1978

Papua New Guinea Law Reports - 1978

[1978] PNGLR 1 - Re The Industrial Relations Act 1962; Peter Lindsay Condon v National Airline Commission 

[1978] PNGLR 1

N121

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE INDUSTRIAL RELATIONS ACT 1962 AND IN THE MATTER OF AN AWARD BETWEEN PETER LINDSAY CONDON AND THE NATIONAL AIRLINE COMMISSION OF PAPUA NEW GUINEA

Waigani

Pritchard J

13 December 1977

16 December 1977

5 January 1978

INDUSTRIAL LAW - Awards - Enforceability - Termination of service by employer - Agreement not to be bound by appeal provisions of Award - Illegality - Industrial Relations Act 1962, s. 49.

INDUSTRIAL LAW - Jurisdiction and powers of Industrial Tribunals - “Industrial Dispute” - Retrospectivity of award - Termination of services - Meaning of expression “dispute arising from a contract of employment the particulars of which are contested by either party” - Industrial Relations Act 1962, s. 27[i]¹ - Industrial Organizations Act 1962, s. 4[ii]².

N1>INDUSTRIAL LAW - Jurisdiction and powers of Industrial Tribunals - Reinstatement - Principles to be considered - “Industrial matter” - Industrial Organizations Act 1962, s. 4[iii]³.

On 1st February, 1977 the National Airline Commission of New Guinea (Air Niugini) purported to terminate forthwith the services of the applicant, as a pilot, and in accordance with s. 6c(iii) of the Airline Pilot’s Agreement — Papua New Guinea 1976. On 2nd February, 1977 the applicant gave notice in writing of a “dispute”, to the Secretary of the Department of Labour, Commerce and Industry and notified Air Niugini of “an appeal under s. 44c. Step 2” (in fact s. 50 of the 1976 Agreement) which provides for grievance procedures applicable to any dispute including the termination of a pilot’s services. It was the contention of Air Niugini that the applicant had agreed in October 1977 that any future incident involving consideration of disciplinary action would result in automatic termination of services and the foregoing of any appeal procedure under the grievance procedures. After prolonged negotiations, an Arbitration Tribunal, which was constituted to deal with the dispute, made an award which was handed down on 1st July, 1977 finally determining, that the applicant be reinstated with effect from 2nd February with no loss of privileges.

On an application for an order under s. 50 of the Industrial Relations Act 1962 that Air Niugini comply with the provisions of the Tribunal’s Award (No. 19 of 1977):

Held

N1>(1)      The dispute was an “industrial dispute” i.e. one “arising from a contract of employment the particulars of which are contested by either party to that contract”, within three months of its termination, and as defined in s. 4(1)(g) of the Industrial Organizations Act 1962; the contract being employment subject to an Award one term of which was the right of any pilot to avail himself of the provisions of the grievance procedures (which were being denied).

N1>(2)      The dispute being within the provisions of s. 4(1)(g) of the Industrial Organizations Act 1962 was accordingly excepted from the retrospectivity provisions of s. 27 of the Industrial Relations Act 1962, and the award if otherwise valid could be retrospective to 2nd February, 1977.

N1>(3)      Any agreement to the effect that in the event of Air Niugini electing to terminate the applicant’s services he would not have recourse to the grievance procedures, not itself being registered as an Award under the Industrial Relations Act 1962 was illegal by virtue of s. 49 of that Act, and unenforceable.

N1>(4)      The question of reinstatement in employment is an “industrial matter” within the meaning of s. 4(1)(k) of the Industrial Organizations Act 1962, and the power to order reinstatement is a discretionary one involving consideration of what is right and fair in all the circumstances.

Re Fitzpatrick and Bankstown Municipal Council, [1954] A.R. (N.S.W.) 573; Re Dismissal of Union Delegates at Homebush Abattoir, [1966] A.R. (N.S.W.) 371 and Re Clarke and Metropolitan Meat Industry Board, [1967] A.R. (N.S.W.) 16 referred to.

