IN THE EMPLOYMNET RELATIONS TRIBUNAL
AT SUVA
Grievance No.17 of 2009

BETWEEN:

SHEREEN BUKSH
Grievor

AND:

CLASSIC APPAREL (MANUFACTURING) LIMITED
Employer

Appearances:

Mr. N. Tofinga for the Grevior
Mr. F Haniff for the Employer
______________________________________________________________________________
DETERMINATION OF PRELIMINARY ISSUE

1.0 Preliminary Remark

1.1	To determine preliminary issue(s) before the Tribunal, written submissions from both sides at least provides a sound basis to arrive at a decision. Indeed this option was given to the parties on 26th July 2011 but the Counsel for the employer bringing forward this application stated that the answers were already within the Tribunal's Order dated 30 March 2011 and so there was really no need for any further submission vis-a-vis hearing. This was not objected by the representative of the grevior for reasons this Tribunal shall explain in the latter part of the decision.

1.2	Given the long history of dates after dates for Mention in regards to the preliminary issue(s) alone not to mention several other adjournments since December 2009 to hear the substantive matter, the Tribunal is of the view that any further delay will not serve the very spirit and purpose of the ERP which was intended to provide expeditious and efficacious resolution to the proceedings before it, fundamentally if that issue or issues within the proceedings had the potential to deny or prevent a person his/her right to be heard via access to the Tribunal. Here, it would be for the purposes of adjudication on the grevior's substantive grievances in the event of loss of her employment having a trickle-down effect on the grevior's future livelihood.

1.3	I am also mindful that even if the main issue of costs is resolved, there is possibility of the employer commencing appeal against the Tribunal's decision as alluded during the Tribunal sitting dated 26 July 2011, particularly if that decision will reinstate the grevior's struck-out matter. Keeping this in mind, I am basing my preliminary views and decision herein.

2.0 Preliminary Issue(s)

2.1 This is a decision following a preliminary (oral) application made by the Counsel acting for the Employer on the grounds that the Tribunal's Order dated 30 March 2011 in its entirety can only accord the grevior any right to apply to have her grievance reinstated but, only after she complies with the conditions therein, in particular she is required to fulfill the prerequisite conditions under Nos. 2 & 3 of said Order which states and I quote:-

1.	The Grevior, Shareen Buksh's ERT Greviance No. 107 of 2009 be struck out with liberty to restore on 28 days notice on or before 4 May 2011.

2.	The Grevior, Shareen Buksh pay wasted costs of $1,500.00 to the Company, Classic Apparel (Manufacturing) Limited. (my emphasis)

3.	The Grevior, Shareen Buksh to pay the $1500.00 costs before applying to reinstate her grievance. (my emphasis)

2.2 A Notice of Motion was filed by the grevior in person on 27th April 2011 moving the Tribunal to be heard on 4th May 2011 to consider reinstatement of the case at hand after it was struck out. Several mention dates were fixed since 4th May 2011 - i.e., 16th May 2011, 7th June 2011, 27th June 2011, 12 July 2011 and 26th July 2011 respectively. 

2.3 On 26th July 2011 I presided over the matter taking over from my learned brother Chief Tribunal, Sainivalati Kuruduadua as he was busy preparing for a hearing that was listed for the same day.

2.4 The Counsel for the employer informed the Tribunal on the day that both parties to the proceedings were awaiting determination of what I can conclude to be a three-fold preliminary issues before the Tribunal in absence of any written submissions. 

2.5 The first issue was in relation to a Tribunal's Order dated 30 March 2011 and the preliminary application ensuing from that Order was whether the grevior had a right to reinstate her grievance until she had met with the conditions No.2 and 3 therein satisfactorily. This involves the grevior making a payment of $1,500.00 to the employer in costs awarded against the grievor when the matter was struck out due to her sudden appearance on the day and time the hearing was re-fixed.

2.6 The second issue that was presented to the Tribunal by Counsel for the employer was that, if the Tribunal went ahead and granted the Motion to reinstate the grevior's substantive matter after meeting the above conditions, the employer still somewhat reserved the right to object to the reinstatement of the grievance on the grounds of abuse of process. 

