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Fiji Bank and Finance Sector Employees Union v Australia and New Zealand Banking Group [2010] FJHC 450; ERCA 01 of 2009 (12 October 2010)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA

CASE NUMBER: ERCA NO. 1 OF 2009
[ERT DISPUTE NO. 35 OF 2008]

BETWEEN:

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION
APPELLANT

AND:

AUSTRALIA AND NEW ZEALAND BANKING GROUP
RESPONDENT

Appearances: Mr. Devanesh Sharma and Ms. Sanchez for the Appellant.
Mr. Jon Apted for the Respondent.

Date and Place of Judgment: Tuesday, 12th October, 2010 at Suva.

Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT OF THE COURT

EMPLOYMENT COURT - the sole issue before the ERT was whether dismissals of employees can be brought as employment disputes-the ERT's finding after analysing all definitions, the policy and structure of the ERP, and the intention of the legislature, resulted in a negative conclusion – determination by court that the term dispute included a "difference or dispute connected with non-employment", non-employment being such a wide term that it included "dismissals"- although ERP 2007 contains no specific provisions on remedies for employment disputes, ERT still has implied powers to order reinstatements in disputes over dismissals as it has statutory powers to order reinstatement in grievance cases which includes dismissals– there existed a valid employment dispute before the ERT which should have been adjudicated upon - Appeal Allowed.

Legislation
The Employment Relations Promulgation 2007
Employment Relations (Administration) Regulations 2008

Cases
Life Insurance Corporation of India v. Arbitration Tribunal [Unreported] FJCA ABU 0069.2006S.
Sugar Milling Staff Officers Association v. Fiji Sugar Corporation [1986] 32 FLR 82.

The Appeal

1. This appeal is from the decision of the Chief Tribunal of the Employment Relations Tribunal ("ERT").
   
2. The appeal was brought by a notice of appeal filed on 27th January, 2009 which was later amended and filed on 23rd February, 2009.
   
3. The amended notice of appeal outlines the grounds of appeal, the decision or parts of the decision appealed from, and the reliefs sought.
   

The Grounds of Appeal

4. There are 6 grounds of appeal as follows:-
   

Ground 1

The Learned Tribunal erred in fact and in law in saying that dismissal can only proceed as a workers employment grievance.

Ground 2

The Learned Tribunal erred in fact and in law in saying that although a collective agreement may contain provisions relating to dismissal, it follows that a worker irrespective of union membership who has been dismissed is required to pursue the matter as an employment grievance.

Ground 3

The Learned Tribunal erred in fact and in law in saying that dismissal is to be regarded as distinct from non-employment.

Ground 4

That the Learned Tribunal erred in fact and in law in saying that the Promulgation does not provide for a reinstatement of worker as a remedy in the case of an employment dispute.

Ground 5

The Learned Tribunal erred in fact and in law in saying that there was no employment dispute before the Tribunal.

Ground 6

The Learned Tribunal erred in fact and in law in saying that it could not adjudicate on an employment dispute over the dismissal of an employee nor, as a result over an unjustified or unfair dismissal.

The Decision or parts of the Decision appealed from

5. The decision of the Tribunal was delivered on the 15th day of January, 2009. The Tribunal had arrived at the following conclusions from which this appeal is based:-
   
   • That dismissal can only proceed as a workers employment grievance;
     
   • That although a collective agreement may contain provisions relating to dismissal, it follows that a worker irrespective of union membership who has been dismissed is required to pursue the matter as an employment grievance;
     
   • That dismissal is to be regarded as distinct from non-employment;
     
   • That the Promulgation does not provide for a reinstatement of a worker as a remedy in the case of an employment dispute;
     
   • That there was no employment dispute before the Tribunal; and
     
   • That the Tribunal could not adjudicate on employment dispute over the dismissal of an employee nor, as a result, over an unjustified or unfair dismissal.
     

The Reliefs Sought

6. The appellant seeks from this court an order to set aside the Tribunal's ruling and to substitute the same by the following orders:-
   
   • That dismissal of a worker can proceed as an employment dispute;
     
   • That where a collective agreement contains provisions relating to dismissal, it follows that a worker who is a union member and who has been dismissed is entitled to have dismissal pursued as an employment dispute by the worker's union;
     
   • That dismissal is to be regarded as part of non-employment;
     
   • That even though the Promulgation does not expressly provide for a reinstatement of a worker as a remedy in the case of an employment dispute the powers to grant such relief by the Tribunal must be derived from the terms of the collective agreement;
     
   • That there was an employment dispute before the Tribunal;
     
   • That the Tribunal could adjudicate on employment dispute over the unjustified or unfair dismissal of a worker;
     

Case Background

7. On the 7th day of May, 2008 the appellant reported a dispute to the Permanent Secretary. The dispute related to summary dismissal of one Shirly Prasad. The appellant reported that the employee Shirly Prasad was summarily dismissed by the respondent on the 23rd day of April, 2008 which dismissal as claimed by the appellant was harsh, unjust, unreasonable and unfair. The remedy sought was reinstatement without any loss of pay and benefits.
   
8. The Permanent Secretary referred the dispute to the Mediation Unit.
   
9. Mediation was unsuccessful as a result of which the Mediation Unit referred the dispute to the ERT on the 22nd day of October, 2008.
   
10. In the ERT, the respondents counsel Mr. J. Apted filed an interlocutory application by a motion and an affidavit on the 17th day of November, 2008 seeking various orders amongst which was "an order that the tribunal settle and decide preliminary issues of law as to whether under the ERP, a union can report a dispute and the Tribunal adjudicate an employment dispute, over a dismissal and/or a dismissal that is claimed to be "unjustified" or "unfair" and if so whether a union can seek, and the Tribunal can order, in such an employment dispute, the reinstatement of a worker as a remedy and what should the burden of proof be on a union and an employer respectively."
    
11. It is in respect of the above preliminary issues of law that the Tribunal gave its decision which is now subject to appeal.
    

The Appellant's Submissions

12. The Appellant's counsel Mr. Sharma made submissions on behalf of his client. He submitted as follows:-
    
    • The employee applied through the appellant to report an employment dispute under section 169(b) of the ERP 2007. The Permanent Secretary accepted the dispute and thus under section 170(3) the dispute became an employment dispute. Under section 170 (4) the Permanent Secretary referred the matter to the ERT.
      
