Prasad v Air Pacific Ltd [2012] FJHC 931; ET001.2011 (23 February 2012)

IN THE HIGH COURT OF FIJI
IN THE EMPLOYMENT RELATIONS DIVISION
AT LAUTOKA

ET 001 of 2011

BETWEEN:

SHAILESH PRASAD of 18 Kartaran Place, Votualevu, Nadi.
PLAINTIFF

AND:

AIR PACIFIC LIMITED
a company limited by shares having its registered office at Nasoso Road, Nadi.
DEFENDANT

Before : Master Anare Tuilevuka
Solicitors : Messrs Lowing & Nandan for the Plaintiff
Messrs Siwatibau & Sloan for the Defendant

Date of Ruling : Thursday 23 February 2012

RULING

INTRODUCTION

[1]. I am to determine whether or not the plaintiff’s claim in this case is caught under section 30(2) of the Essential National Industries (Employment) Decree (Decree No. 35) of 2011. My authority to deal with this matter derives from a directive dated 06 October 2010 by the Honorable Chief Justice to all Judicial Officers on Procedure for Referring Civil Matters to Chief Registrar[1].

[2]. The purpose of the Decree is set out in section 3 which I reproduce below.

[3]. Sections 30(2) and (3) of the said Decree state as follows:

30-(2) Any proceedings, 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 had 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 substantive 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.

30-(3) where any proceeding, claim, challenge, application or dispute of any form whatsoever is brought before any court, tribunal, commission or any other adjudicating body, in respect of any of the subject matters in subsection (2), then the presiding judicial officer without hearing or in any way determining the proceeding or the application, shall immediately transfer the proceeding or the application to the Chief Registrar or the registrar of the Employment Relations Tribunal for termination of the proceeding or the application and the issuance of a Certificate under subsection (2).

[4]. Clearly, from the above, a Certificate of Termination is only to be issued where:

• (i) the party being sued is a designated corporation.
• (ii) the proceeding or claim has been instituted under or involves the Employment Relations Promulgation 2007.
• (iii) the proceedings or claim were instituted before the commencement of the Essential National Industries (Employment) Decree.
  

Is Air Pacific Limited a Designated Corporation?

[5]. Under Schedule 1 of the Essential National Industries & Designated Corporations Regulations 2011 (Legal Notice No. 81 – Thursday 08 September 2011), Air Pacific Limited is listed as a designated corporation.

Whether the proceedings or claim has been instituted under or involves the Employment Relations Promulgation 2007?

[6]. The plaintiff is suing Air Pacific Limited for damages for an alleged breach of his employment contract and wrongful dismissal. He was an Accountant with Air Pacific Limited for some five years and 4 months. He was allegedly summarily dismissed on 10 September 2010.

[7]. The events which triggered the purported summary dismissal happened on 21 August 2010 at the Nadi International Airport. As to be expected, the parties are at slight variance as to what exactly happened. There is no need for me to discuss this further in this ruling. Suffice it to say that the plaintiff is aggrieved by the termination of his employment contract which he alleges was wrongful and in breach of his contract of employment. His claim is filed before the Employment Relations Division of the High Court at Lautoka. Undoubtedly, the issues raised will invoke the application of the provisions of the Employment Relations Promulgation 2007.

Whether the proceedings or claim was instituted before the commencement of the ENI (E) Decree?

[8]. The statement of claim in this case was filed on 08 February 2011. The Essential National Industries & Designated Corporations Regulations 2011 (Legal Notice No. 81 – Thursday 08 September 2011) came into force on 09 September 2011 (see paragraph 5 above). And the commencement date of the ENI (E) Decree was also 09 September 2011 by virtue of Legal Notice No. 82[2].

CONCLUSION

[9]. The plaintiff’s claim is caught under section 30 of the Essential National Industries (Employment) Decree (Decree No. 35) of 2011. Accordingly, I will send this file along to the Chief Registrar for issuance of the Certificate of Termination under section 30(2).

................................
Anare Tuilevuka
Master

At Lautoka.
23 February 2012.

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^[1] The said directive states as follows:

When the question of whether a case falls within a category where the Chief Registrar may consider termination under one or other Decree, it may be wise to follow the following procedure:

1. If the parties to the litigation agree that the case does come within the relevant Decree, the judge can make the necessary order to refer it to the Chief Registrar for her consideration.

2. If the parties do not so agree, the judge should ask for submissions and have the issue argued, then rule. This way, the litigants have the opportunity of a hearing to argue that it does not come within the respective Decree.
^[2] [LEGAL NOTICE NO. 82], ESSENTIAL NATIONAL INDUSTRIES (EMPLOYMENT) DECREE 2011 (Decree No. 35 of 2011), Commencement Notice states as follows: “IN exercise of the powers vested in me by section 1 of the Decree, I hereby appoint 9th September 2011 as the commencement date of the Essential National Industries (Employment) Decree 2011 (Decree No. 35 of 2011). Dated this 8th day of September 2011. Sgd. J. V. BAINIMARAMA, Prime Minister & Minister for Finance, National Planning, Public Service, People’s Charter for Change and Progress, Information, Sugar Industry, Indigenous and Multi Ethnic Affairs and Provincial Development.