2.7 The third issue arose as I can see is in relation to a possible remedy the grevior may (or not) have if she intends to have her substantive grievance matter heard before the Tribunal which was struck out and the application by the Counsel for the employer was that if she wanted to reinstate the matter her only recourse was to apply to the Employment Relations Court by way of an appeal to set aside the Tribunal's Order to allow her that right to reinstate the matter. In other words, Counsel stated that Employment Relations Promulgation (ERP) did not provide that remedy as Employment Relations Tribunal (ERT) was also bound by the Magistrates' Court Rules and that is the usual practice when Orders of such nature was made in the Magistrate's Court. 

2.8 While no formal application was made before the Tribunal to include a further forth issue, it was alluded by the counsel for the employer on 18th August 2011 that they also have issues with the way the Motion has been brought before the Tribunal in that it is defective in terms of the orders made by the Tribunal.

2.9 Since the Motion was first brought before the Tribunal for reinstatement of the struck out matter, preliminary issues after issues without any proper application or submissions keep cropping up, obscuring not only a way forward but also putting the Tribunal in a difficult position by creating unnecessary delays and without any choice but to step in a put in some clear perspective on how this matter should now proceed. 

2.10 The Tribunal also notes that it seems to have become a common occurrence that interlocutory applications are made or that preliminary issues are presented to the Tribunal for determination and while that is under consideration, parties tend to throw in new issues from the bar and this is where delays and confusion seep in. I am mindful that until counsels do not pen out their applications and submissions clearly such scenarios will be a prevalent feature clogging the system unnecessary for want of a decision that would be pending and lost in the process. Hence my role here is to unravel the confusion and find a way forward.

3.0 Background Facts and Evidence

3.1 On 26th July 2011 since a decision was required on the issues before the Tribunal (first came before the Chief Tribunal), the grevior's new representative was allowed to respond to issues presented by the employer's solicitor. Mr Tofinga argued that the ERP provides wide jurisdiction to the Tribunal to consider setting aside of the said Order which was in essence made by the Tribunal and subsequently the Tribunal could reinstate the grievance to take normal course of proceedings whereby substantive matter with merits should be heard.

3.2	Mr Tofinga attempted to support his arguments based on the reasoning that the grevior's legal representative at the material time had let her down on the day and time the hearing was fixed. Hence, her state of mind was affected adversely under those circumstances compounded with her loss of employment that may have prevented the grevior from appreciating the importance of appearing before the Tribunal on 30 March 2011 to conduct the hearing. All in all, he stated that the grevior was perhaps of "disturbed mind" although it is hard to come to any conclusion on the "state of mind" of any person unless there is medical evidence to support the same. For the Tribunal, evidence from the bar cannot be acceptable and there is apparent difficulty when the counsel bringing forward the preliminary application wants quick remedy and states there is no need for submissions and/or hearing as the Order gives adequate redress on the issues. 

3.3	Although under section 231 the Tribunal is not bound by strict rules of evidence, I have been mindful that the matter is not dragged on unnecessarily nor that either party is denied an opportunity to respond to the application, in whatever form it has come to the Tribunal.

Section 231(1) In proceedings brought before the Tribunal, the Tribunal may accept and admit evidence as it thinks fit.

 (2) The Tribunal is not bound by strict rules of evidence. (My emphasis)

3.4	In this circumstance, the Tribunal has the grevior's Affidavit in Support of Motion dated 27th April 2011, where she has attempted to justify the reason in Paragraph 4 why the grevior was not able to be present in the Tribunal at the time the hearing was re-scheduled. Paragraph 4 reads and I quote:-

"… That I was represented by a Human Rights Commission solicitor two days prior to the case and that she will be attending to a case in the High Court. Moreover she advised me that I inform this to the Tribunal that the case be adjourned. Further to this, I called the Tribunal and informed Chief Tribunal regarding the request for the adjournment of the case. In this instance, he confirmed that my request would be considered, however, I needed to be present myself at the Tribunal to inform the Tribunal which I did"

3.5	Apart from this, I have had a chance to study the Tribunal records to comprehend what could have transpired on that day leading to the grievance matter being struck out. 

