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Qalomaiwasa v Land Transport Authority [2023] FJHC 527; ERCA 17 of 2016 (4 August 2023)

IN THE EMPLOYMENT RELATIONS COURT AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA 17 of 2016

BETWEEN:

ALIPATE QALOMAIWASA
APPLICANT

AND:

LAND TRANSPORT AUTHORITY RESPONDENT

Appearances: Mr. F. Vosarogo for the Appellant.
Ms. E. Dauvere and Mr. W. Raiubi for the Respondent.

Date/Place of Judgment: Friday 04 August 2023 at Suva.
Coram: Hon. Madam Justice Anjala Wati.

RULING

1. Catchwords:

Compliance Order – Does the Court have powers to issue compliance of the orders of the Tribunal – Can the issue of compliance be raised after the parties have settled the matter and entered into a Deed of Settlement arising out of the rights and liabilities from the judgment of the Tribunal and the Court.

2. Legislation:

1. Employment Relations Act 2007 (“ERA”): ss. 212,221 and 230.

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1. Alipate Qalomaiwasa [“Alipate”] had brought an action in the Employment Relations Tribunal [“Tribunal”] against his dismissal. On 23 January 2015, the Tribunal had ordered that Alipate be reinstated with no loss of benefits and that the employer pays to Fiji Public Service Association, representing Alipate, costs in the sum of $700.00.
   
2. The employer appealed the decision. On 16 May 2018, I delivered the appeal judgment dismissing the appeal. I also ordered the employer to pay costs of the appeal in the sum of $1,500.00 within 7 days. I also said in my appeal judgment that:
   

“In essence, the employer must now proceed to comply with the ERT’s orders. For the period of non-compliance (from the date of ERT’s judgment to the date of the appeal judgment) the employee must be paid the wages due to him.”

3. All my orders have been complied with. What Alipate is now seeking is that he be paid wages from the date of dismissal until the date of the Tribunal’s judgment. The employer is opposing this as it contends that in its judgment of 23 January 2015, the Tribunal had only ordered that Alipate be reinstated with no loss of benefits and did not mention that Alipate be reinstated with no loss of wages.
   
4. This application for compliance faces two serious issues relating to jurisdiction. The first issue is the right of Alipate to seek compliance of the Tribunal’s orders in the Employment Court and the second is the right to file any claim after entering into the Deed of Settlement with the employer.
   
5. I must reflect that all my orders of 16 May 2018 has been complied with. Whether the Tribunal meant that Alipate be reinstated with no loss of wages too is a matter that I cannot clarify. It is for the Tribunal to clarify that aspect.
   
6. Secondly, if Alipate is of the view that the Tribunal had also ordered reinstatement with no loss of wages then he should seek compliance of the Tribunal’s orders from the Tribunal.
   
7. Under s. 221 of the Employment Relations Act, the Employment Relations Court only has powers to order compliance with the provisions of the ERA or an order, determination, direction, or requirement made or given under ERA by the Employment Relations Court.
   
8. The power to grant compliance with the Tribunal’s orders lies with the Tribunal only: s. 212(1) (b) of the Employment Relations Act.
   
9. In my appeal judgment I had ordered compliance of the ERT’s orders as outlined in paragraph 2 of this judgment arising out of the provisions of s.230(3) of the Employment Relations Act which states that:

“If the remedy of reinstatement is provided by the Tribunal or the Court, the worker must be reinstated immediately or on such a date as is specified by the Tribunal or the Court and, notwithstanding an appeal against the determination of the Tribunal or the Court, the provisions for reinstatement must, unless the Tribunal or the Court otherwise orders, remain in force pending the determination of the appeal.”

10. Since the employer had not reinstated Alipate due to the pending appeal, I considered it prudent that having been unsuccessful on the appeal, the employer ought to pay, wages from the date of the Tribunal’s order for reinstatement till the date of my judgment.
    
11. There is nothing left from my orders to be complied with for me to issue compliance orders. Alipate has filed the application for compliance in the wrong Court.
    
12. I have also been notified by the employer that on 24 August 2018 the parties had entered into a Deed of Settlement. This was done post the appeal judgment.
    
13. The Deed of Settlement in its material parts reads as follows:
    

“Deed of Settlement

WHEREAS the grievor was employed full-time by the respondent as a Prosecution Officer.

