Suva City Council Staff Association v Suva City Council [2009] FJET 17; Dispute04.2008 (26 January 2009)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Dispute No 4 of 2008

BETWEEN:

SUVA CITY COUNCIL STAFF ASSOCIATION

AND:

SUVA CITY COUNCIL

SCCSA: Mr Krishna
SCC: Mr N Lajendra

DECISION

This is a dispute between the Suva City Council Staff Association (the Union) and the Suva City Council (the Employer) concerning the dismissal of Mr Premsushil Prasad (the worker).

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

"The dispute is over the termination (of employment) of Mr Premsushil Prasad with effect from 20 June 2007. The Association contends that the termination of employment of Mr Prasad is harsh, unjustified, unlawful and unwarranted and therefore seeks his re-instatement without loss of benefits, retrospective."

It will be noted that the worker was dismissed with effect from 20 June 2007. The dismissal was reported by the Union as a trade dispute by letter dated 10 January 2008. The report was accepted by the Permanent Secretary by letter dated 25 February 2008. Therefore the dispute is covered by the transitional arrangements set out in Regulation 58 of the Employment Relation (Administration) Regulations 2008.

The Dispute was initially listed for mention on 3 October 2008. As there was no appearance by or on behalf of the Employer, the Dispute was relisted for mention on 8 October 2008. On that ocassion directions were given for the filing of submissions and the Dispute was listed for further mention on 14 November 2008. The Employer filed its preliminary submissions on 17 November and the Union did so on 27 November 2008.

The Dispute was then placed in the callover list and subsequently fixed for hearing on 21 January 2009.

The hearing of the Dispute commenced on 21 January 2009 in Suva. During the course of the proceedings the Tribunal raised the jurisdictional issue concerning the dismissal of a worker proceeding as an employment dispute.

The Tribunal allowed the parties time to consider the issue and adjourned the proceedings part heard to 2.15pm. Upon resuming the hearing, the Tribunal heard further submissions from the parties and indicated that there would be a decision on notice in due course.

The issue is whether the Tribunal has jurisdiction under section 211 (1) (b) to adjudicate as an employment dispute a claim involving the dismissal of a worker.

Unlike the position that existed under the now repealed Trade Disputes Act Cap 97, the Employment Tribunal can examine the issue of whether it has jurisdiction to adjudicate on a particular employment dispute. Section 213 (d) of the Promulgation states:

"Without limiting any other power of the Tribunal whether under this Part or otherwise, the Tribunal may determine:

(a) - - -
(b) - - -
(c) - - -
(d) Other questions and give rulings as may be necessary for the exercise of its jurisdiction under this Part."

The starting point involves a careful consideration of the relevant definitions in section 4 of the Promulgation.

An employment dispute is defined as a dispute accepted by the Permanent Secretary under section 170. Under section 170 the Permanent Secretary has the power to accept or reject a dispute reported to him under section 169. Section 169 provides that a dispute may be reported to the Permanent Secretary by either the employer who is a party to the disputer or by a registered trade union that is a party of the dispute.

Significantly, dispute is defined as meaning "a dispute or difference between an employer and a registered trade union connected with the employment or non-employment, the terms of employment or the conditions of labour of a worker."

There are two elements to the definition, both of which must be established for there to be a dispute. First, there must be a dispute or difference between an employer and a registered trade union. Secondly, that dispute or difference must be connected with (inter alia) the employment or non-employment of a worker.

It is not in dispute that in this case there is a dispute or difference between the union and the Employer. The question is whether the dismissal of a worker falls within the phrase employment or non-employment of a worker.

Employment is defined as meaning the performance by a worker of a contract of service. It follows that non-employment of a worker means the non-performance by a worker of his contract of service.

To determine whether the dismissal of a worker is the same as or falls under the phrase non-employment of a worker, it is also necessary to consider the definition of "grievance".

So far as is relevant to this dispute, employment grievance is defined as meaning :

"- - - a grievance that a worker may have against the worker's employer or former employer because of the worker's claim that:

(a) the worker has been dismissed;
(b) the worker's employment or one or more conditions of it, is or are affected to the worker's disadvantage by some unjustifiable action by the employer;
(c) - - -
(d) - - -
(e) - - - "

There are two essential elements that must be established in order for there to be an employment grievance. First, there must be a grievance that a worker has against a present or former employer. Secondly, the grievance must relate to one (at least) of the five circumstances listed including that the worker has been dismissed.

Dismissal is defined as meaning any termination of employment by an employer including dismissal without notice.

The definitions suggest that the non-employment of a worker and hence the non-performance by a worker of his contract of service is concerned with but not necessarily restricted to such situations as lay-offs and reductions in working hours or days.

Therefore after a careful consideration of all these definitions, the Tribunal has concluded that the Promulgation provides for two separate and mutually exclusive concepts. One is dismissal of a worker that can only proceed as that worker's employment grievance. The other being the non-employment of a worker that may be reported as a dispute by a registered trade union if the worker is a member of that union covered by a collective agreement.

The arrangement of the legislation supports this conclusion. Employment grievances are dealt with in Part 13 of the Promulgation. The provisions that relate to Employment disputes are in Part 17.

Section 109 states that the object of Part 13 is to provide for grievance procedures for workers to pursue employment grievances either personally or through the assistance of a representative. Section 111 (1) states that a worker may pursue the grievance procedure in person and be assisted by a representative. Section 111 (2) requires the worker to submit his grievance to the employer within six months.

On the other hand, section 167 states that the object of Part 17 is to set out procedures for the resolution of employment disputes. Section 169 states that a dispute may be reported to the Permanent Secretary by either the employer or the registered trade union, both of whom must be parties to the dispute.

It should be noted that although section 170 (9) attempts to define the term "the date on which the dispute arose", the reference in that sub section to both dispute and grievance renders the sub section virtually meaningless.

The Tribunal has also concluded that, when the Promulgation is considered in its entirety, it is clear that the intention of the drafters was that dismissal issues were to proceed by way of the grievance procedure. In section 230 (1) of the Promulgation it is stated that the Tribunal or the Court may order re-instatement of the worker if it determines that a worker has an employment grievance. The Promulgation does not provide for such a remedy in the case of an employment dispute. The Tribunal as a sub-ordinate court could not in the absence of such a provision order re-instatement if a dismissal issue came before it by way of an employment dispute. It would be an absurd and inconsistent situation if the Tribunal was not able to award re-instatement in the case of an employment dispute but could do so in the case of a proven grievance.

Section 230 (1) supports the conclusion that dismissal should only be brought as a grievance since re-instatement, although a discretionary remedy, is the usual remedy both sought and granted in such proceedings.

If the matter before the Tribunal is not an employment dispute as defined in section 4 of the Promulgation, then it does not have jurisdiction in the matter.

In this case, the Tribunal finds that there is not an employment dispute before it. The requirements of an employment dispute do not exist and nor for that matter is there an employment grievance, as the requirements also do not exist.

As a result the matter is dismissed with no order as to costs.

DATED at Suva this 26th day of January 2009.

EMPLOYMENT TRIBUNAL