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Fiji Public Service Association v Fiji Institute of Technology [2011] FJHC 823; ERCC 06.2009 (15 September 2011)

IN THE EMPLOYMENT RELATIONS COURT AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCC NO. 6 of 2009

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION
APPLICANT

AND:

FIJI INSTITUTE OF TECHNOLOGY
RESPONDENT

Appearances: Mr. Noel Tofinga for the Applicant.
Mr. V. Maharaj for the Respondent.
Date/Place of Judgment: Thursday, 15th September, 2011 at Suva.
Judgment of: The Hon. Madam Justice Anjala Wati.

JUDGMENT OF THE COURT

EMPLOYMENT LAW - question of law referred to the Employment Relations Court - the question being whether the Permanent Secretary for Labour, Industrial Relations and Employment has rightfully registered the employment dispute – the procedures for registration of employment dispute outlined – dispute not registered properly but defect validated in the interest of justice – simultaneously the issue of transfer of the dispute to the court raised by parties – transfer not properly made, if made – matter sent back to Tribunal for determination of the dispute.

Legislation

Employment Relations Promulgation 2007 ("ERP 2007")
Employment Relations (Administration) Regulations 2008 ("ERAR 2008")

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The Reference

1. The following reference would be used in the judgment:-
   
   • (a) Employment Relations Court is referred to as the "ERC".
     
   • (b) Employment Relations Tribunal is referred to as the "ERT".
     

The Causes

2. The application before the Court is a question of law which was referred to the ERC by the ERT.
   
3. The question was referred to this Court in the following form:-
   

"The Tribunal Orders that the dispute be transferred to the Employment Relations Court on the issue of whether the dispute has been rightfully registered according to the procedures outlined in the Employment Relations Promulgation 2007".

4. Mr. Maharaj stated that there was another application before the court and that was an application for transfer of the substantive ERT Dispute No. 30 of 2008 to the ERC. Mr Maharaj further stated that the ERT had transferred the applicant's claim for transfer to the ERC for hearing.
   
5. There is nothing in the ruling of the ERT dated the 11th day of May 2009 which indicates to me that the substantive matter had been transferred to the ERC for hearing. In respect of the issue of transfer, the Tribunal said the following:
   

" 1.1 ...The FPSA changed its position and filed an amended notice of motion that reinstatement was no longer the remedy sought and that they would ask for damages exceeding $40,000 and costs.

1.2 The FPSA holds the position that the Tribunal does not have the jurisdiction to adjudicate and grant a remedy in excess of $40,000 and in that respect sought the transfer of the proceeding from the Tribunal to the Employment Relations Court....

5.4 The FPSA decision to amend its position by motion to change the remedies sought triggered these mutations and now the Tribunal finds itself in the position where both parties want to go to the Employment Relations Court but for different reasons.

5.5 The FPSA relied on section 218 (2) (b) which says that ...the Tribunal may order the transfer of the proceedings to the Court if the Tribunal is of the opinion that ...the case is of such a nature and of such urgency that it is in the public interest that it be transferred to the Court.

5.6 The FIT Council wanted the Court to decide on the preliminary issue of whether the dispute has been rightfully registered according to the procedures laid down in the Employment Relations Promulgation 2007.

5.8 The section of the law relied upon by the FPSA (section 218 (2b) dealing with ..urgency and public interest does not accurately reflect the nature of the dispute as amended. The remedies sought have been amended and whilst the Tribunal has taken into consideration the position of the griever, it holds the view that in the long term the benefits of the proper consideration of her case in Court would overcome any disadvantages from the delay in the hearing of it.

Decision

For the aforesaid reasons, the Tribunal orders that the dispute be transferred to the Employment Relations Court on the issue of whether the dispute has been rightfully registered according to the procedures outlined in the Employment Relations Promulgation 2007".