N1>(5)      The National Court has a duty to enforce compliance with Awards of the Industrial Tribunal unless they are in whole or in part, clearly unlawful or contrary to the principles of natural justice as referred to in s. 59 of the Constitution.

N1>(6)      The award of 1st July, 1977 not being unlawful or contrary to the principles of natural justice should be enforced.

Application

This was an application for an order under s. 50 of the Industrial Relations Act 1962 that the respondent (Air Niugini) comply with the provisions of an industrial award (No. 19 of 1977) made on 1st July, 1977 by an Arbitration Tribunal established under s. 13 of the Act, and to which an industrial dispute between the applicant and Air Niugini had been referred pursuant to s. 23 of the Act.

Counsel

I. R. Molloy, for the applicant.

G. J Cartledge, for the respondent.

Cur. adv. vult.

5 January 1978

PRITCHARD J: This is an application by Peter Lindsay Condon for an order under s. 50 of the Industrial Relations Act 1962 (as amended) (hereinafter called “the Act”) that the National Airline Commission of Papua New Guinea (hereinafter called “Air Niugini”) comply with the provisions of an Award (No. 19 of 1977) made on 1st July, 1977 by an Arbitration Tribunal established under s. 13 of the Act by the Minister for Labour, Commerce and Industry and to which the Minister directed the Secretary for Labour, Commerce and Industry to refer an industrial dispute between the applicant and Air Niugini pursuant to s. 23 of the Act.

The background to this matter is that the applicant is a commercial airline pilot who up to 1st February, 1977 was so employed by Air Niugini, he at that time being an F.27 (Fokker Aircraft) Captain. His employment by Air Niugini was regulated by the Airline Pilots’ Agreement — Papua New Guinea 1976 which is registered as an Award under the above Act, and which purports to bind Air Niugini and the expatriate pilots employed by it. The parties to the Agreement are Air Niugini and the Papua New Guinea Air Pilots’ Association of which the applicant is a member.

On 1st February, 1977 the Industrial Relations Manager of Air Niugini sent written memorandum to the applicant reading as follows:

“You are advised that your services are no longer required by Air Niugini and termination is effective forthwith. You will be paid one month’s salary in lieu of notice and you should consult the Flight Administration Manager in respect to your travel to Australia.”

The relevant part of the Award dealing with termination of employment is s. 6c which reads as follows:

“The services of a pilot shall be terminable by either the employer or a pilot:

(i)       during the first six months of service, by seven (7) days’ notice in writing;

(ii)      after the completion of six months of service, by one (1) month’s notice in writing;

(iii)     by the payment to the pilot of seven (7) days’ or one (1) month’s salary in lieu of notice as aforesaid; OR

(iv)     by the forfeiture by the pilot of the last seven (7) days’ or one month’s salary paid to him in lieu of notice as aforesaid.

Provided that the period of notice set out herein may be reduced or waived by mutual agreement, and provided that nothing shall derogate from the employer’s right at common law to dismiss a pilot without notice for proven misconduct or other proven sufficient cause.”

It would appear that the notice of termination was under sub-s. (iii) of s. 6c. This was asserted by counsel for the applicant and not denied by counsel for Air Niugini. The month’s pay and certain retirement benefits were subsequently paid to the applicant by Air Niugini.

The applicant, in his affidavit in support of this application (and in fact the only affidavit in evidence before me) says that the next day, 2nd February, he discussed the “purported” dismissal with officers of the Department of Labour, Commerce and Industry and informed them he disputed Air Niugini’s action. On that day he gave the Secretary of the Department notice in writing of the said dispute. His letter reads as follows:

“The Department of Labour and Industry,

Mr. B. Konie

Dear Sir,

I wish to register a dispute existing between myself and my employer Air Niugini.

As discussed between your office and myself the company has terminated my services, for which no reason was offered in writing subsequent to an enquiry.

The matter is pending between myself and Air Niugini and I shall advise you of any further action by Air Niugini and my intended course of action.

