IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERT Grievance No: 99 of 2009

BETWEEN:

DR. RAJENDRA PRASAD
APPLICANT

AND:

THE UNIVERSITY OF THE SOUTH PACIFIC
RESPONDENT

N.Tofinga for the Applicant
J. Apted for the Respondent

DECISION

The current notice of motion seeks the transfer of the Employment Grievance No. 99 of 2009 to the Employment Relations Court under sections 211 and 218 of the Employment Relations Promulgation 2007.

The motion is as follows – 

(1)	That the Tribunal so direct the proceedings of Employment Grievance No. 99/2009 to the Employment Court pursuant to section 218(1) of the ERP 2007; and

(2)	That the Tribunal so declare that it does not have the jurisdiction to adjudicate on this matter pursuant to section 211(2) in that the matter under reference is related to a claim exceeding $40,000.

The matter in dispute is the process on which the employer selected the applicant to be made redundant. The applicant submits that the process and subsequent decision to terminate his contract on or about 18th September 2009 was unfair, unreasonable, wrong and humiliating.
In his Affidavit in support of the current Notice of Motion, the applicant says he no longer seeks reinstatement but intends to seek $1.82 million dollars in damages/compensation on the basis that this is what he would have earned until the date of his retirement from the University of the South Pacific.

The applicant submits that the question of law to be determined by the Tribunal is whether or not the provision of section 211(2)(a) restricts the Tribunal's jurisdiction to adjudicate on this employment grievance under the provisions of section 230(1) of the ERP 2007 in view of the fact that this substantive matter is related to a claim exceeding $40,000 in the event option 1 is not applicable. (Option 1 stipulates that USP retain the services as on normal contract with re-newal options as for others; grant promotions as applied for in 2008; withdraw letter dated 30/01/09; apologize and compensate with at least 6 months' salary for deprivations and humiliation suffered and for payment of all costs).

The Law

The ERP 2007 introduced for the first time in Fiji a new statutory cause of action in the form of an employment grievance and this allows workers in the unorganized sectors (non unionized) to access the dispute resolution machinery. In the old regime these type of workers cannot go to the then Arbitration Tribunal as only trade disputes filed by the unions found their way there.

Now, any worker engaged under an employment contract can file an employment grievance under one of the five limbs provided under the ERP 2007 and the remedies are spelt out in section 230 of the ERP 2007. 

Section 211(2) of the ERP 2007 limits the Tribunal's jurisdiction to claims up to $40,000 and the applicant is asking the Tribunal to declare that it does not have the jurisdiction to adjudicate on the matter and as such to have it transferred to the Employment Court under section 218(1).

Section 218(1) says that "a party to the proceedings may apply to the Tribunal to have the proceedings transferred to the Court for the hearing and determination of the matter.

Analysis

The applicant relies on sections 211 and 218 for the transfer application however, neither of these sections confer the Tribunal with the jurisdiction to transfer a grievance for the reason submitted by the applicant, i.e. that the amount sought exceeds the maximum jurisdiction of $40,000 under section 211(2).

The intention of having the ceiling for employment grievance remedies at $40,000 is that the parties must be compelled to settle the grievance amongst them using the grievance procedures in their employment contracts. They created the grievance; they must be responsible for resolving it. If they cannot settle then it is to mediation then to Tribunal under section 194(5) of the ERP 2007; that is when mediation is unsuccessful.

This is where section 218 comes in. A transfer from the Tribunal to the Court can only happen under two situations:

2	(a) an important question of law is likely to arise; or

 (b) the case is of such a nature and of such urgency that it is in the public interest that it be transferred to the Court.

The applicant has not convinced the Tribunal that the ground relied upon in the Notice of Motion falls into one of the circumstances stipulated in section 218(2). As such the Tribunal does not wish to use its powers under section 217 of the ERP 2007 either as the substantive matter in this grievance needs to be determined quickly.

Decision 

The application is dismissed and the applicant should file a fresh action in the Employment Court under section 220 of the ERP 2007.

DATED at Suva this 15th day of January 2010

Sainivalati Kuruduadua
Chief Tribunal