IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Judicial Review No: HBJ 12 OF 2007

STATE

v

ARBITRATION TRIBUNAL

Ex-parte: FIJI INDUSTRIES LIMITED

BETWEEN:

FIJI INDUSTRIES LIMITED
Applicant

AND:

ARBITRATION TRIBUNAL
1st Respondent

AND:

NATIONAL UNION OF FACTORY AND COMMERCIAL WORKERS
2ndRespondent

Counsel: Ms. J. Jattan for the Applicant. 
 Ms. Serulagilagi for the 1st Respondent. 
Mr. R. Singh for the 2nd Respondent 

Date of Judgment: 7th October, 2011

JUDGMENT

1.	This is an application by the Fiji Industries Ltd (hereinafter referred to as the applicant) seeking a judicial review of the Award No. 4 of 2006 of the Arbitration Tribunal dated 07.05.2007.

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

i.	Leave for judicial review;

ii.	An order for certiorari to remove and quash the award of the Arbitration Tribunal dated 07.05.2007;

iii.	A declaration that the Arbitration Tribunal has made errors of law on the face of the record and/or failed to take into account and/or give adequate consideration to relevant matters and/ or took into account irrelevant matters;

iv.	A declaration that griever Anisi Vaja's summary dismissal was justified in the circumstances;

v.	Further declaration or other relief as to the court deem fit; and,

vi.	Costs of this action.

Background of the case

3.	This dispute relates to the summary dismissal of Anisi Vaja (hereinafter referred to as the griever) who was an employee of the applicant company.

4.	On 22.12.2005, there was a Christmas party organised by the applicant company. The griever also attended the party with his children and wife.

5.	A fellow employee named Seru Rakuro came to the tent where the griever was and started swearing at the griever as an expression of anger since he was not invited to the griever's brother's funeral gathering that was held the day before. The griever's brother died on 17.12.2005 and his burial took place on 21.12.2005.

6.	Then the griever assaulted Seru. Thereafter, Seru went to another tent but little later returned to the griever's tent and apologised to him for his behaviour and the griever also apologised to Seru.

7.	When the griever returned to the work on 09.01.2006, he was handed over dismissal letter advising him that his employment was terminated with immediate effect.

8.	Having aggrieved by the applicant's decision, the griever referred the matter to the Union. Despite the representations made by the Union, the management maintained its decision to dismiss the griever, and by letter dated 18.04.2006, the applicant informed the griever their final decision.

9.	The Union reported the dispute to the Chief Executive officer of the Ministry of Labour. Thereafter, it was referred to the Dispute committee but no inquiry was held by the Dispute Committee and finally it was referred to arbitration. The arbitration tribunal made its Award ordering immediate reinstatement of the griever.

10.	The applicant having aggrieved by the award of the arbitration tribunal made the instant application for judicial review.

11.	In support of the application, an affidavit was filed by the General Manager of the applicant company.

12.	Both parties filed their written submissions and informed the court that they would agree to have a judgment based on the written submission and the affidavits.

13.	The applicant submits that the tribunal, whilst arriving at its decision had failed to take into account relevant matters, and also had misdirected itself on issues of law.

14.	In their submissions, the counsel for the applicant addressed a number of points in support of the applicant. However, I do not propose to deal with each of those points individually but wish to address the issues which are most pivotal to the judicial review application. 

Relevant legal principles

15.	The judicial review is not concerned with the merits of the decision in respect of which the application for judicial review is made, but with the decision-making process. 

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

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

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

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

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

19.	In Re Amin [1983] 2 A.C.818 at 829, it was stated by Lord Fraser as follows:
'Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision, on the merits for that of the administrative officer.'

20.	It is therefore, not for this court to replace its own views of the merits for those of the tribunal.

21.	The hearing before the tribunal took place on 27.05.2003. The applicant called 5 witnesses, and the griever was also testified. Subsequently, the parties made written submissions which were considered by the tribunal and the Award was made.

22.	The applicant submits that the tribunal failed to give adequate consideration to relevant facts such as the incident of the assault by the griever, an incident properly of concern to the employer, incident directly affected the relationship the griever had with his fellow employees, the assault took place before the senior management, which directly impeached the relationship that the griever had with is employer in that he lacked respect end the regard for the presence of authority etc.

