Lal v Carpenters Fiji Ltd [2012] FJET 21; ERT Grievance 166.2010 (13 December 2012)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL

ERT Grievance No 166 of 2010

BETWEEN:

AJAY LAL
Worker

AND:

CARPENTERS FIJI LTD TRADING AS CARPENTERS MOTORS
Employer

Counsel: Mr A. Reddy, Reddy Nandan & Associates for the Worker
Mr S Sharma and Mr E Narayan, Patel Sharma Lawyers for the Employer

Date of Hearing: Thursday 13 December 2012

Date of Judgment: Thursday 13 December 2012

___________________________________________________________________________
DECISION

___________________________________________________________________________

APPLICATION TO WITHDRAW A MATTER BEFORE A TRIBUNAL– Section 216(6) Employment Relations Promulgation 2007; APPLICATION FOR COSTS – Section 236 Employment Relations Promulgation 2007; Section 110 Employment Grievance; Jurisdictional Ceiling.

Background

1. The Worker was terminated in his employment by the Employer on 13 May 2010, purportedly in accordance with Section 33(1) of the Promulgation.
   
2. On 24 August 2010, the Worker made application for referral of an employment grievance to mediation, in accordance with Section 200(1)(a) of the Promulgation.
   
3. The mediation was conducted by the Mediation Unit on 15, 22, 24 and 27 September 2010.
4. The grievance was referred to this Tribunal in accordance with Section 194(5) of the Promulgation.
   
5. The matter was first listed for mention before the Chief Tribunal on 18 November 2010 and on 21 February 2011, was set down for hearing for 6 April 2011.
   
6. On 1 April 2011, the Employer wrote to this Tribunal asking that the date be vacated, due to the non-availability of its witnesses. [1]
   
7. The matter was called back on for mention before the Tribunal on 20 April 2011, 10 June and 5 July 2011, where various issues were canvassed. A key issue at that time, appears to have been how to effect substituted service on the former Chief Executive Officer of the Employer, who according to Mr Sharma, is residing in Malaysia. A further issue that took place on 10 June, was an application for Orders to be issued by the Tribunal, entitling the Employer to peruse the Tribunal record pertaining to this matter.
   
8. On 14 October 2011, various directions were issued by Samujh LT, relating to the filing of documents prior to trial. Additional directions were issued by Legal Tribunal on 9 December 2011.
   
9. In addition, an application was made by the Worker's Counsel, to have the Tribunal refuse the appearance as representative of Mr Sharma, on the basis it was alleged that he had been acting as the Employer's Counsel at the time of the termination and was present in the company of the Employer, when the Worker was terminated. [2]
   
10. Various matters ensued before the Tribunal, including directions pertaining to the question of a preliminary issue as to which party should present their case first.
    
11. The matter was brought back on before the Tribunal on 7 June 2012, when on the first occasion before me, both Counsel attended. The matter was set down for hearing on 29 and 30 August 2012. The parties were also directed to exchange a Statement of Witnesses by 30 July 2012.
    
12. On 17 August 2012, when the matter was called back on before me, it transpired that neither party had complied with Directions. The parties were issued with further Directions to comply within seven days and report back on 27 August 2012. The dates of 29 and 30 August 2012, were subsequently vacated.
    
13. On 5 November 2012, Counsel for the Employer wrote to the registry of this Tribunal seeking to liaise with court officers in relation to the use of Skype video conferencing facilities, that were to be organised by the Tribunal to enable the taking of evidence of one of the Employer's witnesses who was overseas.[2]
    
14. On 19 November 2012, the matter was called back on for review at which time Counsel for the Worker again sought to enliven a request for Leave of the Court for the substituted service of a subpoena to command the attendance of the former Chief Executive Officer. In addition, the Applicant again sought to press for the Tribunal to deny the right of representation of Mr Sharma, though this application was withdrawn by leave of the Tribunal, on that morning.
    
