfer was over. If he is claiming that the Rewa project was the permanent station of work and that the Ba [project] was a temporary station, then at the end of the work in Ba, he should have gone back to his permanent station.

But this was not the case since the transfer to Ba was permanent and after [Mr Shaw] moved to Ba, Ba became the permanent station for work: Court Record, p. 167

3.8	For Mr Shaw:

Initially he was employed [as an unestablished worker] at the Rewa dredging works.

Then he was brought to Ba Dredging Works. It is very important to note that he was relocated to Ba only for the limited duration of dredging works in Ba. He was only mobilized there for [a] limited period, only for dredging works in the Ba River.

With respect, the letter dated 15th day of June, 1999 … makes this very clear:

It states:-

With the mobilization of dredger Manabatibati to undertake dredging works in the Ba River, it has become essential to transfer you to Ba River Dredging Project under your existing terms and conditions of employment with effect from 5/7/99.

Then when the dredging work for the limited period was completed then the Plaintiff was terminated.

Exhibit D1 page 67 clearly states:-

Country Allowance

Country allowance is payable under sub-clause 10(a) of the JIC Agreement during a period when an unestablished employee is required to ‘camp’ on outstation duties for projects of limited duration. It is therefore intended to cover their living costs.

From the correspondence and the evidence of both the Plaintiff and Defendant it is very clear indeed that the Plaintiff was brought to Ba for the limited duration namely for the period of Ba Dredging Project: Court Record, pp. 180, 181 [Emphasis in Written Submissions]

3.9	Further for Mr Shaw on the letter:

The [Attorney General] talks about Transfer and the letter speaks of transfer. However transfer refer[s] to only permanent transfer as defined under Clause 10(d) of the Agreement … which states:-

Transfer means permanent transfer the proposition of which has been put in writing to an employee in clear terms and at not less than 14 days’ notice, i.e. it means a situation in which a man does not have to maintain two homes … 

It is very clear from the evidence and the [letter of 15 June 1999] … that [Mr Shaw] was only relocated to Ba for the duration of the Dredging Project. Therefore how can the [Attorney General] say that it was Permanent Transfer: Court Record, p. 185 [Emphasis in Written Submissions]

3.10	For Mr Shaw, again as to the letter and its content as to transfer state:

Furthermore Clause 10(d) states that if it is a Permanent transfer then it should be stated in writing ‘in clear terms’. Nowhere in that letter … does [it] state it was a Permanent Transfer.
The [Attorney General] … states …:

The Plaintiff’s transfer to Ba was Permanent transfer. As given in evidence by Mr Colin Simmons, if it had been a temporary transfer then it would have been stated as such in the transfer letters ‘temporary transfer’ and not just transfer. Also, the duration of the time spent outstation would have been stated. This was not the case here … 

With respect, it is the other way around. If the transfer was to be Permanent then the letter should have stated so ‘in clear terms’ as required by Clause 10(d). [Mr Shaw] was not aware how long the work would be. That is why he did not bring his family. The letter only stated that he was to go to Ba for the duration of dredging works. Therefore, there was clear[ly] a situation that he had to maintain two homes.

With respect it is very clear under Clause 10(d) and the letter to the Plaintiff which stated it was not … a Permanent Transfer. On the other hand it was seen … that [Mr Shaw] was in Ba for [a] limited duration for the duration of the Dredging Project only: Court Record, p. 185

3.11	Taking into account the content of the letter of 15 June 1999 and submissions made by both parties, the essential question is whether the letter complies with the requirement in the Conditions and Rules of Employment as to the definition of ‘permanent transfer’ or whether its terms do not convey, or ‘clearly’ convey, that Mr Shaw’s status was as an employee on ‘permanent transfer’ rather than ‘temporary’ duty at the Ba Dredge Project.

3.12	The definition in the Conditions and Rules of Employment is clear that ‘transfer’ means ‘permanent transfer’. This is repeated in both the definition section and in clause 10(d). There can be no mistake the word ‘transfer’ means ‘permanent transfer’ and does not refer to a temporary situation. However, do the terms of the letter of 15 June 1999 convey this in ‘clear terms’ as required by the definition and clause 10(d)?

3.13	In support of the answer ‘yes’, is, first, that the letter says Mr Shaw’s transfer will be ‘under [his] existing terms and conditions of employment’. Mr Shaw’s ‘existing terms and conditions of employment’ were that he was an unestablished employee in receipt of wages which related to a permanent placement at a permanent station of work. The letter says nothing about extending those terms and conditions to include a ‘country allowance’. It does not appear to me that the ‘clear terms’ requirement means the employer must say: ‘This does not include any country allowance’. Rather, country allowance is an additional benefit or term or condition which, if applicable to a worker, would necessarily be required to be the subject of explicit mention. As the Conditions and Rules of Employment themselves inferentially make explicit by containing an entire section on Country Allowance: clause 10, and clause 11 – ‘Transport and Travelling Allowances’ relating to ‘outstation duty’ which carries country allowance. 

3.14	In response it might be asserted that ‘existing terms and conditions of employment’ means the Conditions and Rules of Employment and, hence, that this leaves open, necessarily, the prospect of payment of country allowance at Ba Dredge Project. However, this does not overcome the problem faced by Mr Shaw in his contention that the letter is not in ‘clear terms’ as required by the definition and clause 10(d). 

3.15	‘Clear terms’ include the reference to Mr Shaw’s ‘existing terms and conditions of employment’. A reference to ‘country allowance’ would still be required if the words ‘existing terms and conditions of employment’ mean Conditions and Rules of Employment. The Conditions and Rules of Employment set out a whole range of ‘terms and conditions of employment’. A fair implication is that these must be spelled out to workers for them to apply. Hence, for ‘existing terms and conditions’ to mean Conditions and Rules of Employment, the precise sections, clauses or aspects of the Conditions and Rules of Employment would have to be spelled out. 

3.16	The Attorney General’s position is that the letter is written in clear terms as required by the definition and clause 10(d). For Mr Shaw to succeed, the letter would have to state, for example, that Mr Shaw’s employment is to be ‘on outstation duty’ as per clause 10(a). Yet there is no reference to ‘outstation’ or ‘outstation duty’. Nor is there any reference to the provisions governing ‘return to his usual place of residence’ as per clause 10(c) – this could arguably be necessary if Mr Shaw were being offered employment at an ‘outstation’ (that is, a ‘temporary’ transfer) in respect of his employment on the Ba Dredge Project.

3.17	There is nothing in the letter to indicate that Mr Shaw is entitled to transport costs on a regular basis as required for outstation workers under paragraphs (c) and (d) of clause 11 of the Conditions and Rules of Employment. This could be taken as confirmation that Mr Shaw is not being posted (or transferred) to an ‘outstation’. ‘Clause 11 – Transport and Travelling Allowance’ provides amongst other matters:

(c) Employees on outstation duty within their district who can be conveyed by motor transport will be given transport to and from their normal place of duty every second weekend. Travelling time will be one journey in employees’ time and the other journey in the department’s time. Country allowance will not be paid for the period that the employee spends at his normal place of duty.

(d)	Employees on outstation duty outside their districts or within their district where sea or air transport is required, will be given transport to and from their normal place of duty on or before every twelfth weekend. Travelling time will be one journey in employees time and the other journey in the department’s time. Country allowance will not be paid for the period that the employee spends at his normal place of duty.

3.18	Secondly, the letter of 15 June 1999 does state explicitly what entitlements in addition to the ‘existing terms and conditions of employment’ are extended to Mr Shaw:

In this posting, you will be entitled to transfer allowance, as well as other travelling expenses and cartage of personal effects …: Court Record, Pt 2, p. 77

3.19	As regards these, first as regards the transfer allowance, all the evidence confirms that Mr Shaw along with others on the Ba Dredge Project received it. Indeed, Mr Shaw’s name and signature appear on a letter dated 2 May 2001, sent by him and four others on the Ba Dredge Project to the Administrator, Land & Water Resources Management West, requesting that the sum of $342.00 be made up so that they will be paid the ‘Transfer Allowance’ in full:

We the undersigned who transferred from Nausori Rewa on 6th June 1999 had the allowance of $250.00 and it should be $342.00 each, giving us a balance of $92.00 whereas $42.00 is said to be aped to us in the near future.

We humbly requesting your favour in justifying the arithmetical sphere necessarily be corrected: Court Record, Pt 2, p. 29

3.20	A memorandum indicates that the ‘actual transfer allowance’ paid to the listed employees ‘was $300.00 per employee, paid on week-ending 6/99’: Court Record, Pt 2, p. 31 Whether it is titled a ‘disturbance allowance’ (as Mr Shaw termed it: Court Record, p. 26 or ‘transfer allowance’ (as Mr Shaw also termed it: Court Record, p. 26) the Conditions and Rules of Employment make clear that it is paid to persons on permanent transfer. It is not paid to those on temporary transfer. This is incontrovertible. 

3.21	Mr Shaw said in cross-examination:

I received the transfer allowance of $342.00. The crew quarters were only for temporary basis till we finished the project. It was only a hut.

I see page 119 the hut has rooms, it was not an open hall.