    • The form used by the union to submit the dispute was Form ER5. Form ER5 contains a note that expressly states to a dismissal from employment. By virtue of the use of the following express words, Form ER5 clearly includes the report of a dismissal by a union:-
      

"If the dispute relates to a dismissal, please attach a copy of the Employer's statement that sets out the reasons for the dismissal. An employer is required to provide this statement under section 114 of the Promulgation."

• Under section 2 of the ERP 2007 the definition of an "employment dispute" is stated as a dispute accepted by the Permanent Secretary under section 170. The definition of a dispute is stated as "a dispute or difference between an employer and a registered trade union connected with the employment or non-employment, the terms of employment or the conditions of labour of a worker".
  
• The jurisdiction of the ERT is set out in section 211. It includes the jurisdiction to adjudicate on employment disputes and also includes the power to adjudicate on all matters referred to the Tribunal by the Permanent Secretary.
  
• If the Permanent Secretary submits a dispute for resolution to the ERT, the ERT then is under a statutory duty to consider the dispute. Such a reference by the Permanent Secretary gives rise to the Tribunal's jurisdiction.
  
• If the employer did not challenge the acceptance of the dispute by the Permanent Secretary then it was not entitled to challenge the Tribunal's jurisdiction once the dispute was referred by the Permanent Secretary by virtue of the fact that the Tribunal is empowered to adjudicate on all matters referred by the Permanent Secretary.
  
• Schedule 6 of the ERP 2007 deals with standard clauses pertaining to the procedures for settling disputes. In this instance, the collective agreement expressly provided that an employee could challenge through the union what he or she perceived to be unjust and/or unfair dismissal. The collective agreement provided for the relief that the employee could obtain, that is, reinstatement of employment and all benefits if the dismissal is deemed to be unfair. Given the provisions in the collective agreement, if such a dispute over dismissal cannot be decided by the Tribunal then the intention of the collective agreement is defeated.
  
• Under the Trade Disputes Act, the Tribunal had such jurisdiction. One questions whether it was really an intention of the ERP to restrict the powers of unions in such a draconian manner as has been done by the Tribunal's ruling. By this ruling the unions are now prevented from bringing an employment dispute of an employee. If this was the intent of the ERP then it has taken a giant step backwards.
  
• The Tribunal erred in analysing that the term non-employment does not cover dismissals and was restricted to situations such as lay-offs and reductions in working hours or days. The term dismissal can come under the definition of non-employment.
  
• The Tribunal had no proper basis to make a general ruling that even in cases where the collective agreement contains provisions relating to dismissal, a worker, irrespective of whether he or she is a union member who has been dismissed is required to pursue the matter as an employment grievance.
  
• The Tribunal also erred by concluding that the ERP 2007 does not provide for a remedy in the case of an employment dispute. Although there is no remedy for employment disputes provided for in the ERP 2007, the collective agreement did specify the remedy. The Tribunal's ruling has the effect of crippling the rights of union members to pursue dismissal as an employment dispute through the union.
  
• Section 230(2) of the ERP 2007 empowers the Tribunal to hear cases involving unfair or unjustified dismissals. The Tribunal said that there can be only one form to bring the cases involving unfair or unjustified dismissals and that is through an employment grievance. There exists a valid dispute. The basis to refuse the hearing of the case was the proper form of bringing the dispute. This actually jeopardizes the rights of the employee and is not what was intended by the ERP 2007.
  
• Section 160 of the ERP 2007 preserves the effect of the collective agreement. Section 162(2) of the ERP states that the collective agreement may contain such terms as the parties have agreed to between themselves. Section 162 (3) states that every collective agreement must contain a clause relating to disciplinary procedures. All these provisions confirm that the ERP 2007 does not seek to override the provisions of the collective agreement. The union's rights were not meant to be curtailed or restricted by the ERP 2007.
  
• Section 168(3) talks about the agreed procedures that may confer jurisdiction on the Permanent Secretary to refer the employment dispute to the Mediation Services or to the Tribunal. If this is so and the collective agreement provides for the Tribunal being able to hear a dispute relating to dismissal, this gives the tribunal clear jurisdiction to hear the dispute irrespective of any other provision in the ERP.
  
• The Tribunal is not limited in its jurisdiction to determine the legality of the termination of employment but also to consider whether the termination was just.
  
• The Constitution of Fiji protects freedom of association and stands against discrimination. Furthermore, it deems illegal any unfair labour practices. The union's rights to bring disputes concerning a workers dismissal should not be restricted. One of the primary aims of any union is to protect its members from unfair treatment. By removing the union's rights to bring disputes concerning unfair dismissals would be contrary to the spirit of the constitution. It will have far reaching effects and destroy one of the fundamental rights that the workers expect from their unions-protection against unfair treatment.
  

The Respondent's Submissions

13. Mr. J. Apted, counsel for the respondent filed his written submission on the 6th day of August, 2009. He also addressed the court orally. I summarise his written and oral submissions as follows:-
    
    • The term employment means performance of an existing contract of service. By deduction, the term non-employment thus must mean non-performance of the existing contract of services. On that basis non- employment meant but was not restricted to layoffs and reductions of hours and days, that is, non-performance of an existing contract of service. This is the only conclusion that can be reached.
      
    • The term "layoff" does not mean termination of employment for redundancy. It refers to temporary discharge and the Tribunal meant the term to be so. Many collective agreements in Fiji in seasonal workplaces like hotels and sugar industry use the term to describe temporary discharges.
      
    • The other definitions like the definition of "employer" and "worker" which is also used in the definition of "dispute" requires the continuing existence of an ongoing contract of employment.
      
    • The definition of "employment grievance" poses a small difficulty. While the definition, consistently with the definitional requirement for the term "employer" of an ongoing contract of service and "dismissal" as constituting a termination of the contract, refers to "an employer" or "former employer", it then inconsistently uses only the term "worker", and does not use the term, "former worker". This is a drafting oversight.
      
    • The definitions contained in s. 4 of the ERP 2007 are expressed to apply "unless the context otherwise requires". It is clear from the definition of "employment grievance" with its express references to "dismissal" and "former employer" that the definition of "worker" in s. 4 does not apply in the context of that definition and in each of the provisions in which the term "employment grievance" is used, and instead includes in that context a former worker. The legislative intent would be frustrated if the term worker is not given a broader meaning.
      