6. In its final orders, the ERT has only referred the dispute to this Court for the purposes of determining the question of law. However, from clause 5.8 of the decision, it appears that without dealing with the question of transfer, the ERT also sent the application to the ERC for determination. I will discuss this issue of transfer in detail in my judgment later. However it is my duty to state that every decision or order must precisely state the orders of the court. Expression of opinion is not equal to final orders. In this judgment of the ERT, there is no precision on what happened to the application for transfer. However, I take it from the decision that there are two issues before this Court. They are:-
   
   • (a) Whether the Permanent Secretary had properly registered the dispute; and
     
   • (b) To determine the applicants application for transfer of the dispute to the ERC since the applicant has amended its remedy for claim for damages more than $40,000 which effectively puts the claim out of the jurisdiction of the court.
     

The Case Background

7. The respondent's counsel Mr. Maharaj has accurately stated the case background and the account of the proceedings in its chronological stage. I repeat it for comprehension purposes:-
   
   • The grievor, Mrs. Ilisapeci Namuaira Jiuta, was employed by F.I.T. as a Senior Administrative Officer. She commenced her employment on 7/2/2005.
     
   • The grievor's employment was terminated by way of summary dismissal by F.I.T via a letter dated 18/4/2008 on grounds of misconduct and insubordination.
     
   • On 5/5/2008, the grievor filed an application for leave to apply for judicial review via Judicial Review Case No. 21 of 2008. She also sought a stay of her termination until the hearing and determination of the application for leave for judicial review.
     
   • F.I.T. opposed the application for stay as well as the application for leave to apply for judicial review.
     
   • Affidavits were filed in judicial review proceedings by the Grievor, Permanent Secretary for Labour as first respondent and F.I.T. as second respondent.
     
   • On the 23/5/2008, Justice Jitoko dismissed the grievor's application for leave to apply for judicial review as well as the application for stay.
     
   • On the 24/04/2008, the F.P.S.A reported a dispute to the Permanent Secretary of Labour between Mrs. Jiuta and F.I.T.
     
   • On the 29/04/2008, the Permanent Secretary for Labour wrote to the F.P.S.A. acknowledging receipt of the report of 28/4/2008. The letter also stated that the report was being analysed and that F.P.S.A. would be advised of the outcome in a very near future.
     
   • On the 29/04/2008, the Permanent Secretary for Labour also wrote to F.I.T. in which he advised of F.P.S.A's report and sought a response to the report from F.I.T in 5 days.
     
   • On the 29/04/2008, F.I.T wrote back to Permanent Secretary for Labour confirming receipt of the report. F.I.T further said that it would await advice on next procedural steps to be taken.
     
   • There was no further communication from the Ministry of Labour in relation to acceptance or rejection of the report in terms of Section 170 of ERP 2007. The next thing that happened was on 17/11/2008 after lapse of almost 7 months from 29/4/2008.
     
   • On the 17/11/2008, F.I.T was advised that the dispute was before the Tribunal. At the Tribunal, preliminary objection was taken by F.I.T that the Permanent Secretary had not complied with the mandatory requirement under Section 170 of ERP and that the matter was not properly before the Tribunal.
     
   • Directions were given to the parties for filing of submission on pending issues.
     
   • On the 13/02/2009, the F.P.S.A filed an amended notice of motion seeking an order that the reference be transferred to the Employment Relations Court as the damages claimed was more than $40,000.00.
     
   • On the 25/02/2009, the F.I.T filed inter-partes notice of motion for an order that the reference be referred to the Employment Relations Court for determination of legal issue in relation to the jurisdiction.
     
   • On the 11/05/2009, the legal member of the ERT delivered the ruling referring the question of law to this Court for determination.
     