I was transferred on temporary basis. I did not return the transfer allowance as it is s disturbance allowance: Court Record, p. 26

3.22	His Worship says that the Attorney General’s ‘only basis’ for saying that Mr Shaw was ‘permanent’ was that he ‘was paid transfer allowance’. However, taking into account the as Conditions and Rules of Employment which have to be taken as central to the ultimate question, the transfer allowance and Mr Shaw’s receipt of it must be a not insignificant factor in the determination of whether or not his transfer was permanent or ‘temporary’.

3.23	His Worship also observes that ‘as late as 02/05/01 there was still some confusion as to the payment of transfer allowance’: Court Record, Pt 1, p. 37 This relates to the payment to Mr Shaw and other Dredge Workers of the allowance at $300.00 with their writing to have an increase in the allowance paid to them. However, that there was a lack of payment of the full amount, as it appears, does not overcome the fact that Mr Shaw was paid the allowance, accepted it, and did not repay it. As noted, in accordance with the Conditions and Rules of Employment this allowance was payable only in the event of permanent transfer: Clause 10(e) by reference to clause 10(d) 

3.24	As to the second entitlement, transport and carriage for the transfer to the Ba Dredge Project, this, like the transfer allowance, is explicitly referable to ‘transfer’ as in clause 10(d) – in other words, to ‘permanent transfer’. These, together with the ‘existing terms and conditions’ provision, may provide the ‘clear terms’ required by clause 10(d). 

3.25	Further, the ‘transfer allowance’ appears in clause 10(e) and the entitlement to ‘transfer at the department’s expense’ appears in clause 10(f) of the Conditions and Rules of Employment. Reference to these confirms that the transfer is a ‘permanent transfer’ within the meaning of clause 10(d). Clause 10(f) refers to payment in respect of ‘transfer’ which must be taken to mean ‘permanent transfer’ consistent with the definition in clause 2 and the wording of clause 10(d).

3.26	Clause 10 says:

(e)	If (d) above has been compiled with, then an employee on permanent transfer will be paid a lump sum disturbance allowance of $200 (effective 1.10.81). Transferred employees are not eligible for transport in accordance with parts (c) and (d) of Clause 11.

(f)	In the event of a transfer, the employee, his family and reasonable personal effects will be transferred at the department’s expense.

3.27	No reference to ‘country allowance’ appears in the letter of 15 June 1999. As there is explicit mention of the entitlements under clause 10(e) and (f), and none as to ‘country allowance’, this can confirm that Mr Shaw was subject to ‘permanent transfer’ per clause 10(d). On the other hand, it may be said that the lack of reference in the letter to Mr Shaw’s family – ‘you’ rather than ’you and your family’ being the words used vis-à-vis the carriage costs to the place of work (Ba Dredge Project) – are not sufficiently explicit to make clear that the transfer is ‘permanent transfer’ under the definition. 

3.28	In the event, it was clear that the letter extended eligibility for the Dredge Workers’ families being covered by the offer of transport. This is confirmed in that some Dredge Workers did transfer with their families, those expenses being covered.

3.29	(c)	Accommodation and Residence:

However, in support of Mr Shaw’s position it could be said that ‘clear terms’ means the letter should state that his transfer is one ‘in which he does not have to maintain two homes’: clause 10(d) and clause 3. ‘Definitions’

3.30	Potentially supporting this is the additional benefit or allowance extended to Mr Shaw in the letter:

You will also be provided accommodation in the Crew Quarters in Ba: Court Record, Pt 2, p. 73 (Letter of 15 June 1999)

3.31	The Attorney General’s position on the provision of accommodation effectively supports Mr Shaw, in that in the Written Submissions it is said that no unestablished staff are ‘entitled to any accommodation once they are permanently transferred’: Court Record, Pt 2, p. 171 The provision of accommodation features strongly in His Worship’s determination in favour of Mr Shaw: Court Record, Pt 1, pp. 37-38

3.32	The Attorney General goes on to say, however, that there were ‘discussions between [Mr Shaw], the Union and the Ministry that once transferred they [the Dredge Workers] would be temporarily accommodated in a "crew quarters" at Ba. During these discussions it was also made clear to the employees that this transfer was a permanent one: Court Record, Pt 2, p. 171 (As to these discussions, there is no note in the Court Record of this having been put to Mr Shaw during the trial, so is not taken into account here.)

3.33	In cross-examination, to its being put to him that the crew quarters ‘was only for temporary basis and you were supposed to look for a permanent quarters?’ Mr Shaw responded: ‘No, we were only told to stay in the hut’: Court Record, Pt 1, p. 27 

3.34	Witness called by the Attorney General, Mr Colin Simmons, made a distinction between ‘government quarters’ and ‘crew quarters’. He said Mr Shaw ‘was not entitled to any government quarters, he was entitled to crew quarters which is a temporary quarters’: Court Record, Pt 1, p. 28

3.35	Mr Simmons went on to say:

If they wanted to bring their family they stay on their own and we would transfer the families by departmental motor vehicle.

Michael Shaw did not choose to bring his family down: Court Record, Pt 1, p. 28

3.36	In cross-examination, Mr Simmons elaborated, acknowledging that Mr Shaw:

… had only one house … When he was transferred his place of residence was either Nausori or Lami … 

If he found a place in Ba, we would have thought that he would bring the family to Ba.

When he came from Suva I knew that he was going to leave his ordinary place of residence …

I did not personally enquire if he was going to bring his family over: Court Record, Pt 1, p. 29

3.37	In re-examination:

When somebody is permanently transferred we would enquire whether they would want to bring the family over: Court Record, Pt 1, p. 30

3.38	In Written Submissions, for the Attorney General it was said that ‘as it so happened’:

… most of the employees preferred to stay on at the crew quarters and never found any permanent accommodation for them and their families.

[Mr Shaw] was in the same boat so to say. He never found any accommodation outside and stayed on at the crew quarters which was much cheaper and convenient.

If [Mr Shaw] did not bring his family down from Rewa, that was entirely his own choice. If someone wants to maintain ‘two homes’ then it is up to them. The Ministry does not interfere with that: Court Record, Pt 2, pp. 172-73

3.39	Does this mean that Mr Shaw is in fact entitled to country allowance, his accommodation being provided and his living in crew quarters confirming the ‘outstation’ nature of the Ba Dredge Project and acceptance by the Attorney General of Mr Shaw’s ‘ordinary place of residence’ being his home (where his family lived) in Nausori?

3.40	The Attorney General submitted that Mr Shaw and other employees were not entitled to accommodation once transferred and were accommodated in the crew quarters ‘by the goodwill of the Ministry’, the Ministry being considerate of the fact that it would be ‘difficult for its employees to find accommodation quickly, even though some of the employees preferred to stay on at the crew quarters’: Court Record, Pt 2, p. 173

3.41	Mr Shaw’s position was that he was entitled to accommodation (making him eligible for country allowance), however as what was provided was a ‘prefabricated shed’, accommodation was not in fact provided and, hence, he was entitled to $17.50 per night Country Allowance rather than $7.50 per night in the instance of accommodation’s being provided: 

Further, it is clear from the Clause 10(a) of the JIC Agreement [Conditions and Rules of Employment] that if Accommodation was not provided then the Country Allowance was $17.50 per night was to be paid but otherwise $7.50 per night …

Here the evidence is clear even by the evidence of the [Attorney General] that [Mr Shaw] was put in [a] temporary prefabricated Shed.

Therefore, with respect, [Mr Shaw] is certainly entitled to say Accommodation was not provided.

It was also agreed by the [Attorney General]’s witnesses that this construction was prefabricated temporary shed. Therefore [Mr Shaw] clearly has shown that he was entitled to country allowance as stated in paragraphs 3, 4 and 8 of the Statement of Claim: Court Record, Pt 2, p. 183 

3.42	These submissions were in the context of the definition of accommodation in the Conditions and Rules of Employment which ‘excludes hotel accommodation, tents, temporary sheds or huts’ which are ‘not considered as accommodation for the purpose of country allowances’: Court Record, Pt 2, p. 183 (Written Submissions) It is also employed to support the contention that there were no ‘clear terms’ in the 15 June 1999 letter of transfer that ‘it was a permanent transfer’ and:

This was supported by the fact that [Mr Shaw] was put in a camp at Ba …: Court Record, Pt 2, p. 187

3.43	Further in support of Mr Shaw’s position is that an employee agreement was signed by Mr Shaw and other workers as to rules and conditions in the accommodation (BA Dredge Crew Quarters Agreement, Court Record, Pt 2, p. 15), and that Mr Shaw was on one occasion ‘disciplined’ for poor behaviour or conduct contrary to the rules and conditions, but was allowed to remain. It is said that this means that Mr Shaw was on temporary transfer – otherwise, why would the Attorney General condone his remaining in the face of his transgression: Crew Quarters File, Court Record, Pt 2, pp. 19-27 This, too, is significant in His Worship’s determination: Court Record, Pt 1, pp. 37-38

3.44	On the other hand, a document headed Ministry of Agriculture Fisheries & Forests with the subject heading:

TEMPORARY OCCUPATION OF CREW QUARTERS (BA DEPOT)

dated 26 January 2001 and addressed to one of Mr Shaw’s Dredge Worker counterparts can be seen as supporting the Attorney General’s position. It says:

This is to offer you temporary accommodation in the Dredge Crew Quarters. 

