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Fiji National Provident Fund v Fiji Bank & Finance Sector Employees Union [2013] FJET 8; ERT Misc Application 7.2013 (28 May 2013)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL

ERT Misc Application No 7 of 2013

BETWEEN:

FIJI NATIONAL PROVIDENT FUND
APPLICANT

AND:

FIJI BANK & FINANCE SECTOR EMPLOYEES UNION
RESPONDENT

Representatives: Ms L Baleimatuku for the Applicant
Mr P. Rae, Union Secretary for Respondent

Date of Hearing: Tuesday 28 May 2013
Date of Decision: Tuesday 28 May 2013

DECISION

INTERLOCUTORY APPLICATION; Application for Stay of Proceedings; ESSENTIAL NATIONAL INDUSTRIES (EMPLOYMENT) DECREE 2011 - Unfair Dismissal; Employment Relations Promulgation 2007.

Background

1. The Applicant employer has appealed against the earlier decision of this Tribunal dated 23 April 2013,[1] in which the Tribunal had determined that it did have jurisdiction to deal with the referred dispute[2] from the Mediation Service.
   
2. The Employer now seeks a stay of that decision until such time as the appeal in the High Court is heard.
   
3. Counsel for the Applicant, advises that the first direction hearing in that matter, is scheduled for 18 June 2013.
   
4. In cases of this type, the principles to be applied when considering such an application, are well established in Natural Waters of Viti Limited v Crystal Clear Mineral Water (Fiji) Limited[3] and more recently in Naidu v Boladuadua[4].
   
5. As Chandra RJA, has identified, the non-exhaustive list of factors derived from the case law include:
   

(a) Whether, if no stay is granted, the applicant's right of appeal will be rendered nugatory (this is not determinative)

(b) Whether the successful party will be injuriously affected by the stay.

(c) The bona fides of the applicants as to the prosecution of the appeal.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The public interest in the proceeding.

(g) The overall balance of convenience and the status quo.

6. In this matter before me, Mr Rae advises that his client is now employed. I regard that as a preeminent factor in an employment matter. Outside of that and given the early listing of the appeal for Directions, I am inclined to grant a temporary stay in this matter. Not because I believe that the Applicant has a compelliing argument, because there is not one that has been advanced, but more because of the practical consequences that flow as a result of the decision and the need to ensure that there is an early resolve to the clarity sought.
   
7. Ms Baleimatuku referred the tribunal to the decision of the Fiji Public Service Association & Anor v Public Service Commission & Anor[5], where in that case Powell J, referred to the overriding principle of upholding the interests of justice in the circumstances. In that case, his Honour identified the risk of irremediable consequences as being a salient feature of that application.
   
8. While I have reservations at least based on the unique circumstances of this case, that there would be irremediable consequences if the matter was allowed to proceed, I am also cognisant of the need to ensure that there is an appropriate pathway for litigants who seek certainty and consistency of approach. On that basis and for the fact that Mr Rae has no strong objection to the application, I will allow it.
   
9. The decision in ERT Grievance No 4 of 2012, shall be stayed until such time as the High Court appeal is determined.
   

I order accordingly.

Mr Andrew J See
Resident Magistrate

^[1] Jurisdictional Decision (ERT No 4 of 2012).

^[2] An application for an unfair dismissal remedy.

^[3] [2005] FJCA13

^[4] [2013] FJCA5

^[5] Civil Appeals NO CBV 00002 and 0004 of 2009.