IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERT/WC Case No. 04 of 2009

BETWEEN:

THE LABOUR OFFICER for and on behalf of
LIYAKAT ALI father's name Ali Buksh of Nanuku
Street, Namosau, Ba (Deceased)
APPLICANT

AND:

WESTERN WRECKERS LIMITED Lot 7, Navutu
Industrial Subdivision, Queen's Highway, PO Box
7743, Lautoka
RESPONDENT

Appearances:

Senior Legal Officer P. Prasad for the Applicant
Messrs Krishna & Co. for the Respondent

RULING

[1] The matter for the Tribunal to decide on is whether or not to strike out the claim for compensation and towards that end both parties have filed written submissions for the Tribunal to make a ruling.

[2] This case has had an interesting journey through the system from the Magistrates Court, where a judgment was made on 30th October 2003 to the transfer to the Tribunal on 24th March 2009.

[3] The Respondent is making an application to strike out the Applicant's Notice for Workmen's Compensation for failure to make a claim for compensation and/or breach of Section 13 (b) of the Act. 

[4] Section 13 of the Workmen's Compensation Act provides the following – 

"13. Proceedings for the recovery under this Act of compensation for injury shall not be maintainable unless notice of the accident has been given by or on behalf of the workman as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within twelve months from the occurrence of the accident causing the injury…

Provided that –
 
 (b) the failure to make a claim for compensation within the period above specified shall not be a bar to the maintenance of such proceedings if it is proved that – 

(i)	the failure was occasioned by mistake or other good cause; or

(ii)	the employer failed to comply with the provisions of subsection (1) or (2) of Section 14,

so, however, that no proceedings for the recovery of compensation shall be maintainable unless the claim for compensation is made within a period of six years from the date of accident (Amended by 27 of 1975, s.9)."

 [5] Some of the facts not in dispute are the following:

-	workman died on 8th February 2000
-	notice of accident by employer on 23rd February 2000
-	Labour Officer wrote to Doctor on 26th September 2001
-	Doctor's Medical Report on 7th February 2002
-	Labour Officer liaising with the Insurance Company
-	Labour Officer took some time to search for records with the Registrar of Companies
-	Claim filed on 5th February 2003
 
 [6] The Applicants' reasons for the delay are explained as follows – the Applicant wrote to the Doctor on 26th September 2001 and the Doctor's Medical Report came in on 7th February 2002. The Applicant explained that the process from writing to the Doctor for a medical opinion to the actual delivery and receipt of the medical opinion is a long and thorough process. First of all the Applicant had to locate and interview workmates and family members of the deceased and then compile a submission for the Doctor to make the report. The Doctor would then try to locate his file and notes before writing an opinion and forwarding it to the Labour Officer.

When the matter was heard in the Magistrate's Court, the Doctor in his evidence had said that since the workman had died on the way to hospital, there were no entries for that day in his Medical Folder.

Upon receiving the medical report and other documents, the Applicant sent a notice to the employer informing him of the amount to be paid in compensation. There was a delay as well waiting for the employer to respond and for possible settlement to take place.

This was when the Insurance Company came into the picture. It informed the Applicant that it was conducting its own investigation on behalf of the Respondent to see if the workman's family could be compensated. The Applicant waited for ever but no response came from the Insurance Company.

The Claim was finally filed on 5th February 2003.

[7] The Applicant submits that the delay in filing the claim comes under the Section 13 exception as it was done in good cause in that the Applicant can only go ahead and file a claim in Court after all investigation is completed, after all efforts have been made to try and settle the matter and after all progress reports including the Doctor's Report have been obtained. All that takes a reasonable amount of time and is not always done in twelve months.

[8] The Respondent in its submission states that the Applicant is misleading the Tribunal in that it took three years to get the doctor's report, insurance company investigation and the registered office of the Respondent Company.

[9] On the Labour Officer waiting for the Insurance Company Investigation Report, the Respondent referred to the Fiji Court of Appeal case of Wearsmart Textiles v General Machinery where it is stated that matters and/or courtesy between parties is not above the rule of law. Applying it to the case at hand, the Respondent is asking why was the Labour Officer waiting for the Insurance Company for so long when it had all the information available.

[10] The Respondent submits that the Labour Officer did not within reasonable time file the claim and further failed within a reasonable time to file this claim even after the receipt of all relevant information in order to file the calim and the explanation given is no reasonable cause. 

[11] The Respondent further submits that the Applicant has not sought leave to bring the proceedings after the 12 mandatory period set out in Section 13 and that the Applicant must file a Motion to issue proceedings after the 12 month period showing reasonable cause.

Analysis and Conclusion

[12] The Respondent Counsel took on the cases cited by the Applicant and distinguished them on the facts referred to by the Applicant. The cases are the following:-

Flour Mills of Fiji Ltd v Labour Officer (1992) FJSC 4 according to the Applicant is similar to the case on hand, the claim was filed in Court, 3 years after the date of accident, was not made within the 12 months from the occurrence of the accident and therefore was not maintainable unless it could be saved by one of the reasonable causes under Section 13 (b). This was where Fatiaki J. ruled that the delay in getting the report from the Doctor was reasonable delay and therefore came under good cause. 