Your condition of occupation will be laid down by the Rules for Crew Quarters (Dredge) which is available for perusal. If you wish, with the Chairman of Dredge Crew Quarters Committee.
You must also make yourself available to assist in any Dredge Emergency that may arise.
Weekly rent deducted will be $0.44 for your normal weekly pay. This is signed by the Chairman for Dredge Superintendent: Court Record, Pt 2, p. 17 (Emphasis added)

3.45	The reference to ‘temporary accommodation’ is ambiguous. It can be employed to support both the Attorney General’s position and that of Mr Shaw. It may also be said it is not addressed to Mr Shaw. However, that the accommodation was recognised as ‘temporary’ and offered as ‘temporary occupation’ is consistent with the evidence before the Court from Mr Simmons as to Mr Shaw’s position and, further, it may be asked why (if it is contended that this notification was inapplicable to Mr Shaw’s situation) Mr Shaw was being treated differently from other Dredge Workers on the Ba Dredge Project, or the named worker was being so treated.

3.46	In support of Mr Shaw’s position, the words ‘temporary accommodation’ may be argued as consistent with the proposition that Mr Shaw’s is a temporary transfer: hence, he occupied temporary accommodation. On the other hand, the wording fits with the Attorney General’s position that the crew quarters accommodation was offered as a temporary measure pending the transferees’ finding of permanent accommodation.

3.47	Further in support of the Attorney General’s position is that more than one member of the Dredge Project crews moved his family, taking advantage of the offer contained in the letters advising the Rewa Dredge Workers of the Ba and Labasa Dredge Projects and their employment on the respective Project. A Memorandum dated 18 December 1998 indicates:

The boat tickets for family members of Dredge crews have been already issued. Please make arrangements and confirm the transportation of their family members and personal effects as follows …: Court Record, Pt 2, p. 37

3.48	Thereafter appears a list of some seven (7) Dredge Workers with their departure dates listed, two (2) moving with their families from Suva, five (5) moving from Ba to Labasa with their families: Court Record, Pt 2, p. 37

3.49	Others took advantage of the support for moving family, consistent with transfers to Ba Dredge Project’s being permanent rather than temporary. On 8 January 2001, Mr Semisi Suluaqalo wrote in respect of the Dredge Operator ‘B’ Post, observing that such a position had become vacant in Ba and he was ‘willing to take the post and also to take [my] family there’. This he wished to do at the end of the year ‘because (i) financial arrangement for the families; and (ii) school children’: Court Record, Pt 2, p. 85

3.50	The evidence further confirms that Mr Suluaqalo’s request was agreed to, with steps taken to arrange accommodation and school, etc and to ‘arrange luggage’. The transfer allowance was paid to him, consistent with that paid to Mr Shaw and his co-transferees from the Rewa Dredge Project. Similarly Mr Raduva Saumaki effected a transfer from the Labasa Dredge Project to the Ba Dredge Project upon the death of one of the Ba Dredge Workers, and was paid the transfer allowance on 13 November 2000: Court Record, Pt 2, pp. 83-89, 105-07, 139-41, 145

3.51	No argument could be sustained that the transfer was permanent for others, temporary for Mr Shaw, for the issue is whether Ba Dredge Project was an ‘outstation’ for the purposes of the Conditions and Rules of Employment. Only if it were an ‘outstation’ could a transfer to that site be temporary rather than permanent. 

3.52	Weighing up all the evidence, including the oral evidence of Mr Shaw and Mr Simmons, and taking into account the plans of the accommodation (Court Record, Pt 2, pp. 131, 133) what seems apparent is that ‘crew quarters’ were basic, but more substantial than presented initially by Mr Shaw in his evidence in chief. Individual rooms were provided rather than dormitory accommodation, for example. The more fundamental matter, however, is whether this provision of accommodation supports Mr Shaw in his contention that he was an employee on temporary, not permanent, transfer.

3.53	The evidence before the Court does not appear, on balance, to be persuasive as to provision of accommodation meaning Mr Shaw’s transfer was temporary rather than permanent. The material going to regulating conduct in the accommodation is a factor in the running of group accommodation of any sort. Whether ongoing or intended as a temporary measure, necessarily conduct of a group of unrelated persons living together (or working together) needs be regulated: Court Record, Pt 2, pp. 27 That he was allowed to remain despite some form of ‘indiscipline’ appears to be consistent with the rules. It appears that some occupants/residence were in arrears in barrack fees, including Mr Shaw: Court Record, Pt 2, p. 23 Lack of payment of fees led to a directive that ‘those that are not entitled to stay in the barrack [are] to vacate’. The Administrator (L&WRM) Western wrote on 18 August 2002:

But because of your pleas, we managed to get you to stay in the barracks. On checking the list most of you who were to vacate is listed on [the] names of those whose fees are not paid.

We did that considering the problem you have to face but if you do not honour that and [are] not complying to the agreement, I will be more than pleased to terminate your occupancy of the crew quarter.

Your arrears are to be paid by 23/08/02. This is [the] final warning.

Furthermore, I do not wish to receive any more note[s] from the Committee on the above. In future, defaulters will receive a vacation notice …: Court Record, Pt 2, p. 25

3.54	What is the more important is whether Mr Shaw’s residency in Ba (wherever he lived) was ‘permanent’ in the sense of its being provided at his ‘normal place of duty’: Clause 11, Conditions and Rules of Employment

3.55	Consistent with a contention that Ba was Mr Shaw’s ‘normal place of duty’ is the evidence as to when country allowance was in fact paid to him.

3.56	(d)	Duration of Project:

 That the Ba Dredge Project was for a limited period of time – in the sense that its duration was dependent upon finalising the dredging is said by Mr Shaw to support the proposition that his transfer was temporary, not permanent. The ‘temporary’ nature of his transfer is said to be conclusive by reference to the fact that there would be no work for him in Ba upon conclusion of the Ba Dredge Project. 

3.57	For Mr Shaw it is said:

Initially [Mr Shaw] was employed … at the Rewa dredging works.

Then he was brought to Ba Dredging Works. It is very important to note that he was relocated to Ba only for the limited duration of dredging works in Ba. He was only mobolised there for [a] limited period, only for dredging works in the Ba River: Court Record, Pt 2, p. 179

3.58	Reliance for the proposition that this means country allowance is payable, Ba being effectively an ‘outstation’, is placed upon:

•	the letter of 15 June 1999 (Exhibit D1), in its stating that with the:

… mobilization of dredger Manabatibati to undertake dredging works in the Ba River, it has become essential to transfer you to Ba River Dredging Project under your existing terms and conditions of employment with effect from 5/7/99: Court Record, Pt 2, p. 179 (Emphasis in Written Submissions)

•	termination of Mr Shaw’s employment upon the finalization of the Ba Dredge Project:

Then when the dredging work for the limited period was completed [Mr Shaw] was terminated: Court Record, Pt 2, p. 181

3.59	The letter (memorandum) of termination is quoted:

COMPLETION OF BA DREDGE PROJECT Date 22/08/2005

(Your Reference ….)

This is to inform you that the Ba Dredge Project is now complete.

The termination of your appointment will be effective from 31st August 2005 as per clause 170 of the Conditions and Rules of Employment for Government Wage Earners, issued by the Public Service Commission in consultation with Public Employees Union, 1992: Court Record, Pt 2, p. 181 (Emphasis in Written Submissions)

3.60	The conclusion is put for Mr Shaw that this means that he is entitled to country allowance on the basis of the principle upon which country allowance is payable:

Country Allowance

Country allowance is payable under sub-clause 10(a) of the JIC Agreement during a period when an unestablished employee is required to ‘camp’ on outstation duties for projects of limited duration. It is therefore intended to cover their living costs: PSC Circular No. 28/2000, 5 June 2000 ‘Clarification on Revised Allowances’, Court Record, Pt 2, pp. 119-27, p. 125 (Emphasis in Written Submissions)

3.61	Thus:

From the correspondence and the evidence of both Mr Shaw and the Attorney General it is very clear indeed that [Mr Shaw] was brought to Ba for the limited duration namely for the period of Ba Dredging Project …

In this regard it is very significant to note that limited duration does not mean a few days. It means only for certain duration. Here it means until the completion of dredging works in Ba. That was the limited duration and not indefinitely: Court Record, Pt 2, pp. 181-183 

3.62	It is said that the payment of redundancy is irrelevant to the question of country allowance and Mr Shaw’s status as an employee on (as is asserted) temporary transfer and that it simply ‘clouds the real issues involved’: Court Record, Pt 2, p. 187

3.63	The Attorney General’s position is that Ba ‘was a permanent transfer’ because ‘if it had been a temporary transfer then it would have been stated as such in the transfer letters ‘temporary transfer’ and not just transfer. Also, the duration of the time spent outstation would have been stated. This was not the case here’: Court Record, Pt 2, p. 167

3.64	The reliance upon the ‘required to "camp"’ provision, albeit put forward for Mr Shaw, tends also to undercut his position. The evidence is that he was not ‘camping’ (even if ‘camp’ is taken to mean more than tents which I would accept it does) but living in accommodation which albeit a prefabricated hut had separate rooms and communal living space. It was not a space for families, indicated by the cost which was charged for it and the rules which indicate that this was for workers. However, Mr Shaw was not ‘required’ to live there, which is evident from the fact that other Dredge Workers moved to Ba for the Ba Dredge Project together with their families, were assisted in this (consistent with the letter of 15 June 1999) and had travel and moving expenses paid.