Yours faithfully,

Peter L. Condon (Sgd)

c.c. PNGAPA

c.c. Craig Kirke and Wright.”

Section 19(1) of the Act provides:

“A person concerned or interested, or likely to be concerned or interested, in an industrial dispute may report the dispute to the Secretary.”

This letter of the applicant is claimed by his counsel to be adequate notice to the Secretary under s. 19(1), Mr. Konie being a delegate of the Secretary. This claim is not disputed.

On the same day, 2nd February, the applicant wrote to the Industrial Relations Manager of Air Niugini a letter headed “Termination of Services”, reading as follows:

“I hereby give notice of appeal under Clause 44c, step 2 against the purported decision of Air Niugini to terminate my employment, contained in memorandum dated 1-2-77.

Peter L. Condon (Signed).

c.c. PNGAPA

c.c. Craig Kirke and Wright

c.c. Air Niugini

I should make it clear at this stage that the Airline Pilots’ Agreement — Papua New Guinea 1976 had not at that time been printed and the reference to cl. 44 in this letter has been agreed by counsel to refer to s. 50 of the 1976 Award. Section 50 deals with “Grievance Procedures”. Sub-section a “Scope” sub-par. (i), in part, reads “Subject to this Agreement, these procedures shall apply to any dispute including the termination of a pilot’s services, whether by summary dismissal or notice.” Sub-section b, headed “Procedures — Other Than Disciplinary Matters” provides for three steps, Step 1 being for “A pilot who considers himself adversely affected within the scope of sub-s. a of this Section” to inform the appropriate Supervisory Captain of his complaint. Certain procedures are laid down and if the pilot is dissatisfied with that decision he can, under Step 2, request a review by the Flight Operations Manager. Again certain procedures are laid down and if the pilot is still dissatisfied with the decision he has the right of appeal to the Grievance Board which I shall refer to hereunder.

Sub-section c is headed “Procedures — Disciplinary Matters”. It provides for the three step system as in sub-s. b. However Step 1 provides for the employer to make “such preliminary enquiries as are deemed necessary and adequate” with respect to “any situation or incident in which a pilot may be involved”. It provides that the pilot can be required to furnish a written report in relation to the matter and be given time to seek advice and assistance in order to do so. It further provides that pending completion of the enquiries the pilot can be held out of service but is to continue to be paid under the provisions of s. 6f of the Award. (Under s. 6f of the Award this pay is called “standard” pay.) It goes on to provide that the employer “may conduct such investigations which are deemed necessary to enable the employer to decide whether any disciplinary action should be taken”. It provides that the pilot can be called in for discussions, with a person to represent him. Finally, if disciplinary action is to be taken the reasons for it are to be given to the pilot in writing within seven days after completion of the investigation and the decision is to specify the disciplinary action proposed. Step 2 is the appeal right to the Flight Operations Manager. Again the pilot can be held out of service but is to continue to be paid under s. 6f of the Award. Against this decision, under Step 3, lies the final appeal to the Grievance Board. The Grievance Board is established under sub-s. d and is comprised of a chairman, and four members two of whom are nominated by the employer and two by the Association. It appears that the above letter from Mr. Condon of 2nd February was an attempt to appeal by the applicant under Step 2 of s. 50c.

The letter was answered by Air Niugini on 4th February in a letter signed by Mr. Crofts written to the applicant and copies to the Association and Messrs. Craig Kirke and Wright, the applicant’s solicitors. Omitting formal parts it reads as follows:

“I refer to your letter of 2nd February, 1977.

Your employment was continued after the 4th October, 1976 on the clear understanding, which you acknowledged, that in the event the Company elected to terminate your services you would not have recourse to the Grievance Procedures.

Your apparent attempt to repudiate this understanding is not acceptable and no Grievance Procedures will be initiated.”

In his affidavit, the applicant says that between 4th and 21st February, 1977 he had numerous conversations personally and through his solicitors with officers of the Department of Labour, Commerce and Industry regarding the dispute. He was informed by those officers that during that time they had discussed the dispute with Mr. Crofts of Air Niugini. On 25th February, the applicant says, he attended a conference at the Department with an officer of the Department and a Mr. Holmes of Air Niugini. No settlement was reached.