15. On 26 November 2012, I directed the parties to proceed to trial. On this occasion, Mr Sharma indicated to the Tribunal his views relating to the apparent lack of powers available to the High Court to grant the request for a Writ of Subpoena in the case where it was sought to be issued by way of substituted service. In this regard, I note the relevant rules contained within Order 38 of the High Court Rules.[3] As I indicated to the parties, if after hearing the case of the Applicant, that it appeared critical to these proceedings that the former Chief Executive Officer be required to give evidence, then that issue could be revisited and the options explored.
    
16. On that basis I indicated that I would hold the application in abeyance and wanted the matter to proceed.
    
17. That backdrop leads to the applications before the Tribunal today.
    

Commencement of Proceedings on 13 December 2013

18. At the commencement of proceedings today, Counsel for the Applicant sought to press two issues. The first was the issue in relation to the subpoena relating to the former Chief Executive Officer. I reiterated to Mr Reddy, who had not been present on 26 November 2012, that this matter had been disposed of and that the issue could be reviewed following the conclusion of available witnesses. The second matter that was raised by Mr Reddy, related to the late serving of additional Affidavits by the Employer, though I was satisfied that those issues were not prejudicial to the Worker's case.
    
19. In response to these applications, Counsel for the Employer raised the further issue of the jurisdiction of the Tribunal to deal with the matter. As it transpires, this was an issue that was exchanged in communications between the parties only the day prior, when the question was raised as to whether or not the Worker was seeking damages beyond the jurisdictional limit of $40,000.[4]
    
20. In fairness to Mr Sharma, it was also a matter that he had flagged on 26 November 2012, when he had suggested that this may mean the Tribunal could not proceed to hear the matter.
    
21. At that time, it is fair to say that there was no quantification of the damages being sought. At the time of lodging the grievance with the Mediation Unit, the Worker claims to have been earning $8400 per month.
    
22. A statutory unfair dismissal damages claim of 4.5 months for example, would yield an award amount of $37,800.00, an amount within the statutory limit. So to that end and having regard to other statutory regimes[5], the pursuit of an anticipated grievance adjudication of an amount falling within that order, is not in my view far-fetched.
    
23. In any event, Counsel for the Employer has now sought that the Applicant quantify its damages claim. Upon reflection, I am not entirely sure whether the Applicant was compelled to do that, for reasons that I will come to shortly. Regardless, as it transpired, Mr Reddy did indicate that his client was seeking compensation in excess of the $40,000 amount and on that basis, wished to review his position, as to whether or not this Tribunal was the appropriate jurisdiction to continue to have the matter heard.[6]
    
24. Following that adjournment and apparently influenced by the submissions of Mr Sharma and the tentative position adopted by the Tribunal, Mr Reddy advised that he wished to withdraw the matter and indicated that he would be seeking to pursue a common law claim within the High Court jurisdiction.
    

Application Under Section 216(6) of the Promulgation

25. Section 216(6) of the Promulgation provides:
    

The applicant may not withdraw a matter before the Tribunal without the written consent of the other parties or prior leave of the Tribunal.

26. At the outset of this application, Mr Sharma for the Employer indicated that his client would not be consenting to the withdrawal of the matter, in part, on the basis that the Worker should have made an informed choice in relation to where the proceedings should have been commenced and the monetary limits that may be imposed on the Tribunal's powers as a consequence.[7]
    
27. Mr Sharma nonetheless conceded, that having regard to the language of Section 216(6) of the Promulgation, that the meaning of the term, "prior leave of the Tribunal", would also accommodate a request that was made at this juncture in proceedings.
    
28. On that basis, I have given the Worker leave to withdraw the matter.
    

Application for Costs

29. Finally, Mr Sharma had sought costs in relation to the withdrawal. Without reservation I indicated to Mr Sharma, that I did not believe costs would be appropriate and refused the application. Counsel asked to be heard on this matter and I entertained that further request.
    
30. Having heard the views of the Employer, I have nonetheless ruled that I am not prepared to order costs in this matter, for reasons I indicated would be more formally set out within a written decision. Those reasons are as follows.
    