3.65	Accepting Mr Shaw’s submission that the length of time for a temporary transfer does not have to be ‘days’ only but can be for a longer period does not, however, mean that the Ba Dredge Project thereby must be seen as a temporary transfer. It would seem more likely that for a temporary transfer a length of time would be stipulated or, if ‘until the end of the Ba Dredge Project’ was the period stipulated then this would be accompanied by advice that this was a temporary transfer for that (indeterminate) time, with ‘temporary’ being specifically stipulated.

3.66	The problem for Mr Shaw arises also in relation to the ‘outstation’ wording contained in the PSC Circular quoted, and in the provisions of t
he Conditions and Rules for Employment. If the Ba Dredge Project were an ‘outstation’ then there necessarily must be a ‘permanent station of work’. That is, the requirement is not for a ‘permanent household’ or ‘permanent residence’ as is contended for by Mr Shaw, in the sense of his saying that because his home in Nausori was his permanent residence and his family were there, this must be what the Attorney General classes as his permanent residence or permanent household. Rather, the question needs to be directed, first, to the place of work: was there a permanent place of work for Mr Shaw in Nausori, or Rewa or Suva or the Suva/Rewa/Nausori district or area from which he was transferred to the Ba Dredge Project for ‘outstation’ work at the latter site. 

3.67	The answer to that question is ‘no’ – for the Rewa Dredge Project had come to an end. The Conditions and Rules for Employment vis-à-vis country allowance, outstation and permanent station of work appear to envisage that:

•	The employee has a permanent station of work – say, at Rewa;

•	The employee’s home or household or permanent residence (for the purposes of the work) is close by or in the vicinity;

•	In conjunction with that permanent station of work the employee is sometimes required to move from that location to another location to carry out work – and that other location is the ‘outstation’;

•	If work at the outstation precludes the employee from travelling home each night to his home or household or permanent residence, then he is entitled to country allowance to cover the cost of living;

•	In the latter situation, the employee is required by reason of the outstation work, which is of limited duration, to maintain two homes – one his home or housed or permanent residence for the purposes of the permanent station work, and one a temporary quarters or residence or home or household to enable him to go out each day to work at the outstation.

3.68	This was not the case for Mr Shaw. He was permanently based at Ba to work on the Ba Dredge Project and his home or residence or household there (in crew quarters) became his permanent residence or home or household for the purposes of the permanent station work. When he went to Suva with the dredge (as occurred on a number of occasions – see later), he moved from his permanent place of residence in terms of his employment, to an ‘outstation’ – in this case Suva – where he was necessarily paid country allowance to cover his living or accommodating costs. 

3.69	Mr Shaw did not have a permanent station of work in the locality of his home or household or residence in Nausori. That station of work had come to an end and no longer existed, due to the finalisation of the Rewa Dredge Project. Hence, there was no permanent station of work for him to be directed from or transferred from: the transfer took place by reason of the very fact that that permanent station of work no longer existed.

3.70	It also appears from the material before the Court that it was not a case of Mr Shaw’s being ‘directed’ to go to the Ba Dredge Project (albeit the wording of the communication may be seen as supporting such a conclusion): rather the evidence is that Dredge Workers at the conclusion of the Rewa Dredge Project took one of three options – going to the Labasa Dredge Project; going to the Ba Dredge Project, or leaving the industry altogether by taking redundancy. 

3.71	The redundancy which came about at the conclusion of the Ba Dredge Project seems, therefore, to have a relevance in this sense. Had there been a permanent station of work elsewhere than the Ba Dredge Project, Mr Shaw would have transferred back to it. The nature of a ‘temporary transfer’ would seem to be that the party subject to it has a permanent station of work to which s/he transfers back at the conclusion of the temporary transfer. 

3.72	The redundancy which came about at the conclusion of the Rewa Dredge Project would seem to have a relevance too, as it indicates again that there was no permanent station of work in Rewa from which Mr Shaw was transferred and to which he would return upon the ending of a (temporary) transfer. Raibili v. Permanent Secretary, Ministry of Agriculture and Fisheries [2003] FJHC 43; Hbj0054j.1999s (13 March 2003) becomes relevant here as confirming the end of the existence of the (once) permanent station of work at Rewa: Court Record, Pt 2, p. 111.

3.73	This also seems to be confirmed by the payment to Mr Shaw of country allowance when he was in Suva.

3.74	(e)	Payment of Country Allowance to Mr Shaw: 

A Public Service Commission circular (PSC Circular) of 5 June 2000 (PSC Circular No. 28/2000) sets out a number of update matters vis-à-vis established and unestablished employees. It was this PSC Circular which set the rate of transfer allowance, the new rate of $342.00 being effected from 1 January 1996.

3.75	As to the ‘Country Allowance’, the PSC Circular says

Country allowance is payable under sub-clause 10(a) of the JIC Agreement during a period when an unestablished employee is required to ‘camp’ on outstation duties for projects of limited duration. It is therefore intended to cover their living costs. The revised country allowance is $7.50 per night if accommodation is provided. $17.50 per night if no accommodation is provided for the first 7nights and $15.00 per night thereafter. Accommodation here means a government rest house, government quarters or a cabin on-board a ship. Please note that this excludes hotel accommodation, tents, temporary sheds or huts. These are not considered as accommodation for the purpose of country allowance. This is effective from 01/01/2000: Court Record, Pt 2, p. 123

3.76	Mr Shaw was paid country allowance – as earlier noted, when he went from Ba to Suva with the dredge. In contrast to the evidence presented for the Attorney General, Mr Shaw’s evidence is not particularly solid on this point. In evidence in chief he says:

When I was transferred it was on a temporary basis. I could not accommodate my family in the hut. I use[d] to visit my family every week. My family was living in Nausori.

I was not paid my travelling allowance nor was I paid country allowance. 

Transferred to Ba on 31/12/99 and my work was only for dredging for Ba River. The transfer to Ba was only on temporary basis …: Court Record, Pt 1, p. 25 (Emphasis added)

3.77	In cross-examination he said:

I did not receive any country allowance. I did not travel to Suva for many months. I took the boat Manabatibati (barge) for slipway repairs and I was requested to be in Suva. The whole crew did not travel on the boat, about 5 or 6 of us travelled. The Ministry provided us with transport and we were not entitled to any transport allowance. I can’t recall if I was paid country allowance whilst I was in Suva. (Emphasis added)

I see Exhibit D2 – time card dated 25/09/02. I can’t recall if I was paid country allowance whilst I was in Suva. When I was in Suva I stayed at my home.

Q.	So you have accommodation in Suva?

A.	Yes, it is my house.

Q.	Whilst you were in Suva although stationed in Ba you received country allowance?

A.	What time. Whilst I was in Ba I did not receive any country allowance: Court Record, Pt 1, p. 26; Court Record, Pt 2, p. 169

3.78	There is no real contest to the Attorney General’s contention – and evidence – that Mr Shaw did receive country allowance – when he was in Suva: Mr Shaw’s ‘can’t recall’ cannot displace the time card. The payment of country allowance in the circumstances is consistent with the Conditions and Rules of Employment, clause 10(a):

The following rates of country allowance are payable to an employee for a total period of absence on outstation duty necessitating absence at night from home, that is from his usual place of residence … 

3.79	That Mr Shaw was paid country allowance on occasions he was away from Ba in Suva on duty vis-à-vis slipway maintenance for the dredge appears to confirm incontrovertibly Ba as his ‘usual place of residence’, with Suva qualifying as the location where he and other Ba Dredge Workers were entitled to country allowance when travelling with the dredge. That was ‘temporary’ place of work – not the Ba Dredge Project.

3.80	On the other hand, for Mr Shaw it is said.

The [Attorney General] says that when he was taken to Suva for a few days he was paid Country [Allowance]. With respect he was so entitled because he was still taken away from Nausori where his residence was. Therefore anywhere that he was taken except Nausori he was entitled to the Country Allowance: Court Record, Pt 2, p. 187

3.81	This raises a number of questions, however. If this is the rationale upon which the Attorney General paid country allowance to Mr Shaw, then why was country allowance paid for the days he was in Suva having travelled with the dredge, and not paid when he was in Ba with the Ba Dredge Project? If it is correct that he was entitled to country allowance because his usual place of residence was Nausori anywhere else he worked was ‘outstation’ work, and the entitlement was recognised and paid for the says in Suva, why not for the days in Ba?

3.82	This of course begs the question before the Court. However, the payment of country allowance at Suva brings with it the inference that Ba was the permanent station of work –and lack of payment there when combined with the fact that there was no other permanent station of work seems to support the Attorney General’s position.

3.83	Nausori is a short time away by car from Suva: it is essentially a part of the greater Suva district or can be classed as such in terms of travel time and distance. That is, people who live in Nausori may well travel daily to work in Suva city, and vice versa. Why then, if the Attorney General classed Mr Shaw’s home in Nausori as his ‘usual place of residence’ (as is being asserted by Mr Shaw as justification for the payment of country allowance when he was in Suva) for the purpose of the travel to Suva from Ba, would the Attorney General not class Mr Shaw’s home in Nausori as his ‘usual place of residence’ for the purpose of his time spent in Ba – and pay the country allowance automatically – as appears to be the case with the country allowance payments during the time in Suva.

