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Fiji Bank and Finance Sector Employees Union v Australia and New Zealand Banking Group Ltd [2009] FJET 21; Dispute35.2008 (15 January 2009)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Dispute No 35 of 2008

BETWEEN:

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION

AND:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

FBFSEU: Mr D Sharma with Mr P Rae
ANZ: Mr J Apted

DECISION

This is an application by motion dated 17 November 2008 and filed on behalf of the Australia and New Zealand Banking Group Limited (the Employer).

In support of its application the Employer filed an affidavit sworn by Arieta Cama on 26 November 2008.

The Fiji Bank and Finance Sector Employees Union (the Union) did not file any affidavit in opposition to the application.

Although the Employer's application sought four orders relating to various matters, at the hearing of the application it was agreed that the application in respect of orders 1, 3 and 4 should be stayed pending the outcome of the application for order 2.

The application in respect of order 2 seeks a decision from the Tribunal on the following preliminary legal issues :

"(a) whether under the Employment Relations Promulgation 2007 a union can report a dispute and the Tribunal adjudicate an employment dispute over a dismissal and/or a dismissal that is deemed to be "unjustified" or "unfair,".

(b) if so:

(i) Whether a union can seek, and the Tribunal can order, in such an employment dispute, the re- instatement of a worker as a remedy; and

(ii) What should the burden of proof be on a union and an employer respectively."

The parties presented thorough and helpful oral submissions on 11 December 2008.

In its broadest sense this application requires the Tribunal to determine whether it has jurisdiction to determine the dispute referred to it by the Mediation Unit on 22 October 2008 pursuant to section 194 (5) of the Employment Relations Promulgation, 2007 (the Promulgation). The dispute had initially been referred to mediation by the Permanent Secretary pursuant to section 170 (4) of the Promulgation.

Section 194 (5) states:

"If a Mediator fails to resolve an employment grievance or an employment dispute, the Mediator shall refer the grievance or dispute to the Employment Tribunal."

Unlike the position that existed under the now repealed Trade Disputes Act Cap 97, the Employment Tribunal can examine the issue of whether it has jurisdiction to adjudicate on a particular employment dispute.

Section 213 (d) of the Promulgation states:

"Without limiting any other power of the Tribunal whether under this Part or otherwise, the Tribunal may determine:

(a) - - -
(b) - - -
(c) - - -
(d) Other questions and give rulings as may be necessary for the exercise of its jurisdiction under this Part."

The thrust of the Employer's submission was that the dismissal of an employee can only proceed as an employment grievance under the Promulgation. The Employer claimed that a dismissal of a worker cannot be reported as a dispute by a union to the Permanent Secretary.

Before the Tribunal considers the application, it is appropriate to comment briefly on the procedure that the Employer has adopted in bringing its application before the Tribunal.

In this dispute, the Union's report was accepted by the Permanent Secretary. Section 173 (1) of the Promulgation provides a right of appeal to an aggrieved party only in the event that the Permanent Secretary rejects the report of a dispute. As a result the Employer did not have a right of appeal pursuant to section 239 (1) of the Promulgation.

Pursuant to section 238 of the Promulgation the Magistrates' Courts Rules are to apply to proceedings before the Tribunal in the absence of any rules made by the Chief Justice for the purpose of regulating the practice and procedure of the Tribunal.

As those rules provide for interlocutory applications to be made by motion, the Employer submitted that it would have been inappropriate to proceed by way of judicial review until that procedure had been exhausted.

However, the Tribunal's statutory authority under section 213 (d) to examine its jurisdiction is limited to the exercise of its jurisdiction under "Part 20 – Institutions." The Tribunal does not have any jurisdiction to examine the decision of the Permanent Secretary except by way of an appeal brought under sections 239 (1) and 173 (1) of the Promulgation.

As a result the Tribunal intends to proceed with the first part of the application by considering whether the Tribunal can adjudicate an employment dispute over a dismissal and/or a dismissal that is claimed to be "unjustified" or "unfair".

In the event that the Tribunal answers that question in the affirmative, then, in relation to the second part of the application, the Tribunal intends to consider whether it can order re-instatement of a worker as a remedy.

Under section 211 (1) (b) of the Promulgation, the Tribunal has jurisdiction to adjudicate on employment disputes.

