IN THE EMPLOYMENT RELATIONS COURT AT SUVA
APPELLATE JURISDICTION

CASE NUMBER:			ERCA 21 of 2018

BETWEEN:				
GARDEN ISLAND RESORT
APPELLANT

AND:					
JOSEFA RABETA
RESPONDENT

Appearances:					Mr. V. Prasad for the Appellant.
						Ms. P. Singh for the Respondent.
Date/Place of Judgment:				Wednesday 31 July 2024 at Suva.
Coram:						Hon. Madam Justice Anjala Wati.

JUDGMENT
A.	Catchwords:
Employment Law – Grievance – Finding on grievance could not be made without hearing the parties and their witnesses – employer’s interlocutory application to strike out grievance on the grounds that the worker’s contract of employment was void ab initio as he did not have a public service vehicle license or a public service vehicle to enter into the contract of picking and dropping employees  not sustainable as there was no condition attached to the employment particularly that the worker should have a public service vehicle and license – a closer look at the terms of  the contract reveals that the employer did not have any specification on the kind of vehicle that is to be used for the work under the contract of employment- matter sent back to tribunal to hear the grievance proper. 
B.	Legislation
1.	Employment Relations Act 2007 (“ERA): s. 243.
_________________________________
Cause and Background
1.	The employer appeals against the decision of the Tribunal through which it had:

(1)	dismissed the employer’s application for striking of the employment grievance ; and 

(2)	found that the worker’s dismissal was both unlawful and unfair as a result of which the employer was to pay to the worker 8 month’s wages lost as a result of the unlawful dismissal and 2 month’s wages for unfair dismissal.   

2.	The worker commenced his employment at Garden Island Resort on or about 1 January 2013 as a Staff Driver.    

3.	His job description was to specifically transport the staff of the employer after their shift to their homes safely and if required to pick up the staff in the morning upon adequate notice.   
    
4.	The term of the contract was one year and subject to the worker completing a probation period of 3 months.  He would have completed his 3 months’ probationary period on or about 1 April 2013.   
    
5.	The worker was summarily dismissed from employment on 18 February 2013.  The background leading to his summary dismissal is that on 18 February 2013, the police officers on duty at Taveuni District Police Post informed the employer that its female employee had lodged a complaint to the police that the worker had indecently assaulted her.  The police informed the employer that the complainant had made a serious allegation that the worker had touched the breast of the female employee.        

6.	The police report to the employer reads:

“This is to confirm that Ana Vusamu, 24yrs, Receptionist, Garden Island Resort, Taveuni lodged a report at the Station on 18.02.13 that one Josefa Rabeta, 57yrs, self-employed of Nayalayal, Taveuni touched her breast.  

For your information, Madam, the suspect was arrested, cautioned interviewed and charged for cone count of Indecent Assault contrary to section 212 of the Crimes Decree No. 44 of 2009.  

The said accused is still appearing in court and you will be advised on the progress.  

Taveuni police report no. 209/13, CR 88/13 is relevant.    
For further enquiry you may contact the Crime Officer, Taveuni”.  

7.	The termination letter of 18 February 2013 reads:

“Joe Rabeta you are hereby terminated from your position as the driver for Garden Island Resort.  

This termination is due to reports being brought to my attention from the police that you disrespected several of our female staff.  

The General Manager was notified today by the Taveuni Police that several of our female employees have filed complaints against you stating that you made inappropriate advances toward them.  Your job is to provide a safe transport for all our employees especially for the female staff.  

Return all Garden Island Resort property”.  

8.	When the grievance against the dismissal was filed by the worker, the employer filed an application by a motion and an affidavit seeking that the employment grievance be struck out on the basis that it discloses no reasonable cause of action and is an abuse of the process of the Tribunal.   

9.	The grounds based on which the application for striking out was premised was that the worker never had a licensed public service vehicle which he could lawfully use for the purposes of transporting people.  It was also stated that the worker did not have the required class of driving license to be able to drive public service vehicles.  The worker therefore could not carry out the works he was contracted for.     

10.	 After hearing the application for striking out the Tribunal went ahead not only to rule on the interlocutory application but on the substantive grievance as well. 
  
Tribunal’s Decision on Striking Out
11.	The Tribunal refused to strike out the grievance on the grounds that the matter before the Tribunal was that of unfair dismissal and not regarding the improper use of motor vehicle.  