3.84	The payment of country allowance for time in Suva appears to be evidence not that Mr Shaw’s permanent station was Nausori or Rewa, but that it was Ba.

3.85	(f)	No Prior Claim for Country Allowance Made: 

The Attorney General says that no prior claim for country allowance was made – for example, at the time of the redundancy payment. Hence, the argument runs, Mr Shaw was not and knew he was not entitled to country allowance and knew that his transfer to the Ba Dredge Project was a permanent transfer not a temporary one: Court Record, Pt 2, p. 165

3.86	As noted, for Mr Shaw it is said that the redundancy payment issue is irrelevant to the question before the Magistrates Court and now before this Court.

3.87	It could be said for Mr Shaw that the fact that an employee does not make a claim does not mean that s/he is not entitled to a particular benefit, allowance, salary or wages level, etc. Employees are not in the position of having all knowledge as to their entitlements at their fingertips. Employers are generally more (and often greatly more so) advantaged in this regard. Hence, that Mr Shaw made no claim for country allowance when he received his redundancy entitlement does not or not necessarily speak against his contention now that he was nettled to country allowance.

3.88	On the other hand, as previously noted, Mr Shaw and others followed up by letter with the Ministry their entitlement to full payment of the transfer allowance (‘disruption allowance’). This may lead to an inference that had he been entitled to country allowance, he would have followed it up similarly.

3.89	It may be considered odd by some that Mr Shaw received country allowance when he was on duty with the dredge when it was taken to Suva, and that he did not therefore (if his transfer to the Ba Dredge Project was a temporary transfer) follow up the need (‘right’) to have country allowance paid to him in Ba as well as when he was in Suva. 

3.90	For Mr Shaw it is said:

The [Attorney General] says that when he was taken to Suva for a few days [Mr Shaw] was paid Country [Allowance]. With respect he was so entitled because he was still taken away from Nausori where his resilience was. Therefore anywhere that he was taken except Nausori he was entitled to the country Allowance: Court Record, Pt 2, p. 187

3.91	Even if he did not know he was entitled to country allowance prior to his trip/s to Suva, once he did receive the country allowance when in Suva, a legitimate question may be why he did not ask his employer why he received more pay – including the country allowance – for some days away from his residence in Nausori, but did not received it for any other part of the time of his absence therefrom: that is, why not when he was in Ba.

3.92	The Ba Dredge Project ran from in or about 1999 to in or about August 2005 – Memorandum, ‘Completion of Ba Dredge Project’, Court Record, Pt 2, p. 79 – notifying that the Ba Dredge Project ‘is now complete’ and that termination of the appointment of the Dredge Workers will date from 31 August 2005. This means that if country allowance were payable, Mr Shaw and his fellow Dredge Workers had foregone it – albeit it related to their living expenses – over a number of years. In circumstances where issues had arisen about the payment of the dues for the crews quarters in respect to a number of Dredge Workers (one being Mr Shaw) an inference might be drawn that had the absence of payment of the country allowance would have been pursued earlier and at least at that time.

3.93	On the other hand, in the Memorandum of 22 August 2005 reference is made to the Dredge Workers being paid ‘all leave entitlement and arrears of overtime from 2002-2005’ indicating that there were delays in payments to which the employer acknowledged the Dredge Workers were entitled: Memorandum, Court Record, Pt 2, p. 79

3.94	The failure of Mr Shaw (and others) to make a prior claim is not the Attorney General’s strongest point, for most assuredly as noted employees cannot be taken as being precluded from a lawful entitlement because they do not ask for it, or did not ask at some earlier time. However, it does seem to raise a query that may be considered, at least by some, to be a legitimate question to ask in all the circumstances.

4.	Conclusion as to Evidence

Taking into account all the evidence before the Court, the evidence appears to support the proposition that Mr Shaw was transferred permanently to the Ba Dredge Project rather than that the transfer was temporary.

4.1	Briefly:

•	The letter of 15 June 1999 advising him of his employment on the Ba Dredge Project identified Mr Shaw’s transfer as ‘transfer’ and not as ‘temporary transfer’ – ‘transfer’ under the Conditions and Rules of Employment means ‘permanent transfer’ not temporary transfer’;

•	The letter refers to his employment under his ‘existing terms and conditions’ – which did not include country allowance;

•	The letter sets out specific allowances or benefits extended to him over and above the ‘existing terms and conditions’, each of them going to permanent, not temporary, transfer – the transfer allowance and the payment for removal to Ba;

•	The letter’s terms could be argued as ‘clear’ as required by clause 10(d): it was explicit about the terms and conditions, and about the benefits or allowances over and above those held when on the Rewa Dredge Project;

•	Apart from the matter of crews quarters (referred to below), the letter says nothing about any other benefits and most particularly nothing about benefits or allowances relating to temporary transfer;

•	The letter says nothing about country allowance as an additional term or benefit going to his stationing in Ba;

•	The letter says nothing as to the Ba Dredge Project being at an ‘outstation’ – a prerequisite to payment of country allowance;

•	Mr Shaw was paid and received and retained the transfer allowance which, whether it is called ‘transfer allowance’ or ‘disturbance allowance’ is, under the Conditions and Rules of Employment payable only in respect of permanent transfer and not vis-à-vis temporary transfer;

•	Mr Shaw and others wrote to their employer requesting that the amount of transfer allowance which had been paid to them be increased in accordance with the new or proper rate and this was paid to them;

•	Mr Shaw did not take advantage of the offer to provide allowance for his family to move to Ba, however others on the Ba Dredge Project did and this was followed through and complied with;

•	When Mr Shaw was out of Ba, in Suva in respect of the slipway work on the dredge, he was paid country allowance – confirming Ba Dredge Project as the permanent work station and work outside the Ba Dredge Project as ‘outstation’ work;

•	That country allowance was paid when he was (it is properly to be inferred) resident at his home in Nausori – hence qualifying his home in Nausori not as his place of usual residence for the purposes of his work on the Ba Dredge Project, but as his ‘away from home’ address/location (‘home’ for the purposes of his work being Ba);

•	Written notification to Dredge Workers at Ba, or at least some of those workers, as to accommodation stated that this was ‘temporary occupation’ extended to them;

•	Mr Shaw was not ‘required to camp’ on outstation duties at Ba, contrary to the condition for payment of country allowance as per the PSC Circular of 1992;

•	The Rewa Dredge Project, upon which Mr Shaw had been employed prior to the Ba Dredge Project, was completed when he transferred to the Ba Dredge Project – hence there was no ‘permanent work station’ at Rewa (or Suva or Nausori) for him to be transferred from, or be transferred back to at the conclusion of the Ba Dredge Project;

•	When the Ba Dredge Project concluded, Mr Shaw was paid redundancy, not transferred back to any permanent station of work – as there was none to be transferred to;

•	When the Rewa Dredge Project concluded, Dredge Workers were offered (a) transfer to Ba Dredge Project; (b) transfer to Labasa Dredge Project; (c) finalization of their work with the Ministry – which after Rabili v. Permanent Secretary, Ministry of Agriculture and Fishers [2003] FJHC 43; Hbj0054j.1999s (13 March 2003) resulted in their being paid redundancy.

•	Although he was paid country allowance for the time he was in Suva, Mr Shaw made no claim for country allowance when he was in Ba, albeit if county allowance had been due to him or he considered he had an entitlement, it may reasonably be inferred that he and his fellow Dredge Workers may have been likely to have followed this up with the Ministry (consistent with their follow up on the full amount of the transfer payment) well before the conclusion of the Ba Dredge Project which ran from 1999 through to August 2005: Court Record, Pt 2, p. 79 (Memorandum – ‘Completion of BA Dredge Project’)

•	The Ba Dredge Project was not stated to be a transfer for a fixed period or an estimated period, which it would seem on balance to be likely to have been the case were the Ba Dredge Project a temporary transfer to an outstation, away from a permanent station of work, rather than itself being a permanent station of work.

4.2	A principal argument for Mr Shaw in respect of his entitlement to country allowance appears to be that he and others were placed in crews quarters which the Attorney General acknowledged (a) was a benefit that would not ordinarily go with permanent transfer; and that (b) this benefit was in fact extended to Mr Shaw and others on the Ba Dredge Project.

4.3	On the other hand, as observed, other Dredge Workers on the Dredge Projects took advantage of the Ministry offer of transport, cartage etc for families transfer to them. On all the evidence, it does not appear that Mr Shaw was ‘ordered’ or ‘directed’ to be or remain in crews quarters: the offer in the letter of 15 June 1999 effectively contradicts this, as does the taking up by other Dredge Workers of this offer by the moving of their families with them to the respective Dredge Project. Mr Shaw’s position that the crews quarters was (effectively) dormitory-style and unsuited to family living tends to confirm its (intended) temporary nature and gels with the offer in the letter and evidence of Mr Simmons. That is, taking up the offer of transport, cartage, etc for bringing a family meant that Mr Shaw would necessarily have had to find family accommodation and could not have remained in the crews quarters.

4.4	That Mr Shaw retained his home and household in Nausori is put forward as an incontestable element in support of his claim that Ba Dredge Project was an outstation and Nausori or Rewa was his permanent station of work as his home at Nausori was his permanent place of residence. However, it does not appear to me that an employer is bound by the wish of its employee to retain a home in a particular place, to classify that home as the employee’s ‘permanent place of residence’ for employment purposes. 