23.	However, to my mind, the cause of the problem appears to be personal issues as opposed to work related matters.

24.	When the ground of challenge is that relevant considerations have not been taken into account, the court has to assess the potential importance of the fact that was overlooked by the tribunal.

25.	For a clear picture of the award, I consider that I ought to set out below the most relevant parts of the award;

26.	The paragraph 11 of the award read:
(11). The tribunal finds that there are several factors present in the instant case that mitigate the griever's conduct. The cause of the problem appears to be personal issues as opposed to work related matters. The griever was in bereavement at the time of the incident. The approach by Mr. Rokoro over personal matters may have been insensitive to the griever in all circumstances of his bereavement.

Further the paragraph 15 of the award reads:

(15). The tribunal finds that the company may not have considered the mitigating issues adequately or at all when it arrived at the decision to summarily dismiss the griever. The company did not take account of the long service that the griever has had with the employer. The griever has worked for the employer for 15 years and has an impeccable record with the employer. There is no record of previous disciplinary charges against him. The employer failed to consider his previous record of service and the impact on his work history by this apparently isolated incident.

27.	Therefore, it could be observed in the award that the arbitrator had very carefully considered the surrounding circumstances under which the assault took place and its consequences for the employer and employee relationship. Also, the arbitrator did not lose the sight of the griever's previous record of service while arriving at his decision.

28.	The fact that the assault took place in a function organized by the employer and also the presence of the management at the time of the incident was taken into consideration by the tribunal but still the tribunal found that there were several factors present in the case that would mitigate the griever's conduct.

29.	Further, the tribunal considered the fact that the griever had tendered his apology at the first available opportunity to Seru. Although the incident happened in a function organized by the employer, the evidence before the tribunal clearly showed that it was not an act of insubordination by the griever towards his employer or its authority.

30.	The applicant had laid great stress on section 28 of the Employment Act of Fiji which permits the summary dismissal of an employee in case of serious misconduct.

31.	However, it could be observed that the tribunal had very clearly taken into consideration the facts that the long service that the griever has had with the applicant and also the fact that there was no record of previous disciplinary charges against him, which in my view would not have considered by the applicant when it arrived at the decision to dismiss the griever summarily.

32.	The tribunal had considered not only the nature of the griever's behaviour but also the surrounding circumstances under which the assault took place, which in my view was the most appropriate way of addressing the issue and hence I do not see any irrationality or unreasonableness on the decision of the tribunal.

33.	Further, I do find that the tribunal did address its mind very correctly to whether the summary dismissal of the griever was too harsh.

34.	Paragraph 16 of the Award reads:

The Tribunal finds that the company may not have considered the mitigating issues adequately or at all when it arrived at the decision to summarily dismiss the griever. The company did not take account of the long service that the griever has had with the employer. The griever has worked for the employer for 15 years and has impeccable record with the employer. He has risen through the ranks with the employer. There is no record of previous disciplinary charges against him. The employer failed to consider his previous record of service and the impact on his work history by this apparently isolated incident.

35.	Paragraph 17 of the award reads:

The tribunal is of the view that the summary dismissal is harsh on the griever in all the circumstances of this case. 

36.	The applicant submits that the first respondent failed to cite any procedural irregularities in respect of how the griever was dismissed.

37.	However, it must be stated that the arbitrator mainly focused his attention on the fact that the summary dismissal was unreasonable and give directions for reconsideration of the decision by the management of the company.

38.	The applicant further submits that the arbitrator had erred in law when he concluded that while the 1st respondent found the griever's action of assault on a fellow employee was in contravention of the applicant's policy but failed to hold that such an action amounted to a serious misconduct. The applicant relies on Thomas v. Fiji Electricity Authority [204] FJHC 303.

39.	But the tribunal in its award has addressed that issue in great detail with reference to the aforementioned case and found that the assault was not an act of insubordination by the griever towards his employer or its authority but a personal issue between the griever and Seru.