WHEREAS the Grievor’s employment was terminated by way of summary dismissal on 27 July 2006 on the basis that he was involved in corrupt practices. He was charged by the employer for four counts.

Whereas the Grievor had filed his grievance in Employment Relations Tribunal had the following rulings:

1. 23 January 2015 formal proof judgment.
2. 1 December 2018 High Court struck out the Respondents application to set aside the formal proof judgment.
3. 16 May 2018 the High Court reconfirmed the decision of the Tribunal for re-instatement.
   

Whereas through this Deed, the Parties wish to withdraw any and all reliefs sought by either Party hereto against the other Party (or Parties) and any and all claims that either party may have against the other Party (or Parties) in respect of the above-mentioned Employment Tribunal.

NOW THEREFORE IN CONSIDERATION of the mutual covenants and promises herein
contained and other good and valuable consideration, receipt of which is hereby acknowledged, and to avoid additional and/or unnecessary litigation before any other court or tribunal, pursuant to the terms and conditions herein stated, the parties hereinafter agree as follows:

2.1. On the terms and conditions stated herein in this Deed, the Parties hereby agree, to a full and final payment in all and every respect of the decision of the Employment High Court delivered on 16 May 2018.

2.2. The Respondent shall notify the Employment Tribunal in respect of the fact that the parties have agreed to a full and final settlement of the Employment High Court Ruling.

3. TERMS OF SETTLEMENT

3.1. The Grievor has won its appeal in the Employment Relations Tribunal and Employment High Court and the Respondent owes the Grievor an amount of FJD$90,313.41(Ninety Thousand Three Hundred and Thirteen Dollars Fourty One Cents) in unpaid wages and entitlements.

3.2. The Grievor and Respondent agree to fully and finally settle the matter on the following basis:

4. PAYMENT

4.1. The Respondent will pay to the Grievor the amount of FJD$90,313.41 gross, taxed as a final judgment sum.

4.2. The amount payable at 4.1 is payment to the Employee for:

4.4.1. Unpaid Annual Leave of $17,760.60

4.4.2. Unpaid Wages $65,957.10

4.4.3. FNPF Employer Contribution $6,595.71

4.3. The Respondent shall immediately of the signing of the terms of this Deed will pay the dollar amount specified in these terms of settlement.

4.4. The dollar amount specified in these terms of Deed will be paid by the Respondent by electronic funds transfer / cheque into the Applicant’s nominated financial account.

5. RELEASE

5.1. On the Respondent complying with clause 4.1 above, the Grievor releases and forever discharges and releases the Respondent, its directors, applicants, assignees or successors from any liability past, present or future from all claims, suits, demands, actions proceedings arising out of or connected with the Grievor’s employment with the Respondent.

5.2. The Parties knowingly and voluntarily release and forever discharge each other, to the full extent permitted by law, of and from any and all claims, known and unknown, asserted and unasserted, that either Party may have against the other as of the date of execution of this Settle Agreement and Release of All Claims, from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of services, expenses and compensation whatsoever which either Party may have had, may now have, may claim to have, or may hereafter have or claim to have in any way arising out of or related to any act or omission of the Parties, their agents, or any act or omission, or any other allegations raised or which could have been raised in the Lawsuit...”

14. The Deed of Settlement clearly spells out that this was final settlement of all pending claims arising out of the employee’s dismissal. The party’s rights and liabilities arising out of the orders of Tribunal and the Court got translated into the Deed of Settlement and all rights and liabilities are now settled. The worker now cannot re-open the issues arising from the Tribunal or the Court’s judgment.
    
15. No one is questioning the validity of the Deed of Settlement. Based on the Deed of Settlement, Alipate no longer has any outstanding claim for compliance.
    
16. Alipate’s application to the Court is without merit, in breach of the terms of settlement and not filed in the correct forum too. Alipate has unnecessarily put the employer to costs after settling the case. His actions are deliberately designed to seek more compensation from the employer. He ought to compensate the employer with costs.
    
17. I thus dismiss the application for compliance and order Alipate to pay costs to the employer in the sum of $ 5,000.00.
    

...................................................

Hon. Madam Justice Anjala Wati

Judge

04.08.2023

To:

1. Land Transport Authority, Legal Department for the Appellant.
2. Mamalakha Lawyers for the Respondent.
3. File: Suva ERCA 17 of 2016.