4.5	When the Rewa Dredge Project concluded, Dredge Workers were faced with a prospect, insofar as their employment with the Ministry, of retirement or redundancy, or accepting the offer of a transfer to other Dredge Projects, namely Ba Dredge Project or Labasa Dredge Project. Of their own initiative, they could no doubt have considered taking work in another field or occupation or retraining. 

4.6	Some workers chose one option. Some chose another. Mr Shaw chose the Ba Dredge Project. Some workers took their families with them. Some – including Mr Shaw – went without their families. Some took up the offer of crews quarters. Some did not. Mr Shaw is one of those who took up the crews quarters offer. That Mr Shaw made the choices he did does not appear to me to provide a platform for his contention that he was entitled to country allowance.

4.7	However, having formed this view upon consideration of all the evidence, the question then is whether there is any proper basis upon which the discretion of the trial court should be set aside and the discretion of this Court substituted.

5.	Decision Appealed From

I turn, then, to His Worship’s decision.

5.1	Further to the matters alluded to earlier in this judgment, His Worship appears to have taken the following matters into account in reaching his determination:

1)	Mr Shaw was originally employed on 7 February 1985 for a period of three months for the Rewa Dredge Project but that employment and project lasted for 13 years: Court Record, Pt 1, p. 36

2)	The Attorney General did not specify to Mr Shaw the length of the Ba Dredge Project but maintained the transfer was permanent and the only basis for so saying was that Mr Shaw was paid transfer allowance: Court Record, Pt 1, p. 36

3)	The temporary quarters (per Mr Simon’s evidence) were provided to safe guard the dredging equipment and he said dredging was as temporary job and it was for a limited duration: Court Record, Pt 1, p. 37

4)	Having paid the transfer allowance, the Attorney General’s ‘attitude was that … Mr Shaw was therefore transferred to Ba permanently and it was entirely up to him as to whether he stayed in the crew quarters or whether he found an alternative accommodation to move his family over’: Court Record, Pt 1, p. 37

5)	The Attorney General ‘all along knew that [Mr Shaw] has his place of residence in Nausori’: Court Record, Pt 1, p. 37

6)	The Attorney General’s ‘actions suggested that the transfer to Ba was only of a temporary nature … for the following reasons’:

•	Mr Simmons (the Attorney General’s ‘own witness’) said ‘that the dredging at Ba was a temporary job and it was for a limited duration’;

•	The Attorney General ‘got [Mr Shaw] and others to enter into a Crew Quarters Agreement and attached thereto was minutes of the barrack committed dated 05/07/93 which incorporated the duties of the committee, the real rules that each member was to be bound by and the disciplinary action to be taken against members in the event of a breach’;

•	Mr Shaw ‘was in breach of the barrack rules [of] 05/07/93 and yet he was allowed further rime to pay the arrears of fees …’: Court Record, Pt 1, pp. 37-38

5.2	His Worship follows on with two further matters. First:

•	What intrigues me is that the [Attorney General] had no intention of keeping all the workers in quarters then why would it tolerate the breaches by the occupants and further what were the pleas made by [Mr Shaw] and what were the problems that [Mr Shaw] faced?

•	Why was [Mr Shaw] not told that he broke the rules and therefore must find an alterative accommodation?

•	Were [Mr Shaw] and others simply kept in the crew quarters to safeguard the [Attorney General’s] equipments? Court Record, Pt 1, p. 38

5.3	Secondly: 

The [Attorney General] knew that the Rewa project went beyond all time estimate[s]. [Mr Shaw] and others were initially employed for a period of 3 months but the project lasted some 13 years. In view of the blow up and the time estimation at Rewa why didn’t the [Attorney General] commission a report as to the length of the Ba project. I do not know if a report was commissioned but none have been placed before me. I think a report in this case was really warranted and if it was done then it would have given a clear idea as to the length of the project and the [Attorney General] could have told [Mr Shaw] accordingly: Court Record, Pt 1, pp. 38-39

5.4	His Worship then concludes:

•	The Attorney General did not know the exact length of the Ba project [as] confirmed by Colin Simmons when he said ‘it was a temporary job for a limited duration’;

•	Mr Shaw ‘maintained his place of residence in Nausori right throughout the Ba project;

therefore Mr Shaw is entitled to the country allowance … [but] not for the nights he spent at his usual place of residence: Court Record, Pt 1, p. 39

6.	Application of Appeal Principles to Decision Appealed From

By reference to His Worship’s decision and the all the material in the trial, it is encumbent upon this Court to ask, consistent with the authorities referred to, has the trial court:

•	acted upon a wrong principle;

•	allowed extraneous or irrelevant matters to guide or affect him;

•	mistaken the facts;

•	not taken into account some material consideration: House v. The King [1936] HCA 40; (1936) CLR 499 (17 August 1936)

6.1	Or was the judgment:

•	based on a misunderstanding of the law or of the evidence before him;

•	so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached it: Hadmor Productions Ltd and Ors v. Hamilton and Anor [1982] 2 WLR 322

6.2	Or was:

•	there no evidence upon which the magistrate could properly have based his decision;

•	the decision based on a wrong principle or mistake of law or plainly unreasonable: Joselyn Deo v. The State (CrimApp No. AAU0025 of 2005S, High Ct Crim Action No. HAA 008 of 2005S, 11 November 2005)

6.3	Alternatively, 

•	do incontrovertible facts or uncontested testimony demonstrate that the trial court’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings;

•	although the facts fall short of being ‘incontrovertible’, was the decision at trial ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case: Fox v. Percy [2003] HCA 22

6.3	(a)	Completion of the Rewa Dredge Project:

 His Worship observed that Mr Shaw’s original employment with the Rewa Dredge Project was for three months but lasted for 13 years. However, His Worship does not appear to have taken into account its relevance to permanent transfer. Once the Rewa Dredge Project was concluded, there was no permanent station of work at or in respect of that project and hence at Nausori or Rewa (or Suva). At that conclusion, Mr Shaw thereby had no permanent station of work. This was a failure to take into account a material consideration.

6.4	(b)	Attorney General’s Basis for Asserting Permanent Transfer:

His Worship said ‘the only basis’ put forward by the Attorney General for Mr Shaw’s transfer being permanent ‘was that Mr Shaw was paid transfer allowance’. However, as the recitation and analysis of the evidence and reference to submissions made by the Attorney General indicate, this is not so. Having come to his conclusion on that basis means His Worship ‘has not taken into account some material consideration’ – or, rather, material considerations, namely, all the other matters put forward by the Attorney General in evidence (oral and documentary) and submissions on the evidence that Mr Shaw’s transfer was a permanent transfer within the meaning of the Conditions and Rules of Employment.

6.5	(c)	Mr Simmons’ Evidence: 

His Worship refers on a number of occasions to the evidence of Mr Simmons and relies upon it substantially for his decision. However, a perusal of Mr Simmons evidence indicates that His Worship has not taken into account all the relevant matters to which Mr Simmons testified. Those to which His Worship refers cannot ‘stand alone’, separate from Mr Simmons’ evidence as a whole. When seen as a whole, those aspects upon which His Worship relies do not have the impact or import given them in the judgment, and in being isolated from the whole of Mr Simmons’ evidence provides support to the ‘temporary transfer’ proposition which is not borne out by the whole. For example:

A.	Crew Quarters ‘Safeguarding Equipment’ - His Worship says that Mr Simmons said that the ‘temporary quarters’ were provided ‘to safeguard the dredging equipment’. This does not appear in the Court Record – Mr Simons evidence appears in Court Record, Pt 1, pp. 27-30 

The ‘Temporary Occupation of Crew Quarters (Ba Depot)’ memorandum of 26 January 2001 does say amongst other matters: ‘You must also make yourself available to assist in any Dredge Emergency that may arise’: Court Record, Pt 2, p. 17 The Minutes of Barrack Committed dated 5 July 1993 say under ‘Duties of the Committee’ (note, not the occupants or residents): ‘Report any damage on any of the government property with a clear written explanation on how it happens’: Court Record, Pt 2, p. 19 In the context, however, this appears to refer to the actual crews quarters themselves, not to dredge, etc equipment or working tools, machinery etc.

In any event, it is difficult to see how any use of the temporary quarters for safeguarding dredge equipment can determine or be relevant to the determination of whether Mr Shaw’s transfer was permanent or temporary. Hence, His Worship appears to have taken into account and given considerable weight to a matter irrelevant to the question in issue.

B.	Ba Dredge Project ‘a Temporary Job …’ – His Worship says Mr Simmons said the Ba Dredge Project was ‘a temporary job and it was for a limited duration’. This is adopted in support of the proposition that Mr Shaw’s transfer was temporary, not permanent. However, Mr Simmons’ evidence taken as a whole was that Mr Shaw’s transfer was permanent, not temporary: Ba was not an outstation; a transfer allowance is paid only on permanent transfer and would not have been paid had Mr Shaw been transferred temporarily; ‘transfer to Ba is not out station duty, Ba is permanent place’; ‘Outstation duty is going to some other place other than Ba. Plaintiff was in Suva for slip way maintenance for period of weeks and he was paid country allowance … As plaintiff was retuning home the permanent station would still be Ba’; ‘Plaintiff was not entitled to country allowance because he was transferred permanently to Ba’; ‘If they wanted to bring their family they stay on their own and we would transfer the families by departmental motor vehicle. Michael Shaw did not choose to bring his family down’: Court Record, Pt 1, pp. 27, 28 

Further: ‘If he found a place in Ba, we would have thought that he would bring the family to Ba’; ‘When he came from Suva I knew that he was going to leave his ordinary place of residence’; ‘Ba Dredging was only a temporary job. It was only for a limited duration’; ‘The transfer to Ba was a permanent transfer’: Court Record, Pt 1, p. 28.