3.6	One thing that is not contested is that the grevior was not entirely absent from the Tribunal sitting on the day --- in fact she was present at the time the hearing was set down and called at 10.30am, except that she had a dilemma that her solicitor was not present. This is also confirmed by my brother Chief Tribunal Sainivalati Kuruduadua who was presiding Tribunal on the day and I do not see there is a reason to call evidence to prove this fact and/or any facts pertaining to what transpired on that day when the matter was called at 10.30am or re-called at 12.30pm.

3.7	A further interesting fact which I was informed by the counsel of the employer was that my brother, Chief Tribunal went to great length to assist the grevior by sending his driver and a clerk in search of the grevior's solicitor who apparently could not be found. In the interim he had the matter stood down for 12.30pm to allow for both parties to converge for the hearing as the employer had called their witness from overseas at a considerable expense. When the matter was called at 12.30pm neither the grevior nor her solicitor was present in the Tribunal to attempt to seek mutual consent from the other party to have the hearing vacated or seek leave of the Tribunal to vacate the hearing pursuant to section 216(6) of ERP which states:- 

"…the applicant may not withdraw a matter before the tribunal without the written consent of the other parties or prior leave of the Tribunal"

3.8	In justification of the grevior's disappearance despite attempts were made by the Chief Tribunal to keep the hearing intact that ultimately resulted in costs being awarded against the grevior for wasting Tribunal time and incurring employer expenses to fly over a witness from abroad, Mr Tofinga simply stated that the grevior was disturbed due to the way she was treated by her previous employer (i.e., Classic Apparel (Manufacturing) Limited) and she was still not that well in terms of her state of mind. I am not entirely convinced that this is a good reason for her to overlook Tribunal's directives to stay put until 12.30pm to allow for the hearing or for that matter any vacation of the hearing to at least take place.

3.9	Mr Tofiga further stated that the grevior also did not have the ability or was not in a financial position to pay costs awarded by the Tribunal against her. To the Tribunal, it was not clear on the day whether the grevior was currently in any paid employment, considering her employment was terminated by Classic Apparel in March 2009. No facts was presented in the Affidavit in Support of the Motion to indicate that the grevior had no financial ability to pay the costs.

3.10	In fact, the grevior's Affidavit in Support of Motion dated 27th April 2011 does not have any mention of her inability to pay the costs awarded against her or for that matter the Motion does not seek to set aside the Order dated 30th March 2011 or even seeks to vary the order on the issue of costs. There is complete silence on cost issue by the grevior even to the extent of seeking Tribunal's consideration of having it set aside or varied. So it is no wonder that the employer is compelled to clarify their position on the issue of cost and natural justice and fairness demands that the Tribunal attempts to look into this issue before dismissing it on the basis that the best way to deal with the same is for the grevior to appeal against the Order in the upper court which is perhaps, one way the Order can be put aside but is not in the Tribunal's mind, the only way.

3.11	The Tribunal evidently noted when Mr Tofinga was alluding that ERP is very much equipped to resolve the preliminary issues before it without a need to delay the right of the worker to seek redress on her grievances so as to prevent her from exercising her unfettered right to be heard. Mr Tofinga stated that all the grevior wanted was a day in court to be heard on her substantive grievance and that remedy was still available despite the Order of the Tribunal dated 30th March 2011. He first proposed that the grevior could provide surety so as to allow her to have her matter reinstated if that was the pre-condition but there was also another avenue which he wanted to seek the counsel for the employer to consider to possibly waiving the cost if his clients agreed to it.

3.12	The counsel for the employer replied that waiver of cost was highly unlikely and that apart from objecting on the cost issue, he was also objecting to the Motion for the reinstatement of the grievance. So whether or not cost issue was resolved, he would be ultimately objecting to the reinstatement of the substantive matter.

3.13	The Tribunal having heard brief oral arguments from both sides on 26 July 2011 proposed that both parties take a short adjournment to discuss a possibility of mutual waiver of the costs and/or alternatively put in their submissions on their legal arguments. Where legal arguments was concerned, the counsel for the employer was adamant that there was not much to be said as all the answers to his preliminary issues centered at the heart of the Order of the Tribunal dated 30th March 2011. That being the case, the Tribunal allowed one final chance to both parties to engage in some form of dialogue and mutual agreement to overcome the issue of cost. 

