Fiji Revenue and Customs Authority v Narayan [2012] FJHC 1438; ERCA 12&15.2011 (23 July 2012)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBERS: (1) ERCA 12 OF 2011
(2) ERCA 15 OF 2011

(1) BETWEEN:

FIJI REVENUE AND CUSTOMS AUTHORITY
APPELLANT

AND:

RAM NARAYAN
RESPONDENT

(2) BETWEEN:

FIJI REVENUE AND CUSTOMS AUTHORITY
APPELLANT

AND:

ISIKELI DULANADAU
RESPONDENT

Appearances: Mr. B. Solanki for the Appellant (ERCA 12 and 15 of 2012).
Mr. D. Nair for the Respondent (ERCA 12 of 2012).
No appearance of Respondent in ERCA 15 of 2012.

Date /Place of Judgment: Monday 23 July 2012 at Suva

Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:

EMPLOYMENT: termination of proceedings on appeal: s.28 (2) and s. 30(2) of Decree No. 35 of 2011.

LEGISLATION:

1. Essential National Industries (Employment) Decree 2011: ("Decree No. 35 of 2011").
2. Essential National Industries & Designated Corporations Regulations 2011.
3. The Employment Relations Promulgation 2007 ("ERP 2007").

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1. On 27 May 2011 and 12 July 2011, the ERT gave its decision in favour of the respondents respectively, which remained unenforced until the commencement of Decree No. 35 of 2011.
   
2. Decree No. 35 of 2011 was enacted on 25 July 2011. It came into force on 9 September 2011: Regulation 1(2) of Essential National Industries & Designated Corporations Regulations 2011.
   
3. The issue before the Court is, whether, after the commencement of Decree No. 35 of 2011, the appeal proceedings should be terminated under ss. 28(2) and 30(2) of the Decree.
   
4. Mr. Solanki, appearing for the appellant states that the answer is in the affirmative, in that this appeal should be terminated. Mr Solanki states that ss. 28(2) and 30(2) of Decree No. 35 makes it unequivocal that the issue be decided in favour of terminating the proceedings.
   
5. Mr. Nair, appearing for the respondent in ERCA 12 of 2011, argued that ss. 28(2) and 30(2) of Decree No. 35 of 2011 does not specifically and explicitly state that it will have a retrospective effect, so decisions prior to its commencement are not caught by the Decree. Mr. Nair says that it is the prerogative of the appellant to withdraw the appeal but that withdrawal will not invalidate the decision of the ERT which remains good and valid. It was argued that the employer will thus have to comply with the decision of the ERT.
   
6. An examination of the two sections of 28(2) and 30(2) has become necessary.
   
7. S.28(2) of the Decree No. 35 of 2011 reads:-
   

"Except as otherwise provided in this Decree, the provisions of the Employment Relations Promulgation 2007 shall not apply to any essential national industry, designated corporation or any person employed in any designated corporation or any essential national industry".

8. Under Schedule 1 of the Essential National Industries & Designated Corporations Regulations 2011, the appellant is named as a "designated corporation".
   
9. S. 28(2) does not specifically and explicitly state that it applies to pending matters. The provision was clearly enacted to apply to all future matters. I therefore do not find any clear and explicit intention in s. 28(2) which will allow me to apply this section to the pending appeal proceedings before this Court.
   
10. The next section is that of s. 30(2). It reads as follows:-
    

"Any proceeding, claim, challenge or dispute of any nature whatsoever in any court, tribunal, commission or before any other person or body exercising a judicial function, against any designated corporation that has been instituted under or involved the Employment Relations Promulgation 2007 before the commencement date of this Decree but had not been determined at that date or is pending on appeal, shall wholly terminate immediately upon the commencement of this Decree, and all orders whether preliminary or substantively made therein shall be wholly vacated and a certificate to that effect shall be issued by the Chief Registrar or the registrar of the Employment Relations Tribunal".

11. The words "Any proceeding .... instituted under or involved the Employment Relations Promulgation 2007 before the commencement date of this Decree ... or is pending on appeal, shall wholly terminate ..." precisely and unequivocally states that s.30(2) applies retrospectively. The section includes all proceedings instituted under or involved the ERP 2007 before the commencement of the Decree which are pending on appeal.
    
12. The respondents in this case had initially brought the matter before the ERT under the provisions of the ERP 2007. The proceedings were brought before the commencement of Decree No. 35 of 2011 and decisions were also made before the commencement of the Decree. The decision was made in favour of the defendants' and before being enforced, the appellants brought these two appeals. The appeal proceedings are pending. The appeal proceedings are thus encompassed by s. 30(2) of Decree No. 35 of 2011.
    
13. It matters not as to who brought the appeal. The bringing of the appeal by the designated corporation makes the original proceedings pending on appeal. The original orders, thus, are pending against the designated body.
    
14. S.30(2) of the Decree No. 35 of 2011 further makes it clear that all the orders shall be vacated which means that the existing orders of ERT, pending against the designated corporation, must too be terminated.
    
15. In the final analysis, I find that whilst s. 28(2) of Decree No. 35 of 2011 has a prospective effect, s. 30(2) clearly and unequivocally states that it applies retrospectively.
    
16. I find that these two appeal matters cannot proceed any further. Under s. 30(2) of the Decree, the appeal proceedings and the ERT proceedings shall be wholly terminated.
    
17. I direct the Chief Registrar to raise the necessary certificates of termination to this effect in respect of both the matters and serve the same on the parties.
    
18. The Senior Court Officer must forward the files to the Office of the Chief Registrar for compliance with my directions.
    
19. The respondents have had the original decision in their favour and so they needed the Court to decide on their rights under Decree No. 35 of 2011. I do not find that their request for a determination on the subject was malicious or improper. An order for costs against the respondents will not be justified.
    
20. I thus order that each party bears their own costs.
    
21. Orders accordingly.
    

Anjala Wati

Judge

23.07.2012
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