C.	Ba Dredge Project Finite – Mr Simmons says that Mr Shaw was ‘… only transferred for duration of Ba River Dredging’: Court Record, Pt 1, p. 29 However, this cannot be taken in isolation from the rest of the evidence, both that of Mr Simmons and the documentation. Mr Simmons goes on to say: ‘Temporary transfer states as specific duration. It also states that they go back to the place they came from but Rewa project had finished. This was a permanent transfer ….’: Court Record, Pt 1, p. 30 Nor can it be taken as evidence that Mr Shaw’s transfer was temporary, for it ignores other relevant factors – for example, that the Rewa Dredge Project was finite, too – it existed only for the length of time necessary to complete the dredging work on the Rewa site, but was not an ‘outstation’ or ‘temporary’ work site: it was a permanent work station for the duration of the project. Hence, His Worship did not take into account relevant factors vis-à-vis Mr Simmons’ evidence.

D.	Time Limit on Temporary Transfer – Mr Simmons’ evidence is that a temporary transfer would state the length of the transfer. This is overlooked by the Court, with His Worship concentrating rather on the fact (for example) that Mr Shaw was not told how long the Ba Dredge Project would last. This is stated as a matter in relation to which the employer is remiss: Mr Shaw should have been advised of the length of the project. The Court thus did not take into account a relevant matter and/or in taking into account a relevant matter did not do so in terms of its relevance to the question before him – as to temporary or permanent status of the transfer.

E.	Payment of Country Allowance – Mr Simmons also gave evidence of the country allowance payment to Mr Shaw on occasions he was away from the permanent workstation Ba, and in Suva with the dredge: Court Record, Pt 1, pp. 29-30 This is not taken into account by His Worship. The judgment appears to overlook altogether the fact of payment of country allowance to Mr Shaw on these occasions although Mr Simmons gives oral evidence of it, which is unchallenged, backed by reference to documentary evidence showing the payments to Mr Shaw. Mr Shaw ‘cannot recall’ which means that Mr Simmons’ evidence is to be preferred: Court Record, Pt 1, p. 26

His Worship says that Mr Shaw is ‘not entitled to claim for the weekends that he spent at home [in Nausori]’, however, in this overlooks as noted the fact that Mr Shaw was paid country allowance for times he spent in Nausori when on ‘outstation duty’ away from Ba with the dredge in Suva for repairs. This indicates that he overlooked a fact crucial to the determination of whether the transfer was permanent or temporary.

F.	Documentary Evidence – His Worship appears to overlook or not take into account the content of documentary evidence before the court which is referred to by Mr Simmons or needs to be taken into account in general and in the context of Mr Simmons’ (and Mr Shaw’s) evidence. For example, in his Conclusion His Worship says:

The fact is that the defendant did not know the exact length of the Ba project and this is confirmed by Colin Simons when he said ‘it was a temporary job for a limited duration’. The plaintiff maintained his place of residence in Nausori right throughout the Ba project and Is therefore entitled to the country allowance as set out in Exhibit D1 page 121 where paragraph (b) states that the plaintiff will not be entitled to country allowance for the nights that he spent at his usual place of residence: Court Record, Pt 1, p. 39 (His Worship’s emphasis)

The documentation and oral evidence of Mr Simmons is that Mr Shaw received country allowance for the nights he was in Suva – nights he (inferentially) spent in Nausori at his Nausori household and home. Mr Shaw ‘could not recall’ if he was paid country allowance or not when in Suva on the dredge slipway work assignment. His Worship should in my view at least have addressed this, even if it were to agree with the submissions for Mr Shaw that when he was in Suva on the slipway dredge assignment he was paid the country allowance as that was not Nausori his home-base (as contended by Mr Shaw).

This is a crucial matter in the determination of the question before the Court as to Mr Shaw’s employment status and the status of the Ba Dredge Project - was it an ‘outstation’ or was it the ‘permanent station of work’. 

A further crucial matter was the payment of transfer allowance, which the documentary evidence and, in the end, Mr Shaw’s evidence, confirms as having been paid to Mr Shaw. Mr Simmons says this would not have been paid in respect of a temporary transfer. This evidence is consistent with the documentary material – most particularly the Conditions and Rules of Employment. Nowhere in the judgment does His Worship make this connection, rather reiterating on a number of occasions that the Attorney General relied upon payment of the transfer allowance ‘solely’ as the basis for the contention that the transfer was permanent. In my opinion to ignore (as it appears His Worship did) the provision in the Conditions and Rules of Employment is a crucial oversight.

6.6	(d) 	Crews Quarters Accommodation: 

His Worship relies to a substantial degree upon the accommodation issue vis-à-vis Mr Shaw and the crews quarters. However, the judgment does not appear to address this issue in a way that can assist in determining whether or not the transfer was temporary/permanent. Rather, His Worship appears to enter into a high level of speculation on matters that do not, in any event (in my opinion) assist in the matter before the Court. It bears setting out directly, again, from the judgment the matters alluded to by His Worship in this regard:

Although the defendant’s case was that the plaintiff was permanently transferred to Ba in my view its actions suggested that the transfer to Ba was only of a temporary nature and I say this for the following reasons.

(a)	The defendant’s own witness Colin Simmons said that the dredging at Ba was a temporary job and it was for a limited duration; 

[As above, Mr Simmons’ evidence needs to be perused in full and taken into account in full, rather than this item being seen in isolation from the whole (as well as the documentary material) and then employed as a vital plank in the determination that the transfer was ‘temporary’.]

(b)	The defendant got the plaintiff and others to enter into a Crew Quarters Agreement and attached thereto was minutes of the barrack committee dated 05/07/93 which incorporated the duties of the committee, the real rules that each members was to be bound by and the disciplinary action to be taken against members in the event of the breach. (His Worship’s emphasis)

(c)	According to the letter of 08/02/02 Exhibit D1 page 23 & 25 the plaintiff was in breach of the barrack rules dated 05/07/93 and yet he was allowed further time to pay the arrears of fees. Exhibit D1 page 25 states:

But because of your pleas, we manage to get you to stay in the barracks.

It is further stated:

We did that considering the problem you have to face but if you do not honor that and not complying to the agreement, I will be more than pleased to terminate your occupancy of the crew quarters.

(d)	(i)	What intrigues me is that the defendant had no intention of keeping all the workers in quarters then why would it tolerate the breaches by the occupants and further what were the pleas made by the plaintiff and what where the problems the plaintiff faced?

(ii)	Why was the plaintiff not told that he broke the rules and therefore must find an alternative accommodation?

(iii)	Were the plaintiff and others simply kept in the crew quarters to safe guard the defendant’s equipments?

6.7	Reference to the documentation to which His Worship refers here shows that under the rules (as earlier observed) there was provision for three warnings before, at the third and final warning, a resident of the crews quarters would be ‘moved out’. It also appears from the above extract that His Worship seems to imply that Mr Shaw was the only person in the position of breaching the rules, putting ‘pleas’ and being granted the reprieve: ‘… we manage to get you to stay in the barracks’. The documentary evidence shows a list of occupants/residents who were in arrears, namely, sixteen (16): Court Record, Pt 2, p. 23 as at 8 July 2002. It is clearly these sixteen who were the subject of the concerns as to compliance with the rules and facing the prospect of disciplinary action. Mr Shaw, being in arrears by $20.00, did not carry the highest amount of arrears (which was $29.00) and several were in arrears in higher amounts than he, whilst the majority were in arrears in lower amounts, some (two) owing o$6.00 only. The record says ‘most of the mentioned employees are part of the slipway maintenance crew.’

6.8	His Worship’s speculation as to ‘why would it tolerate the breaches’, ‘why was the plaintiff not told he broke the rules and therefore must find an alternative accommodation’ and ‘were [they] simply kept … to safe guard the defendant’s equipments?’ does not appear to me to assist in or advance the matter in issue. In any event, if we do not know, then these speculations cannot be relied upon to advance Mr Shaw’s case. The onus rests upon Mr Shaw to prove his case on the balance of probabilities. The onus is not on the Attorney General to prove its case that Mr Shaw was permanently, not temporarily, transferred to the Ba Dredge Project. Here it appears that the Court has placed the burden of proof upon the Attorney General, rather than applying the principle that it is for a plaintiff to prove his/her case on the balance of probabilities.

6.9	In any event, even if (for example) the Attorney General ‘kept the plaintiff and others’ in crew quarters ‘to safe guard the … equipment’ it is unclear as to how that advances the question of the status of Mr Shaw’s transfer.

