Fiji Public Service Association v Permanent Secretary for Labour, Industrial Relations and Employment [2011] FJHC 826; ERCA02.2010 (16 December 2011)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCA NO. 2 OF 2010

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION
APPLICANT

AND:

PERMANENT SECRETARY FOR LABOUR, INDUSTRIAL RELATIONS AND EMPLOYMENT
1ST RESPONDENT

AND:

CHIEF EXECUTIVE OFFICER, LAND TRANSPORT AUTHORITY OF FIJI
2ND RESPONDENT

Appearances: Mr. D. Nair for the Applicant.
Ms. K. Naidu for the 1st Respondent.
Ms. Kilivuwai for the 2nd Respondent.
Date and Place of Judgment: Friday, 16th December, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

Catchwords
Termination of Proceedings – Administration of Justice (Amendment) (No.3) Decree 2010.

The Cause

1. The application is by the 2nd respondent which requires the Court to deal with the issue of whether or not the substantive proceedings against it ought to be terminated pursuant to s. 23(B)(1)(iii) of the Administration of Justice Decree 2010.
   

The Substantive Cause

2. The substantive cause was brought to the Employment Court where the applicant sought an order:-
   
   • (a) That the Employment Dispute reported with the 1st respondent on 23rd day of November, 2009, relating to the suspension of Amol Kumar, by the 2nd respondent, be listed before Employment Relations Tribunal for adjudication and determination.
     
   • (b) That an interim injunction be granted against the decision of the 2nd respondent to terminate the employment of the applicant with effect from 02nd day of February, 2010, and the status quo prevailing prior to this date be maintained, until the hearing and determination of the said employment dispute by the Employment Relations Tribunal.
     
3. The ground on which the substantive application was brought was that on the 23rd day of November 2009, the applicant had reported an employment dispute with the 1st respondent on his unfair and unjust suspension with effect from the 16th day of July 2009.
   
4. His suspension was on half salary and this action of the employer adversely affected the livelihood of the employee. The employee stated that the employer had breached the principles of natural justice by suspending him before he was proven guilty by law. The 1st respondent had acknowledged receipt of the dispute on the 23rd day of November 2009 and advised that the dispute was being analysed and that the applicant would be informed in due course of the outcome of the matter. However it failed to process the dispute as required by s. 170(1) of the ERP. The 1st respondent had to either accept or reject the said dispute within 30 days from the date of receiving the report of the dispute. The 1st respondent has therefore abused his powers by exceeding its jurisdiction and by acting unfairly by not according the applicant the due process of determining the said dispute in a timely manner. The undue delay in processing the dispute has denied the applicant an equitable hearing process and there is procedural impropriety and denial of natural justice.
   
5. The applicant further stated that the 1st respondent is in breach of his statutory duty by not referring the said dispute to the Employment Relations Tribunal for determination as required under s.170(3) of the ERP. Whilst the dispute was still pending, the employer terminated the employee without following due process of the disciplinary procedures as stipulated in clause 8.2 of the Collective Agreement. The 2nd respondent was served with the report of the dispute. It failed to give any legitimate reasons for the manifestly harsh decision to terminate the employee. The employee was denied the right to be heard when his only livelihood had been arbitrarily taken away. If the 2nd respondent's decision is allowed to be on foot, then the employee would be prejudiced in having the reported dispute determined; therefore an order for injunction was justified.
   

Grounds for Termination of Proceeding

6. The application for termination was only brought by the 2nd respondent and not supported by the 1st respondent who only became a nominal party on this application.
   
7. The 2nd respondent submitted that on the 16th day of July 2009, the employee was suspended on half salary by the 2nd respondent on allegations of breach of the code of conduct. The employee reported a dispute for suspension on 23rd day of November, 2009. After investigations by the 2nd respondent and the special investigation team within the Ministry of Works, Transport and Public Utilities, the employee was summarily dismissed on the 1st day of February 2010. The reasons for the termination were:-
   
   • (a) For defrauding the employer by illegally updating and changing the status and information in the Randl System;
     
   • (b) For behaving dishonestly and without integrity in the course of employment by updating and changing the status and information in the Randl system; and
     
   • (c) For making improper use of his duties, status, power and authority to seek to gain a benefit from a customer.
     