On 28th February Mr. Konie, as delegate for the Secretary, issued a notice to both parties under s. 19 of the Act requiring them to enter into negotiations for the settlement of the dispute within 14 days from that date. This is the procedure authorized under s. 19(2)(b) of the Act. Pursuant to the notice, on 7th March, 1977 a further conference was held at the Department with Mr. Crofts this time representing Air Niugini. Again no settlement was reached.

As a result Mr. Konie, acting pursuant to s. 22(1)(a)(i) of the Act, being of the opinion that the parties to the dispute had refused to further negotiate, called a compulsory conference immediately. The result was as above. The parties were advised in that notice, that if settlement was not effected, Mr. Konie would report the matter to the Minister.

He did this and on 9th May, 1977 the Minister, exercising his powers under ss. 13, 23 and 25 of the Act appointed Messrs. Martin Dino, Chairman, and Patrick Varagat, Member, to constitute an Arbitration Tribunal to deal with the dispute. The appointment contained a direction to reduce the Award of the Tribunal to writing and to furnish copies of it to the parties without delay. Both members are officers of the Department.

On 27th May, the Chairman notified the parties that the hearing would take place on 30th May. It apparently did so take place and the award made by the Tribunal was handed down on 1st July.

The award was registered by the Registrar under s. 30 of the Act as Award No. 19 of 1977 and notice of the making of the award was published in the National Gazette in accordance with s. 33 of the Act on 21st July, 1977.

The award is some four pages long and the final determination made was:

“That Capt. Condon be reinstated in his former position, i.e. Captain of F.27 with effect from 2nd February, 1977 with no loss of privileges, accumulated rights and conditions.”

The applicant says that from that time on the following events have occurred:

N2>1.       In August he returned to service for Air Niugini as an F.27 Captain.

N2>2.       Air Niugini has failed to pay him the salary he would have received from 2nd February, 1977 to the time of his actual reinstatement.

N2>3.       Air Niugini has disputed his right to seniority under the Airline Pilots’ Agreement — Papua New Guinea 1976. (This allegation was objected to by counsel for Air Niugini. In the absence of evidence to the contrary and in the absence of any argument as to why the claim by the applicant is disputed, I admit the allegation made in his affidavit.)

N2>4.       Air Niugini has claimed that s. 27 of the Act has not been complied with in respect of the award of 1st July, 1977.

N2>5.       On 25th November, 1977 Air Niugini informed him he was to remain out of service until further advised and since that date he has performed no services for the company. He has apparently been paid since that date but at what rate I do not know.

N2>6.       On 17th November, 1977 the new (following the recent General Elections) Minister issued an amendment of the Notice of Appointment of an Arbitration Tribunal of 9th May, 1977 by deleting the Chairman and Member thereunder appointed and appointing a Mr. Jacobs and a Mr. Doctor in their place.

N2>7.       On the same day the Secretary referred the dispute “concerning a matter relating to the dismissal of Captain Peter Condon” to the Arbitration Tribunal constituted by the Minister’s amendment to the appointment of 9th May.

N2>8.       That Tribunal has not sat, pending the result of the application now before me.

The orders the applicant seeks are:

“That Air Niugini comply with Award No. 19 of 1977 made on the 1st July, 1977 by:

(a)      reinstating me in my former position as F.27 Captain;

(b)      paying to me the salary and other monetary entitlements due to me from the 2nd February, 1977 until the date of the order to which I would have been entitled if I had remained in its employ during that period;

(c)      allowing me to exercise my rights under the said agreement including seniority rights.”

I am placed in a very difficult position in this matter, mainly because although I have been told by counsel that an affidavit had been filed on behalf of Air Niugini, it was not read and specifically not relied on. I therefore have no idea of what the real problem is from Air Niugini’s point of view, nor what its answers are to the allegations of the applicant. This leaves me in this position. I have no choice but to give complete credence to the claims of the applicant and to assume that Air Niugini has no denial to make in relation to them.

