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State v Mediation Unit, ex parte Carpentars Fiji Ltd [2012] FJHC 976; HBJ6.2009 (23 March 2012)

THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Judicial Review No. HBJ 6 of 2009

IN THE MATTER of an application for judicial review by
CARPENTERS FIJI LIMITED,
for Judicial Review under Order 53 of the High Court Rules 1988

THE STATE

v.

MEDIATION UNIT
1st Respondent

MINISTER FOR LABOUR, INDUSTRIAL RELATIONS & EMPLOYMENT
2nd Respondent

PERMANENT SECRETARY FOR LABOUR, INDUSTRIAL RELATIONS & EMPLOYMENT
3rd Respondent

B.P. (S.S.) COMPANY LIMITED AND W.R. CARPENTER GROUP SALARIED STAFF ASSOCIATION FOR AND ON BEHALF OF ROSETTE SINGH.
4th Respondent

EX-PARTE:

CARPENTERS FIJI LIMITED
Applicant

Counsel: Ms. B. Narayan for the Applicant.
Mr. Sharma for the Respondents.

Date of Judgment: 23rd March, 2012

DECISION

[1]. The Applicant, by way of an inter-partes motion, applied for judicial review under O. 53 r.3 (2) of the High Court Rules1988. Interpartes motion was filed on 05.03.2009.

[2]. The relief sought by the applicant are:

1. The applicant be granted leave to apply for judicial review of the decision of the Mediation Unit on the 11th of November 2008 to accept the report of a grievance and refer the grievance to the Employment Relations Tribunal when the Permanent Secretary had refused the acceptance of the dispute in the first instance on 24th August 2007.
   
2. The Respondent's decision be stayed if leave is granted pending final determination of this application for judicial review.
   
3. Costs.
   

[3]. The grounds advanced by the applicant seeking relief against the respondents are as follows:

1. The Mediation unit erred in law and /or exceeded its jurisdiction in accepting the report of a grievance from the union when the matter had already been reported as a dispute and was rejected by the permanent secretary on 24.08.2007.
   
2. That the Mediation Unit erred in law and in fact in accepting a report of a grievance when the report was made well outside the stipulated time period for reporting such matters.
   

100. That the Mediation Unit erred in law in accepting the report of a grievance from the union as the union has no locus standi to report a grievance on behalf of a worker.
     

[4]. On 09.04.2009, Notice of opposition was filed by the Respondents.

The respondent's grounds for opposition are:

1. The applicant does not have an arguable case established on any of the grounds sought for judicial review of the relevant decision.
   
2. The Mediation Board did not err in law and/ or exceeded its jurisdiction in accepting the report of an employment grievance which the applicant claimed was made outside the specified time frame as the Employment Relations Promulgation 2007 does not provide for a time period within which an employment grievance is to be lodged with the Mediation Unit.
   

100. The Mediation Unit did not err in law and /or exceeded its jurisdiction in accepting the report of an employment grievance when the matter had already been reported as a dispute on the grounds of time limitation is not a bar to a worker wishing to report an employment grievance.
     

4. The claim by the applicant that the Mediation Unit erred in law accepting the report of a grievance from the union as the union did not have the locus standi to report a grievance on behalf of a worker is unfounded as the employment grievance was reported by the worker.
   

Background Facts

[5]. The applicant is a trading company in Fiji. The griever Rosette Sing joined the applicant company on 13.07.198 as a cashier. By a letter dated 03.08.2004, the griever was summarily dismissed from employment for gross misconduct. At the time of the dismissal, the griever was employed as the Manager at MH Korovou branch.

[6]. The union wrote to the applicant on 08.12.2006 stating that the dismissal was unjustified. The applicant wrote to the union on 08.01.2007 and stated since the griever had allegedly embezzled funds from the company the summary dismissal was justified.

[7]. The union on 06.06.2007, reported to the permanent secretary of an existence of a trade dispute between the applicant and the union.

[8]. The permanent secretary on 24.08.2007 informed the union and rejected the report of the dispute on the basis that the matter in dispute arose more than one year from the date the report was lodged and that the union had not provided sufficient reasons for the delay.

[9]. The griever then through the fourth named respondent moved the Mediation Unit for mediation purposes.

[10]. The Mediation Unit subsequently referred the dispute to the Employment Relation Tribunal as the dispute was not settled.

The Relevant Legal Principles

[11]. In an application for Judicial Review the Applicant must have a sufficient interest; have a case sufficiently arguable to merit investigation at a substantive hearing; and must apply for leave promptly.