The Respondent submitted that in the case before the Tribunal the facts are clear and it cannot be disputed that the Labour Officer received the medical report on 7th February 2002 from the Doctor and after one year filed the claim in February 2003. Further the Applicant has not given any reasonable explanation for the delay and the Respondent submitted that filing the claim after one year is inexcusable and inordinate.

Incidentally, in this cited case, the Labour Officer was responsible for some 17 months delay but since there was no evidence before the Court it was not taken into account in determining "good cause." 

In the case at hand, the Labour Officer received the Medical report on 7th February 2002 and filed the claim on 5th February 2003. The Applicant's Counsel explained the reasons for the delay to be as follows: - 

Upon receiving all the necessary documents, including the doctor's report, the Applicant then sent a notice to the employer informing him of the amount calculated to be paid in compensation. There was delay here as well waiting for the employer to respond and for possible settlement to take place.

In the midst of all this, the insurance company for the employer, New India Insurance was also writing to the Labour Office (first instance in March 2002) informing the Labour Department that they would be undertaking an investigation on behalf of the Respondent to see if the workman's family could be compensated. This delay was not caused by the Applicant but nonetheless the Applicant had to wait for this to progress, should there be a positive outcome from the Insurance Company investigation and the claim paid out.

It should be noted though that to this day there has been no response by the Insurance Company as to what happened with their investigation. The Applicant waited as long as they could and then were left with no choice but to file the claim in Court.

It could be argued that the Labour Officer did not have to wait for the Insurance Company's reply and they should have filed the claim as soon as they received the Medical Report from the Doctor in 2002. However, there are cases where the insurance companies pay the claim amount after they conduct their investigations. It would be a waste to just file a claim in court when at the end of the day the insurance company settles it. So taking it as a case by case basis, in this matter the Labour Officer thought it was practical to wait a while for the insurance company to come back with an answer before filing the claim. When it was obvious that they were taking too long, then they filed the claim.

All in all, the Applicant submits that this delay also comes under the Section 13 exception as it was done in good course.

The Applicant also had to find out from the Registrar of Companies where the registered office of the Respondent was. This is not obtained in a day. It usually takes the Registrar of Companies some time to provide information on such matters. Without this information from the Registrar of Companies the claim could not be filed.

The Applicant can only go ahead and file a claim in Court after all investigations are completed, after all efforts have been made to try and settle the matter and after all progress reports including the doctors report have been obtained. All this takes a reasonable amount of time and is not always done in 12 months. 

[13] In the case of Shiri Ram Sharma v Secretary for Labour 21 FLR 190 the Court upheld that the delay in making a claim for compensation was due to the failure of the employer to perform his statutory duty of giving notice to the Labour Department under Section 14 of the Workmen's Compensation Act.

The Respondent rightfully distinguished the facts of this case, where the employer failed to give notice to the Labour Department.

[14] In the case of Kitchen v Koch [1931] AC 753 the House of Lords held that the delay on the part of third person, (there a surgeon), amounted to reasonable cause for the failure of the injured workman to make his claim for compensation within the specified time.

Counsel for the Applicant submitted that the delay was caused by a third person and that the workman interests should not be prejudiced.

The Respondent submitted that the delay for the case at hand was not caused by any third party and that all the third parties gave proper advice to the Labour Officer.

[15] In the case of M v Commissioner of Income Tax [1969] E.A. 671 at p. 673 cited in Shiri Sharma v Secretary for Labour the learned Judge ruled as follows –

"I think no limitation should be prescribed to say what particular set of circumstances will constitute sufficient cause. The field must be left open to judge its case upon its own particular facts. The facts in each case individual and different as they are bound to be must be evaluated to determine whether sufficient cause is made out."

This was a decision of the East African Court of Appeal and was not distinguished by the Respondent.

[16] The Tribunal accepts the explanations by the Applicant in paragraph 12 in bold, as it is a proper evaluation of what was happening on the ground and a reflection of the dynamics of the relationship between the Labour Department, the Doctor, the Employer and the Insurance Company. The Tribunal will be doing injustice to everyone involved in this case including the dependents of the deceased workman if it ignores the realities of everyday processing of workmen's compensation claims.

In that regard the Tribunal refers to the case of Shiri Ram Sharma v Secretary of Labour where Marsack J. A. in delivering the judgment of the Fiji Court of Appeal (in which Gould V.P. and Spring J.A.) at pp.192 and 193 said:

"The object the Legislature had in view in passing the Workmen's Compensation Ordinance must have in great measure the protection of the worker, and, in the appropriate circumstances, an assurance that he would receive the compensation properly payable in the case of accidental injuries. The rights and the interests of the employer are certainly not to be overlooked under the Ordinance; and I must not be held as saying that the interests of the workman are always, under the Ordinance, to be preferred to those of the employer.

In any event, it appears clear ….that the Court should interpret a statute of this character broadly and with due regard to 'the substantive intention and meaning of the Statute'." 

[17] Decision:

The Tribunal rules that –

[i] There is merit in the claim;

[ii] There will be greater prejudice against the dependents of the late Liyakat Ali if this claim is struck out; and 

[iii] The delay in this matter was occasioned by good cause and therefore the claim is not struck out.

DATED at Suva this 14th day of April, 2011

Sainivalati Kuruduadua
Chief Tribunal