IN THE EMPLOYMENT TRIBUNAL
AT LABASA

ERT/WC Case No. 114 OF 2010

BETWEEN:

THE LABOUR OFFICER for and on behalf of the dependants of the deceased workman Mohammed Rafique of Labasa
APPLICANT

AND:

VUNIMOLI HIRE SERVICES of Vunimoli, Labasa.
RESPONDENT

Appearances:

Senior Legal Officer Ms. Mary Motofaga for the Applicant
Mr. Amrit Sen for the Respondent

RULING

Background

[1.1] The matter for the Tribunal to decide on is whether or not to strike out the claim of compensation for being statute barred. Towards that end, both parties have filed written submissions for the Tribunal to make a ruling.

2.0 Brief Facts

[2.1] On 25th October 2004, Mohammed Rafique (deceased workman) was employed by the Respondent Employer when he met with an accident as he was hit by fallen pine tree that led to his death later in the day. 

[2.2] On 26th October 2004, Respondent submitted a notice of accident causing injury and death to the Labour Office. 

[2.3] On 26th October 2010, amidst various correspondences, investigations and complaints, the claim in this action was finally instituted by the Labour Office.

[2.4] On 1st March 2011, the Respondent filed its defence saying that the matter was out of time.

3.0 The Law

 The Applicant submits the following:

[3.1] Section 13 of the Workmen's Compensation Act provides the following: 

"13. Proceedings for the recovery under this Act of compensation for injury shall not be maintainable unless notice of the accident has been given by or on behalf of the workman as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within twelve months from the occurrence of the accident causing the injury or, in the case of death, within twelve months from the time of death:

Provided that –

(a)	the want of, or any defect or inaccuracy in, such notice shall not be a bar to the maintenance of such proceedings if it is proved that the employer had personal knowledge of the accident or had been given notice of the accident from any other source at or about the time of the accident, or if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake or other reasonable cause;
 
(d)	the failure to make a claim for compensation within the period above specified shall not be a bar to the maintenance of such proceedings if it is proved that – 

(i)	the failure was occasioned by mistake or other good cause; or

(ii)	the employer failed to comply with the provisions of subsection (1) or (2) of Section 14,

so, however, that no proceedings for the recovery of compensation shall be maintainable unless the claim for compensation is made within a period of six years from the date of accident (Amended by 27 of 1975, s.9)."

[3.2] The Limitation Act (Cap 35)

 Limitation of actions of contract and tort, and certain other actions

4.(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –
 
a)	actions founded on simple contract or on tort;

b)	actions to enforce a recognizance;

c)	actions to enforce an award, where the submission is not by an instrument under seal;

d)	actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by way of penalty or forfeiture.

[3.3] The Applicant further submits that the burden of proof rests on the Respondent to prove that the present action is statute barred in that the workman died on 25th October 2004 and the claim was filed by the Employment Relations Tribunal on 26th October 2010, making it one day out of time. The Applicant's position is that the claim form was submitted to the Tribunal Registry on 22nd October 2010 and for reasons unknown, the papers were filed on 26th October 2010. Towards that end, the Applicant submits that the claim is brought for limitation purposes on the date when the form is received in the Employment Relations Tribunal and not on the later date when it is issued.

[3.4] The Applicant cited the authority of McGee A, Limitation Periods (6th ed, Sweet & Maxwell, 2010, paras. 2.009 – 2.011) which states that:

"Although the general rule is that proceedings are started when the Court issues a claim form at the request of the claimant, it may happen that the form as issued is received in the Court office on a date earlier than on which it is issued (where for example, the claimant sends the form by post). In these circumstances the claim is brought for limitation purposes on the date when the form is received in the Court office, not on the later date when it is issued."

There are two important recent authorities on the question of what happens when documents for the issuing of process are received in the Court office before the expiry of the limitation period, but the proceedings are not issued until after the end of the limitation period. In St Helens Metropolitan BC v Barnes EWCA Civ 1372, the Court of Appeal held:

"Proceedings are started when the court issues a claim form at the request for the Claimant….. but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is 'brought' for the purpose of the Limitation Act 1980 and any other relevant statutes on that earlier date.

 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court."

In this case, the day before the limitation period expired, the claimant's solicitor attended the court office with the claim form in triplicate and a cheque for the issue fee. The solicitor handed these and a covering letter to a clerk. The clerk date stamped the solicitors copy of the said letter with a copy of the courts official stamp to record the fact that the letter and its enclosures had been received on that day. The following day (a Friday) the court offices were open but a number of its staff were taking industrial action. When the solicitor phoned the court that day he was told that there was nobody working in the new issue section but they would be back to work on Monday. So it was that the claim form was not issued and dated until three days after time had expired.

