The Law
The panel is empowered to hear
and determine unfair dismissal caseer section 6(1) of the Unfa Unfair
Dismissal Act (Cap. 77). The legal obligation of the Panel to make a
decision in unfair dismissal cases is contained in subsections 4 and
5 of
section 6 above. Subsections 4 and 5 state�
�(4) lf the Panel-
<
(a) find the
complaint is well-founded; and
(nsider that it
would be both practicable and fair forr for the complainant to be re-engaged by
the employer,
the Panel must make a
recommendation to that effetating the terms on which tich they consider that
it would be reasonable
for the complainant to be re-engaged.
(5) lf the Panel find
that the complaint is well-founded but either -
/b>
(a) do not make a
recommeon under subsection (4); or); or
p cl
(b) having made a
recommendation, it is not complied with,
the Panel must make an
award of compensation to be o be paid by the employer to the complainant in
respect of the dismissal,
unless the complainant has been re-engaged by the
employer on terms which the Panel consider reasonable.�
The Unfair Dismissal Act above
is however silent upon the time within which the Panel must make a decision.
However, section 54(1) of the Interpretation and General Provisions Act
(Cap. 85) says that �Where no time is prescribed in an Act for the
doing of any act or thing, it may or shall be done, as the case may be, with
all convenient speed and as often as the occasion arises�. I
think in practical terms, this means the doing of any act or thing must be
done within a reasonable time. Then there is
the question of whether or not
the Panel as a statutory body can be forced to perform a public duty by way
of an order
for mandamus. This is not the first time that an application for
an order for mandamus is being made against the Chairman of
the Panel. The
first time was the case of George Kuper v The Trade Disputes Panel
(Civil Case No. 257/97) where Awich, J. granted an order for mandamus in His
Lordship's Judgment delivered on 27th March,
1998. Awich J. also dealt with
the law applicable in this sort of cases in England. At page 2 of the
judgment, Awich
J. said �The first legal issue is whether mandamus is
available against the Panel. Mandamus may issue only when a person or body
is required to perform a public duty. It is most commonly used to compel the
exercise of discretion required to be made
by a person or body performing
public duty. An example is order compelling a subordinate court to do its
work, not to
compel it to make a particular decision - see R -v- Graham
Campbell Ex Part Herbert [1963] 1 WLR279 ... The order of mandamus can
issue to compel statutory tribunals that exercise some judicial discretion
such as the Trade Dispute Panel does, to discharge its duty, if the tribunal
refuses, ignores or neglects its duty. see
The King v Housing Tribunal
[1920] 2 KB 334. There are numerous cases of mandamus having issued against
bodies created by statutes.... The order of mandamus is discretionary and
consideration may be given to factors such as whether the applicant has
other
remedies or has made demand for the performance of the duty he has
applied to compel. The second case was Mark Maesimae v Trade
Disputes Panel (Civil Case No. 281/97) where Awich J. again granted an
application for an order for mandamus against the Trade Disputes Panel.
In
both these cases the reason for applying for an order for mandamus was the
same. That is, the Trade Disputes Panel
had not made its decision as
expected of it by the law for excessive periods of time.
Conclusion
