Bank of Baroda v Fiji Bank and Finance Sector Employees Union [2010] FJHC 442; ERCA 04 of 2009 (15 September 2010)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA

CASE NUMBER: ERCA NO. 4 OF 2009

BETWEEN:

BANK OF BARODA
APPELLANT

AND:

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION
RESPONDENT

Appearances: Mr. H Nagin and Mr. S Valenitabua for the Appellant.
Mr. D. Sharma and Mr. P. Rae for the Respondent.

Date /Place of Hearing: Tuesday, 24th August, 2010 at Suva.
Date /Place of Judgment: Wednesday, 15th September, 2010 at Suva.

Judgment of: The Hon. Justice Anjala Wati

JUDGMENT OF THE COURT

EMPLOYMENT COURT – NOTICE OF APPEAL/STAY – appellant filed notice of appeal and stay of the decision of the ERT – respondent raised preliminary objections to the notice of appeal for want of it being in proper form and being filed without the leave of the ERT or the ERC- the order of the Tribunal was a compliance order and any appeal from a compliance order and/or an interlocutory order shall not lie without the leave of the ERT or ERC-appellant breached mandatory procedure or requirement of the rule and the failure is fatal to nullify the notice of appeal- notice of appeal and stay dismissed.

Legislation
The Employment Relations Promulgation 2007

Case Background

1. On the 14th day of May, 2010 the appellant filed an appeal from an order of the Chief Tribunal of the Employment Relations Tribunal ["ERT"] and also an application for stay of the orders made by the Chief Tribunal.
   
2. The application for stay of the orders made by the Chief Tribunal was initially filed ex-parte. The application was heard ex-parte and the orders were refused on the basis that the application should be heard inter-partes.
   
3. On the 16th day of August, 2010, the court made an order by consent that the application for stay and the appeal should be heard together. A date for hearing of 24th August, 2010 was appointed.
   
4. On the date of hearing, Mr. D. Sharma raised preliminary objections on the notice of appeal. The preliminary objections are of such nature that they require a determination before the substantive appeal and the application for stay is heard.
   

Preliminary Objections

5. Mr D. Sharma raised the following objections:-
   
   1. That the Notice of Appeal is not in its proper format.
      
   2. The appeal cannot be brought without leave first had and obtained from the Employment Relations Tribunal or the Employment Relations Court.
      

Respondent's Submissions

6. Mr D. Sharma, counsel for the respondent submitted that the notice of appeal must contain 3 particular parts in that it must specify the grounds of appeal, the decision or the part of the decision appealed from and the precise form of the order which the appellant proposes to seek from the Court. It was submitted that the Notice of Appeal fell short of the mandatory requirement in that it does not state the precise form of the order which the appellant proposes to seek from the court and the decision or part of the decision appealed from.
   
7. Mr. Sharma also submitted that the ERT has granted a compliance order and that if the order is appealed then the leave of the Tribunal or the Court must first be had and obtained. Mr. Sharma further said that even if the order is ruled out as a compliance order the same is definitely an interlocutory order which still requires the leave of the ERT or the Employment Relations Court ["ERC"] and since leave has not been obtained the appeal must be dismissed forthwith.
   

Appellant's Submissions

8. Counsels for the appellant submitted that the notice of appeal met the requirements stipulated by the Employment Relations Promulgation 2007 ["ERP 2007"]. The injunction granted was not a compliance order but a final order from which no leave is required. The injunction was granted without a pending substantive action or dispute on the issue of transfers in general or the exercise of the appellant's discretion to order an employee to be transferred. The injunction should not have been granted in the first place.
   
9. The appellant's counsel Mr. Valenitabua also submitted on the various substantive grounds of appeal which I do not consider it necessary to state at this stage as they are not relevant in deciding the preliminary issues before me. After having made submissions pursuant to his grounds of appeal Mr. Valenitabua then invited the court to grant leave on the grounds that the court had heard the substantive appeal. I had at that stage in no uncertain terms indicated to Mr. Valenitabua that the court was not burdened to grant leave because he chose to submit on the substantive grounds when he was fully aware that the court was only going to hear the parties on the preliminary objection first. In any event no counsel can place such restraint on court. There are cogent reasons why an oral application for leave was not allowed in court. I will address the issue in due course.
   

The Determination

10. The first issue before the court is whether the appeal is in its proper form.
    
11. The second issue before the court is whether leave should have first been obtained before the notice of appeal was lodged.
    
12. The third issue before the court is whether or not this court should grant an order for stay of the orders of the Chief Tribunal.
    
