Fiji Post and Telecommunications Employees Association v Telecom Fiji Ltd [2011] FJHC 8; ERCA05.2009 (24 January 2011)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA NO. 05 OF 2009

BETWEEN:

FIJI POST AND TELECOMMUNICATIONS
EMPLOYEES ASSOCIATION
Appellant

AND:

TELECOM FIJI LIMITED,
EXCEED PACIFICA LTD. And
TRANSTEL LTD.
Respondents

Appearances: Mr. S. Valenitabua for the Appellant.
Mr. Devanesh Sharma for the Respondents.
Date/Place of Judgment: Monday, 24h January, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

Employment Action – Appeal – Application to strike out appeal – Time frame for filing appeal outlined.
Compliance Orders – Can "ERC" issue compliance orders after refusal by "ERT" and when the refusal is the subject matter of appeal.

Legislations

The Employment Relations Promulgation 2007.
The Employment Relations (Administration) Regulations 2008.

The Appeal

1. On the 18th day of August, 2009 the appellant filed an appeal in the Court against the decision of the Chief Tribunal dated the 3rd day of July, 2009.
   
2. The appeal has been objected to on a preliminary ground that the Notice of Appeal does not comply with s. 242(2), and (3) of the ERP 2007. The objection was made vide a notice of motion filed on the 15th day of September, 2009.
   
3. The parties made their submission on the preliminary objection and require a ruling on the same.
   

References

4. In this judgment:-
   
   • (a) The Chief Tribunal shall be referred to as the ("CT").
   • (b) The Employment Relations Tribunal shall be referred to as the ("ERT").
   • (c) The Employment Relations Court shall be referred to as the ("ERC").
   • (d) The Employment Relations Promulgation 2007 shall be referred to as the ("ERP 2007").
   • (e) The Employment Relations (Administration) Regulations 2008 shall be referred to as the ("ERAR 2008").
     

Further Application

5. On the same day of the 18th day of August, 2009, the appellant also filed an ex-parte application "for an interim injunction to be issued against the respondents from processing with any termination, issuance of termination notices and termination package pay out to its employees until the hearing and determination of Miscellaneous Application No. 12 of 2009 by the Tribunal or by this Honourable Court".
   
6. The application was heard ex-parte and upon hearing the application, the court refused to grant any orders on the basis that the application must be served on the respondents as its rights were to be effected. There was no reason why the application was not served.
   

Respondents Grounds and Submissions on Preliminary Objections and Injunction

7. The Mr. D. Sharma submitted as follows:-
   
   • An oral decision of the ERT was given by the CT on the 3rd day of July, 2009. The time for filing the appeal runs from the date of decision and because 3rd July, 2009 was the date of the decision, the time starts running from that date.
     
   • On 22nd July, 2009 a written ruling was provided by the ERT but the decision was made on the 3rd day of July, 2009.
     
   • The appeal was filed after 28 days from 3rd July, 2009 and is out of time. No application for an enlargement of time was made and so the appeal cannot be entertained and must be struck out.
     
   • The grant of injunction will be of little effect in that all the redundancies have been carried out. The workers have a right to bring an employment grievance if they are aggrieved at being made redundant.
     
   • The workers have accepted their redundancy packages.
     

Appellants Grounds and Submissions on Preliminary Objection and Injunction

8. Mr. Valenitabua submitted as follows:-
   
   • A written ruling was given by the ERT on the 22nd day of July, 2009. No appeal could be filed without the written judgment as for any appeal to be filed an order needed to be drafted and sealed and for any order to be sealed there was a necessity of a written ruling. The time should thus run from the date of the written ruling. However if the Court holds that the time runs from 3rd July, 2009 then this is a perfect case for enlargement of time because the appellant filed the notice of appeal without delay after receipt of written ruling. The written request for the ruling was made but not provided on time.
     
   • There is no proof that all the redundancies have been effected. The appellant has a right to ask for compliance order. Unemployed people are still members of the union and the union has a right o represent them. There is no need to mention the names of the litigants the union represents at the appellant has already submitted the names in the ERT via its amended notice of motion for compliance orders.
     
   • On the injunction application, the counsel submitted that there is a serious issue to be tried. The Respondents have failed to comply with the provisions of s. 107 (1) (a) of the ERP 2007. Another serious issue is the conduct of the ERT in handling the appellant's application for compliance orders.
     
   • The function of the appellate court is not that of review only. It is entitled to exercise an original jurisdiction on its own when it has come to the conclusion that the Tribunal's exercise of the discretion was based on some misunderstanding of the law or the evidence before him, or an inference that particular facts existed or did not exist. The Court can also set aside the Tribunal's order to refuse the injunction if the decision is so aberrant [unusual, irregular or abnormal].
     
   • Damages will be an inadequate remedy because the livelihood of workers are concerned. The statute has been breached. If an order is obtained for compliance with the provisions of the ERP 2007 then the redundancies will be deemed illegal and contrary to Part 12 of the ERP 2007 so the employees will have the option to go back to work or be paid wages and go back to work and have their redundancies determined according to the law.
     

The Law and Determination

Preliminary Objection On Appeal

9. Section 242 (1) of the ERP 2007 states that an "appeal must be made in the prescribed manner within 28 days from the date of the decision of the Tribunal".
   
10. The decision of the Tribunal was made on the 3rd day of July, 2009. A copy of the written decision was given to the appellant on the 22nd day of July. 2009.
    
11. An appeal was filed on the 18th day of August, 2009. The time for filing the appeal would have expired on 31st July, 2009. The appeal is out of time by 18 days.
    