The Submissions

8. Mr. V. Maharaj, counsel for the respondent, firstly made submissions in respect of whether the ERT dispute No. 30 of 2008 was properly registered by the Permanent Secretary. Mr. Maharaj submitted that the Permanent Secretary has the power to accept or reject a dispute reported to him under section 169 within 30 days from the date of receiving the report of dispute. The Permanent Secretary must then inform the parties or their representatives in writing about his decision to accept or reject the dispute. The decision by the Permanent Secretary must be delivered by hand, registered mail or courier. Mr. Maharaj submitted that the dispute was reported to the Permanent Secretary on the 24th day of April, 2008. There is no indication as to whether the dispute was accepted or rejected. FIT was also not advised of whether or not he had accepted the dispute. The parties had attended mediation on the 7th day of October, 2008. On the 13th day of October, 2008 the dispute was referred to the ERT and the respondent advised about the referral. Mr. Maharaj stated that the Permanent Secretary had breached the mandatory provisions of the ERP 2007 which were ss.170 (7) and 170(8). It therefore follows that the dispute is improperly registered and ought to be struck out.
   
9. In respect of the application for transfer, Mr. Maharaj stated that a matter can only be transferred to the ERC if:-
   
   • (a) An important question of law is likely to arise; or
     
   • (b) The case is of such a nature and of such urgency that it is in the public interest that it be transferred to the court.
     

Mr Maharaj then submitted that the criterion for transfer has not been met and therefore the matter cannot be transferred to the ERC. The applicant should choose the proper forum in the first place. If it has amended the claim to exceed the jurisdiction of the ERT, then the applicant should withdraw the dispute from the ERT and file the dispute fresh in ERC. Since the matter is now in ERT, it should adjudicate the dispute irrespective of the amendment.

10. Mr. Tofinga, for the applicant submitted that the application for transfer is no longer an issue in ERC as the Tribunal had aptly dealt with the issue. The transfer was unsuccessful. The issue before the court, according to Mr Tofinga, is the question of law referred to the ERC by the ERT.
    
11. Mr. Tofinga further stated that he does not dispute the employer's right to be informed in writing of the acceptance of the dispute but the employer, the FIT, had attended the mediation and was aware of the existence and acceptance of the dispute. It participated in the mediation and for the Court or the Tribunal to strike out the dispute on non-compliance by the Permanent Secretary of the procedures of the ERP will be highly prejudicial to the employee because the onus to comply with the provisions of the ERP was not on the employee. Mr. Tofinga further stated that under s.234 of the ERP 2007, the Court or the Tribunal may validate things which had been informally done under the ERP 2007. The Court further has powers under s.235 to waive an error or defect in the proceedings to dispose off a matter effectively. It was thus submitted that any striking out would be improper.
    

The Law and the Determination

12. I will first of all determine the question of law which is whether the employment dispute between the parties has been rightfully registered according to the procedures outlined in the ERP 2007.
    
13. S.170 of the ERP 2007 comprehensively lays down the procedure for accepting the dispute and referring the same to the ERT. It states:-
    

"170. (1) The Permanent Secretary has the power to accept or reject a dispute reported to him or her under section 169 within 30 days from the date of receiving the report of dispute

(2) The Permanent Secretary must:

(a) inform the parties that he or she accepts or rejects the dispute; and

(b) give reasons for rejecting a dispute;

(3) If a dispute is accepted by the Permanent Secretary must, the dispute becomes an employment dispute for the purpose of this Promulgation.

(4) The Permanent Secretary must –

(a) refer the employment dispute to the Tribunal if the dispute relates to interpretation, application or operation of an employment contract; or

(b) in any other case, refer the employment dispute to Mediation Services.

(5) If an employment dispute is referred to Mediation Services, the mediation process must first be exhausted before the employment dispute is referred to the Tribunal by the Mediator.

(6) The Permanent Secretary must not accept a report of dispute after 6 months from the date on which the dispute arose except where the delay to report was caused by mistake or other good cause.

(7) The Permanent Secretary must, in writing, inform the parties or their representatives about his or her decision to accept or reject the dispute.

(8) The decision by the Permanent Secretary under subsection (7) must be delivered by hand, registered email or courier.

(9) In this section, "date on which the dispute arose" means the date commencing from the date the final decision is made on the grievance after the grievance procedure under an employment contract relating to the grievance has been exhausted".

14. The procedure for accepting and referring an employment dispute is also enunciated in Regulations 12 to 15 of the Employment Relations (Administration) Regulations 2008. It reads as follows:-
    

"12 (1) A report of a dispute required under section 169(2) of the Promulgation must be made in Form ER5 set out in Schedule 1.