    • There is nothing in the definition of 'dispute" or in the ERP 2007 provisions that deal with "disputes" that requires that the statutory definition of "worker" or of "employer", which requires an ongoing contract of service, not to apply in that context.
      
    • The definition of employment grievance and the employment grievance remedies provisions outlined in s. 230 of the ERP 2007 indicates the clear legislative intention that dismissed workers who do not have an ongoing contract of service can seek redress through an employment grievance procedure.
      
    • A matter would only be a dispute if it first meets the definition of 'dispute" and was accepted by the Permanent Secretary. Acceptance by the Permanent Secretary merely does not make it a "dispute".
      
    • The ERT had also looked at the legislative intent by looking at the ERP 2007 as a whole when making its determination.
      
    • Any collective agreement made before the ERP 2007 continues to be in force but subject to the Promulgation and so far as it is not inconsistent with the ERP 2007.
      
    • Section 110 of the ERP 2007 requires employment contracts including collective agreements to have employment grievance procedure. Schedule 4 of the ERP 2007 has standard grievance procedures which expressly refer to dismissals. Schedule 6 of the ERP 2007 contains standard disputes procedure. The disputes procedure does not refer to dismissals.
      
    • Clauses 13 and 14 of the collective agreement do not have the effect contended by the union. The terms of the collective agreement has been amended from time to time and is not wholly consistent. It has not been amended since the ERP 2007 came into force. Under clause 13 of the collective agreement, it is the employee who has the right to seek redress and not the union. This individual may at his or her option be represented by the union. Clause 14 of the collective agreement also deals generally with grievances and disputes, and all such matters, not just those over dismissals. Clause 14 was later amended by an award or an agreement dated the 4th day of May 2001. The amendment was by addition of sub-clauses (d) and (e) which provides that grievances over dismissals can no longer be dealt with under the internal collective agreement grievance procedure settlement.
      
    • Clause 1(2) of the Standard Grievance Procedure Clauses contained in Schedule 4 provides that in the case of dismissals, the standard grievance procedure steps do not apply and an aggrievedparty can refer the grievance directly o the Mediation Services in the prescribed manner.
      
    • Clause 14(d) of the collective agreement goes on to provide that in the case of dismissals "the union may still represent the officer through the normal dispute settling procedures in terms of clause 14 (c) (iv) and (v). However clause 14 (c) (iv) is about the Grievance Committee which comprises ANZ's Manager and the Union/s National Secretary. ANZ submits that this is more in the nature of a grievance than a dispute.
      
    • Clause 14 (c) (v) then provides that if there is no settlement, it shall be referred to the Ministry under the "disputes procedures as per clause 14(b)". This paragraph does refer to a disputes procedure between the Union and the ANZ involving the Ministry of Labour. However, it is expressly premised on the old legislation which did not allow employment grievances to be reported by individuals. More vitally the clause refers to procedures such as conciliation and arbitration that no longer exist. The court must construe the ERP 2007 and then decide whether this clause is consistent with the ERP. The court can only conclude that the legislative intention of the ERP was to exclude dismissals from the disputes procedure and make all dismissals subject to only the ERP 2007 grievance procedure.
      
    • The personal nature of an employment grievance is not inconsistent with the collective agreement as analysed.
      
    • Clause 13 (vi) (assuming that it continues to apply) does provide for reinstatement and lost wages, it does not in terms provide that this clause can only be relied on in a dispute reported by the union, and in terms refers to "grievance procedure" which under the collective agreement is the individual worker's remedy.
      
    • The union gave no reason why a dismissed worker, cannot enforce a collective agreement through an employment grievance.
      
    • Under section 229 any person in a proceeding before the ERT or the ERC can appear in an employment grievance. A union can therefore represent a worker in an employment grievance. This also is in keeping with the collective agreement.
      
    • A comparison between the old Trade Disputes Act and the ERP 2007 show a clear legislative intention that a completely new system was being introduced. One therefore can not make assumptions under the old Trade Disputes Act.
      
    • What ERT found was that the legislative intention to make dismissals exclusively the subject of employment grievances and not the subject of disputes can also be justified on good policy grounds. When the union submits that it would be wrong to make union members use the grievance procedure since this is available to non-union members, it seeks to discriminate between unionised and non- unionised workers and reveals the sound legislative policy that there should be a single procedure available to all workers regardless of whether they associate with a union or not.
      
    • The sound policy running through the whole ERP 2007 is that, while workers have the right to associate with, join and bargain collectively through trade unions, the primary factor is the individual worker's right, including autonomy to choose whether to act individually or with the assistance of a union. The ERP 2007 broke the monopoly of trade union over the redress of employment complaints by introducing the employment grievance procedure. It, however, allows the worker to choose union assistance if the worker wishes to.
      
    • Other benefits of single procedure are self evident. The provisions governing dismissal grievances such as section 240 would apply only to grievances and not to disputes over dismissals. If such disputes were able to be reported, there would be a real danger of different principles applying to different jurisdiction and of unequal justice between union members who are represented through the disputes procedure and other workers who use the employment grievance procedure.
      
    • ERT's decision is not only a matter of form as contended by the Union. It is also about exclusivity of different jurisdictions.
      
    • The Permanent Secretary had referred the union's report to the Mediation and not the Tribunal. The unions report did not state that the dispute was in regards to terms of the collective agreement. Section 170(4)(a) of the ERP 2007 requires disputes involving the interpretation, application or operation of an employment contract to be referred straight tot the ERT without going through mediation. If a dispute could be reported over a dismissal where a collective agreement term was involved, this would then under section 170(4) (a) will have to go to the Tribunal and not the Mediation. Other union disputes and employment grievances over dismissals must go to mediation. Why could not all disputes go to mediation? The answer is that the legislature did not intend this as it intended all dismissals to proceed by way of grievance.
      
    • The union argues that the note on Form ER5 that refers to dismissal supports the appeal. The form is prescribed by subsidiary legislation made by a different person from the primary legislation. The regulation making section 264 only gives power to make regulations "to give effect to the promulgation".
      