I have before me only the applicant’s affidavit, the Airline Pilots’ Agreement and the Award of 1st July. I have no evidence whatsoever of what the remuneration is that the applicant claims he should have been paid, nor indeed what in fact he has been paid. I have no idea of in what manner he has not been allowed to exercise his seniority rights under the agreement.

Putting those problems aside for a moment, a number of submissions have been put to me by counsel. I will dispose of them first.

The applicant himself raised the question in event No. 4 above, that Air Niugini has claimed that s. 27 of the Act had not been complied with in respect of the 1st July Award. Mr. Cartledge, counsel for Air Niugini, re-asserted this. Section 27 originally provided that awards made by a Tribunal were not to be retrospective before the date upon which notice under s. 19 was given to the parties (in this case 28th February) except with consent of all parties or unless the Tribunal for special reason otherwise determined and the Administrator in Council (now the National Executive Council) consented. In Amending Act 30 of 1970, an exception was made to this section and it was thereafter applicable generally, “except in an industrial dispute specified in par. (g) of the definition of ‘industrial dispute’ in sub-s. (1) of s. 4 of the Industrial Organizations Act, 1962-1970”.

In that Act, for the present purposes, an “industrial dispute” is “a dispute or difference between:

N2>(a)      an employer and an employee ... connected with an industrial matter and includes:

N2>(g)      a dispute arising from a contract of employment the particulars of which are contested by either party to that contract within 3 months after the termination of the contract.”

The underlined words were inserted by Amending Act 60 of 1973.

Again under that Act “industrial matters” means “all matters pertaining to the relations of employers and employees, and without limiting the generality of the foregoing, includes:

N2>(b)      the privileges, rights and duties of employers and employees;

N2>(h)      the mode, terms and conditions of employment;

N2>(k)      the right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person ...

and includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of the Territory (now Papua New Guinea) as a whole.”

Mr. Cartledge has referred me to the judgment of Frost A.C.J (as he then was) in Reg. v. Smith; Ex parte The Government of Papua New Guinea[iv]⁴ in support of his argument. He refers particularly to the quotation of the provisions of s. 27 of the Act by his Honour at p. 302 of the report and the consequences of delay in service of the s. 19 notice discussed at p. 303. I gain nothing from this submission. Firstly, in quoting the substance of s. 27, whether misreported or not, no mention is made by his Honour of the 1970 amendment, and the question of delay in giving the statutory notice which he regarded as so serious in that case, is irrelevant here. In this case, there has been no real delay in giving the statutory notice. As a matter of sheer commonsense, in any case of instant termination of employment there must be a gap in point of time between termination and the giving of notice. But the point does not really arise at all as this case falls within the 1970 amendment which makes the restriction on retrospectivity of such an award irrelevant. Under the definition I have set out above of an “industrial dispute” the present dispute falls clearly within the provisions of sub-s. (g) of s. 4(1) of the Industrial Organizations Act. It is a dispute “arising from a contract of employment the particulars of which are contested by either party to that contract” within 3 months of its termination. The contract here is employment subject to the Award, one term of which is the right of any pilot to avail himself of the provisions of the Grievance Procedures which Air Niugini has specifically refused to permit him to do. This dispute, whatever the rights or wrongs of the termination itself goes to the root of the contract of employment and the pilot’s rights thereunder.

N1>As to the assertion by Air Niugini that Mr. Condon had on a previous occasion agreed that “in the event the Company elected to terminate your services you would not have recourse to the Grievance Procedures” I can only say such an agreement, not being registered itself as an Award under the Act is completely in contravention of the Award and is thus illegal by virtue of s. 49 of the Act.

N1>I set out here that portion of the Tribunal’s Award dealing with this aspect of the matter, pointing out that the Tribunal’s reference to cl. 44 in two instances, is in fact a reference to s. 50 as I have mentioned above.