The question for the Court of Appeal was when is a claim 'brought' for the purpose of the 1980 Act [similar to section 4 of our Limitation Act Cap 35]. Is it on the date which appears on the claim form when the court issues it and the proceedings are started as provided by r.7.2 or is it when the court receives the request to issue it? The Court of Appeal held that proceedings start on the date entered on the claim form by the court which is their date of issue, but are 'brought' for the purposes of the Limitation Act when the claimants request for the issue of a claim form (together with the court fee) is delivered to the court office.

The same principle was followed in Secretary of State for Trade and Industry v Vohora [2007] EWHC 2656, a case concerning s.792 of the Company Directors Disqualification Act 1986 which provides:

"Except with the leave of the court, an application for the making under that section of a disqualification order against any person, shall not be made after the end of the period of 2 years is or has been a director became insolvent".

It was held that the application is made when the form received in the court office and is recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court, even if not issued until a later date."

[3.5] The applicant submits that though the facts of the case may differ to some extent, the rule applies in the present case as the Claim form was submitted to the Employment Relations Tribunal on 22nd October 2010, three (3) days before the expiry of the six (6) year limitation period. Therefore, under the Limitation Act, the present claim was brought on 22nd October 2010 and is not statute barred. In that regard, the Applicant prays for a ruling that this matter is not statute barred so that the dependants of Mohammed Rafiq are not penalized for a mistake that they did not cause.

[3.6] The Respondent submits that the matter before the Employment Tribunal be disallowed due to the following:
 
 [i] pursuant to section 4 of the Limitation Act Cap. – the action by the Labour Officer is statute barred and provisions at clause 3.2 were given as reasons; and

 [ii] pursuant to section 13 of the Workmen's Compensation Act Cap. 94 – which provides that no proceedings for the recovery of compensation shall be maintainable unless the claim for compensation is made within a period of six years? 

[3.7] The Respondent agrees in principle with the Applicant's submission that that the documents are filed when they are received by the Registry Clerk, subject to the exception that the documents must conform to the provisions pursuant to which it is filed and must not contain mistakes or errors that would make it irregular. In the absence of any evidence that the relevant application was filed in compliance with the requirements of the Workmen's Compensation Act Cap. 94 on or before 24th October 2004, the Respondent submits that the submission made by the Applicant are baseless and with no merits.

Analysis and Conclusion

[3.8] There is no evidence as to the reasons of the delay in filing this claim for compensation and if it is again the usual delay in getting the medical report or the settlement from the insurance company, then the Labour Office has a lot to answer for. 

The Fiji Court of Appeal case of Wearsmart Textiles v General Machinery Hire Limited & Shareen Kumar Sharma Civil Appeal No. 30 of 1997 ruled that matters and/or courtesy between parties is not above the rule of law. Applying it to the case at hand, the Tribunal is asking the reason why the Labour Officer waited for so long before filing the claim.

[3.9] The Respondent agreed in principle with the Applicant's submission that the documents are filed when the same are received by the Tribunal Registrar but subject to the documents complying with the requirements with the relevant provisions of the Workmen's Compensation Act. The Respondent in raising that proposition increases the burden of proof that rests on it to prove that the documents do not comply with the requirements of the Workmen's Compensation Act and that the claim is statute barred. 

[3.10] The proviso in section 13 of the Workmen's Compensation Act specifying the period of 6 years as the limitation period is a catch all provision in the sense that it only applies if there was no defect, mistake or good cause in the claim and that there was no claim filed within that period. In this case the Respondent is aware of the death and had submitted to the Labour Office the report of the accident causing injury leading to death and will not be disadvantaged or prejudiced in any way if a hearing of the claim is held.

[3.11] In that regard the Tribunal refers to the case of Shiri Ram Sharma v Secretary of Labour where Marsack J. A. in delivering the judgment of the Fiji Court of Appeal (in which Gould V.P. and Spring J.A.) at pp.192 and 193 said:

"The object the Legislature had in view in passing the Workmen's Compensation Ordinance must have in great measure the protection of the worker, and, in the appropriate circumstances, an assurance that he would receive the compensation properly payable in the case of accidental injuries. The rights and the interests of the employer are certainly not to be overlooked under the Ordinance; and I must not be held as saying that the interests of the workman are always, under the Ordinance, to be preferred to those of the employer.

In any event, it appears clear ….that the Court should interpret a statute of this character broadly and with due regard to 'the substantive intention and meaning of the Statute." 

Ruling

[3.12] In the absence of any evidence to the contrary, the Tribunal rules that the claim document filed with the Tribunal Registry on 22nd October 2010 complied with the provisions of the Workmen's Compensation Act Cap. 98, was brought for the purpose of the Limitation Act and in that connection was not filed out of time.

DATED at Labasa this 4th day of May 2012

Sainivalati Kuruduadua
Chief Tribunal