Fiji Public Service Association v Public Service Commission [2009] FJET 4; Dispute42.2008 (22 January 2009)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Dispute No 42 of 2008

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION

AND:

PUBLIC SERVICE COMMISSION

FPSA: Mr D Nair
PSC: Mr A Maqbool

DECISION

This is an employment dispute between Fiji Public Service Association (the Union) and the Public Service Commission (the Employer) concerning an eviction notice issued by the Employer to Mr Anil Chand (the worker).

The Dispute was referred to the Tribunal by the Mediation Unit on 31 October 2008 with the following terms of reference :

"The dispute is over the eviction notice issued by the Public Service Commission to Mr Anil Chand, Welfare Officer II to vacate the Government rented quarters he is occupying by 22 February 2008 after he was terminated from service on 27 September 2007. The Association maintained that the action of the Commission is inhumane and wrongful and Mr Chand should be allowed to continue occupying the quarters until such time the Public Service Appeal Board disposes of the appeal matter."

The Dispute was listed for mention on 11 November and again on 18 November 2008 at the request of the parties.

As a result of directions given by the Tribunal, the Union filed preliminary submissions on 18 November and the Employer did so on 24 November 2008.

The Dispute was subsequently placed in the list of disputes to be called over on 12 December 2008 and was then fixed for hearing on 7 January 2009.

The hearing of the Dispute commenced on 7 January and was adjourned part heard to 16 January 2009. The Union called two witnesses and the Employer did not lead evidence.

At the conclusion of the evidence the Tribunal raised the issue of jurisdiction with the parties. As a result of the Tribunal's observations and after hearing briefly from the parties, the hearing was adjourned part heard to 21 January 2009 for mention.

On 21 January 2009 the Tribunal heard further submissions from the parties concerning the question of jurisdiction and then indicated that a Ruling would be made on notice.

The material before the Tribunal established that the worker was dismissed on 27 September 2007. The notice to vacate that is at the centre of this dispute was dated 22 February 2008.

The matter was reported as a trade dispute (as defined in the now repealed Trade Disputes Act Cap 97) by letter dated 27 March 2008.

By letter dated 18 April 2008, the Permanent Secretary of the Ministry of Labour, Industrial Relations and Employment (the Permanent Secretary) replied (omitting formal parts) as follows:

"The report of your Employment Dispute dated 27 March 2008 on the above subject received in our office on the 4th April 2008 is duly acknowledged.

Please be advised that the said report is being analysed and you will be advised of the outcome in a very near future".

Whilst the Tribunal has some concern with the substance of the letter, it is the chronology that is of critical importance in this Dispute.

The Employment Relations Promulgation 2007 came into effect on 2 April 2008. The Promulgation does not operate retrospectively. This means that neither rights nor obligations under the Promulgation came into effect prior to that date.

However the Employment Relations (Administration) Regulations 2008 did make some provision for transitional arrangements. In particular Regulation 58 stated :

"(1) This regulation applies to trade dispute cases accepted by the Permanent Secretary for resolution under the Trade Disputes Act (Cap 97), but in respect of which no referral has been made to the Arbitration Tribunal before the commencement date.

(2) On and after the commencement date, all trade dispute cases that have not been referred to the Arbitration Tribunal by the Permanent Secretary and other outstanding cases are to be transferred to either the Mediation Services or the Employment Relations Tribunal in accordance with the criteria required under section 170 (4) of the Promulgation.

(3) - - - "

The Union's reported trade dispute could not have been accepted by the Permanent Secretary until some time after the date of receipt of that report (i.e. 4 April 2008). That is after the commencement date of 2 April 2008. Therefore it is not covered by the transitional arrangements and as a result the Tribunal has no jurisdiction to adjudicate the matter as an employment dispute.

There will be no order as to costs.

DATED at Suva this 22nd day of January 2009.

EMPLOYMENT TRIBUNAL