31. Firstly, I do not regard the conduct of the Worker to have been vexatious, negligent or improper. In fact, the conduct of the Worker has been highly appropriate.
    
32. The Worker is entitled at law to refer an employment grievance for Mediation Services.[8] This he did. The consequence of that was that it was the Mediation Unit, not the Worker who referred this matter to the Tribunal.[9]
    
33. Secondly, the remedies available to the Worker by virtue of Section 230(1) of the Promulgation are as follows:
    
    • (a) Reinstatement of the worker in the worker's former position or a position no less advantageous to the worker;
      
    • (b) The reimbursement to the worker of a sum equal to the whole or any part of the wages or other money lost by the worker as a result of the grievance; or
      
    • (c) The payment to the worker of compensation by the worker's employer, including compensation for
      
      • (i) Humiliation, loss of dignity and injury to the feelings of the worker;
        
      • (ii) Loss of any benefit, whether or not of a monetary kind, which the worker might reasonably expect to obtain if the employment grievance had not occurred; or
        
      • (iii) Loss of any personal property.
        
34. The powers of the Tribunal appear to be quite broad in this regard.
    
35. It should also be kept in mind, that when an employment grievance has been referred to this Tribunal in accordance with Section 194(5) of the Promulgation, the Tribunal is exercising its powers in accordance with Section 211(a) of the Promulgation not Section 211 (g).
    
36. The matter before me was not an action for breach of an employment contract.
    
37. If it was, it would be easier then to understand the language of Section 211(2)(a) of the Promulgation, that speaks of claims up to $40,000.
    
38. There was no claim before the Tribunal. And at the commencement of a grievance adjudication, I see that there is no statutory requirement that would otherwise compel the aggrieved to make such a claim.
    
39. In the case of a grievance adjudication, the language of the Promulgation in my mind, creates an expectation that the Tribunal not the Worker, will make an assessment as to what a reasonable compensatory award, if any, should be.[10]
    
40. To that end, if the purpose of Section 211(2)(a) was to impose a limit on the powers of this Tribunal to order reimbursement in accordance with Section 230(b) of the Promulgation, for example, then it remains somewhat unclear.
    
41. If that was the intention of the Government at the time, then one would anticipate that the referral from the Mediation Unit should not come to the Tribunal, in any case where there could be a possibility that the reimbursement outcome available under Section 230 (1)(b) of the Act, exceeded $40,000.[11]
    
42. It is noted that this question of jurisdictional ceiling is dealt with in the judgment of Wati J, in Tabua's case. Though the case is somewhat distinguishable insofar as the hearing of the matter had already taken place and had apparently then been referred to the High Court, on the basis that the anticipated quantum to be awarded would be in excess of the jurisdictional ceiling.[12] In the matter before me, I would otherwise have been quite content to have referred it to the Employment Relations Court at this stage.
    
43. The practical consequences of this clearly needs to be, if a ceiling is to be imposed in the amount of $40,000, an option should be given to the aggrieved to have the matter discontinued at that stage where the mediation fails and the Mediation Unit is seeking to exercise its powers under Section 194(5) of the Promulgation.
    
44. The fact that the matter once recognised as such, is incapable of being referred to the Employment Relations Court, presents an unexpected difficulty that the Worker was now to face. I am not prepared to hold him accountable, when he clearly sought to legitimately pursue a grievance that he was entitled to do by virtue of Section 110 of the Promulgation.
    
45. The fact that the Employer did not see fit to raise any suggestion of any jurisdictional impediment until 26 November 2012, is also suggestive that the Employer had been quite content to submit to the Tribunal's jurisdiction. The fact that it had been actively liaising with the High Court Registry in the co-ordination of videoconferencing facilities just prior to trial, is also suggestive of complicit conduct.
    
46. Finally and as I explained to the parties today, all of the work for both sides, will be easily utilised in any new proceedings, that the Worker must now bring by virtue of this deficit in the Promulgation.
    