8. It was submitted that s. 23(B) (1) (iii) states that the Court does not have jurisdiction to hear the case against the 2nd defendant, which is a statutory body, for changing the terms of services of its employee(s). It was argued that the terms of service of the griever could be found in the Collective Agreement. The term "terms of service", it was submitted, included a wide range of terms, including disciplinary procedures, the conditions of services for example allowances, leave, and the code of conduct. The term also includes the process of termination. An example of the terms of services includes the period of service or the compulsory retirement age of an employee. If an employee resigns, is retired either on medical grounds or attainment of the retirement age, suspended or terminated, then there is a change in the terms of services. Since the termination was by the Minister for Works, Transport and Public Utilities as stated in the letter of 5th May 2010, any lodgement of the dispute pursuant to that termination, being the change in terms of service, is caught under the provisions of s.23(B)(1)(iii) and ought to be terminated.
   

Grounds Opposing Termination

9. Mr. Nair who represented the employee stated that this is not a case concerning changes in the terms of conditions of employment or service. It is a case of termination, which is not caught by s.23 B (1) (iii). It was further argued that s.23C of the same Decree provides for savings of individual rights. It states that "this Decree shall not affect any subsisting employment benefits such as salary, leave and the benefits of any individual in relation to their employment by Government, any Ministry, the Public Service Commission, as statutory authority, or government entity". The dispute that the applicant says he filed, seeks redress on the failure by the employer to follow the disciplinary procedure in terminating the employment.
   
10. Mr Nair further argued that the employee had a right to be heard before his employment was terminated and had a legitimate expectation that the disciplinary processes agreed to in the Collective Agreement would have been adhered to by the employer.
    

The Law and the Analysis

11. The first part of the application before me relates to an order to direct the 1st respondent to process the dispute for adjudication. This application is not sought against the Land Transport Authority and so the application in the first part is not caught by the provisions of the Administration of Justice (Amendment) (No. 3) Decree 2010.
    
12. The second part of the application relates to an injunction restraining the employer from terminating the employee and an order for maintaining of the status quo. An order in the negative form is not possible as the action sought to be restrained has already occurred. The mandatory injunction is not possible because that would in an employment context amount to making a final decision in favour of the employee. I also do not overlook to mention that only a minimal percentage of employees succeed for a remedy of reinstatement, if the employment grievance or dispute is decided in their favour, and the reasons are well known to those who are familiar with employment remedies. I need not discuss this today. More so, I do not have the substantive proceeding before me to grant any interim injunction of the nature sought.
    
13. In essence, I will only need to hear the first part of the substantive application. The employment grievance or issue is not before this Court to terminate it or to entertain the application for termination.
    
14. I have no powers to terminate proceedings not before this Court. However, if s. 23B(1) (iii) is the reason why I should not direct the 1st respondent to refer the matter for determination, then that aspect would be considered at the time I am hearing the substantive application, but not now.
    

Costs

15. This application for termination was unnecessary. I do not think that the 2nd respondent had analysed the substantive application properly and acted in haste to fast track its defence. The application has unnecessarily and unfairly prejudiced the applicant in having its substantive matter heard. The employee had been put to unnecessary task to argue the preliminary matter and as such I am of the judgment that the 2nd respondent ought to pay costs of this unnecessary proceeding.
    

Final Orders

16. The application by 2nd respondent for termination of the substantive proceedings is dismissed.
    
17. The 2nd respondent must pay costs to the applicant in the sum of $550.00.
    
18. The first part of the substantive application will be heard on a date to be allocated to the parties.
    
19. Ordered accordingly.
    

Anjala Wati
Judge

16.12.2011
_____________________________
To:

1. Mr. D. Nair, representative of the Applicant.
2. Ms. K. Naidu for the 1st Respondent.
3. Ms. Kilivuwai for the 2nd Respondent.
4. File ERCC No. 02/2010.