Air Niugini Limited v Beverley Doiwa as Chairperson of the Industrial Relations Tribunal (2000) N1972

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ
• Judgment Date: 08 June 2000
• Court: National Court
• Citation: [2000] PNGLR 347
• Year: 2000
• Judgement Number: N1972

Full Title: Air Niugini Limited v Beverley Doiwa as Chairperson of the Industrial Relations Tribunal (2000) N1972

National Court: Amet CJ

Judgment Delivered: 8 June 2000

N1972

PAPUA NEW GUINEA

[In the National Court of Justice]

OS NO. 793 OF 1993

BETWEEN:

AIR NIUGINI LIMITED

Plaintiff

AND:

BEVERLEY DOIWA

As Chairperson of the Industrial Relations Tribunal

Defendant

Waigani: Amet CJ

2000: 8 June

Administrative Law – Judicial Review – Principles of – Basis and scope of Court’s power – National Court Rules Order 16.

Constitutional Law – Judicial Review – Inherent Power of Courts – Constitution s 155(2)(4).

Judicial Review – Wednesbury Unreasonableness – Principles of – Basis and scope of court’s power – Application of –

W Duma, for the Plaintiff.

M Murray & C Makail, for the Defendant.

8 June 2000

AMET CJ: This is an application by Air Niugini under Order 16 of the National Court Rules for judicial review of the decision of the Industrial Relations Tribunal (the Tribunal) ordering the reinstatement of the members of the PNG Aircraft Engineers Association (the Association) who were terminated from their employment by it.

FACTS

On the 26th August 1999 the Head of State, established the Tribunal, pursuant to Sections 18 and 29 of the Industrial Relations Act, (the Act) and on 27th August 1999 referred to it for investigation, enquiry and decision the “industrial dispute” between the Association and Air Niugini concerning the dismissal of 94 members of the Association by Air Niugini.

THE DISPUTE

A dispute arose between the Association and Air Niugini when Air Niugini failed to pay a 5% Consumer Price Index (CPI) adjustment declared by the Government in 1997, to members of the Association because of financial limitations. By May 1999, Air Niugini had not paid this although it paid the 1998 CPI adjustment. In April and May 1999 the Association made representation to Air Niugini for the payment of this adjustment, and gave notice that failure to respond positively would result in industrial action. Air Niugini did not respond. It subsequently did acknowledge its liability to pay the CPI adjustment and made a written commitment to pay this entitlement during the week ending 27 August 1999. The Association advised that they would not accept this and insisted that this adjustment should be paid by the 30 July 1999 and failure to do so would result in industrial action.

The Association commenced proceedings in this Court to enforce its claim. On 5 July 1999 the Court ordered Air Niugini to comply with the award and make appropriate payments. On the 21 July 1999, the engineers began a stop-work protest. Air Niugini advised the Association in writing that the stop-work was illegal because the Association failed to give the required seven days notice under the award and they also failed to conduct a secret ballot and they should return to work. The stop-work continued to 23 July 1999 and the engineers returned to normal work on 24 July 1999.

On 29 July 1999, Air Niugini dismissed 61 engineers. In response to this the remaining engineers who had not been dismissed walked off their jobs in support of their colleagues. On 30 July 1999, Air Niugini dismissed another 25 Engineers. Out of a total of 96 Engineers who were terminated 7 had their termination notices revoked, as they were not liable to be dismissed.

TRIBUNAL DECISION

The Tribunal ordered re-instatement on the following basis. It found that Air Niugini was the primary offender in not implementing the CPI adjustment. It found the actions of Air Niugini to terminate officers to be harsh and oppressive. It found also that the actions of the Engineers to be malicious in nature in that they had originally intended to conduct industrial action with the intention of causing disruption to the aircraft flights and to inconvenience the travelling public that weekend. The engineers had also erred in not conducting a secret ballot to determine stop-work action. The Tribunal found that both parties had erred, but fundamentally the mass dismissal exercise conducted by Air Niugini only four days after the engineers returned to work was unwarranted, given that the engineers did return to work after only two full days of stop work.

THE APPLICATION

Air Niugini has applied for judicial review of the Tribunal’s decision on the following grounds:

(a) The Tribunal acted unreasonably and in a manner that no reasonable decision maker would act in failing to take into account the following relevant considerations;

(i) The likely practical outcome if an order for reinstatement were made

(ii) The inviolability of the right of Air Niugini as the employer to manage its business, the nature and the quality of work in question and the circumstances surrounding the dismissal.

(iii) Whether the employer/employee relationship between Air Niugini and the members of the Association had been broken down to such an extent that the parties no longer had the mutual trust required.

(iv) The test of whether or not Air Niugini had been given “a fair go all round.”

(v) Because reinstatement is an exceptional remedy, whether or not there had been unfair dealing on the part of Air Niugini as the employer.

(b) The Tribunal took into account irrelevant considerations when it...