13. I propose to first deal with the issue of the format of the appeal. Section 242(2) of the ERP 2007 spells out the format for appeals. It states that:-
    

"A notice of appeal must specify-

(a) The grounds of appeal;

(b) The decision or the part of the decision appealed from; and

(c) The precise form of the order which the appellant proposes to seek from the Court."

14. I have perused the notice of appeal. It contains 17 grounds of appeal. It also states that the appellant seeks an order that the appeal be wholly set aside. The decision which is appealed is the ruling of the Chief Tribunal dated the 13th day of May, 2010. The Notice of Appeal therefore complies with the requirement of section 242(2) of the ERP 2007. The first preliminary objection is dismissed.
    
15. The second issue before the Court is the requirement for leave, whether the appellant must have obtained the leave of the ERT or the ERC before filing a notice of appeal.
    
16. Section 242 (5) (e) of the ERP 2007 states that no appeal shall lie except with the leave of the Tribunal or the Court from any interlocutory decision or from any compliance order of the Tribunal.
    
17. The counsel for the appellant disputed that the order of the Tribunal was a compliance order or an interlocutory order of the court. He further went on to submit that there is no requirement for leave as the injunction was wrongly issued without a substantive action but if there is any requirement for leave then he was seeking leave of the court.
    
18. Is the order of the Tribunal a compliance order? The types of orders which could be classed as compliance orders are stipulated in section 212 (1) of the ERP 2007. They could be:-
    
    1. An order by the Tribunal requiring a party to the proceeding to do or cease to do a specified thing or activity, for the purpose of preventing further non-compliance with the provision of the promulgation or an employment contract, an order, determination, direction, decision or requirement made or given under the Promulgation by the Tribunal or a member or officer of the Tribunal.
       
    2. An order of nature specified in paragraph (a) above with terms and conditions the Tribunal thinks fit, including conditions as to the actions of the applicant.
       
19. The Tribunal in its decision had found that the Employer had not complied with its obligations under the ERP 2007 and ordered that the employer be restrained from enforcing the transfer of any official or member of the union until the final determination of the motion and the Employment Dispute number 31 of 2010. In effect the Tribunal found that s. 77 of the ERP had been breached as result of which transfers must be stopped until the issue of discrimination as pleaded in the motion and the dispute number 31 of 2010 was finally determined. In essence the order becomes a compliance order. Leave thus is required to appeal the decision of the ERT. No leave has been obtained and as such the Notice of Appeal must be dismissed on this premise.
    
20. The Notice of Appeal should not have been filed in the first place without the leave of the ERT or the ERC.
    
21. Whether the orders issued by the Tribunal was right or wrong is not the issue here. The simple issue is whether the appeal should have been filed with or without the leave.
    
22. The requirement of leave is not a cosmetic rule. It has profound purpose. That is why the requirement for leave is mandatory. No compliance of the rule is fatal and will affect the proceedings.
    
23. Mr S. Valenitabua has from the bar table made an application for leave. The application is made when the preliminary objection was raised on the very issue of the requirement for leave. The entire focus of the respondent's argument was based on the preliminary issues and not addressing the issue of whether leave was to be granted. No basis for leave was also outlined by Mr. Valenitabua. If the leave application is considered at this stage the respondent will be prejudiced and so will the appellant as they have not addressed the court on this aspect at all or fully. The application must be formally made with the proposed grounds of appeal or a draft notice of appeal attached to the application for leave.
    
24. The notice of appeal must be dismissed for want of leave having first had and obtained either from the Tribunal or the Court.
    
25. The final issue at hand is the aspect of stay of the decision of the Tribunal. The application for stay was on the basis of the appeal that was filed. The appeal having collapsed by way of the same being dismissed leaves no basis for the stay application to be determined. On that basis I refuse to interfere with the decision of the Tribunal.
    
26. Mr Nagin had requested me to limit the Tribunal's orders to the named employees in the matter before the Tribunal. This would amount to interfering with the Tribunal's order without determining the appeal or the stay application. I do not have any powers to just change or modify orders without having first determined whether it is proper to do so. I therefore refuse to make orders as per Mr. Nagin's request.
    

Final Orders

27. The notice of appeal and the stay application is dismissed.
    
28. I shall hear the parties on the costs aspect at a date and time to be appointed after consultation with the parties.
    
29. So ordered.
    

ANJALA WATI
JUDGE

15.09.2010

To:

1. Sherani & Company, Solicitors for the Appellant.
2. R. Patel Lawyers, Solicitors for the Respondent.
3. File: ERCA 4 of 2010.