47. In a modern society where word processing allows for the quick cutting and pasting and editing of documents, means that much of the real costs thrown away in the processes of yesteryear, simply do not exist.[13] The evidentiary material and submission outlines which appear to have been where the majority of costs have been borne by both sides to date, will not go wasted. All of this material will be capable of being relied on in some form, when the matter goes to the High Court.
    
48. This is a case that unfortunately for the Worker, is now going to consume a lot more financial resource in order to pursue. The Worker had a legitimate expectation that he could pursue a Section 110(a) employment grievance. As it transpired though, unless he submitted to the statutory ceiling of $40,000[14] that is apparently available within this jurisdiction, then his initial grievance should never have been commenced. The ceiling may also then have implications in the case of Worker who may have been pursuing for example, a combination of remedies such as reinstatement and compensation for humiliation and loss of dignity, where an order for reinstatement yielded a cost impost on the Employer that was in excess of the monetary value that is the statutory ceiling.[15]
    
49. In any event, the present problems with the existing provisions must now be noted by legal practitioners, the Mediation Unit and this Tribunal.
    

Conclusions

50. In conclusion, both parties in this matter have incurred costs and both at various stages can be accused of causing the others costs to have been unnecessarily expended.
    
51. It would serve all parties interests, that the case can be commenced in the Employment Relations Court, without further delay.
    
52. Against the historical backdrop of this matter, the interests of justice and the importance of allowing an aggrieved to have their matter attended to in a timely and cost effective manner, requires this to occur.
    
53. Finally, given the length of time that has already passed, I would encourage both parties to take a step back from their position in this matter and perhaps with the benefit of some fresh eyes, see whether or not another attempt at mediation would not be a far more productive way of resolving the grievance (soon to be claim) once and for all.
    

These are my reasons for decision and I order accordingly.

Mr Andrew J See
Resident Magistrate

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^[1] Why that issue was not known to the Employer when the matter was set down for hearing is an issue of some concern. It also illustrates how both parties actions can cause the unnecessary throwing away of costs.

[2] The argument apparently being that Mr Sharma could not be advocate, as well as a potential subpoenaed witness. That application was unsuccessful.

^[2] These were arranged and on 13 December 2012, in anticipation of the commencement of proceedings, two Judicial Department officers, installed projectors, screens, sounds speakers and computer equipment in preparation for the giving of evidence of the Employer’s witness.

^[3] It may be there were other means by which to compel the former CEO to attend in any event.

^[4] See Section 211(2)(a) of the Promulgation.

^[5] Consider for example the six month cap set for Fair Work Australia, under the Fair Work Act (Cth) 2009.

^[6] In this regard Mr Sharma had provided the Tribunal with a judgment of Wati J in Ilivasi Tabua v Fiji Rugby Union, [2102] FJET 15, in which her Honour articulated the referral powers of the Tribunal in cases that had already been heard by the tribunal.

^[7] As imposed by Section 211(2)(a) of the Promulgation.

^[8] See specifically Section 110(3) of the Promulgation; also consider the obligation imposed on the Employer at Section 110(1).

^[9] This in mind cannot be seen as an election of a jurisdiction in which to agitate proceedings, unless it is argued that the Worker should not at any stage have even referred the matter to the Mediation Unit. To promote that position would in my mind be illogical, given that there is a statutory requirement imposing on every employment contract the requirement to contain a Grievance Settling Procedure in accordance with Section 110 (1)of the Promulgation.

^[10] That is not to say that at some point the Worker will not be required to articulate her or his views in relation to what compensation they are seeking.

^[11] As indicated previously, by way of example, that would mean in the case of the current Worker, equating to lost wages where such losses were incurred for approximately 4.5 months.

^[12] To this point, it was assumed that a matter could be referred to the Employment Relations Court in a manner analogous to that set out within Section 211(3) of the Promulgation. That is, the Tribunal anticipates that the sentencing or imprisonment may exceed $2000 or two years and exercises the referral powers accordingly.

^[13] I would be highly surprised if the fundamental case preparation would be that much different on this occasion, were it heard in either jurisdiction.

^[14] In the current case, a 4.5 month salary equivalence.

^[15] Though that remains to be seen.