    • Subsidiary legislation which is inconsistent with the primary legislation is void. Unless the enabling legislation so provides which is not the case in ERP 2007, subsidiary legislation cannot override an Act and certainly not the enabling principal legislation. The cases of Re Davis, ex p Davis [1872] UKLawRpCh 66; (1872) 7 Ch App. 526 at 529 and In Jackson v. Hall [1980] AC 854 at 884 were relied upon for this proposition.
      
    • The note in Form ER5 was included by the Minister and Board without understanding the true meaning of the ERP 2007 which has been made by the President. It is clearly inconsistent with the legislative intention of the principal legislation and is ultra vires and void.
      
    • The dispute was not referred to the ERT by the Permanent Secretary. It was referred to it by Mediation Services. Section 211(j) and section 211 (k) states that the Tribunal has jurisdiction to adjudicate "matters" referred to it by the Tribunal by the Permanent Secretary or by the Mediation Services or any party to the mediation. This reference to "matters" must refer to matters not covered by any other paragraph outlining the jurisdiction of the Tribunal. The legislature could not have intended that the carefully drafted scheme for disputes and grievances could be overcome by the Permanent Secretary under paragraph 211 (j) or by Mediation Services or any party under paragraph 211 (k) by simply referring complains that do not meet the definition as "matters".
      
    • The union referred the complain as a "dispute" and not the "matter". The ERT could only apply the principles that apply to union "disputes" or "grievances" in determining the present case as a "matter."
      
    • The ERT had jurisdiction to determine the preliminary issue that was brought before it. This jurisdiction is by virtue of section 211(1) (h) of the ERP.
      
    • The cases of Sugar Milling Staff Officers Association v. Fiji Sugar Corporation [1986] 32 FLR 82 and Life Insurance Corporation of India v. Arbitration Tribunal [Unreported] ABU 0069.2006S do not assist any grounds of appeal.
      

The Appellant's Submissions In Reply

14. Mr. D. Sharma in his reply to Mr. Apted's submissions raised the following:-
    
    • The definition of lay off accepted by the respondent is "permanent discharge of workers" so it includes terminations and redundancies where the workers are permanently discharged.
      
    • If the ERT determined that non-employment included "lay offs" which term includes permanent discharge from employment, then why could it not be held that the same term also included dismissals from employment. The term non- employment clearly covers the dismissal of a worker. The ERT took a very narrow view of the said term because the ERT had made up its mind that the only procedure to deal with dismissals was through employment grievance. The ERT's decision was also clouded by its view that it could not order reinstatement as a relief for an employment dispute.
      
    • The appellant does not accept that there was a drafting oversight in the definition of the term employment grievance. If the term worker was purely limited to workers employed under an ongoing contract then it would render the ERP largely toothless. The ERP applies to workers who are currently employed or who were employed. In any event, a collective agreement is an ongoing contract and does not lapse when a worker is dismissed.
      
    • Was it the intention of the ERP 2007 to restrict the rights of trade unions and workers alike? Surely, a trade union should be entitled to bring a worker's dismissal as an employment dispute. That is why Form ER5 clearly envisages a dismissal being brought as one. Both options should be open to a worker. Workers who are not union members may only bring an employment grievance but if a worker is a trade union member and the dismissal is covered under the collective agreement, there is absolutely no good reason why the ERP 2007 should be read in such a way so as to restrict the trade unions from pursuing this course of action. A worker who is a trade union member should be able to pursue either option. The employer's termination of an employee does not mean that the dismissal is lawful. If the ERT holds that the dismissal was unfair then the effect of that decision would mean that the worker would be treated as if he had never been dismissed.
      
    • The Permanent Secretary accepted what he viewed was a dispute. If the Employer was unhappy with the Permanent Secretary's decision, then it should have pursued a public law remedy by way of judicial review within 3 months of the Permanent Secretary's decision. There is no right of appeal under the ERP where the Permanent Secretary accepts a dispute. Once the Permanent Secretary accepts the dispute, it is deemed under the ERP to be an employment dispute.
      
    • Even if a matter is not an employment dispute but referred to the ERT by the Permanent Secretary, it must still adjudicate on the same. There is no power given in the ERP 2007 for the ERT to reject a referral of an employment dispute by the Permanent Secretary. If the ERT feels that it has no jurisdiction to determine the matter on a question of law, of its own jurisdiction it should refer the matter to the ERC for its opinion under section 217 of the ERP 2007.
      
    • The fallacy in the respondent's submissions is that it assumes that the ERT has no jurisdiction to order reinstatement other than for a personal grievance. There is nothing in the ERP 2007 that expressly states that the ERT cannot make such a decision in an employment dispute. In employment disputes the relief is not expressly provided for and is thus unlimited. The ERT erred when it sought to limit the powers of the ERT by saying that it did not have powers to order reinstatement in an employment dispute.
      
    • In the collective agreement both parties had clearly recognised the right of the appellant to be involved in disputes involving the dismissal of a worker.
      
    • Clause 13(vi) of the collective agreement provides for reinstatement and lost wages as remedies in a dispute. It is accepted that such a remedy is available in both personal grievance and an employment dispute. A worker can enforce a collective agreement through an employment grievance and an employment dispute. The ERP would never have intended to curtail the rights of a worker to pursue dismissal either through an employment grievance or through an employment dispute. There is no reason why both these rights cannot co-exist. The worker can pursue an employment grievance or if he or she wants the union to pursue it as an employment dispute. If the worker is not a union member then he can pursue the employment grievance but where the worker is a member of the union then he or she should have either option available to him or her.
      

The Determination

15. The issue raised in the appeal is of greatest importance as it is concerned with the nature, purpose and jurisdiction of the Employment Relations Tribunal under the Employment Relations Promulgation 2007. I must thank both the counsels for their comprehensive submissions which has greatly assisted the court in determining this appeal.
    
16. I will determine each ground in turn.
    

Ground 1

The Learned tribunal erred in fact and in law in saying that dismissal can only proceed as a workers employment grievance.

17. From the first ground of appeal the simple issue that has to be decided is whether a dismissal of an employee could proceed as an employment dispute and/or an employment grievance.
    
18. I will first of all analyse the procedure(s) for bringing an employment grievance and an employment dispute and then analyse the rights of the employer, employee and the registered trade union to use the employment grievance and the employment disputes procedure.
    
