Maharaj v Public Service Commission [2013] FJHC 42; ERCC 03.2012 (8 February 2013)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCC 03 OF 2012

BETWEEN:

NILESH MAHARAJ
APPLICANT

AND:

PUBLIC SERVICE COMMISSION
RESPONDENT

Appearances: Mr. D. Nair for the Applicant.
Ms. S. Levaci, Ms. T. Barivilala, and Ms. S. Ali for the Respondent.
Date /Place of Judgment: Friday 08 February, 2013 at Suva
Coram: The Hon. Justice Anjala Wati.
___________________________________________________________________________

RULING

CATCHWORDS:

PRACTICE AND PROCEDURE: CERTIFICATE OF TERMINATION ISSUED IN RESPECT OF ORDERS OF TRIBUNAL; COURTS POWER TO RE-TRY ISSUES IN DIFFERENT COURT; PRINCIPLE ON RES JUDICATA; EXAMINATION OF CERTIFICATE OF TERMINATION TO ANALYSE THE PARTICULAR DISPUTE THAT HAD BEEN TERMINATED; VALIDITY OF CERTIFCATE OF TERMINATION DETERMINED BY CIVIL JUDGE; NO POWER OF EMPLOYMENT COURT JUDGE TO REVISIT THE ISSUES.

1. The applicant seeks an order for compliance against the respondent to comply with the decision of the Employment Relations Tribunal ("ERT") of 6 April 2011. The ERT had ordered that the applicant be reinstated to his employment without loss of benefits and the period of absence to be treated as leave without pay.
   
2. Following the decision, a certificate of termination in respect of the orders of the ERT was issued by the Registrar of the Tribunal on 31 May 2011.
   
3. The applicant then filed an application in the civil division of the High Court for judicial review seeking an order for mandamus to direct the PSC to implement the decision of the ERT and a declaration on the validity of the certificate of termination issued by the Registrar of the Tribunal.
   
4. The High Court refused the application for judicial review for the reason that the remedy was not available to the applicant as an alternative remedy for compliance order was available to him under s.212 of the Employment Relations Promulgation 2007 ("ERP"). On the question of the validity of the certificate of termination the Court held that the same was validly issued.
   
5. The order for compliance is sought on two grounds:-
   
   • (a) Justice Mutunayagam had stated in his judgment that a compliance order was the right procedure; and
     
   • (b) The certificate of termination was not issued in the matter from which compliance is sought.
     
6. The applicant says that the Court has to decide 4 issues in order to decide on the compliance aspect. He says they are:-
   
   • (a) Whether the Registrar of the ERT had the statutory powers to issue the certificate of termination;
     
   • (b) Whether the certificate issued was in compliance with all the procedures;
     
   • (c) Whether the certificate of termination was in respect of the decision the applicant is seeking enforcement of;
     
   • (d) Whether the Employment Relations (Amendment) Decree No. 21 of 2011 applies retrospectively.
     
7. Out of all the above issues, the only issue that Justice Mutunayagam did not deal with is the issue of whether the certificate of termination covered the decision from which compliance is sought.
   
8. The rest of the issues are res judicata and the applicant has no right to ask the Employment Relations Court to re-adjudicate the same issues. I have no mandate to overturn a decision of my brother judge in my capacity as an Employment Court Judge and I refrain from acting beyond the powers prescribed by the legislature.
   
9. The above issues, which are now res-judicata, are admirably and aptly dealt with by Justice Mutunayagam in the following way:
   

"The other matter that emerges from this application is the validity of the termination certificate issued by the Registrar of the Tribunal under the provisions of the Employment Relations (Amendment) Decree No. 21 of 2011.

Mr. Nair representing the Public Service Association, the interested party contended that the Decree does not have retrospective effect and hence the decision of the Tribunal dated 6th April 2011, does not fall within its scope.

The Decree amends the Employment Relations Promulgation, 2007, by the insertion of a new provision, the relevant part which reads as follows:

266- (1) "Any action, proceeding, claim, dispute or grievance of any form whatsoever...in any court, tribunal or which purports to or purported to challenge or involves the ...the Public Service Commission...shall wholly terminate upon the commencement of the Employment Relations (Amendment) Decree 2011, and a certificate to that effect ...