“On 4th October, 1976 the Flight Administration Manager, Mr. O. P. Evans, issued his decision on an appeal by Capt. Condon under 44c Step 2 No. 5. The decision was accepted in writing by Capt. Condon. The decision contained amongst other things Clause 3 which states ‘Capt. Condon is to be advised that a severe reprimand will be recorded on his file and is to acknowledge that any future incident involving consideration of disciplinary action will result in the automatic termination of his service and he forgoes any appeal procedure under the Grievance Procedures.’ Capt. Condon was made to sign acceptance of the document containing the above quoted clause. The Tribunal does not accept the argument that Capt. Condon had voluntarily signed away the documents as Mr. Evans described the condition he (Condon) was under as ‘walking under right (sic) rope’.

In the Tribunal’s opinion the decision was unfair and unlawful regardless of Capt. Condon’s acceptance, in that it purported to remove Capt. Condon’s right to grievances procedures for any future matter. The Tribunal feel that action by management goes quite outside the intent and the meaning of the agreement and therefore the Tribunal ignores that part of the decision which states ‘... and he forgoes any appeal procedure under the Grievance Procedures’.

In the minds of Tribunal the Company acting under the provisions of cl. 44, attempted to vary Capt. Condon’s conditions of employment which are as contained in the agreement. This is contrary to cl. 44a (1); therefore that part of the decision must be null and void and no cognizance can be taken of Capt. Condon’s acceptance of that part of the decision, which amounts to a de facto variation of the agreement.

It is the opinion of the Tribunal that any variation to or deviation from existing provisions of the Agreement (Papua New Guinea Air Pilots’ Agreement 1975) must be made by agreement between the Association (Papua New Guinea Air Pilots’ Association) and the Company (Air Niugini) who are party to the Agreement.

The Tribunal may add here that it is most important for parties to an industrial agreement to abide by the spirit of the agreement because any attempt to use technicalities to avoid carrying out a requirement contained in an award must result in suspicion and deterioration of industrial relations.”

I agree completely with the Tribunal’s approach to this matter.

The next assertion by Air Niugini is that the Registrar should have referred the Award of the Tribunal to the National Executive Council under s. 31 of the Act. That section says that where the Registrar is of the opinion that an award filed for registration

N2>“(c)    in any case:

(i)       is contrary to public policy; or

(ii)      is not in accordance with the best interests of Papua New Guinea,”

he shall immediately refer the award to the National Executive Council for consideration, with details of his reasons for his opinion, and shall not register the award without the approval of the National Executive Council.

The argument here proceeds on the basis that the Tribunal’s Award is not just the determination at the end but the full content of the four page document itself. This argument I do agree with. The document does not disclose all the evidence before the Tribunal but summarizes the proceedings in the same manner as a judgment of a court. The reasoning behind the final determination in a matter such as an industrial dispute is obviously part of the decision. However, I do not agree at all with the submission that the Registrar, from the Award, should have directed his attention to the fact that there was a genuine dispute, part of a continuing situation of disputes, and for this reason should have formed the opinion that the matter fell within either category under s. 31(c) abovementioned. I do not know whether the Registrar was asked to form such an opinion and declined to do so or not. All I do know is that he registered the award and rightly so. A simple dispute between Air Niugini and one solitary pilot, with no evidence to suggest industrial unrest in general or a threat affecting the national interest, should certainly not lead the Registrar to form such an opinion.

I was referred in argument to the decision of pre-Independence Full Court in Ela Motors Ltd. v. McCrudden; Ex parte Hoepper[v]⁵. In that matter Clarkson J discussed generally the scheme of the legislation as it then stood. His Honour’s conclusions in that regard were supported by the Supreme Court after Independence in Steamships Trading Company Limited v. Dandi, Re Skedden[vi]⁶. I agree these decisions set out accurately the concept of this legislation. In Hoepper’s case[vii]⁷ Prentice J (as he then was) said:

“However, when one looks at s. 23 of the Industrial Relations Ordinance which creates the powers, one notes that the ‘dispute’ is apparently not to be narrowly confined. It is enacted that ‘the Tribunal shall forthwith inquire into the dispute and shall make an award deciding the matters in issue between the parties to the dispute’. In my opinion the Tribunal is thereby given power to go to the actual matters in dispute, irrespective of the actual description of the dispute in the enabling documents — providing always of course that the dispute is an industrial dispute as defined.”

