IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA 20 OF 2011

BETWEEN:

LAND TRANSPORT AUTHORITY
APPLICANT

AND:

FIJI PUBLIC SERVICE ASSOCIATION
RESPONDENT

Appearances: Ms. Kinivuwai F. for the Applicant.
Mr. Nair, D. for the Respondent.
Date /Place of Judgment: Wednesday 17 April 2013 at Suva.
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

1.	On 12 September 2011, after determination of an employment dispute, the Employment Relations Tribunal ordered that the employee who was terminated on medical grounds was denied natural justice and his termination was unfair, wrongful, unreasonable and procedurally wrong.

2.	The employee was awarded the remedy of reinstatement as a new employee and was ordered to be given a suitable position in view of his physical condition. The ERT also ordered the employer to reimburse the employee with two years' salary as part of the wages lost as a result of the dispute.

3.	Under s. 242(2) of the ERT, the employer had 28 days to appeal from the decision. No appeal was filed. Then on 17 November 2011 the applicant filed summons for leave to appeal out of time and for stay of proceedings when the application should have been for stay of execution of judgment.

4.	The application is opposed.

5.	The grounds in support of the application were given by an affidavit deposed by the legal officer, Ms. May. She stated that she is the legal officer who was in carriage of the file. Within the 28 days from the date of decision, she proceeded to maternity leave. There was no proper handing over of the file and the time for appeal expired. She is only one legal officer employed by the appellant. When she returned from hospital she then lodged the appeal. An appeal was lodged on 27 October 2011 and was awaiting confirmation of lodgement. On1st November the High Court relayed the message that the appeal would not be accepted and so an application for extension of time was sought.

6.	At the hearing Ms. Kinivuwai advised the Court that the worker had been reinstated. The only part that is appealed is the award of damages.

7.	She stated that there is sufficient explanation for the delay in filing the appeal in that one legal officer had resigned and had not given proper handover of the applicant's file. The new legal officer was 9 months pregnant and she was running around to update herself and the employer with all files. She then proceeded on maternity leave and at that time the time to appeal had expired. The legal officer went on maternity leave on 5 October 2011.

8.	It was also submitted that there are good grounds of appeal in that the decision of the Tribunal is contradictory. The employee has been reinstated to a lower position, that is, as a traffic writer. The applicant says that it finds it confusing whether to pay the full 2 years salary calculated on the previous position or the new position.

9.	Mr. Nair appearing for the respondent stated that there is no statutory provision in the ERP which allows for leave to appeal out of time.

10.	On whether the excuse for the delay is reasonable, Mr. Nair stated that this must be answered in the negative. The applicant has a pool of legal counsel. Ms. May proceeded on leave on 3 October 2011. The decision was given on 12 September 2011. The appeal could have been filed between the period from the date of judgment till Ms. May went on leave or alternatively some other counsel from the pool should have filed the appeal after Ms May went on maternity leave.

11.	Ms. May did not have the carriage of the matter. The decision of the ERT clearly shows that Ms. Kinivuwai and Mr. Savou were in carriage of the matter. So Ms. May is misleading the Court.

12.	Mr. Nair further argued that the applicant had failed to state any such exceptional grounds where the grant of leave to appeal out of time would be justified.

13.	It is not correct that the ERP does not contain any provision for extension of time to appeal. S. 242(2) of the ERP grants only 28 days for a party to appeal against a decision. The power to extend time is provided for by s. 234(1) (a) of the ERP.

14.	I agree with Mr. Nair that what Ms. May deposed in her affidavit is not correct. Ms. Kinivuwai who appeared in the ERC to argue the application for extension had appeared in the ERT to argue the case. There is no mention of Ms. May featuring in the case. Ms. May may have gone on maternity leave but it was incumbent on the solicitor officially on record to file the appeal on time. Mr. Savou was also appearing for the employer. He could have helped in filing the appeal. Ms. May went on maternity leave on 5 October 2011. If she was handling the matter she had good 23 days to file appeal but like I said the counsel was not in the carriage of the matter.

15.	Moreover there is no arguable ground of appeal. Ms. Kinivuwai stated that they are only appealing against the quantum of damage and they are confused whether they have to pay 2 years salary from the old scale or the new scale. The words of the Tribunal are "Mr. Amani Bola Rayawa to be reimbursed two (2) years salary as part of the wages lost as a result of the dispute." The term "wages lost" is to my mind wages lost on the position from which the employee was terminated.

16.	In any event this is not a matter which can be clarified on appeal. If only a clarification is sought, it should be sought from the ERT. I do not clarify ambiguities on appeal perceived by counsel. It is to be sorted out by the presiding officer either by a letter in writing or a motion.

17.	From what I have been told, there is neither an excusable ground for the delay in filing the appeal nor an arguable ground for the appeal. I therefore dismiss the application for leave to appeal out of time.

18.	Each party to bear their own costs.

Anjala Wati
Judge
17.04.2013
______________________

To:

1.	Ms. F. Kinivuwai, for the applicant.
2.	Mr. D. Nair, for the respondent.
3.	File: ERCA 20 of 2011.