(2) Any orders of the Employment Relations Tribunal or the Employment Relations Court whether preliminary or substantive in any action, proceeding, claim, dispute or grievance of any form whatsoever, which had been brought by virtue of or under this Promulgation and purports to or purported to challenge or involves...the Public Service Commission shall wholly terminate upon the commencement of the Employment Relations (Amendment) Decree 2011, and a certificate to that effect shall be issued by the Chief Registrar, Tribunal or any other person or body exercising a judicial function.

(3) A certificate issued under subsections (1) and (2) is conclusive of the matters stated in the certificate and shall not be subject to challenge in any court, tribunal, Commission or any other adjudicating body". (emphasis added).

The above provision draws a distinction between pending actions to which subsection (1) applies and orders to which sub-section (2) applies. Subsection (2) encompasses orders of the Tribunal which "purported to challenge or involves the Public Service Commission". This would bring within the scope of subsection (2), orders made prior to the coming into operation of the Decree on 16 May 2011. Accordingly, in my judgment, the decision of the Tribunal dated 6th April, 2011, falls within the ambit of subsection (2).

It was also argued by Mr Nair that the termination certificate issued by the Registrar of the Tribunal was not valid, since the Registrar was not a "person or body exercising a judicial junction" in terms of the above provision. In my judgment, the Registrar issued the certificate of termination with the official seal of the Tribunal for and on behalf of the Tribunal".

10. It remains for me to only decide whether the certificate of termination was in respect of the matter from which compliance is sought. This was not argued before the civil court and thus not determined. On the issue of the matter in respect of which the certificate of termination was issued, I must say that I am flabbergasted by Mr. Nair's attempt to find a case for his client when there is none.
    
11. The certificate of termination was issued in respect of a miscellaneous case No. 20 of 2009. In that case the parties are Nilesh Maharaj, the Chief Mediator and the Public Service Commission.
    
12. In that miscellaneous case, on 3 September 2009, the ERT had ordered that the matter between the applicant and the Public Service Commission be referred to ERT for determination. The order was against the Chief Mediator. The order was made on the application of the applicant.
    
13. At all material times the substantive dispute in the miscellaneous case was between the applicant and the Public Service Commission. Was the substantive dispute terminated?
    
14. I have perused the certificate of termination which includes the Public Service Commission as a party. The inclusion of the PSC as a party indicates that the matter was wholly terminated. The certificate of termination not only encompasses the decision of the ERT against the Chief Mediator to refer the matter to the ERT but also the decision on the substantive dispute delivered on 6 April 2011.
    
15. The certificate of termination could have also reflected the ERT case number which initially was miscellaneous case number 20 of 2009 before it was referred to ERT for determination.
    
16. However, for all intent and purpose, the certificate of termination includes the decision of the ERT from which arose the compliance order and if it does not, the compliance order application still cannot be entertained under the ouster clause referred to by the Hon. Justice Mutunayagam.
    
17. Mr. Nair says that Justice Mutunayagam had refused the judicial review application and indicated in his judgment that the proper procedure was a compliance order under the ERP and not judicial review and since that procedure was available to the applicant; judicial review jurisdiction could not be exercised. Justice Mutunayagam indeed refused the application for judicial review on the ground that a compliance order procedure was available to the applicant under the ERP. He then further went on to decide that there existed a valid certificate of termination. With all due respect to his Lordship, I think that his observation that the certificate of termination was validly issued should have put an end to the matter. He need not have gone further and indicated that the judicial review application was not available since an alternative remedy existed. If the dispute is terminated, there is no remedy available for enforcement, be it under the ERP, private or public law. Be that as it may, it is clear that no compliance order can be sought, irrespective of the observations of his Lordship.
    
18. On the issue of costs, this application from the outset was misconceived. The respondent had to appear in Court, file affidavits and submissions. That all involves costs and I find that some costs, summarily assessed, is justified.
    
19. In terms of final orders:
    
    • (a) The application for compliance is dismissed.
      
    • (b) The respondent shall have costs of the proceeding in the sum of $550.00.
      

Anjala Wati
Judge

8.02.2013
______________________

To:

1. Mr. D. Nair for the Applicant.
2. AG's Chambers for the Respondent.
3. ERCC No. 03 of 2012.