Rokovunisei v Fiji National Provident Fund [2014] FJHC 10; Civil Action 319.2007 (28 January 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
Civil Action No. 319 of 2007

BETWEEN:

OLOTA TULUMANI ROKOVUNISEI
of 761 Damu Circle, Pacific Harbour, Deuba, Businessman
PLAINTIFF

AND:

FIJI NATIONAL PROVIDENT FUND
a corporate body duly registered under the FNPF Act Cap. 219, 33 Ellery Street, Suva
DEFENDANT

BEFORE : Justice Deepthi Amaratunga

COUNSEL : Ms. S. Vaniqi for the Plaintiff
Mr. S. Singh for the Defendant

Date of Hearing : 21st January, 2014
Date of Decision : 28th January, 2014

DECISION

INTRODUCTION

1. The Plaintiff instituted this action by way of writ of summons seeking damages for alleged breach of contract and unlawful dismissal. The alleged dismissal is based on the breach of employment contract, namely failure to investigate the charges against the Plaintiff through a tribunal appointed in terms of the employment contract. The alleged cause of action is based on the said breach of contract by the Defendant for not allowing the said tribunal to investigate the said allegations against the Plaintiff. Preliminary issue was raised whether the jurisdiction is ousted by the Section 23 of the Administration of Justice Decree 2009.

ANALYSIS

2. Section 23B(1) of Administration of Justice Decree 2009 reads as follows:

"No court, tribunal, commission or any other adjudicating body shall have the jurisdictions to accept, hear, determine or in any other way entertain, any challenges, at law, in equity or otherwise (including any application for judicial review), by any person or body, or to entertain or grant any remedy to any persons or body, in relation to the validity, legality or propriety of any action, decision or order of the Government of the Republic of Fiji, any Minister, the Public Service Commission or an statutory authority or Government entity to:

(i) Restructure or reform any Government public office or public service, including corporatizing or privatizing any Government department, ministry, statutory authority or Government entity; or

(ii) Alter or amend the terms and conditions of employment of any person in any public office or public service, including any changes effected through directions issued by the Public Service Commission by an memorandum or circular or through any other directive issued by the Government of the Republic of Fiji, any Minister, the Public Service Commission or any statutory authority or Government entity; or

(iii) Any changes to terms of services including the remuneration of any person in public offices or public service, statutory authority or Government entity.

(emphasis added)

3. According to the said provision a statutory authority by way of a directive issued, can amend or alter the terms and conditions of employment of any person. The directive can be applied to en mass or can confine to one individual. Once such directive was taken, it cannot be questioned in a court of law in regard to its 'validity, legality or propriety'. The said provision continues to be in force in terms of Section 174(3) of the Constitution of the Republic of Fiji.(hereinafter stated as the Constitution).

4. The section 174(3) of the Constitution states as follows

'(3) Notwithstanding anything contained in this Constitution, sections 23, 23A,23B, 23C and 23D of the Administration of Justice Decree 2009 shall continue in force and shall not be amended, revised, altered or repealed, and the courts established by, or continued in existence under, this Constitution shall not have jurisdiction to –

(a) accept, hear or determine any matter for which the jurisdiction of the courts is excluded under the Administration of Justice Decree 2009 or under any Promulgation, Decree, Declaration or under any other written law; or

(b) accept, hear or determine any proceeding which had been terminated under the Administration of Justice Decree 2009 or under any Promulgation, Decree, Declaration or under any other written law.'

5. Section 23B(1) of the Decree has to be read with section 23B(2) of the Decree which is in the following terms:

"(2) Any action proceeding, claim, dispute or grievance of any form whatsoever in any court, tribunal commission or any other person or body exercising a judicial junction which purports to of purported to challenge any action, decision or order of the Government of the Republic of Fiji, any Minister, the Public Service Commission or any statutory authority or Government entity as it relates to actions, decisions, or orders as referred to in subsection (1) shall wholly terminate upon the commencement of this Decree and all orders whether preliminary or substantive made therein shall wholly terminate upon the commencement of this Decree, and a certificate to that effect shall be issued by the Chief Registrar, Tribunal, Commission or any other person or body exercising a judicial function." (emphasis added)

6. The counsel for the Defendant contends that since the termination of the employment of the Plaintiff was primarily based on the breach of the contract, this action should be terminated in terms of the above provision of law. According to minutes of the Pre Trial Conference the issues before this court are as follows:

'a. Whether the Defendant breached the terms of the Plaintiff's contract of employment.

i. Whether the Defendant, in establishing the Tribunal and having appointed Mr. Barrie Sweetman thereunder as Arbitrator, was legally obliged to allow the Tribunal to run its full course leading to an outcome contemplated by clause 38 of the Plaintiff's contract of employment.

ii. If the answer to (a)(i) herein in affirmative, whether the Defendant's action in disbanding and discontinuing and not allowing the Tribunal to run its full course, deprived the Plaintiff a full opportunity to ventilate a full and complete defence against the allegation against him.

b. Whether the Plaintiff's dismissal from employment was lawful.' (emphasis is mine)

7. The establishment of a Tribunal to investigate the allegation was admittedly in compliance of the terms of the contract of employment. According to the Plaintiff, by not allowing the said Tribunal to investigate the Defendant had breached the said condition of the employment contract. The said condition is contained in clause 36(d)(ii) of the Plaintiff's contract of employment:

"(d) The Board shall not terminate this Contract under paragraph (c) –

(ii) because of misconduct, unless reasonable enquiries have been made into the allegation of misconduct and the Officer has been given a reasonable opportunity to be heard by the Board."

8. The main issue before this court is whether the Defendant failed to comply with the said term contained in the contract of employment. It is also an agreed fact (at paragraphs 24 -27of the Pre Trial Conference Minutes) that on 19 April 2007, the Defendant revoked the appointment of the person to the Tribunal and it proceeded to determine the charges against the Plaintiff on the evidence and response provided by the Plaintiff and terminated the employment on the same day.

9. The central issue is after having established the Tribunal in order to investigate the allegations against the Plaintiff, the disbanding of the said tribunal was a breach of the terms of the employment between the parties.

10. The alleged illegality of the dismissal was the said noncompliance of the terms of the Contract and I do not have evidence of any directive or decision to amend the terms of employment. The jurisdiction to determine an issue relating to decision to alter or to amendment the terms of employment is ousted but clearly it had not ousted all breaches and or all non-compliances of employment contract by a statutory body. If that was intended it would have been stated clearly. In the circumstances I do not think that the jurisdiction is ousted from the material available to me at this moment.

CONCLUSION

11. From the materials available at this moment I do not think the jurisdiction is ousted to determine the issues in this case. In the case of State v Permanent Secretary for Works and Transport and Public Utilities ex parte Tubunaruarua (unreported) [2012] FJHC 9 85 (decided on 23rd March, 2012) Wati J held that unlike in suspension, under termination of employment the contract comes to an end hence 'Section 23B does not preclude a person from bringing any proceeding in court arising out of decision....'I agree with the said finding of Wati J and accordingly overrule the preliminary objection to the jurisdiction.

FINAL ORDER

1. The preliminary objection to jurisdiction raised by the Defendant is overruled.
2. No costs.
   

Dated at Suva this 28th day of January, 2014.

Justice Deepthi Amaratunga
High Court, Suva