(2) A copy of the report of the dispute in sub regulation (1) must be provided within 3 days to the trade union or the employer to which the dispute relates.

13 (1) Within 30 days after receiving the report of the dispute under regulation 12, the Permanent Secretary shall inform the parties or their representatives in writing that he or she accepts or rejects the dispute, and give reasons for rejecting the dispute.

(2) In exercising his or her powers under this regulation, the Permanent Secretary must be satisfied that the parties to the dispute have taken all reasonable means to exhaust the procedures for settlement of disputes under section 168 of the Promulgation, and have engaged in good faith in attempting to resolve the dispute.

(3) The Permanent Secretary may reject the dispute and refer the dispute back to the parties if he or she is satisfied that the parties have not exhausted the procedures for settlement of disputes, and have not engaged in good faith negotiations in attempting to resolve the dispute.

(4) If a report of a dispute is accepted by the Permanent Secretary, it becomes an employment dispute, and he or she shall refer the employment dispute either to the Employment Relations Tribunal or the Mediation Services in accordance with section 170(4) of the Promulgation, with notification to the parties.

14(1) A referral of an employment dispute by the Permanent Secretary to the Mediation Services must be made in Form ER6 set out in Schedule 1.

(2) A copy of the referral in sub regulation (1) must be sent to the trade union and employer to which the dispute relates at the same time the employment dispute has been referred to the Mediation Services.

15(1) A referral of an employment dispute by the Permanent Secretary to the Employment Relations Tribunal must be made in Form ER7 set out in Schedule 1.

(2) A copy of the referral in sub regulation (1) must be sent to the trade union and employer to which the dispute relates at the same time the employment dispute has been referred to the Employment Relations Tribunal".

15. It is not disputed that the employer was never advised in writing of the Permanent Secretary's decision to accept or reject the dispute and the written decision was never delivered by hand, registered mail or courier.
    
16. The requirement to inform the parties or their representatives of the decision to accept or reject the dispute is mandatory pursuant to s. 170(7) of the ERP, 2007. It is further mandatory by s. 170(8) of the ERP 2007 that the decision be delivered by hand, registered mail or courier. These rules are not fanciful. There is a purpose for the legislature to enact such a rule and the major purpose is to comply with the rules of natural justice in that the information that a dispute has been accepted serves the other party as a notice of an existing judicial proceeding against it, giving the affected party sufficient time to prepare its case.
    
17. S.170 of the ERP 2007 and Regulations 13 to 15 of the ERAD 2008, in essence, lays down the process of registration of employment disputes. The Permanent Secretary must follow the following steps:-
    

Step 1: either accept or reject a dispute reported to him within 30 days.

Step 2: within 30 days after receipt of the report, the Permanent Secretary must inform the parties that he or she has accepted or rejected the dispute and if the dispute is rejected, give reasons for rejecting the dispute.

Step 3: acceptance of the dispute becomes employment dispute and the Permanent Secretary must refer the same to ERC or the Mediation Services and notify the parties of the same by the same form through which the referral was made to the respective institution, that is either via Form ER6 or Form ER7 set out in Schedule 1 of the ERAR 2008.

18. It is clear from the provisions of the ERP 2007, and the accepted facts of the case that the Permanent Secretary failed to comply with the provisions of ERP in properly registering and/or referring the dispute to the Mediation Unit in that step 2 was never complied with. Given this pronouncement, I am of the judgment that it is highly improper to strike out the dispute from the ERT as I do not see any prejudice caused to the respondent, if the dispute is allowed to proceed to hearing because the Permanent Secretary wrote to the respondent on the 29th day of April, 2008 and informed it that the FPSA had reported a dispute to him. By this letter the FIT became aware of the report of the dispute. Further, it participated in mediation which informally gave it an indication that the dispute had been accepted by the Permanent Secretary. The dispute was unsettled and FIT would have then naturally expected the matter to be referred to the Tribunal. On the other hand the employee will be seriously affected on the failure of the Permanent Secretary to carry out his obligations under the ERP 2007. It was never in the applicant's hands to carry out the obligations imposed by the ERP 2007 and so it is highly unfair to punish the applicant by striking out the dispute.
    