12.	I will not summarize the findings relating to the substantive grievance as the Tribunal could not have dealt with the substantive grievance without hearing the parties. 

The Appeal and Analysis
13.	The appeal is against both the interlocutory decision refusing to strike out the grievance and the findings on unlawful and unfair dismissal.

14.	 It is agreed by the worker’s counsel that the substantive matter was not heard by the Tribunal and as such any decision on the substantive grievance is made in error.    

15.	 It is clear that the employment grievance was not heard by the Tribunal.  The only application that was heard was the application to strike out the grievance.  The Tribunal could not have ruled on the substantive grievance without hearing the parties.     

16.	 The parties were entitled to tender their respective evidence based on which the decision on the grievance ought to have been made.      

17.	 There was no evidentiary basis for the Tribunal to come to a decision that the dismissal was both unlawful and unfair.  The decision ought to be set aside.  

18.	The appeal on the interlocutory decision is premature.  Under s.243 of the ERA, the appellant ought to have first sought leave of the court to appeal the interlocutory decision. 

19.	Be that as it may, based on the affidavit material, I do not find that the grievance ought to be struck out. I have carefully gone through the letter of appointment.  It contains the terms and conditions of the employment.    

20.	 The worker was required to transport the Garden Island Resort staff home safely after their shift ends.  

21.	There is no condition that the worker will have a public service vehicle to do the work contracted for.  It is understood from the terms and conditions that the worker will use any vehicle to do this work.  

22.	If the worker was to have a public service vehicle to carry out the contracted work then there would not be a term titled “exclusive service” in the letter of appointment.  The term reads:

“Clause 10	Exclusive Service  

10.1. While employed by the Resort, you shall devote your whole time and attention to the service of the Resort and shall not be engaged in any other business or occupation or be in any way connected with any other business, company or concern without the prior written consent from the General Manager and Owner.”      	

23.	The worker was paid $150 per week.  If the worker had a public service vehicle, he will not be working for the employer for $150 a week with the condition of exclusive service to Garden Island Resort.    

24.	A public service vehicle owner will earn close to $150 a day.  He or she will not use his public service vehicle for $150 a week.  It would be most detrimental to the public service vehicle owner.    

25.	If the employer wanted the worker to have a public service vehicle to carry out the contracted work, it should have outlined that as a condition of the employment.   The contract of employment is silent on the specification of the vehicle that is to be used. The employer cannot now raise that there was a requirement as such. This is an afterthought by the employer.

26.	Further, at paragraph 9 of the employer’s preliminary submission, the employer says:

“The Employer which is a resort located on the island of Taveuni has always been mindful of the safety and well-being of their staff.   Due to the non-availability of public transport in the evenings and late night and the comparatively high costs of the same if available together with the reasons of staff safety if the staff travelled to their homes on foot especially female employees, the Employer at its own costs hired the Grievor in the position of a staff driver”.      

27.	The employer appreciates that there was no public transport available in the evenings and late night and that it would be expensive if it was available.  It therefore contracted the worker.  The employer therefore knew that the worker did not have a public service vehicle.  If he had, he will not be working for $150 a week.   

28.	Succinctly, the worker was employed to pick and drop staff. Whichever vehicle he used to do it, is not a requirement of the contract. To now contend that the contract had certain specification on the kind of vehicle that was to be used, is an attempt to discredit the contract of employment.  It is unfair to do.   

Final Orders
29.	In final analysis, I allow the appeal in part as follows:

(i)	The Tribunal’s decision that the worker was unlawfully and unfairly dismissed is set aside entirely with the orders for compensation for payment of wages.

(ii)	The appeal against the Tribunal’s decision dismissing the employer’s application to strike out the grievance is dismissed.  

(iii)	The matter is sent back to the Tribunal for hearing on the substantive grievance.
(iv)	The Registrar of the Tribunal shall inform the parties of the fixture in the Tribunal.

(v)	Each party shall bear their own costs of the appeal proceedings.   

……………………………………………
Hon. Madam Justice Anjala Wati
Judge
31.07.2024
____________________
To:
1.	Cromptons, Barristers & Solicitors for the Appellant.
2.	Attorney General’s Chambers for the Respondent.
3.	File: Suva ERCA 21 of 2018.