An employment dispute is defined in section 4 as a dispute accepted by the Permanent Secretary under section 170. Under section 170 the Permanent Secretary has the power to accept or reject a dispute reported to him under section 169. Section 169 provides that a dispute may be reported to the Permanent Secretary by either the employer who is a party to the dispute or by a registered trade union that is a party to the dispute.

More importantly, dispute is defined in section 4 as meaning "a dispute or difference between an employer and a registered trade union connected with the employment or non-employment, the terms of employment, or the conditions of labour of a worker."

There are two elements to the definition, both of which must be established for there to be a dispute. First there must be a dispute or difference between an employer and a registered trade union. Secondly, that dispute or difference must be connected with (inter alia) the employment or non-employment of a worker.

In the application before the Tribunal it was not disputed that the parties were an employer and a registered trade union. Both those terms are defined in section 4 and it was also not disputed that the parties satisfied their respective definitions.

Employment is defined in section 4 as meaning the performance by a worker of a contract of service. It follows that the non-employment of a worker means the non-performance by a worker of his contract of service.

On the other hand, so far as is relevant to this application, employment grievance is defined in section 4 as meaning:

"- - - a grievance that a worker may have against the worker's employer or former employer because of the worker's claim that:

(a) the worker has been dismissed

(b) the worker's employment or one or more conditions of it, is or are affected to the worker's disadvantage by some unjustifiable action by the employer;

(c) - - -

(d) - - -

(e) - - - "

There are two essential elements that must be established in order for there to be an employment grievance. First, there must be grievance that a worker has against a present or former employer. Secondly, the grievance must relate to one of the five circumstances listed including that the worker has been dismissed.

Finally, dismissal is defined as meaning any termination of employment by an employer including dismissal without notice.

The issue is whether the dismissal (as defined) of a worker comes within the phrase the employment or non-employment of a worker.

After a careful consideration of the definitions, the Tribunal has concluded that the Promulgation provides for two separate and mutually exclusive concepts. One is dismissal that can only proceed as a worker's employment grievance. The other being the non-employment of a worker that may be reported as a dispute by a registered trade union if the worker is a union member covered by a collective agreement.

The definitions also suggest that the non-employment of a worker and hence the non-performance by a worker of his contract of service is concerned with but not restricted to such situations as lay-offs and reductions in working hours or days.

Although a collective agreement may contain provisions relating to dismissal, it follows that a worker irrespective of union membership who has been dismissed is required to pursue the matter as an employment grievance.

Furthermore, whilst the phrase "non-employment of a worker" may be considered sufficiently wide to include the dismissal of a worker, the Tribunal has concluded that dismissal is to be regarded as distinct from non-employment.

The Tribunal has also concluded that, when the Promulgation is considered in its entirety, it is clear that the intention of the drafters was that dismissal issues were to proceed by way of the grievance procedure. In section 230 (1) of the Promulgation it is stated that the Tribunal or the Court may order re-instatement of the worker if it determines that a worker has an employment grievance. The Promulgation does not provide for such a remedy in the case of an employment dispute. The Tribunal as a sub-ordinate court could not in the absence of such a provision order re-instatement if a dismissal issue came before it by way of an employment dispute. It would be an absurd and inconsistent situation if the Tribunal was not able to award re-instatement in the case of an employment dispute but could do so in the case of a proven grievance.

Section 230 (1) supports the conclusion that dismissal should only be brought as a grievance since re-instatement, although a discretionary remedy, is the usual remedy both sought and granted in such proceedings.

If the matter before the Tribunal is not an employment dispute as defined in section 4 of the Promulgation, then it does not have jurisdiction in the matter.

In this case, the Tribunal finds that there is not an employment dispute before it. The requirements of an employment dispute do not exist and nor for that matter is there an employment grievance, as the requirements also do not exist.

The Tribunal has therefore concluded that it cannot adjudicate on an employment dispute over the dismissal of an employee nor, as a result, over an "unjustified or "unfair" dismissal.

In view of these conclusions the Tribunal does not consider it necessary to consider the question of the burden of proof that is referred to in the Employer's motion.

The matter will be relisted for mention on 23 January 2009 at 9.00am.

DATED at Suva this 15th day of January 2009.

EMPLOYMENT TRIBUNAL