3.14	The case was again called for Mention on 18 August 2011 after both parties had an opportunity to engage with each other with a view to waiving the costs. According to the counsel for the employer, both parties had consulted and agreed that costs has to be paid by the grevior and to that end, the both parties mutually were requesting the Tribunal to have the matter adjourned sine die, or for at least three (3) months while the grevior searched a way to meet the costs and thereafter the pay the same to the employer.

3.15	Both counsels when questioned by the Tribunal what would happen if the said cost is not paid within the desired timeframe and the fact that the Order has a purpose to serve so as to avoid abuse of process, the counsel for the employer replied that directions can be given after 3 months at the discretion of the Tribunal by balancing the rights of both parties. Further, he was making a new observation (not an application) that the Motion filed by the grevior is defective in that it did not address the cost issue. 

3.16	Tribunal noted that the issue of cost pursuant to the Order was totally disregarded by the Grevior in her Motion which showed the grevior's ignorance or inability to understand the implication of the same. Also I have not received any application from the employer's counsel for a Compliance Order under section 212 of ERP other than oral application to compel the grevior to pay the costs before can she restore her matter.

3.17	In my view, to have the matter adjourned sine die or for another three months when clear directions had been given by Chief Tribunal as per his Order dated 30th March 2011 would mean distorting or blurring the fine line between refusing to comply or respecting that Order vis – a-vis bordering on contempt of Chief Tribunal's Order as well as allowing a blatant abuse of process to thrive where the claimant (grevior) seems to think that the Tribunal proceedings is a mere formality and not a serious platform to hear genuine grievances or disputes. Quite clearly the Order specifies a cut-off date for restoration of the struck out matter and by not observing the same, it would mean defying that Order in its totality and finding a way to slip in a Motion to keep the matter alive as long as the claimant desires. Such abuse negates the very purpose of the said Order.

3.18	Further, having the determination of the preliminary issue(s) adjourned on seven occasions in the past, it is my view that it is now even more imperative to bring a closure to the issues as access to justice is all about speedy resolution, especially where the premise of ERP is most mindful that the livelihood of a terminated or dismissed worker is not unnecessarily put at risk indefinitely. 
3.19	I had the matter adjourned for another one month (up-til 26th September 2011) refusing to grant 3 months adjournment so that Tribunal could be informed as to grevior's financial position to pay the costs and what arrangements she could make to meet the same as agreed on 18th August 2011.

4.0 Determination of Preliminary Issue(s)

4.1 ERT procedures are clearly outlined in section 216(1) and more importantly under sub-section (2) where it states that "…in all proceedings, the Tribunal must act fairly". 

4.2 The Tribunal while keeping the intention and spirit of the ERP intact to provide speedy redress and remedy to the grevior to ensure he/she is not made destitute through loss of livelihood, it must also stay practical and fair to both parties. The ERP is hence a very useful and pivotal tool for the Tribunal to maintain that balance while ensuring the grevior being in the most vulnerable and economically weak position as opposed to the employer is not denied the very essence of natural justice that ERP desired upon its establishment. In the same breath, it cannot deny the employer the fair and just platform to also voice their defence and seek appropriate remedy that ERP evidently gives both parties in terms of costs.

4.3 Clearly, ERP has the answers to the issues raised by the counsel for the employer. I shall attempt to balance the right of a worker against that of the employer as the issues are quite important not just for this case before the Tribunal but shall serve as a guide when matters are struck out and there is Motion filed and apparent objection to have the same reinstated.

5.0 Order dated 30th March 2011 and conditions therein.
 
The first question to ask is: - Was striking out the substantive matter fair and justified?