19. I am prepared to waive an error on the part of the Permanent Secretary or the defect in the registration and allow the proceedings on foot to continue. I exercise these powers under s.235 (b) of the ERP 2007 which reads that:-
    

" 235 In order to enable the Court or the Tribunal to dispose of a matter effectively, the Court or the Tribunal may, at any stage of the proceedings, on its own motion or upon application, and upon terms as it thinks fit, by order –

(a) ...;

(b) Amend or waive an error or defect in the proceedings;

(c) ... or

(d) ...."

Underlining is mine.

20. I now turn to the second issue of transfer. S. 218 of the ERP 2007 spells out the procedure on transfer. It reads:-
    

"218 (1) A party to the proceedings may apply to the Tribunal to have the proceedings transferred to the Court for the hearing and determination of the matter.

(2) The Tribunal may order the transfer of the proceedings to the Court if the Tribunal is of the opinion that –

(a) an important question of law is likely to arise; or

(b) the case is of such a nature and of such urgency that it is in the public interest that it be transferred to the Court.

(3) If the Tribunal declines to transfer proceedings to the Court, the party concerned may seek special leave of the Court for an order that the proceedings be transferred to the Court and the Court must apply the criteria that govern the Tribunal's decision under subsection (2).

(4) An order for transfer of proceedings to the Court under this section may be made subject to any conditions as the Tribunal or Court may impose.

(5) If an order for transfer is made under subsection (2), the Court may, if it considers that the proceedings were not properly transferred, order that the Tribunal adjudicate on the proceedings at the first instance".

21. It is clear from s. 218 above that when an application for transfer is listed before the tribunal, it must deal with the same and make a determination. The ERC can only deal with the issue of transfer on an application for special leave, if the application at the first instance is declined by the ERT. There is no application of any such nature before me under s.218(3) of the ERP 2007.
    
22. It is thus clear that this Court cannot improperly deal with the application for transfer. The ERT should have dealt with the issue at that time and not sent the application before the Court. In any event I do not find any important question of law that is likely to arise or that the dispute is of such a nature and of such urgency that it is in the public interest that it be transferred to ERC.
    
23. I also must say that the original employment dispute was within the jurisdiction of the ERT. If the applicant was minded to amend its claim which was going to put the dispute beyond the jurisdiction of the ERT, then the applicant should have not amended the claim but have withdrawn and filed a fresh application in the ERC.
    
24. The ERT cannot transfer an application to ERC in a matter which is not within its jurisdiction because the act of transferring will mean that ERT is exercising jurisdiction over the matter in which it has no jurisdiction.
    
25. There is no fresh dispute filed in this Court and this Court cannot hear the same. The dispute must be heard by the ERT in its original form or in an amended form which amendment must not put the dispute beyond the jurisdiction of the Tribunal. Alternatively, the applicant is at liberty to file fresh application in the ERC, if the time limit has not expired.
    
26. In my judgment, the proceeding has not been properly transferred to the ERC and as such I order the ERT to adjudicate on the same. I exercise this power to order the ERT to hear the dispute under s. 218(5) of the ERP 2007.
    

Final Orders

27. The ERC dispute No. 30 of 2008 is validated and sent back to ERT for hearing and determination in the original form it was filed or in an amended form which amendment must not put the dispute beyond the jurisdiction of the Tribunal; alternatively the applicant is at liberty to discontinue the ERT dispute and file fresh proceedings in ERC for determination, if it so wishes, as long as the statute of limitation has not expired.
    
28. Each party shall bear their own costs.
    

ANJALA WATI
Judge

15/09/2011

To:

1. Mr. Noel Tofinga, Union Representative.
2. Mr V. Maharaj, Counsel for the Respondent.
3. File Number: ERCC No. 06 of 2009