Tabua v Fiji Rugby Union [2012] FJHC 1441; ERCM 01.2011 (10 August 2012)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCM 01 OF 2011

BETWEEN:

ILIVASI TABUA
APPLICANT

AND:

FIJI RUGBY UNION
RESPONDENT

Appearances: Mr. N. Tofinga for the Applicant.
Mr. N. Lajendra for the Respondent.

Date /Place of Judgment: Friday, 10 August 2012 at Suva

Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:

EMPLOYMENT LAW- JURISDICTION OF ERT TO TRANSFER CASE TO ERC FOR DETERMINATION OF QUANTUM OF DAMAGES- TRANSFER ON THE BASIS THAT THE AWARD MAY INCREASE MONETARY JURISDICTION OF THE ERT.

LEGISLATION:

THE EMPLOYMENT RELATIONS PROMULGATION 2007 ("ERP"); S. 211, S. 218, S. 220.

1. On 25 March, 2011 the Employment Relations Tribunal ('ERT") found that the appellant was "unlawfully, unjustifiably and unfairly terminated". As a result, the ERT ordered that under s. 230 of the ERP, the applicant must be reimbursed part of the wages lost as a result of the grievance and also be compensated for humiliation, loss of dignity and injury to his feelings.
   
2. The matter was transferred to the Employment Relations Court ("ERC") to fix a quantum for the remedies awarded by the ERT. The transfer was made under speculation that the award may exceed $40,000, which sum is beyond the monetary jurisdiction of the ERT.
   
3. Subsequently, I had ordered an open court hearing of the matter on quantum as the evidence in the ERT was insufficient for a proper assessment of quantum.
   
4. Subsequently, on my own motion, I raised an issue as to whether I had jurisdiction to assess quantum in this matter when the ERT had tried the matter and whether it was proper for ERT to transfer the file for determination of the quantum. I directed both counsel to address me on the issue.
   
5. Both counsel adhered to the directions and addressed me extensively on the aspect. I will summarise each parties' position.
   
6. Mr. Tofinga's argument is that the monetary jurisdiction of $40,000 does not apply to employment grievance or employment dispute. If it did then the remedies provision outlined in s. 230 of the ERP would have indicated that the monetary limit for ERT was $40,000. S. 230 can be used by ERT and ERC both, so ERT can grant remedies beyond $40,000. The Court should make this pronouncement and send the matter back to ERT for hearing. This interpretation serves the objects of the Act that the ERP is for all workers. This will also avoid discrimination against the workers based on their employment status as all will be able to access ERT's services and get the appropriate remedies.
   
7. Mr. Tofinga also stated that the applicant had to go through the mediation process as required by the ERP and when the mediation failed the matter was transferred to the ERT. The applicant could not do much but find himself in the ERT.
   
8. Mr. Lajendra argued that under s. 218(2) of the ERP, the ERT could only transfer the case to the High Court if there was an important question of law that was likely to arise or that the case was of such a nature that it was in the public interest that it be transferred to the Court. By transferring the case to the ERC for determination of quantum, the ERT acted without jurisdiction.
   
9. Mr. Lajendra also argued that under s. 218(1), a party has a right to apply to the Court for transfer of a case to ERC for hearing and determination of the matter. In this case the employee did not choose to ask for a transfer. The ERT heard the matter and then transferred for quantum. The employee by his own choice of forum is now bound to pursue his matter in the ERT and the ERT is bound to award remedies within its jurisdiction of $40,000.
   
10. Mr. Lajendra stated that under s. 220 (d), (e), and (f), the ERC does have jurisdiction to hear matters transferred to it but it can only do so in limited circumstances and those circumstances does not include to hearing a case transferred by it to ERC for determination of the quantum where the employment grievance or dispute is heard and the remedies determined by the ERT. There is no provision in the ERP to enable the ERT to hear and determine the matter and then transfer the proceedings to ERC for determination of quantum of damages. The ERC can now only hear an appeal from the matter. The appropriate forum to decide the matter is the ERT.
    
11. I am grateful to both the counsel for assisting the court.
    
12. The first question that I need to answer is whether the monetary limit of $40,000 applies to employment grievance and employment dispute.
    
13. S. 211(1) outlines a range of matters over which the ERT has jurisdiction. S. 211(a) and (b) states that the ERT has jurisdiction to adjudicate on employment grievances and employment disputes. S. 211(2) states that the ERT has power to adjudicate on all matters within its jurisdiction relating to claims up to $40,000. I find this provision to strictly mean that the range of matters over which ERT has jurisdiction is confined to a monetary ceiling of $40,000. I find that this ceiling applies to employment grievance and employment disputes as well. The reason why s. 230, being the remedies provision, does not discuss this monetary ceiling is because that is a general provision which applies to all matters heard in ERC and ERT so the proper place where the ceiling could be discussed is where it is currently located.
    
14. The ERT is a creature of statute. It thus must have clear statutory powers to transfer its proceeding to ERT for determination of the quantum. The circumstances where ERT can transfer proceedings after it has heard and determined the matter is for sentencing if it believes that the fine may go beyond $2,000 or the term of imprisonment may go beyond 2 years: s. 211(3).
    
15. A party can also apply for transfer of the matter to ERC for hearing and determination. The ERT may in its discretion transfer the matter before hearing and determination if an important question of law is likely to arise; or the case is of such a nature and of such urgency that it is in the public interest that it be transferred to ERC: s. 218(2). The transfer has to be for hearing and determination of the matter. In this case the matter has already been heard and so it could not be transferred for determination of quantum.
    
16. The ERC has original jurisdiction to hear employment matters and the applicant could have chosen to file its case in the ERC. Now that he has chosen a forum, he has to get an award within the limit set for the ERT and the ERT has to determine the remedies for the amount it has jurisdiction to award.
    
17. S. 220 sets out the jurisdiction of the ERC. The jurisdiction does not include to hear quantum of damages referred from determinations by ERT because once ERT has exercised jurisdiction on an issue like the one before me, the ERC is meant as an appellate court for that issue.
    
18. In this case I have no jurisdiction to hear the quantum. The applicant has to appear before the ERT for completion of the process. I am sympathetic with the appellant for the situation he finds himself in but I cannot go past the legislated provision on jurisdiction and act ultra vires.
    
19. Given the circumstances of the case, it would be improper that I impose on any party with any order for costs.
    
20. I thus order that each party bears their own costs.
    
21. Orders accordingly.
    

Anjala Wati
Judge

10. 08.2012