National Union of Factory and Commercial Workers Union v Registrar of the Employment Relations Tribunal [2012] FJHC 1439; ERCA 08.2012 (7 August 2012)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA 08 OF 2012

BETWEEN:

NATIONAL UNION OF FACTORY AND COMMERCIAL WORKERS UNION
APPELLANT

AND:

REGISTRAR OF THE EMPLOYMENT RELATIONS TRIBUNAL
RESPONDENT

Appearances: Mr. D. Nair for the Appellant.
Respondent in Person.

Date /Place of Judgment: Tuesday 07 August, 2012 at Suva

Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:

PRACTICE AND PROCEDURE – SETTING ASIDE CONSENT ORDERS UPON WHICH PROCEEDINGS CLOSED IN TRIBUNAL- WHETHER AND WHEN AN APPEAL IS APPROPRIATE- CAN THE EMPLOYEES OF ERT BE MADE A PARTY TO THE APPEAL PROCEEDINGS- CHOICE OF PROCEDURE OUTLINED.

1. The appellant had filed an initial action in the Employment Relations Tribunal which was assigned a miscellaneous case number 20 of 2011. The action was brought by the appellant against the Biscuit Company of Fiji, a subsidiary of Flour Mills of Fiji. The matter was settled and the proceedings finalised.
   
2. The appellant then applied to reinstate the matter on the grounds that the employees had signed the agreement without the instructions of the appellant and that they were misled into signing the agreement.
   
3. The Registrar of the Tribunal wrote back refusing to reinstate the matter. She stated in her letter:-
   

"Please be advised that your motion dated 2nd April, 2012 has been rejected by the Tribunal.

This is due to the fact that this case was a closed matter, with a deed of settlement filed and not a struck out matter that needs to be reinstated. The Tribunal does not have the jurisdiction to hear matters that have been closed or settled by the parties which is regarded as final and binding".

4. Against the decision to reinstate, the appellant filed the appeal on the ground that the Registrar erred in law and in fact in refusing to reinstate the matter. The appeal also states that the Registrar acted unreasonably by stating that the parties had reached a settlement on the matter when the appellant who was one of the parties in the proceedings had not signed any such deed of settlement with the employer. The appellant also states that the ERT was never told that the appellant had settled the matter. The ERT had closed the case on the grounds that the parties had reached the settlement. That decision, it is said, is based on irrelevant considerations.
   
5. The respondent argues that she should not have been made a party to the proceedings. She argued that she acted on instructions from the Chief Tribunal and the Legal Member to refuse the application for reinstatement. The Registrar stated that it is not for her to assess whether it was proper to refuse the application but because her duties are administrative in nature, she did what the ERT asked her to do.
   
6. The Registrar in this case has not exercised a judicial function and as such her conveying of the decision of the Tribunal to the appellant cannot be subject to an appeal. The Registrar should not have been made a party to the proceedings.
   
7. The proceeding in the ERT was apparently closed due to settlement. The ERT was also correct in giving instructions not to accept the reinstatement application.
   
8. If the appellant is not happy with the settlement on the grounds that the employer had misled the employees into settling the case, the appellant's recourse lies in applying to the ERT by a fresh action to set aside the settlement on appropriate grounds. If the ERT hears the case and refuses to set aside the settlement, then the appellant has recourse to appeal against that decision.
   
9. If the appellant is of the view that the ERT erred procedurally in accepting the settlement and finalising the case, then the appellant must file an appeal where the employer must be made a party to the action and not the Registrar.
   
10. The manner in which this appeal is brought is meaningless and cannot be sustained on any grounds.
    
11. The appeal is struck out.
    
12. I leave the matter for the appellant to decide on the proper procedure.
    

Anjala Wati
Judge
07. 08.2012
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