Sufficient Interest

[12]. The overriding rule governing the standing of the applicant to apply for a Judicial Review is that the Court must consider that he has a sufficient interest in the matter to which the application relates. S.C.A. 1981, S.31(3) and Order 53 Rule 3(7).

[13]. If the applicant has a direct personal interest in the relief which he is seeking, he will very likely to be considered as having a sufficient interest in the matter to which the application relates.

[14]. In the light of above principle, there is no doubt that the applicant has sufficient interest in the matter to which this application relates to entitle it to apply for a Judicial Review of the first respondent's decision.

Have a Case Sufficiently Arguable.

[15]. In an application for a Judicial Review it is incumbent on the applicant to satisfy the Court that he has an arguable case.

[16]. Antaios Compania Naviera SA –v- Salen Roderierna AB [1985] AC 191 at 207.

'The test to be applied by the Judge at the inter-parties leave hearing should be analogous to the approach adopted in deciding whether to grant leave to appeal against an Arbitrator's award namely; if taking account of a brief argument on either side, the Judge is satisfied that there is a case fit for further consideration, then he should grant leave.'

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

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

[18]. In judicial review proceedings the court is not interested in the conclusion reached as such, it is concerned with the way in which it was reached. In considering whether the Mediation Unit has acted unreasonably, the court has to investigate the action of the Mediation Unit with a view to see if it has taken into consideration any matters that ought not to be or disregarded matters that ought to be taken into consideration.

[19]. The decision whether to grant leave or to refuse is entirely discretionary albeit based on the facts and circumstances of each case and therefore, the applicant must satisfy the court that there are reasons justifying the substantive application. The court will grant leave, if the material available to it is sufficient to establish an arguable case for the granting of the relief sought by the applicant.

[20]. First, I will consider the applicant's first ground of objection. The applicant contended that the Mediation Unit had clearly acted contrary to section 200(3) of the Employment Relations Promulgation 2007 in accepting the griever's report as an employment grievance when the same was initially reported as a dispute and was rejected by the Permanent Secretary.

[21]. However, the respondents submitted that section 200(3) does not apply to this leave application for judicial review as that provision applies to an employment grievance that has been referred to mediation services or a dispute reported to the Permanent secretary under the Promulgation but this matter was not one that was reported as an employment grievance that was referred to mediation service and subsequently reported as dispute.

[22]. It is further submitted that the dispute that was reported was not reported under the Promulgation but under the Trade Disputes Act which was subsequently rejected. Therefore, the respondents argued that when the dispute had been reported under the Trade Disputes Act and subsequently rejected, the Promulgation does not prevent the filing of an employment grievance under the Promulgation.

[23]. Section 200(3) of the Promulgation states:

'If an employment grievance has been referred to mediation services or a dispute reported to the Permanent Secretary –

1. the employment grievance cannot be subsequently reported as a dispute; or
   
2. the dispute cannot be subsequently referred to mediation services as if it were an employment grievance.'
   

[24]. The issue of paramount importance in this matter is whether the Mediation Unit exceeded its jurisdiction and/ or made an error of law in accepting the griever's report as an employment grievance and referring it to the Employment Relations Tribunal when it had already been reported as a dispute and was rejected by the Permanent Secretary.

[25]. It is for the court hearing the substantive matter to determine whether the Mediation Unit acted outside its powers, and whether in those circumstances and having regard to the interest of the applicant in the proceedings, any relief should or should not be granted. What is basically required at the leave stage is for the applicant to simply establish a meritorious action worth considering by the court.

[26]. The respondents mainly challenge the applicability of section 200(3) of the EPA, whereas the applicant mainly relies on the said section to show that the Mediation Unit had no power to refer the matter to the tribunal once it was rejected by the Permanent Secretary, which in my view, is quite sufficient to warrant further consideration of substantive issues, thus it is evident an existence of an arguable case for the applicant.

[27]. Another issue which is pivotal to the applicants claim is the time limit within which the griever reported her grievance to the Mediation unit. The respondents contended that since the employee's grievance relates to a dismissal, paragraphs 2 to 6 do not apply and therefore, the griever is not out of time.

[28]. It is true that section 1(2) of the schedule 4 provides for an option to an employee to refer a case of dismissal directly to the Mediation unit instead of submitting it first to the employer. However, section 1 (2) of schedule 4 does not state whether the time limitation of 6 months also applies to referral to Mediation Unit, which further substantiates the existence of arguable issues in this application.

[29]. Therefore, on all the material before me and taking into account the relevant authorities cited by counsel for the parties, I find that the applicant has an arguable case.

[30]. To conclude, for the above reasons leave to apply for judicial review is granted.

[31]. Costs shall be in the cause.

Pradeep Hettiarachchi

JUDGE

At Suva

23rd March, 2012