Sagar v Fiji Electricity Authority [2014] FJHC 81; ERCC06.2013 (20 February 2014)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCC NO. 6 OF 2013

BETWEEN:

VIDYA SAGAR
PLAINTIFF

AND:

FIJI ELECTRICITY AUTHORITY
DEFENDANT

Appearances: Plaintiff in Person.
Mr. N. Lajendra for the Defendant.
Date and Place of Judgment: Thursday 20 February 2014 at Suva.
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

Catchwords:

Can proceedings be brought against Fiji Electricity Authority under the ERP when it is declared as an essential national industry- previous case based on the same issue filed in civil court-certain orders were to be complied with by plaintiff and if he did not the action was deemed struck out-plaintiff bringing another action without complying with the orders of the Court in the first case is an abuse of the process of the court-the subsequent action is an attempt to circumvent the failure to comply with the orders of the Court and to accept the consequences as a result of non-compliance.

Cases:
Fiji National Provident Fund v. Abineshwar Vinod [unreported] ERCA No. 4 of 2012.

Legislation:

Essential National Industries (Employment) Decree 2011 (Decree No. 35 of 2011 ("ENI"): ss. 28(2); 30 (2).

Essential National Industries & Designated Corporations Regulations 2011.

The Cause

[1]. The plaintiff by a writ brought an action against the defendant for unlawful dismissal.

[2]. The defendant is seeking to have the action struck out on the grounds that the action is an abuse of the process of the Court and that the plaintiff is not entitled to claim, challenge or dispute the decision of the defendant to terminate him in the Employment Relations Court pursuant to S.30 (1) (c) of ENI.

Grounds in Support

[3]. The defendant says that on 25 March 2013 the plaintiff had filed a Civil Action No. 80 of 2013. The cause of action was unlawful dismissal too. The claim was based on the same termination as in the current claim.

[4]. The nature of the pleadings in that case gave rise to a summons to strike out by the defendant. Upon hearing of the summons to strike out, Amaratunga, J on 13 May 2013 ordered that the plaintiff file an amended statement of claim within 14 days in absence of which the action is deemed struck out.

[5]. The plaintiff did not comply with the order and instead filed the current claim. The plaintiff's action amounts to an abuse of the process of the Court under Order 18 Rule 18 (1) (d) of the HCR.

[6]. The second ground upon which the application is based is s.30 (1) (c) of the ENI. It was argued that the defendant is listed as an essential national industry under the Essential National Industries & Designated Corporations Regulations 2011 and as such under S.30 (1) (c) of the ENI the plaintiff cannot challenge the decision of the defendant in any Court, Tribunal or Commission under the ERP.

Grounds in Opposition

[7]. The defendant argues that it is the defendant who had failed to comply with ss.25 and 26 (1), (2) and (3) of the ENI Decree. He did not accept the decision of the defendant company's management to terminate him.

[8]. The plaintiff also argues that this action is a civil matter and the ENI Decree does not apply. His lawyer Mr. Maharaj had asked him to file this action in the ERC.

The Determination

[9]. Based on his termination the plaintiff had earlier filed an action. The Court had in that action, ordered him to file amended pleadings within 14 days. He failed. The action is now deemed struck out as per his Lordship Justice Amaratunga's decision.

[10]. The plaintiff then brings this action. In the earlier action the plaintiff was subject to an order to file a statement of claim. The action was pending and the plaintiff by its failure allowed it to collapse. Having done that through his own failure, bringing a subsequent action based on the same claim is circumventing the failure to comply with the order of the Court within a given timeframe. The subsequent action is an abuse of the process of the Court in that regard and must be struck out.

[11]. Even if I give the plaintiff the right to proceed, his second hurdle is ss.28 (2) and 30 (2) of the ENI which prohibits anyone from bringing an action against the essential national industry under the ERP. The two sections are self explanatory and read as follows:

28). (2) Except as otherwise provided in this Decree, the provisions of the Employment Relations Promulgation 2007 shall not apply to any essential national industry, designated corporation or any person employed in any designated corporation or any essential national industry.

30).(1) No Court, tribunal, commission or any other adjudicating body shall have the jurisdiction to accept, hear, determine or in any other way entertain any proceeding, claim, challenge or dispute by any person or body which seeks or purports to challenge or question-

a) the validity, legality or propriety of this Decree;

b) any decision of any Minister, the Registrar or any State official or body, made under this Decree; or

c) any decision of any designated corporation made under this Decree.

(2) Any proceeding, 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 not been determined at that date or is pending on appeal, shall wholly terminate immediately upon the commencement of this Decree, and 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.

[12]. In the case of Fiji National Provident Fund v. Abineshwar Vinod [unreported] ERCA No. 4 of 2013 I had found that:

"The words used in s.30(2) to the effect "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 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" make it very clear that the ENI applies to all matters not finalised be it a matter commenced before the ENI came in force or after it.

S. 30(2) of the ENI thus applies retrospectively..."

[13]. The plaintiff's claim was initially instituted in a proper court. It should have remained there.

The Final Orders.

[14]. This action has to be terminated under S.30 (2) and (3) of the ENI.
[15]. I refer this matter to the Chief Registrar for the necessary action.
[16]. Due to the nature of the proceeding and the final outcome, I make no order as to costs.

Anjala Wati
Judge
20.02.2014

_______________________________

To:
1. The Plaintiff.
2. Mr. Lajendra for the Defendant.
3. File: ERCC No. 6 of 2013.