19. S. 109 of the ERP 2007 indicates that the object of Part 13 of ERP 2007 which is titled "Employment Grievance" is to "provide for grievance procedures for workers to pursue employment grievance either personally or through the assistance of a representative".
    
20. S. 111 of the ERP 2007 states that a "worker who believes that he or she has an employment grievance may pursue the grievance procedure in person, and may be assisted by a representative."
    
21. S. 169 of the ERP 2007 reads:-
    

"169 (1) A dispute may be reported to the Permanent Secretary by-

(a) an employer who is a party to the dispute; or

(b) a registered trade union that is a party to the dispute.

(2) ..."

22. Sections 109, 111 and 169 are provisions on locus standi to bring proceedings. In employment grievance matters the employee in his or her individual capacity is a party to the proceeding and in an employment dispute the registered trade union is a party to the proceeding as it will sue or be sued in the trade union's name. However in an employment grievance matter the trade union representative can present the case on behalf of the individual employee. Section 229 of the ERP 2007 also permits a non-lawyer representative to appear on behalf of the individual employees.
    
23. S. 229 reads as follows:-
    

" 229(1) A party to the proceeding before the Tribunal or Court may –

(a) appear personally;

(b) be represented by a representative whom the Tribunal or the Court is satisfied has authority to act in proceedings; or

(c) be represented by a legal practitioner..."

24. The next aspect is to determine whether dismissals can be reported as an employment dispute.
    
25. I propose to look at some of the definitions outlined in section 4 of the ERP 2007. They are definitions of "dismissal", "dispute", "employment", "employment dispute", "employment grievance", and "worker."
    
    • "'Dismissal' means any termination of employment by an employer including those under s. 33."
      
    • "'Dispute' means a dispute or difference between an employer and a registered trade union connected with the employment or non employment, the terms of employment, or the conditions of labour of a worker."
      
    • "'Employment' means the performance by a worker of a contract of service."
      
    • "'Employment Dispute' mean a dispute accepted by the Permanent Secretary under section 170."
      
    • " 'Employment Grievance' means a grievance that a worker, may have against the worker's employer or former employer because of the worker's claim that –
      
      • (a) the worker has been dismissed;
        
      • (b) the worker's employment, or one or more conditions of it, is or are affected to the worker's disadvantage by some unjustifiable action by the employer;
        
      • (c) the worker has been discriminated within the terms of Part 9;
        
      • (d) the worker has been sexually harassed in the worker's employment within the terms of section 76; or
        
      • (e) the worker has been subject to duress in the worker's employment in relation to membership or non-membership of a union".
        
    • "'Worker' means a person who is employed under a contract of service, and includes an apprentice, learner, domestic worker, part-time worker or casual worker."
      
26. The ERT in determining whether dismissal can be covered by the definition of dispute, looked at the definition of dispute and agreed that the first part of the definition had been met in that there was a dispute or difference between an employer and the registered trade union. In trying to determine whether the dispute or difference was connected with the employment or non employment, the ERT went on to look at the definition of employment and in reference to the definition of employment ascertained the definition of the word non-employment. The ERT said in its judgment, the very material parts of which I quote as follows:-
    

"Employment is defined in section 4 as meaning the performance by a worker of a contract of service. It follows that the non-employment of a worker means the non-performance by a worker of his contract of service.

On the other hand, so far as is relevant to this applicant, employment grievance is defined in section 4 as meaning:

".......a grievance that a worker may have against the worker's employer or former employer because of the worker's claim that:

a] the worker has been dismissed.

b] the worker's employment or one or more conditions of it, is or are affected to the worker's disadvantage by some unjustifiable action by the employer;

c] ....................

d] ....................

e] .................... "

There are two essential elements that must be established in order for there to be an employment grievance. First, there must be grievance that a worker has against a present or former employer. Secondly, the grievance must relate to one of the five circumstances listed including that the worker has been dismissed.

Finally, dismissal is defined as meaning any termination of employment by an employer including dismissal without notice.

The issue is whether the dismissal (as defined) of a worker comes within the phrase the employment or non-employment of a worker.

After a careful consideration of the definitions, the Tribunal has concluded that the Promulgation provides for two separate and mutually exclusive concepts. One is dismissal that can only proceed as a worker's employment grievance. The other being the non-employment of a worker that may be reported as a dispute by a registered trade union if the worker is a union member covered by a collective agreement.

The definitions also suggest that the non-employment of a worker and hence the non-performance by a worker of his contract of service is concerned with but not restricted to such situation as lay-offs and reductions in working hours or days.

Although a collective agreement may contain provisions relating to dismissal, it follows that a worker irrespective of union membership who has been dismissed is required to pursue the matter as an employment grievance.

Furthermore, whilst the phrase "non-employment of a worker" may be considered sufficiently wide to include the dismissal of a worker, the Tribunal has concluded that dismissal is to be regarded as distinct from non-employment.

The Tribunal has also concluded that, when the Promulgation is considered in its entirety, it is clear that the intention of the drafters was that dismissal issues were to proceed by way of the grievance procedure. In section 230 (1) of the Promulgation it is stated that the Tribunal or the Court may order re-instatement of the worker if it determines that a worker has an employment grievance. The Promulgation does not provide for such a remedy in the case of an employment dispute. The Tribunal as a subordinate court could not in the absence of such a provision order re-instatement if a dismissal issue came before it by way of an employment dispute. It would be an absurd and inconsistent situation if the Tribunal was not able to award re-instatement in the case of an employment dispute but could do so in the case of a proven grievance.

Section 230 (1) supports the conclusion that dismissal should only be brought as a grievance since re-instatement, although a discretionary remedy, is the usual remedy both sought and granted in such proceedings.

If the matter before the Tribunal is not an employment dispute as defined in section 4 of the Promulgation, then it does not have jurisdiction in the matter.

In this case, the Tribunal finds that there is not an employment dispute before it. The requirements of an employment dispute do not exist and nor for that matter is there an employment grievance, as the requirements also do not exist.

The Tribunal has therefore concluded that it cannot adjudicate on an employment dispute over the dismissal of an employee nor, as a result, over an "unjustified or unfair" dismissal..."