5.1 While this issue, per se is not before the Tribunal for determination by the grevior, other than perhaps in connection to whether it would be abuse of process to reinstate the struck out matter that may unfairly treat the employer, there is no doubt in my mind that the Order dated 30 March 2011 has a purpose to serve in the interest of fairness to both parties. This is largely to avoid a claimant bringing the case before the Tribunal for adjudication and thereafter not seeing carriage of the same to full completion. Abandoning her hearing can only be a justification if there were exceptional circumstances beyond the grevior's control (such as an illness) or any other special reason that the Tribunal may think would qualify as a genuine reason for her not to be present when Chief Tribunal re-scheduled the hearing. What is worse, simply "walking off" from the Tribunal while it is in process, is no justification at all except that it borders on contempt of the Tribunal for apparent disrespect.

5.2 Further, if only the grevior had sat through the proceedings as per Tribunal's directions despite there was no appearance from her solicitor at the re-scheduled time, I am certain she would have qualified for a valid justification as then the Tribunal would have had the task of balancing her right against a represented party. Simply, with no other option, a prudent and reasonable Tribunal would have been compelled in two possible circumstances to vacate the hearing date knowing that the grevior was denied her right to fair and adequate representation due to no fault of hers. 

5.3 In the first instance, section 233 of ERP requires a "good cause" for any party not to attend in person or by representation on the date the matter is called in the Tribunal. Here she may have established a "good cause" by being present in court at 10.30am and indicating that her legal counsel was not present. 
However, she failed to listen and heed the directives of the Tribunal thereafter. The Tribunal in balancing the right of the employer stood the matter down to allow her solicitor to be present in the Tribunal. But, the grevior's sudden disappearance at the re-scheduled time (12.30pm) makes her very much accountable for her inappropriate action so as to placing the Tribunal in an awkward position by not giving assistance to the Tribunal to vacate the hearing date in her favour due to non-appearance from her solicitor. 

5.4 Second, under s216(6) of the ERP, the most sensible way the grevior could have had the hearing date vacated and possibly avoided any cost awarded against her is by seeking Tribunal's leave to vacate the hearing in case the employer's counsel still objected. She need not have quoted the laws, except to indicate that she couldn't go on without her legal representation being present and the rest would be Tribunal's obligation to consider her position. But, she did not allow the Tribunal or the other party (employer) this option as she simply "walked off". Even if she had informed anyone informally it does not count as the Tribunal was going out of its way to re-schedule and sit again on the basis of still trying to locate her solicitor and thus according her proper representation. The least the grevior could have done is waited for my brother Chief Tribunal, Sainivalati Kuruduadua to give any further directions, failing which, his Order of 30th March 2011 came into being. 

5.5 The Tribunal further notes that regardless of the apparent difficulties experienced by the grevior on the particular day, it does not negate the grevior her responsibility towards the Tribunal to ensure that she did not contribute to that difficulty too. Such claimants need to be cautioned that by filing a Motion or application in the Tribunal by virtue of right under the ERP to have their matter heard or adjudicated within a reasonable time do not expect full carriage of their matter by everyone else including the Tribunal's obligation to hear the matter expeditiously while the grevior can conduct herself in such manner as though she has little or no responsibility in seeing it is not delayed unnecessarily. Here I have no intention to discuss the previous numerous times when her substantive matter was adjourned other than to say that there were at least twelve (12) Tribunal sittings since the matter was first called on 9th December 2009. Needless to say, she was a significant contributory factor in these numerous adjournments due to non-appearances for various reasons that I do not wish to discuss.

5.6 Even if the past conduct of the grevior was to be pushed aside, in my opinion grevior was most irresponsible on the day the hearing was fixed forcing the hands of the Tribunal to act appropriately under section 216(2) of ERP and accordingly, the Order was made for the matter to be struck out which was only fair to the employer at that given time. 

The second question to ask is: Did the Order allow the grevior a right to restore her grievance?

5.7 Indeed, this right or "liberty to restore" was contained in the said Order under condition 1 which reads and I quote:-

1.	The Grevior, Shareen Buksh's ERT Greviance No. 107 of 2009 be struck out with liberty to restore on 28 days notice on or before 4 May 2011. (my emphasis) 

5.8 In the said Order, the fundamental condition that I see that needs satisfying is that any restoration of the matter must be done on or before 4 May 2011 which is not contested. There is no issue in this regard nor was that 28 days notice not observed.

