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Fiji Public Service Association v Fiji Islands Revenue and Customs Authority [2009] FJET 7; Dispute55.2008 (5 February 2009)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Dispute No 55 of 2008

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION
Union

AND:

FIJI ISLANDS REVENUE AND CUSTOMS AUTHORITY
Employer

FPSA: Mr D Nair
FIRCA: Ms T Rayawa

DECISION

This is an employment dispute between the Public Service Association (the Union) and the Fiji Islands Revenue and Customs Authority (the Employer) concerning the dismissal of Anil Kumar Rao (the worker).

The Dispute was referred to the Tribunal on 19 November 2008 by the Permanent Secretary. The Reference stated:

"The Dispute is over the dismissal of Mr Anil Kumar Rao with effect from 24 September 2008. Your Union views that the disciplinary action and the disciplinary process taken against Mr Rao was in breach of Chapter 8 Clause 65 of the Collective Agreement and Clause 4 and Section 8 Clause 9 (2) of the FIRCA Conduct and Discipline Regulations. Your Union therefore seeks a Stay Order of the decision by the Employer to dismiss the Grievor be granted until the final determination of the Dispute. Furthermore, I am not entitled to grant a stay Order as requested as it is beyond my jurisdiction under the Employment Relations Promulgation, this can only be done through a court of law or the Employment Relations Tribunal."

It is noted that the report of the dispute that was attached to the reference sets out in some detail the basis of the Union's challenge of the decision to dismiss the worker and also the interim relief in the form of a stay of the decision.

The Dispute was listed for mention on 26 November 2008.

The Union filed preliminary submissions on 28 November 2008. On 2 December 2008 the Union filed a Notice of Motion dated 1 December 2008 together with an affidavit in support sworn by Rajeshwar Singh on 1 December 2008.

The matter was listed for mention on 8 December 2008. Directions were given for the filing of further documents in relation to the Notice of Motion. The Employer filed on 2 January 2009 an affidavit in reply sworn by Salote Karuya on 2 January 2009.

On 5 January 2009 the Tribunal gave further directions for the filing of submissions on the issues raised by the Notice of Motion.

The Union filed its submissions on 9 January. The Employer filed answering submissions on 20 January and the Union filed a reply submission on 22 January 2009.

The notice of motion filed by the Union sought an order from the Tribunal that the Employer's decision on 24 September 2008 be stayed until the Dispute had been determined. The Union also sought an order that the status quo that existed prior to the dismissal be maintained (until the determination of the Dispute).

The Notice of Motion was listed for hearing on 4 February 2009. The parties presented initial submissions concerning the question of the Tribunal's jurisdiction to adjudicate an employment dispute that concerned the dismissal of a worker. The issue arose as a result of a decision handed down by the Tribunal on 15 January 2009 in Dispute No 35 of 2008 between
Fiji Bank and Finance Sector Employees Union –v- Australia and New Zealand Banking Group Limited. That decision was applied by the Tribunal in a decision dated 26 January 2009 in Dispute No 4 of 2008 between Suva City Council Staff Association –v- Suva City Council.

These submissions were made in respect of this dispute and also in respect of Dispute No 85 of 2008 between the same parties and also involving the dismissal of a worker referred to the Tribunal as an employment dispute.

As part of its submissions, the Union made an application to have the proceedings transferred to the Employment Court for the hearing and determination of the matter pursuant to section 218 (1) of the Promulgation.

After hearing the parties, the Tribunal concluded that an important question of law is likely to arise in the proceedings. That question of law relates to the issue of the Tribunal's jurisdiction to adjudicate on an employment dispute that involves the dismissal of a worker. Because the question relates to the livelihood of workers and because there are a number of proceedings pending before the Tribunal that raise the same issue, the Tribunal has also concluded that it is in the public interest for the proceedings to be transferred to the Court.

As a result the Tribunal orders that Dispute No 55 of 2008 be transferred to the Employment Court for hearing and determination.

DATED at Suva this 5th day of February 2009.

EMPLOYMENT TRIBUNAL