I think that paragraph points to the crux of the function of an Industrial Tribunal such as the one in this case.

I turn now to what actually did occur in this matter. The termination letter was written after consideration by Air Niugini of an incident at Kieta involving the applicant and a Customs officer. Prior to this incident it appears the applicant had been involved in other incidents the last of which led to the alleged agreement of 4th October. As to the prior incidents the Tribunal said:

“The Tribunal feels that little purpose would be served in reciting what was referred to as litany of incidents involving Capt. Condon which were put forward by the Company to show that Capt. Condon did not fit into the Company’s team. It is the opinion of the Tribunal that these incidents were in one way or other effectively dealt with by the Grievance Procedures established under the provisions of Papua New Guinea Air Pilot Award. The Tribunal will only consider evidences which have a material effect on the Arawa/Kieta incidence which is the subject under scrutiny.”

The Tribunal then went on to deal with the decision of 4th October which is set out above.

It will appear obvious now that the October agreement was to this effect:

“Any future incident involving consideration of disciplinary action will result in automatic termination of his service and he forgoes any appeal procedure under the Grievance Procedures.”

It is interesting to note that Air Niugini did not purport to rely on the proviso to s. 6c of the Award to dismiss without notice for proven misconduct. It simply terminated the applicant’s services under s. 6c(iii) on a month’s pay in lieu. If the termination was for misconduct, i.e. a disciplinary matter, the process of termination should have complied with the provisions of s. 50c Step 1 to which I have referred above. It did not, and the Tribunal comments on the failure to investigate the matter as therein provided, and I comment further on the failure to give reasons for termination as again provided.

The Tribunal found that the “incidences” (which may mean “evidence of the incidents”) at Kieta were conflicting. It then proceeded to its determination of reinstatement as set out above.

The duty to reinstate is, as I have said, an “industrial matter” within the meaning of s. 4 of the Industrial Organizations Act 1962 (as amended). I do not believe that the general question of reinstatement has been considered by this Court previously.

Neither under common law nor equity was reinstatement in employment a possible remedy for wrongful dismissal. The remedies were for debt or damages and the courts of equity declined to order specific performance of work contracts which would involve continual supervision by the courts. The various Australian statutes regarded the reinstatement of a dismissed worker as being within the scope of the jurisdiction of the industrial tribunals they created. In Sykes and Glasbeek — Australian Industrial Laws Vol. 5 — Labour Law in Australia (Butterworths 1972) the learned authors say at p. 91:

“In New South Wales a type of ‘non-judicial’ or ‘arbitral’ jurisdiction to order reinstatement is freely exercised. This occurs in situations where there is no doubt that the employer has been legally justified in exercising his right to dismiss summarily, but the Tribunal exercises an extra-legal power of ordering reinstatement when the action of the employer is harsh or oppressive, even though he acts within his legal rights.”

In New South Wales the right to reinstate is included in the definition of “Industrial Matter” in s. 5 of the Industrial Arbitration Act 1940 (as amended).

The concept was developed that the Industrial Commission would make an order for reinstatement only in exceptional circumstances and only if a strong case is made out justifying the exercise by the Commission of its over-riding powers to compel an employer to do that which the Commission regards as right and just under all the circumstances. This was said by the Full Bench of the New South Wales Industrial Commission in Re Fitzpatrick and Bankstown Municipal Council[viii]⁸.

N1>In Re Dismissal of Union Delegates at Homebush Abattoir[ix]⁹, Cook J held that the power to order reinstatement was a discretionary one, and it does not follow, from a finding that a dismissal of an employee on the ground of misconduct was unjustified, that he is automatically entitled to reinstatement. But the fact that the conduct of the employee did not amount to misconduct and did not justify instant dismissal was a most material factor in an application for his reinstatement.