5.9 Tribunal while giving the Order was mindful of workers' unfettered right to be heard but within a reasonable period as with rights come responsibility. Here, the Tribunal intended that certain conditions were to be fulfilled, otherwise it depicts the very purpose and indeed usefulness of having such Order in place. It would also give rise to blatant abuse of process if Tribunal cannot exercise its right to prevent claimant's bringing grievances or disputes before it and failing to show innate responsibility in facilitating the conclusion of the matter as per Tribunal's directives. 

5.10 Tribunal is also obligated to ensure that there is no unwarranted expense to the opposing or defending litigant (in this case the employer) to be present at the hearing and that hearing has to be vacated because the grevior felt like appearing and disappearing at her will and not as directed by the Tribunal.
 
The third question to ask is: Should the grevior pay the costs as contained in conditions 2 & 3 of the said Order?

5.11 If the Tribunal intended that the grevior could restore her matter, then it must have also intended for the costs to be paid by the grevior to the employer.

5.12 To restore or reinstate the matter one has to consider the Order in its totality where the said Order gives clear indication as to the prerequisite of payment of cost of $1,500 prior or before any reinstatement can be applied and considered by the Tribunal. In Tribunal's mind there is no contention or ambiguity that under condition 3, that the grevior has to pay $1500.00 before she can exercise her right to apply for reinstatement.

The forth question to ask is: Can the Tribunal vary the said Order in terms of Costs?

5.13 Although this is also not an issue before the Tribunal, in my opinion the cost was fair and justified pursuant to section 236 which states that:-

"The Tribunal or the Court in proceedings may order a party to pay to any other party costs and expenses (including expenses of witnesses) as it thinks reasonable, and may apportion the costs between the parties or any of them as it thinks fit and may at any time vary or alter the order in the matter as it thinks reasonable." (Underlined part is my emphasis)

5.14 That being said, the Tribunal has wide discretionary powers where issue of costs is concerned. It can vary or alter the Order at any time. So, in that regard, it may not be necessary for the Tribunal to adjudicate on the pre-compliance of the conditions in the Order but rule as to what it thinks is reasonable in either varying or altering the Order in terms of costs. In my opinion as simple as this may sound, the Tribunal must exercise utmost caution to be fair and reasonable to both parties. Since the grevior has made no application to have the costs varied or altered before her Motion for reinstatement could be heard, it does require the Tribunal to consider it when an application by the employer's counsel was made for strict compliance of the Order in terms of costs. Tribunal is obliged to consider why any varying or alteration of the Order might be unreasonable or may unfairly treat the employer where costs is not paid by the grevior as contained in the Order.

5.15 I cannot explain why the grevior completely disregarded the Order and the conditions therein and failed to move the Tribunal under s236 of ERP to vary or alter the Order in terms of costs. I also fail to understand that if the grevior's representative felt that ERP could aid the predicament, why no appeal was filed under s211(1)(l) of ERP for adjudication in this regard. 
In fairness to all parties this is one hurdle to cross before any restoration or reinstatement of the substantive grievance can be applied and/or allowed to be re-heard as the Order does allow the grevior that liberty to restore the matter. 

5.16 I am thus agreeing with the employer who is right in pointing out that the grevior first must pay costs before she can reinstate her matter and even then the employer shall still object to the reinstatement. Should that happen that right to appeal is available to the employer and in the same way, a right to appeal is available to the grevior if her Motion for reinstatement is refused.

5.17 On 26th July 2011, Mr Tofinga suggested to the Tribunal as to putting up a surety but alter informed the Tribunal that the person who was going to do this has migrated. Mr Tofinga also informed the Tribunal on 18 August 2011 that the grevior was not in any paid employment except that she took some temporary positions every now and then. It would then seem that the grevior is not in a financial position to pay costs before she can have her matter heard again. If surety was an option, then the Tribunal could not have ignored or not considered this option to allow any restoration of the matter to be practically possible without imposing strict conditions on the grevior to pay as per the said Order. Clearly, the Tribunal does have the power to vary the Order as it thinks reasonable. In that respect, the surety could have served an important purpose. It shall ensure the issue of costs is rectified without any further delay. 