27. The term non- employment is self explanatory and very wide. To my mind, there is absolutely no confusion regarding its interpretation. It means as the Tribunal has said non-performance of a contract of service and that non-performance could be for several reasons. It could be non-performance resulting from termination of employment for various reasons, due to lay offs, due to suspensions, due to reduction in working hours and the like. The Tribunal had correctly recognised that the term non-employment may be considered wide enough to include the dismissal of a worker but then went on to erroneously narrow the definition of the term to exclude dismissals.
    
28. The right of a registered trade union to pursue a dismissal action through an employment disputes procedure is extinguished by adopting such a narrow definition. Indeed the aggrieved employee can bring the claim for dismissal by a grievance procedure but then the trade union is barred from having any locus to bring the proceedings in its name as a party to the contract as the collective agreement is between the registered trade union and the employer. Many a times the registered trade union as a party to the proceedings may wish to bring an action on behalf of numerous employees who have been dismissed. Essentially the Tribunal's ruling will exclude or bar the registered trade union from bringing the proceedings. The individual employees will have to bring the proceedings as employment grievance and the representative of the union members can then represent them.
    
29. The general function of the Tribunal is stated in s. 210 of the ERP. It states that "the general function of the Tribunal is to assist employers and their representatives and workers and their representative trade unions to achieve and maintain effective employment relations, in particular, by adjudicating and determining any grievance or dispute between parties to the employment contracts".
    
30. A registered trade union is a party to the collective agreement and they can sue in its name. If there is a dismissal of an employee they can sue the employer for the dismissal under an employment disputes procedure. I do not think that the policy of the act is to preclude them in any way to bring an action for dismissal as a party to the proceeding.
    
31. The Note in ERP Form 5 also reinforces my view that the term "non-employment" in the definition of "disputes" is such wide that it will cover "dismissals". The note reads to the following effect:-
    

"Note: if the dispute relates to a dismissal, please attach a copy of the employer's statement that sets out the reasons for the dismissal. An employer is required to provide this statement under section 114 of the promulgation".

[Underlining is mine for emphasis]

32. I do not accept Mr. Apted's submission that the ERP Form 5 is inconsistent with the primary legislation and thus cannot be used to construe the Principal Act. There is no need to use ERP Form 5 to interpret or construe the definition of the terms "dispute" and "non employment". The definition of "dispute" and the term "non- employment" in itself is so clear and explanatory that there is no need for the court to turn to other parts of the Promulgation for an answer or assistance. What I merely say at this stage is that the ERP Form 5 just reinforces the clear and precise meaning of the term dispute.
    
33. I simply find it unintelligible as to why the issue arose in the first place. If the term "dispute" includes "non –employment" which is wide enough to cover dismissals then dismissals can proceed as "employment disputes."
    
34. In my determination of ground 1, I find that the Tribunal erred in holding that dismissal can only proceed as a workers employment grievance.
    

Ground 2

The Learned tribunal erred in fact and in law in saying that although a collective agreement may contain provisions relating to dismissal, it follows that a worker irrespective of union membership who has been dismissed is required to pursue the matter as an employment grievance.

35. It must be noted that when the tribunal made this comment, no specific analysis of the collective agreement between the parties to this matter had been made. The Tribunal had made a general observation in light of its main finding that dismissals cannot be covered by the term non-employment and thus cannot be brought by an employment dispute. Having reached that major conclusion the ERT then decided that the terms of the collective agreement would not matter at all.
    
36. To determine this ground, I again have to cast my mind to the definition of "disputes".
    
37. The phrase in the part of the definition of dispute which refers to "connected with the employment, or the terms of employment", I must again say, is a very wide phrase. The ERT is charged with the task of resolving the dispute in connection with the employment and the terms of the employment. It is therefore empowered to make an award connected with the employment or with the terms of the employment.
    
38. Division 3 of the ERP 2007 contains provisions on collective agreements. S. 162 states the form and contents of the collective agreement. S. 162(3) makes it compulsory that all collective agreements must contain the following:-
    
    • (a) "coverage clause;
      
    • (b) clause relating to disciplinary procedures;
      
    • (c) procedures relating to settlement of disputes and employment grievances at appropriate levels within the undertaking;
      
    • (d) a clause dealing with the rights and obligations of the workers and employer if the work of any of the workers were to be contracted out or the business or part of the business of the employer concerned were to be transferred or sold for the purpose of protecting workers bound by the agreement from being disadvantaged;
      
    • (e) the services available for the resolution of grievances or disputes;
      
    • (f) a clause providing how the agreement can be varied; and
      
    • (g) a clause providing the expiry of the agreement, if applicable."

[Underlining is mine for Emphasis]

39. S. 162 (c) and (e) in particular relates to both employment grievances and employment disputes. The two sections direct the parties to agree on procedures for settlement of employment grievances and employment disputes and also to specify the services available for the resolution of grievances or disputes.
    
40. If the Collective Agreement states that the parties can bring a dispute over dismissal of an employee and that they could seek relief in the ERT then the ERT can perfectly deal with the dispute as it has the jurisdiction to determine a difference or dispute connected with the terms of the employment. This will not, like what Mr. Apted says be in contravention of the ERP. Where is the inconsistency when the ERP itself mandates that the parties' enter into certain clause which identifies the procedure for settling disputes and the services available for the resolution of such disputes? The purpose of the provisions of ERP is to give effect to the agreement and not to flout the same.
    
41. The Agreed procedures in the collective agreement may confer jurisdiction on the Permanent Secretary to refer the employment dispute to the Mediation Services or to the Tribunal: 168 (3) of the ERP 2007. In any event, in light of my determination of ground 1, I am of the judgment that even without the terms of the collective agreement, the ERP provides the ERT specific statutory jurisdiction to deal with dismissals under employment disputes.
    
42. In my judgment, the ERT erred when it made a general conclusion of a nature specified in ground 2. The appeal must be allowed under this ground as well.
    
43. I will now turn to ground 3.
    

Ground 3

The Learned Tribunal erred in fact and in law in saying that dismissal is to be regarded as distinct from non-employment.

44. I have basically covered this ground in ground 1. I do not need to elaborate any further on this ground.
    

Ground 4

That the Learned Tribunal erred in fact and in law in saying that the Promulgation does not provide for a reinstatement of worker as a remedy in the case of an employment dispute.