12. When the appellant received the copy of the decision, it still had 9 days to file its notice of appeal.
    
13. Pursuant to s. 242(3), a notice of appeal must specify the grounds of appeal, the decision or part of the decision appealed from, and the precise form of the order which the appellant proposes to have.
    
14. It is impossible for any appellant to specifically specify the grounds of appeal and any decision or part of the decision appealed from if it does not have the benefit of a written decision.
    
15. It could be argued that to be within the time limit the appellant could have filed some general grounds of appeal and sought time to amend the same upon receipt of the written decision. However the court does not favour general grounds of appeal and often castigates counsels for not framing the grounds properly. More so counsels in this jurisdiction, I have noticed, immediately take objection to the form in which the grounds are produced and an argument is often made and a ruling required. The party taking preliminary objection often asks for costs as well. This all are factors that may contribute against filing general grounds of appeal. I cannot penalize the appellant for not taking this line of action.
    
16. It can also be argued that the appellant should have utilized the 9 days to file the notice of appeal as the written decision only consists of 1 page and it would not have taken the appellant 9 days to file its notice of appeal.
    
17. The legislature has given the appellant complete 28 days to file the notice of appeal. Any time that is shortened will cause prejudice to the appellant as it will not have the benefit of the requisite time to peruse, draft and finalise the notice. Besides, lawyers just do not have one file to work on. They may be having numerous files in which they would be rushing to meet the deadline. This is the truth of private practice and no amount of management eradicates the "rush hour" of a legal firm.
    
18. In this matter, although an extension of time to file the appeal was not obtained, I refuse to strike out the appeal as part of the fault is levied on the ERT for not releasing the written decision on time.
    
19. How can an appellant say that the CT has erred without seeing the orders that have been made and the reasons for arriving at those orders? It is only possible if a written decision is produced.
    
20. The appellant had also written, requesting for a written decision and in the letter an indication was made that an appeal was intended. Yet no written decision was provided. When it was provided, an appeal was filed within 28 days.
    
21. Be that as it may, the delay is not exorbitant and there is no prejudice to the respondent if this appeal is allowed to be on foot.
    
22. I refuse to strike out the appeal on the basis that it was not filed within the time frame.
    
23. I am also of the judgment that the notice of appeal does contain the grounds of appeal, the decision that is appealed and the precise form of the order that is sought. There is no breach of s.242 (3) of the ERP 2007. The Notice of Appeal does not have precise headings on the requirements of s. 242(3) but it also does not offend the section.
    
24. There was also an objection to the use of the affidavit filed by the appellant on the grounds that there is failure to comply with Order 41 Rule (2) of the High Court Rules, 1988 which states that "Every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates if swearing and filing, and an affidavit which is not so indorsed may not be filed or used without the leave of the court.
    
25. Mr. Valenitabua has not obtained the leave of the court to use the affidavit but his notice of appeal is not affected because the affidavits do not relate to the notice of appeal. It relates to the application for injunction.
    

Injunctive Orders

26. The further application is for "for an interim injunction to be issued against the respondents from processing with any termination, issuance of termination notices and termination package pay out to its employees until the hearing and determination of Miscellaneous Application No. 12 of 2009 by the Tribunal or by this Honourable Court".
    
27. The compliance order is defined as an order requiring a party to a 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 ERP 2007.
    
28. The appellant has requested for an order that the respondent be restrained from processing with any termination, issuance of termination notices and termination package pay out to its employees. The ground on which the order is sought is non-compliance with the statutory provisions before making an employee redundant.
    
29. The above injunctive order is also an order that is sought on appeal. In the Notice of Appeal the appellant has prayed for an that the "Tribunal's Ruling be substituted with "an interim restraining order or injunction against the respondents from processing with any termination, issuance of termination notices and termination package pay out to its employees until the hearing and determination of this Appeal and/or the hearing of Miscellaneous Application No. 12 of 2009 by the Tribunal...".
    
30. The order that the appellant is seeking is a compliance order which was the only subject matter before the ERT. The appellant has stated in its amended notice of motion that the respondents had not complied with the legislative provisions of s. 107 of the ERP 2007 before making the employees redundant and that it required an injunction in the terms prayed for restraining further non-compliance of the provisions of the ERP 2007.
    
31. When the ERT held that there was no breach of the provisions of the ERP 2007, it refused to make the compliance order and also an order directing the respondents to cease to do a specified act for the purposes of preventing further non-compliance with the provision of the ERP 2007.
    
32. There is already an appeal from that order for refusal to order compliance. The appellant is duplicating proceedings by asking for the same remedy via a motion and also in the appeal.
    
33. Granting the compliance order which is prayed for in the injunction format would have the effect of predetermining the appeal that the ERT was wrong in not issuing the said orders. One of the grounds of appeal also relates to refusal to grant injunction.
    
34. Further, the ERT has ruled that there is no breach of the ERP 2007. For this court to rule otherwise, it has to state why the verdict of the ERT is wrong in law.
    
35. This court cannot issue injunctive orders as prayed for because there is no finding at this stage that the provision of the ERP 2007 has been breached. The aspect of breach is heavily in dispute and without the issue of breach being established, no compliance order can follow.
    
36. The best alternative is for the appeal to be tried and if it is found that the ERT was wrong in its finding that there was no breach of the ERP 2007 and that in fact there was a breach, then the orders of ERT would be set aside with substituting orders for compliance.
    

Final Orders

37. The application to strike out the appeal is dismissed.
    
38. The application for injunction is dismissed.
    
39. The appeal must be listed for hearing.
    
40. The Registrar must furnish the court with a bound copy of the Tribunals Record.
    
41. The substantive matter is still pending and therefore the costs shall be costs in the cause.
    
42. Orders Accordingly.

______________________

ANJALA WATI

Judge

24.01.2011