5.18 Without the surety as a second alternative the grevior is then in the most difficult position to restore her grievance given that she has no full-time paid employment. But the question to consider is that if the Tribunal exercised its discretionary powers to vary the Order in upholding her unfettered right to be heard can she demonstrate to the Tribunal her commitment to appear and finalize the matter when any further hearing date will be set down. And more importantly, her ability to pay the employer should the reinstated matter be adjudicated and ruled in employer's favour as what is there not to say that she may have to pay more costs if she loses or fails to appear again. After all, this is her grievance matter, she failed to appear at the hearing time and this is her second such application to restore the grievance. The grevior must appreciate the gravity of the future costs that can be made against her if the matter re-commences and she is not able to prove her case or for that matter any required appearance on her part meets a similar fate as of 30th March 2011.

5.19 For this reason, the Tribunal felt that surety would have been a sensible way out of the present predicament because if she wins her substantive matter and any award is considered then the said costs of $1,500.00 can be applied to be factored into the award for any compensation and/or damages sought and granted. Tribunal feels this would have been a reasonable enough approach to somewhat allowing the grevior to restore her matter as per the Order without delay or preventing or denying her right to be heard whilst maintaining employer's position in the either context – win or lose – they shall have the right to be paid the $1500.00. 

The last question to ask is: should the grevior be allowed to be heard on her substantive matter that was struck out?

5.20 In a very recent case of Faaizan Investment Limited –v- Suva City Council [2011] FJHC 411 (HAA003.2011), Lordship Justice Goundar quite clearly set down a benchmark for Tribunals such as the ERT to follow what would be a human rights and law approach which is and I quote: "…right to be heard is the cornerstone of our justice system". 

5.21 Natural justice and fairness demands that no one is denied an opportunity to be heard and one action of the grevior that might amount to "irresponsible or unreasonable" when the grevior disappeared without informing the Tribunal does not completely disqualify a grevior not to be heard again. It is Tribunal's view that the grevior's right to be re-heard by the Tribunal in the event in which this matter was struck out is still intact. I am not convinced by the Counsel for employer's arguments that if the grevior wants the matter to be heard she must take it through the Employment Relations Court by way of appeal of the Tribunal's Order as clearly he is stating that the Order is preventing the grevior from exercising her right to be re-heard on the same grievance/matter in the same jurisdiction or ERT.

5.22 Section 202(3) of ERP gives the Tribunal "…jurisdiction, powers and functions conferred on it by the Promulgation (ERP) or any other written law...". 

I have simply taken further queue from the case of Fiji Bank and Finance Sector Employees Union -v- Australia and New Zealand Banking Corporation, ERCA No.1 of 2009 to ensure the Tribunal does not overlook an important function or jurisdiction conferred upon it under section 211 of the ERP that may have the potential to adversely affect a dismissed worker and her livelihood if leave is not granted to hear the Motion before it. In this case, my sister Ladyship, Judge Wati has quite aptly pointed out ERT's obligations under section 221(1) that confers ERT the jurisdiction to determine preliminary issues brought before it by virtue of section 211(1) (i) of the ERP which states:-

"The Tribunal has jurisdiction…

(i)	 to adjudicate on a question connected with the construction of a provision of this Promulgation or any other written law which arises in the course of proceedings properly bought before the Tribunal notwithstanding that the question concerns the meaning of this Promulgation under which the Tribunal is constituted or under which the Tribunal operates in a particular case.

5.23 In particular, section 211 (1) (l) confers Tribunal jurisdiction "to hear and determine any appeal referred to it under this Promulgation". While I have no appeal before me, it is clear I can also hear one or at least obligated to adjudicate on one. In fact if I refuse the application to reinstate the matter hinging on the pre-condition of the costs awarded against the grevior, she still has the right to appeal to the ERC under s 220(1)(a) and s242(1) as long as any appeal to the Court is made in the prescribed matter within 28days from the date of the decision of the Tribunal [s242(2)]. 