45. It is correct that the ERP has made no express provisions on what the remedies would be in cases of employment disputes. The omission of provisions containing remedies does not mean that the cause of action can not be filed in the Tribunal otherwise there is no purpose of allowing the parties to file an employment dispute in the ERT.

46. Dismissals are specifically covered under employment grievance procedures and the remedies for employment grievances are also provided for by the ERP 2007. If the Tribunal has powers to order reinstatement in grievances over dismissals then indeed it is absurd and inconsistent if it were not able to order reinstatement in disputes over dismissals. More so, the collective agreement provides for the remedies. In absence of any statutory provision, the ERT is at liberty to order remedies provided for in the collective agreement. The Tribunal was correct in identifying that "It would be an absurd and inconsistent situation if the Tribunal was not able to award re-instatement in the case of an employment dispute but could do so in the case of a proven grievance". Having made that finding the Tribunal erred in coming to a conclusion that since ERP is silent on the aspect of remedies in employment disputes procedure, the only way the dismissal could be brought is by way of an employment grievance. Let me ask; what will happen if there is a dispute or difference over any one of the terms of employment? The ERT is perfectly entitled to hear the matter. What will it do because there is no remedy in the ERP? Will it refuse to hear the cases over which the legislature has given it specific powers to preside on? I think the answer is a resounding "no".

47. In the cases of Life Insurance Corporation of India v. Arbitration Tribunal [Unreported] FJCA ABU 0069.2006S and Sugar Milling Staff Officers Association v Fiji Sugar Corporation [1986] 32 FLR 82 the court had indicated that although there was no statutory power of the Tribunal to grant reinstatement as a remedy, it still could order reinstatement. The ERP 2007 which applies to the current case at least statutorily specifies that the ERT has powers to order reinstatement albeit in an employment grievance case. I shall closely examine the case of Life Insurance Corporation of India v. Arbitration Tribunal [Unreported] FJCA ABU 0069.2006S. This case also summarises the facts and findings made in the case of Sugar Milling Staff Officers Association v Fiji Sugar Corporation [1986] 32 FLR 82. The following passages are very essential:-

"The Trade Disputes Act does not directly deal with the substantive powers of the tribunal ie what orders the Tribunal may lawfully and validly make. In this regard, some assistance may be derived from section 2 of the Act which defines trade dispute as including a dispute:

(a) Between any employer and a registered trade union recognised under the Trade Unions (Recognition) Act (Cap. 96A) and connected with the employment or with the terms of employment or the conditions of labour of any employee.

The phrase in the part of the definition of trade dispute which refers to "connected with the employment, or with the terms of employment" is a very wide phrase. It would appear that the Arbitration Tribunal is charged with the task of resolving the trade dispute in that connection. Clearly in the context of more general terms and conditions awards, the arbitration Tribunal would appear to be permitted by long-standing practice to interfere with the terms and conditions of employees. In other words, an employer in the position of the Appellant does not have complete freedom to deal with its employees. While there is no doubt that the common law and many of the principles of the law of contract will inform the manner in which an Arbitration proceeds, it is plain that the Tribunal is entitled to make awards outside that which would normally be within the ambit of a common law arrangement. Generally speaking the Arbitration Tribunal is empowered to make an award in a trade dispute connected with the employment, or with the terms of employment and to make orders incidental thereto. As mentioned above the dispute is referred to the Tribunal for settlement: section 5A....

In Sugar Milling Staff Officers Association v Fiji Sugar Corporation [1986] 32 FLR 82, the High Court was concerned with an appeal from the Sugar Industry Tribunal and the legislation which then governed industrial relations in the sugar industry in Fiji. An industrial dispute had arisen because a person employed by the Fiji Sugar Corporation who was a member of the Sugar Milling Staff Officers Association had been dismissed from his employment. In the result, the matter was referred to the Sugar Industry Tribunal. The Tribunal ruled that it did not have power to order reinstatement of the member of the union. In the Supreme Court, Rooney, J. examined the structure of the legislation and came to the conclusion that the Tribunal did have such a power. What is significant about the case is that in some respects the structure of that legislation is the same as the structure of the Trade Disputes Act. In particular, in both the sugar industry legislation, like the Trade Disputes Act, the powers of the Sugar Industry Tribunal in dealing with a dispute under the sugar industry legislation were also not explicitly specified just as they are in respect of the Arbitration Tribunal under the Trade Disputes Act. Rooney, J. concluded that it was important to look at the purpose of the legislation which was to reduce industrial action in the sugar industry. He recognised that in the ordinary course of things reinstatement was not available as a remedy under the common law..."

48. I am of the judgment that although there is no specific express provision for employment disputes remedies; the power to order reinstatement is implied in the ERP 2007 and can also be derived from the terms of the collective agreement. Reinstatement is a discretionary remedy which will only be awarded if the Tribunal thinks fit to so order.

49. I will turn to the next grounds of 5 and 6. I think that the discussion of ground 5 will overlap with ground 6 so I will determine them together.

Ground 5

The Learned Tribunal erred in fact and in law in saying that there was no employment dispute before the tribunal

Ground 6

The Learned Tribunal erred in fact and in law in saying that it could not adjudicate on an employment dispute over the dismissal of an employee nor, as a result over an unjustified or unfair dismissal.

50. The Trade union had reported the dispute on the 7th day of May, 2010 by filing Form ER5. The dispute was referred to the mediation unit by the Permanent Secretary for mediation. The matter was not resolved and therefore the mediation unit referred the matter to ERT by Form ER 4 on the 22nd day of October, 2008. A copy of the Form ER5 which is a report of the dispute to the Permanent Secretary was also attached to Form ER4 and forwarded to the ERT.

51. Section 170(3) of the ERP 2007 states that "if a dispute is accepted by the Permanent Secretary, the dispute becomes an employment dispute for the purposes of the Promulgation."

52. The details of the dispute reported vide Form ER5 was as follows:-

"The summary dismissal of Shirly Prasad on 23 April 2008 which the Union views as harsh, unjust, unreasonable and unfair and seeks her reinstatement without any loss of pay and benefits."