6.10	(e)	Duration of Ba Dredge Project: 

His Worship states as his final reason for determining that Mr Shaw’s transfer to Ba ‘was only of a temporary nature’ as relating to the duration of the project. Again, it is necessary to set out in full the extract from the judgment on this point as it is crucial to His Worship’s determination and to the matter on appeal:

(e)	The defendant knew that the Rewa project went beyond all time estimation. The plaintiff and others were initially employed for a period of 3 months but the project lasted some 13 years. In view of the blow up and the time estimation at Rewa why didn’t the defendant commission a report as to the length of the Ba project. I do not know if a report was commissioned but none have been placed before me. I think a report in this case was really warranted and if it was done then it would have given a clear idea as to the length of the project and the defendant could have told the plaintiff accordingly: Court Record, Pt 1, pp. 38-39

6.11	From a budgetary point of view, one may well agree with His Worship. However, how this assists in the ‘temporary transfer’ versus ‘permanent transfer’ question is unclear. It appears that His Worship sympathised with Mr Shaw (and his colleagues) in their being transferred to Ba (albeit they had voluntarily accepted this offer rather than redundancy – or go to Labasa as appears to have been another option although not referred to by Mr Simmons in his evidence) without certainty as to how long they would be there. However, this is not a basis upon which the question before the Court can be answered. Further, as earlier noted it contradicts Mr Simmons’ evidence – which was not contested – that a temporary transfer would be based upon a stated time period (rather than being open-ended). 

6.12	One might well agree with the implication of His Worship’s comment in this regard, namely the implication that it may have assisted Dredge Workers to know how long the Ba Dredge Project would last, because then they may have been better placed to make a decision whether to move their families to Ba, sell or relinquish a lease on the family home to purchase or lease in Ba, etc. However, this does not answer the question whether Ba Dredge Project was a permanent workstation or not. In any event, some Dredge Workers as earlier observed did move with their families. Obviously, others (including Mr Shaw) did not: hence, occupation of the crews quarters for more than a ‘temporary’ period. 

6.13	His Worship does not elaborate on how point (e) in his judgment assists in the question before the Court and in my opinion this is necessary in the light of its being one of only five reasons put forward in the judgment as supporting the finding in Mr Shaw’s favour. Without an indication as to its relevance, it is difficult to see how it supports the decision. Indeed, as noted, the indefinite nature of the length of time of the Ba Dredge Project on the evidence supports the Attorney General’s case rather than that of Mr Shaw.

6.14	(f)	Relevance of Letter and Conditions and Rules of Employment: 

Most crucially, His Worship does not address the matters set out in the letter of 15 June 1999 and their relationship to the Conditions and Rules of Employment. The Conditions and Rules of Employment and the letter of 15 June 1999 are, in the end, crucial to the determination of the question before the Court. In saying this, it is accepted without any question that the fact that a court does not analyse or refer to every aspect of evidence or every legal issue in a case does not mean that the court has not addressed the issues. A court is not required to analyse or refer to every aspect of evidence or every legal issue in order to ‘defend against’ the challenge of an appeal or being overturned on appeal. However, this is not what is being said here. What is being said is that the crucial evidence and matters going directly to the terms of Mr Shaw’s engagement have not been addressed in the judgment. In my opinion, this is a matter that is fatal and determinative of the appeal.

6.15	His Worship refers to the letter of 15 June 1999 and sets out its content: Court Record, Pt 1, pp. 34, 36 His Worship refers to the Conditions and Rules of Employment: Court Record, Pt 1, p. 35 He also refers to the Public Service Commission Circular of 30 August 2005 which updated matters referred to in the Conditions and Rules of Employment: Court Record, Pt 1, p. 35

6.16	Nowhere in the judgment is there any reference to the definition of ‘transfer’ as contained in the Conditions and Rules of Employment – clause 2 and clause 10(d). Nowhere in the judgment is there reference to the content of the letter of 15 June 1999 in its relationship to clause 2 and clause 10(d) of the Conditions and Rules of Employment, nor of other relevant clauses of the Conditions and Rules of Employment. 

6.17	In my opinion, in determining whether or not Mr Shaw’s transfer was ‘permanent’ – that is, whether it was ‘temporary’ as contended for by Mr Shaw – the first and basic step is to go to the contract of employment. The contract of employment consists, here, of the Conditions and Rules of Employment and the letter of 15 June 1999. The Public Service Circular assists, and the evidence as to, for example, the payment, receipt and acceptance of the transfer allowance, and the payment, receipt and acceptance of the country allowance when Mr Shaw was away from the Ba Dredge Project in Suva on slipway maintenance of the barge. 

6.18	As I have said, that the judgment does not address these matters is fatal. 

6.19	(g)	Final Matter: 

In the judgment, His Worship says:

In my view the defendant’s attitude has been most unreal and indeed very high handed. It is unfortunate that the defendant being the plaintiff’s employee had no regard for his or his family’s welfare …: Court Record, Pt 1, p. 37

6.20	As earlier observed, and taking into account also His Worship’s concern about the length of the project and the inability of the employer to advise the Dredge Workers of how long the Ba Dredge Project would last, it appears that the Court considered that the Dredge Workers had been put in a position where they were away from their families and, without certainty as to the length of the project, some chose not to uproot their families from the homes they had established elsewhere – for Mr Shaw, in Nausori. It appears also that Mr Shaw had originally lived at Lami and upon taking up work on the Rewa Dredge Project had moved to Nausori and (as it appears) bought a home there, where he settled with his family.

6.21	When people move from one location to another, disruption to family life occurs. A partner or spouse may have a job in the original locality and have difficulty in moving. Even without being in paid employment, a partner or spouse may be reluctant to move for all sorts of reasons – family ties, ties to the locality, friendships, a reluctance to have to make new connections and friends and to learn about the new locality and its environs, etc. Where children are involved, additional complications of schooling, children’s friendships and connections, etc arise. This is evident in the material before the Court, for in those instances where Dredge Workers did move, their concerns as to schooling obligations and timing of the move are explicit. However, it is also noted that the employer took these into account: this is indicated in the material before the Court.

6.22	The Constitution provides:

Labour relations

33.	(1)	…

(2) …

(3)	Every person has the right to fair labour practices, including humane treatment and proper working conditions.

6.23	His Worship’s decision appears to have emanated from a position, as earlier noted, of sympathy with the Dredge Workers and in particular Mr Shaw. It does appear from Raibili v. Permanent Secretary, Ministry of Agriculture and Fisheries [2003] FJHC 43; Hbj0054j.1999s (13 March 2003) that Dredge Workers from the Rewa Dredge Project were obliged to seek redress through the courts in respect of their redundancies. 

6.24	At the same time, it is not uncommon for persons in paid employment to be required to move from one location to another in search of paidwork or to retain paidwork. In the present case, there was no work in Nausori or Rewa in the dredging field, at least as far as the Ministry could offer. Hence, if workers were to remain in their chosen industry or field of work, of necessity they had to move. This was not the Ministry’s ‘fault’ or doing: it was a consequence of the finalisation of the Rewa Dredge Project. 

6.25	Mr Shaw and others took up the Ministry’s offer of work on the Ba Dredge Project. Mr Shaw and others chose not to move their families from their original location, selected because (as it appears) of their work on the Rewa Dredge Project. The option to move oneself and one’s family is, understandably, not something any person generally takes lightly. Employers need to recognise that such a move can have and generally will have familial and other consequences for the workers. In the present case, however, the material before the Court appears to indicate that this was at least to some degree taken into account by the Ministry and that it was taken into account in accordance with the Conditions and Rules of Employment. Those Conditions and Rules of Employment were agreed, as it appears, between the employer and the relevant union/s. They were issued under the authority of the Joint Industrial Council for Government Unestablished Employees.

6.26	So long as those Conditions and Rules of Employment were abided by, it would appear here the Constitutional requirements were met and, although a sympathy for the positions of workers may be understood, it cannot be a basis for a determination in their favour. Ultimately, it is the contract of employment that – so long as its terms comply with the requirements of industrial fairness and lawful principles – must determine the outcome.

7.	Conclusion

The submissions of Counsel have been of considerable assistance in this matter. 

7.1	Taking into account the principles governing appellate courts, and taking into account the decision appealed from and all the material before the Magistrates Court in the making of that decision, I consider that this is an appropriate case for intervention.

7.2	The Learned Magistrate erred in law and in fact to properly apply the terms of the Conditions and Rules of Employment for Government Unestablished Employees issued by the Joint Council for Government Unestablished Employees in finding that Mr Shaw’s transfer to the Ba Dredge Project was a temporary transfer and not a permanent transfer.

7.3	The Learned Magistrate erred in law and in fact in this determination and the determination that, thereby, Mr Shaw was entitled to Country Allowance for the duration of his employment at the Ba Dredge Project, when he was stationed at the Ba Dredge Project in Ba.

7.4	The appeal is upheld.
 
8.	Costs

The Appellant has not referred to costs in the Grounds of Appeal. I observe that Mr Shaw’s claim was treated by the parties as a ‘test case’.

8.1	In the circumstances, it is not a matter for the award of costs. 

8.2	I observe that in some jurisdictions in such cases an Appeal Costs Fund Act provides for payment of costs to an unsuccessful party in such a case. Were such provision to exist here, then consideration by the Court would be given to the making of an order under it. Should there be such provision, then considerations would be given to any submissions made in relation to costs.

Orders

1.	The appeal is upheld.

2.	No order as to costs.

Jocelynne A. Scutt
Judge

Lautoka
3 October 2008