N1>The following year the same judge, in Re Clarke and Metropolitan Meat Industry Board[x]¹⁰ held, firstly, that the legal doctrine of “waiver” does not enter into consideration where the employer has not summarily dismissed an employee for misconduct in its legal sense and has exercised his ordinary right of dismissal upon notice and, secondly, that when an employer is considering whether or not he will exercise his undoubted rights in relation to the selection and retention of employees, subject to observance of any award requirements, he is entitled to have regard to the previous conduct of an employee, and where the record of an employee’s conduct is unsatisfactory and the employer dismisses him on that account, his action is not ordinarily such a harsh and unjust exercise of his legal right as to justify an order of reinstatement.

N1>In the matter before me I at first gained the impression that the notice of termination with one month’s pay in lieu of notice may have been an attempt by Air Niugini to avoid dismissing the applicant for misconduct. There is, however, no evidence before me which entitles me to make this finding.

N1>Broadly, I think the principles in these cases are appropriate to Papua New Guinea and go to the question of what is “right and fair” in relation to an industrial matter as defined in our own Act.

N1>I fail to see where at any point the Tribunal here has not acted in accord with these principles. Counsel informed me that the reason the Minister attempted to re-convene the original Tribunal in November was because there were doubts as to the validity of the retrospectivity of the Tribunal’s award. As I have said, I have no such doubts.

N1>The Tribunal considered the past record of the applicant and felt he had been effectively dealt with under the Grievance Procedures. It took into account that it was not disputed he was a well-qualified, competent and conscientious pilot. It found the evidence of the Kieta incident conflicting, in other words, at its highest, not deserving of disciplinary action.

N1>I raise these matters as it has been put to me that I have a discretion as to whether I enforce the Tribunal’s award or not. I am not sitting on appeal from the Tribunal. There is no such process. I am being asked to enforce the award because Air Niugini has broken it and not observed it. I believe it is my duty to enforce compliance with the award unless it or part of it is clearly unlawful or is contrary to the principles of natural justice as referred to in s. 59 of the Constitution.

I am satisfied that the award was not unlawful and in no way contrary to the principles of natural justice. In ordering compliance with it I take into account that Air Niugini acted illegally in requiring the applicant to accept as a condition of employment a term contrary to the Air Pilots’ Agreement, that it acted illegally in terminating his services in the manner in which it did and that it has defied the determination of the Industrial Tribunal dated 1st July, 1977 which is now Registered Award 19 of 1977.

I therefore order that Air Niugini comply with the award of 1st July, 1977 by:

N2>(a)      reinstating the applicant as an F.27 Captain from the date of the termination of his employment on 1st February, 1977 without loss of seniority or any other privileges and rights he would have become entitled to but for such termination;

N2>(b)      paying to the applicant all salary and other monetary entitlements which would have accrued to him under his said employment but for the said termination up to the date of this order.

I reserve liberty to either party to apply on 7 days’ notice in the event of there being any dispute in the interpretation of the above order and in so doing, and in re-wording the actual terms of the award, I specifically state that I do so pursuant to the powers vested in me by s. 155(4) of the Constitution.

I order Air Niugini to pay the applicant’s costs of these proceedings.

Orders accordingly.

Solicitor for the applicant: Craig Kirke & Wright.

Solicitor for the respondent (Air Niugini): McCubbery Train Love & Thomas.

R>

[i]Infra p. 8.

[ii]Infra p. 8.

[iii]Infra p. 8.

[iv][1974] P.N.G.L.R. 293.

[v][1973] P.N.G.L.R. 436.

[vi][1976] P.N.G.L.R. 303.

[vii][1973] P.N.G.L.R. 436 at p. 499.

[viii][1954] A.R. (N.S.W.) 573.

[ix][1966] A.R. (N.S.W.) 371.

[x] [1967] A.R. (N.S.W.) 16.

---

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/1978/23.html