53. I have said in my discussion of Ground 1 that the term dispute includes the term non-employment. Non employment could arise by virtue of many reasons and one of it could be termination of employment. Dismissal is defined as any termination of employment so definitely dismissal is covered by the term non-employment. The Permanent Secretary had rightly accepted the dispute and the dispute became an employment dispute. Mr. Apted says that the Permanent Secretary has to see whether the report meets the definition of dispute. There is no dispute on that position of the law. The report does meet the definition of the dispute. It was properly accepted by the Permanent Secretary and thus became an employment dispute. Once the dispute became the employment dispute the ERT was obliged to adjudicate the same by virtue of the jurisdiction granted to it by section 211 (1) (b) which states that " the tribunal has jurisdiction to adjudicate on employment disputes..."
    
54. I think it is prudent and my obligation to throw some more light on the Tribunal's jurisdiction.
    
55. The ERT also has jurisdiction to adjudicate on matters referred to the Tribunal by the Permanent Secretary or by the Mediation Services or by any party to the mediation.
    
56. The term "matters" is not defined by the ERP 2007. The ordinary English meaning of the word matters would mean a subject or situation that one must consider or deal, or the present situation, or the situation that one is talking about. So even if the ERT refused to deal with employment dispute under its determination that dispute over dismissals are not covered and hence there was no employment dispute before the ERT, it was at least obliged to deal with it under section 211 (1) (k) as a matter to be adjudicated since it was referred to it by the Mediation Services. It was improper for the matter to have been left in abeyance without adjudication of the merits of the case especially when a livelihood of a worker is involved. I understand Mr. Apted's argument that the trade union had made a "report of a dispute" and not reported a "matter" to be determined. Indeed a dispute was reported but to turn away an employee from the ERT without adjudicating on the issue on a mere technicality of use of words, I think, is prejudicial to the employee and not in consonant with the terms and spirit of the ERP 2007. The issue or dispute could simply have been accepted as a matter to be determined and adjudicated upon on merits. I do not see any flouting or bending of the provisions on jurisdiction if this course of action was taken by the Tribunal.
    
57. Grounds 5 and 6 succeed in that there was an employment dispute before the Tribunal which should have been adjudicated.
    

Final Orders of this Court

58. For the above reasons I allow the appeals under all grounds. Mr. Sharma has asked for numerous orders to be made and since the appeal is allowed I think they are the only proper orders that this court could make to finalise the issues before the court.
    
59. I make the following orders:-
    
    1. This case must be sent back to the ERT for determination of the employment dispute.
       
    2. All other cases in the ERT Registry waiting for determination of this case must now be listed before the ERT for determination.
       
    100. That dismissal of a worker can proceed as an employment dispute.
         
    4. That where a collective agreement contains provisions relating to dismissal, it follows that a worker who is a union member and who has been dismissed is entitled to have dismissal pursued as an employment dispute by the worker's union.
       
    5. That dismissal is to be regarded as part of non -employment.
       
    6. That even though the Promulgation does not expressly provide for a reinstatement of a worker as a remedy in the case of an employment dispute the powers to grant such relief by the Tribunal must be derived from the terms of the collective agreement or the implied terms of the ERP 2007.
       
    7. Reinstatement is a discretionary remedy which the ERT can grant if its thinks proper under an employment dispute.
       
    8. That there was an employment dispute before the Tribunal.
       
    9. That the Tribunal could adjudicate on employment dispute over the unjustified or unfair dismissal of a worker.
       

Application of Final Orders to Specified Matters

60. There are two more cases before me being ERT Dispute Number 55 of 2008 and ERT Dispute Number 85 of 2008. The parties to both the disputes are same, being Fiji public Service Association and Fiji Islands Revenue and Customs Authority. Dispute Number 55 of 2008 relates to dismissal of one Mr. Anil Rao and Dispute Number 85 of 2008 relates to dismissal of Ms. Sereana Rakula.
    
61. Both the disputes were transferred to the ERC under s. 218(1) of the ERP because there was an important question of law that was to be determined.
    
62. The question of law is the same as the issue on appeal in this matter and I consider it prudent to deal with the two disputes for determination of the question of law in this judgment for reasons of efficacy. Mr. Nair had appeared for FPSA and Ms. Rayawa had appeared for FIRCA. I thank Mr. Nair and Ms. Rayawa for their submissions in both the disputes.
    
63. The ERT in Dispute number 55 of 2008 said as follows:-
    

" .... The parties presented initial submissions concerning the question of the Tribunal's jurisdiction to adjudicate an employment dispute that concerned the dismissal of a worker. The issue arose as a result of a decision handed down by the Tribunal on 15 January 2009 in Dispute No 35 of 2008 between Fiji Bank and Finance Sector Employees Union v. Australia and New Zealand Banking Group Limited....

These submissions were made in respect of this dispute and also in respect of Dispute No 85 of 2008 between the same parties and also involving the dismissal of a worker referred to the Tribunal as an employment dispute.

As part of its submissions, the Union made an application to have the proceedings transferred to the Employment court for the hearing and determination of the matter pursuant to section 218 (1) of the Promulgation.

After hearing the parties, the Tribunal concluded that an important question of law is likely to arise in the proceedings. That question of law relates to the issue of the Tribunal's jurisdiction to adjudicate on an employment dispute that involves the dismissal of a worker. Because the question relates to the livelihood of workers and because there are a number of proceedings pending before the Tribunal that raise the same issue, the Tribunal has also concluded that it is in the public interest for the proceedings to be transferred to the Court..."

[Underlining is Mine for Emphasis]

64. In dispute number 85 of 2008, the ERT had said as follows:-
    

"For the reasons stated in the decision handed down in Dispute No 55 of 2008, the Tribunal grants the application and orders the transfer of these proceedings to the Employment Court for hearing and determination."

65. I have unequivocally determined the question of law. I apply my orders to Dispute Numbers 55 and 85. These Disputes must be sent back to the Tribunal to determine the dispute in accordance with section 217 (3) of the ERP 2007 which states that "if a Court makes a determination on the question of law, the Court may refer the matter to the tribunal for decision in accordance with the determination." Both the parties had also agreed that if the determination is made in favour of Fiji Public Service Association, then the matter must be referred to the ERT for determination of the disputes.
    

Costs

66. It is only fair that I allow all the parties to make submissions on the issue of costs before I decide on the orders that shall be made. I shall hear the parties on the aspect of cost at a time to be appointed after consultation with the counsels.
    

Anjala Wati
Judge

12.10.2010