5.24 Section 242(5) prevents any appeal allowing extension of time. In the hindsight, such time available to the grevior after the Order was made on 30 March 2011 has obviously expired and so this option is now closed to the grevior, where in any event, under section 242(5)(d), she must seek leave of the Tribunal to appeal a decision as to costs. Similarly, I been alluded by the counsel for the employer that if the Tribunal takes time out to adjudicate on grevior's reinstatement application, they shall appeal the same if leave is granted to the grevior, albeit on a technicality or jurisdiction of the ERT. In either circumstance, I am conscious of this and feel if Tribunal does not attempt to invoke its jurisdiction under the ERP as per s211, the matter has potential to be delayed even further which is dominant feature already clouding this case since 2009. More so, it will deny the grevior the right to restore her matter or be re-heard.
5.25 In my mind there is no room to feel otherwise that the Tribunal is the right place and jurisdiction to hear any appeal on the Order made by the Tribunal. The Tribunal can also adjudicate on the varying and alteration of the costs as per section 236. 

5.26 Whilst per se neither ERP nor ER Regulations have any provisions to deal with an application to reinstate a matter that has been struck out by the Tribunal in clear terms, section 211(1) (i) of the ERP aids that difficulty, allowing the Tribunal to proceed with speedy adjudication. In my view, such lacuna in the law cannot deny the grevior remedy she seeks under the ERP and disallow her one further opportunity to be heard. 

5.27 Even under the Magistrate's Court Rules, pursuant to Order XXX Rule 6 that right is very much accorded to an applicant at the discretion of Court. Therefore, I am of the view that the counsel for the employer's argument that appeal should be taken up with the upper court as is the practice when a similar situation arises in the Magistrates Court has no merits in this instance.

5.28 In fact, the ERP provides under s238(2) that it can rely on the Magistrates' Court Rules in absence of any provision in ERP and thus the same Order XXX Rule 6 can be replicated to apply to the situation in hand. Section 238 states:-

S238 (2) In the absence of such rule or where no provision is made for a particular circumstance – 

(b) the Magistrates' Court Rules apply to the proceedings before the Tribunal…" 

5.29 I have come to my reasoning for the above decision based on the analogy of a High Court Appeal case presided over by Lordship Justice Pradeep Hettiarachchi in the case of CKP Fishing Company Limited –v- The Labour Officer High Court Appeal No: HBA 02 of 2010. Here, an appeal was made against the decision of the learned Magistrate in regards to an Order dated 17th November 209 where the matter was struck out and later reinstated by way of an appeal of the said Order before the same Magistrate by virtue of Order XXX Rule 6 of the Magistrates Court Rules which provides:

"Any civil cause struck out may, by leave of the court, be replaced on the cause list, on such terms as the court may seem fit".

 The presiding Judge in this case pointed out that "…when a case is struck out in the Magistrate's Court, the application to reinstate must also be made to the same court. If that application to reinstate is refused by the Magistrates Court then only the party so aggrieved by the decision can appeal to the High Court…"

5.30 In the same case, Lordship made another crucial point in terms of the Magistrates Court's discretion so as to not deny remedy to the person affected by the strike out under Order XXX Rule 6. As part of Magistrate's discretionary powers, in the absence of any specific provisions which deal with the transferring of a case to the ERT, he stated the Magistrate had no other choice but to grant application for reinstatement. Lordship in his decision also transferred the matter to ERT for hearing of the substantive matter by stating that "…the substantive matter of this case has not been adjudicated yet. Therefore no prejudice would cause to the Applicant by granting a reinstatement order…". 

5.31 The Tribunal relies on this and concurs that any reinstatement of the substantive matter will not cause prejudice or grave injustice to the employer in this case is also not yet, heard.

Decision:-

1.	The Tribunal exercising its powers under section 236 of ERP is varying the Order dated 30th March 2011 by allowing the grevior to put up a surety to demonstrate ability to pay the current costs and/or any other further costs, if applicable before any commencement of proceedings can be granted.

2.	Surety must be put up no later than 17th September, 2011.

3.	Any failure to put up surety on or before 17th September 2011 will result in final striking out of the matter.

4.	The Motion to restore and reinstate the matter shall be granted forthwith once surety is intact on or before 17th September 2011.

Dated at Suva this 19th day of August 2011

LEGAL TRIBUNAL