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Waiqele Transport Ltd v Ministry of Labour [2004] FJHC 137; HAA0059.2004 (20 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0059 OF 2004

BETWEEN:

WAIQELE TRANSPORT LIMITED
Appellant

AND:

MINISTRY OF LABOUR
Respondent

Counsel: Mr. R. Singh – for Appellant
Ms T. Vuibau – for Respondent

Date of Hearing: 11th August, 2004
Date of Judgment: 20th August, 2004

JUDGMENT

Introduction

The appellant was convicted of six counts against the Wages Regulation (Road Transport) Order 1997 and Wages Council Act (cap. 98 section 9(2)) for failing to pay some of his workers their correct holiday pay and statutory minimum wages.

He was fined and accepted that penalty. However, at the same time he was also ordered to pay:

(i) Naila Gounder the sum of $9,274.65 and
(ii) Arun Prasad the sum of $2,231.04

These orders were made as part of a default judgment under section 9(3)(b) of the Wages Council Act (Cap. 98). This appeal relates to those orders only.

The Appeal

The appellant company was represented by counsel. The appeal notice as filed was wide ranging. However, at appeal it was stripped down to one ground that:

“the learned Magistrate erred in law and in fact in ordering the payment of arrears of wages as follows:

(i) to Naila Gounder the sum of $9,274.65
(ii) to Arun Prasad the sum of $2,231.04

when there was no evidence of any notice of intention to given evidence........as required by section 9(3)(b) of the Wages Council Act (Cap. 98).”

When pursuing these prosecutions the Department of Labour is entitled upon conviction to seek an order from the Court that the employer pay up the short paid wages or holiday pay.

The relevant section reads as follows:

“Where proceedings are brought under the provisions of subsection (2) in respect of an offence consisting of a failure to pay remuneration not less than the statutory minimum remuneration, then-

(a) the employer or any other person charged as a person to whose act or default the offence was due is found guilty of the offence, evidence may be given of any like contravention on the part of the employer or such other person in respect of any period during the three years immediately preceding the date of the offence; and

(b) on proof of such contravention, the court may order the employer to pay such sum as is found by the court to represent the difference between the amount which ought to have been paid during that period to the employee by way of remuneration, if the provisions of this Part had been complied with, and the amount actually so paid:

Provided that evidence shall not be given under paragraph (a) of this subsection unless notice of intention to give such evidence has been served upon such employer or such other person with the summons, warrant, information or complaint.”

The appellant argues that the learned Magistrate totally ignored the notice provision, didn’t satisfy himself that notice was given and therefore could not proceed to hear evidence about the short paid wages. Accordingly the learned Magistrate could not exercise his discretion and make an order for the payment of short paid wages and holiday pay.

The respondent argued that a “notice of intention” was only required if the employer charged with an offence under a wages regulation order entered a not guilty plea and at the conclusion of trial was found by the court to be guilty of the offence.

In the alternate, although not developed in her written submissions, counsel argued that the required notice was attached to the summons and that there is proof of service of a copy of that summons. Therefore, the court should infer proof of a service of the notice as well. In that regard counsel had annexed to her submission a photocopy of a duplicate affidavit of service contained on the department’s files. It reads as follows:

AFFIDAVIT OF SERVICE

“I, SHLENDRA PRASAD BILASH, of LABOUR DEPT, make oath and say that I did on the 19th day of January 2000 serve a true copy of the within summons on the within-named defendant by delivering the same to MR. SUBASH CHANDRA, DIRECTOR, WAIQELE TRANSPORT LIMITED at MANOCA INDUSTRIAL SUBDIVISION, NAUSORI”

I note that it was common ground that unfortunately the affidavit of service which may have once been on the court’s file was no longer there. However, for the purposes of this appeal I find that I am prepared to accept the copy of the affidavit of service provided by counsel is an accurate replica of the original affidavit of service that would have been on the court file. In the end not much turns on this point.

Decision

With respect of both counsel they have overlooked the conjunctive effect of section 9(3)(a) and (b). I interpret this section to mean that a criminal court upon convicting an employer may, if that employer has within the preceding three years contravened the act, order payment of the difference between the short paid wages and the proper amount; provided the appropriate notice of intention to give that evidence has been served.

In short, the giving of the notice is an essential ingredient before the court can exercise its discretion.

The purpose of the Section is to force an employer upon conviction for an offence to pay up all outstanding wages in the preceding three years without the need for a collateral debt collecting exercise in the civil courts.

As to whether or not there was service of the notice I find that there was no proof of service of the notice. These are quasi criminal proceedings. Notice and service provisions of the enabling Act must be strictly construed. The affidavit of service merely refers to the appellant being served with “a true copy of within summons”. It does not refer to the appellant receiving a true copy of the within summons and another document namely the notice under section 9(3)(b). I find, therefore, the notice was not served.

However, further I see from the learned Magistrate’s sentencing notes that this issue was never considered before judgment was given. The learned Magistrate did not satisfy herself that the notice provisions had been complied with at all. The Court could not in those circumstances even begin to exercise its discretion and move on to consider the evidence and the remaining statutory requirements.

Conclusion

Accordingly, for these reasons the appeal succeeds in part. The conviction and penalty remain. However, the orders for payment of arrears of wages to:

(i) Naila Gounder in the sum of $9,274.65 and Arun Prasad in the sum of $2,231.04

are quashed.

Gerard Winter
JUDGE

At Suva
20th August, 2004