40.	Further, it was disclosed that Seru was related to the griever and the assault was linked to a heated argument between them regarding their personal issues.

41.	The tribunal also considered the employer's witness Mr Tomasi's testimony and taken into account the company's strong policy against the violence, but found that it may not have been communicated to the employees.

42.	Further, it appears that Seru was drunk at the time of the incident and the circumstances under which the griever assaulted Seru were very much considered by the Tribunal.

43.	As can be seen from the Award, it was never the intention of the tribunal to undermine the employer's policy against the violence. What the arbitrator had done was to consider the griever's past track record with the employer, the circumstance under which the assault had taken place and also the place where it happened.

44.	Can the tribunal totally disregard the surrounding circumstances under which the assault took place and consider only the act of assault and come to a reasonable finding? The answer is no, because when the tribunal considers whether the termination was too harsh, it has to consider each and every fact which led to the termination of the griever.

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

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

47.	As can be seen from the submission, the applicant's main contention is that the particular incident constituted misconduct inside the employment and therefore warrants a termination of the employment of the griever.

48.	It is to be noted that this incident happened not in the workplace of the applicant but in a function which seemed to be an informal event and therefore, it is not correct to conclude that it amount to a misconduct on the part of the griever during the course of his employment with the applicant company.

49.	Further, this incident cannot be considered as an assault by the griever to a fellow employee because both the griever and Seru are related to each other and the assault took place due to some issues personal to them but not linked to their work or any of the fellow employees. There is nothing in the evidence before the tribunal to suggest that the griever intended to disrespect the management or caused any damage to the relationship among the fellow employees.

50.	Summary dismissal is a serious issue with detrimental consequences for the employee and not a matter which should be approached lightly. The circumstances will depend on a number of factors such as the nature of the employer, the position occupied by the employee, the type of the employment, the expressed and implied terms of the contract of employment, the gravity of the alleged misconduct, the seniority of the employee, his past conduct, and whether there is a single act of misconduct or acts of misconduct which can be taken into account cumulatively.

51.	Therefore, the tribunal in its decision quite correctly and logically has found that the griever though admitted the assault, should not have been terminated and further decided that the applicant had failed to consider the mitigating issues adequately when the griever was so terminated.

52.	Therefore, I see no merit in the applicant's argument in that context.

53.	The applicant further submits that the tribunal had exceeded its jurisdiction by ordering the reinstatement of the griever.

54.	The 3rd paragraph of the Terms of Reference of the trade dispute dated 30.11.2006 reads as follows:

'Now therefore, I do hereby refer the said trade dispute to the tribunal over the termination of employment of Mr Anisi Vaja with effective from 9th January 2006 on the grounds given by the management that the griever manhandled a fellow employee during the company function. The union claims that their member denies that incident and seeks his reinstatement without loss of pay and benefits, as the termination was unjustified, unreasonable and harsh.'

55.	Therefore, it is apparent that the tribunal has not exceeded its jurisdiction but acted within the powers conferred by the Term of Reference.

56.	In the present application, the tribunal had very plainly stated how and the basis on which it has come to its conclusion. Once the reasons have been given so as to establish the basis for its decision on the Award, it could not be held that the arbitrator has adopted a wrong principle or committed an error of law.

57.	Therefore, in the present application, it cannot be seen any irregularity as such, in particular any relevant facts which escaped the tribunal's attention or any irrelevant facts which attracted the tribunal's attention. 

58.	To succeed in its application for judicial review, it is incumbent on the applicant to show illegality, irrationality or procedural impropriety on the part of the tribunal. The submissions filed by the applicant do not persuade me that the tribunal had made any error of law or acted irrationally in arriving at its decision. The tribunal's order to reinstate the griever is no reason for this court holding that the tribunal had erred in law.
59.	Upon consideration of the above, I am not inclined to reverse the decision of the tribunal nor do I opine that the tribunal had erred in law while arriving at its decision.

60.	On the above premise, I dismiss the applicant's summons for judicial review.

61.	Cost is summarily assessed in the sum of $ 750.00.

Pradeep Hettiarachchi
JUDGE

At Suva
7th October, 2011