Fiji Public Service Association v Fiji Public Service Commission [2009] FJET 13; Dispute76.2008 (7 May 2009)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Dispute No 76 of 2008

BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

PUBLIC SERVICE COMMISSION

FPSA: Mr D Nair
PSC: Mr A Maqbool

DECISION

This is an application by motion dated 25 February 2009 filed by the Fiji Public Service Association (the Union) seeking an order that the proceedings be transferred to the Employment Court for the hearing and determination of the matter. The Union filed an affidavit sworn by Rajeshwar Singh on 25 February 2009 in support of its application.

The Public Service Commission (the Employer) filed an affidavit sworn by Asraj Ali Maqbool on 19 March 2009 in opposition to the application.

The application was heard by the Tribunal on 22 April 2009. The parties relied on their respective affidavits and presented oral submissions on the application.

The Dispute was referred to the Tribunal on 15 December 2008 by the Permanent Secretary with the following terms of reference:

"The dispute is over the dismissal of Mr Bashish Chand with effect from 8 October 2008. The Union claims that the disciplinary process instituted against Mr Chand was in breach of natural justice and that the Commission had failed to act with procedural fairness and denied an equitable hearing process. The union also views the actions taken by the Commission to be in (a) breach of Regulation 22(2) and (3)(a) and (b) of the Public Service Regulations 1999 and (b) breach of section 29(1) and (2) of the Constitution. The union therefore seeks Mr Chand's re-instatement to his employment without any loss of benefits and entitlements."

The Union's substantive application which is set out in paragraph(a) of the Motion seeks:

"An Order for the transfer of proceedings relating to Employment Dispute No. 76 of 2008 from the Employment Relations Tribunal to the Employment Court for hearing and final determination of the said Dispute"

The Union's application is made pursuant to section 218 of the Employment Relations Promulgation 2007 (the Promulgation) which states:

"(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."

The reference in the section to "proceedings" must be taken to be a reference to the Dispute that was referred to the Tribunal by the Permanent Secretary. The application is therefore an application to transfer the employment dispute involving the dismissal of the worker to the Employment Court.

The Tribunal has a discretion to transfer the employment dispute. Before it exercises that discretion, the Tribunal is required to consider whether an important question of law is likely to arise or whether it is in the public interest to transfer the Dispute because of the nature and urgency of the case.

Having considered the affidavit material and the reference itself, the Tribunal has concluded that the circumstances of the dismissal of the worker do not meet the requirements of section 218(2). There is no material to suggest that the dismissal itself is likely to raise an important question of law. Furthermore, there is nothing in the material to suggest that there is any urgency that, or the nature of the dismissal, would require the transfer of the case in the public interest.

The Tribunal does accept that the actual reference of the Dispute by the Permanent Secretary to the Tribunal does given rise to a question of jurisdiction.

However that question has already been decided by the Tribunal in a decision dated 15 January 2009 in Dispute No 35 of 2008 between Fiji Bank and Finance Sector Employees Union –v- ANZ Banking Group Limited. In that decision the Tribunal concluded that it did not have jurisdiction under section 211 of the Promulgation to adjudicate an employment dispute relating to the dismissal of worker. The basis of that decision was that the definitions of "employment grievance" and dispute in section 4 of the Promulgation meant that a dismissal could only be reported by a worker as an employment grievance.

The Tribunal is also prepared to accept that the jurisdictional issue does give rise to an important question of law and as a usual the first of the two alternative criteria set out in section 218(2) has been met.

However the use of the word "may" in section 218(2) indicates that even if one of the two criteria has been met, it is still a matter of discretion for the Tribunal whether the proceedings should be transferred to the Court.

In this application the Tribunal has concluded that it would be inappropriate to transfer the proceedings to the Court on the basis that the jurisdictional issue raises an importance question of law.

The issue is already before the Employment Court. First, the union in Dispute No 35 of 2008 has lodged an appeal challenging the decision of the Tribunal on the jurisdictional issue. Secondly, the Tribunal has already transferred to the Court two disputes that raised the issue. The question is therefore already before the Court in two forms.

First, by way of appeal under section 242 of the Promulgation. Secondly, at first instance by virtue of the transfer of two disputes under section 218(2) of the Promulgation. (They are Disputes No 55 of 2008 and No 85 of 2008 both involving Fiji Public Service Association –v- Fiji Islands Revenue and Customs Authority). The Court is yet to deliver a decision in any of these proceedings. There are a large number of disputes pending in the Tribunal that await the outcome of the appeal process.

The Tribunal is of the view that it would be an abuse of process to permit the transfer of this dispute to the Court and declines to exercise its discretion accordingly. The application by the Union is dismissed with no order as to costs.

The Dispute is listed for mention on 3 July 2009 at 9.00 am.

DATED at Suva this 7th day of May 2009.

EMPLOYMENT TRIBUNAL