Radrodro v Fexco (Fiji) Ltd [2015] FJHC 1034; ERCC1.2015 (24 December 2015)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCC 1 of 2015

BETWEEN:

ASERI RADRODRO
PLAINTIFF

AND:

FEXCO (FIJI) LIMITED
DEFENDANT

Appearances: Mr. Tuifagalele for the Plaintiff.
Ms. Rakai for the Defendant.
Date/Place of Judgment: Thursday 24December 2015 at Suva.
Coram: Hon. Madam Justice A. Wati.

RULING

Catchwords:
Employment Law – Employeesright to bring a fresh action in Employment Court after matter struck out by Employment Tribunal for want of jurisdiction – limitation period to bring an action for breach of contract where an employee has been terminated from employment: is it 6 months under s. 111(2) of the ERP.

Legislation:

1. The Employment Relations Promulgation 2007 ("ERP"): ss. 111(2); 211(2); 220 (1)(h).
   

Cause

1. The plaintiff was terminated from his employment on 17 September 2009.
   
2. He filed a claim in the Employment Relations Court ("ERC") on 30 January 2015 for unlawful and unfair dismissal.
   
3. On 12 February 2015, the defendant filed an application to strike out the claim on the basis that the plaintiff had filed an action in the Employment Relations Tribunal ("ERT") and that was struck for want of jurisdiction and no reasonable cause of action and that the action is time barred under s. 111 (2) of the ERP.
   

Grounds and Submissions

4. The defendant's counsel relying on the affidavit argued that initially the plaintiff had filed a case in the ERT for unlawful and unfair dismissal. That action was struck out for want of jurisdiction and no reasonable cause of action. The plaintiff's recourse was to appeal the decision if he had issues regarding the striking out for want of jurisdiction and no reasonable cause of action.
   
5. It was argued that it is an abuse of the process of the court to file the second application of the same nature and put the defendant to expense of defending the proceedings again.
   
6. It is the plaintiff who chose not to pursue its claim in the ERT. It should not be allowed a second chance. The plaintiff's claim was struck out for no reasonable cause of action which means that the plaintiff does not have a claim against the defendant.
   
7. Ms. Rakai further argued that the claim is statute barred under s. 111(2) of the ERP in that the employee did not submit his grievance to the employer within six months from the date on which the action alleged to have occurred. The worker therefore had only 6 months from the date of dismissal to submit his grievance to the employer and since he did not, he cannot file a claim in Court.
   
8. The defendant's counsel Mr. Tuifagalele stated that the 6 month rule under s. 111(2) does not preclude the plaintiff from filing a claim in Court. The plaintiff should be able to file its claim within the six year limitation period without having to obtain consent from either the employer or the Court.
   
9. The ERC is empowered under s. 220(1) (h) to hear and determine an action founded on an employment contract and no time limit is prescribed. In that case the Limitation Act will apply and there is no dispute that the claim does not contravene the limitation period under the Limitation Act.
   
10. It was further argued that the plaintiff admits that it filed a claim in the ERT and since the claim was beyond the jurisdiction of the Court it was struck out. The plaintiff did not wish to appeal that decision because the ERT was right in striking out on the basis that the ERT did not have jurisdiction to hear the case.
    
11. Striking out for want of jurisdiction does not preclude the plaintiff from filing the claim in the proper forum which is the ERC.
    

Law and Analysis

12. There are basically two issues before me. They are:
    
    • (i) whether the filing of the second application in the ERC is an abuse of the process of the Court; and
      
    • (ii) whether the current claim is statute barred.
      
13. I will deal with the issue of abuse of process of the Court first. It is not disputed by any party that the claim was struck out for want of jurisdiction because it was for a sum beyond $40,000.
    
14. I have perused the claim filed in the ERT. The monetary amount claimed was $350,000 which was beyond the jurisdiction of the ERT as prescribed by s. 211(2) (a) of the ERP which states that the Tribunal has power to adjudicate on matters within its jurisdiction relating to claims up to $40,000.
    
15. On the day the proceeding was struck out, the plaintiff did not appear in Court. Ms. Rakai says that the plaintiff failed to prosecute its case.
    
16. Even if the plaintiff appeared in the ERT or was represented, there would not have been any difference to the orders made as there was no basis for the claim to survive on the question of jurisdiction.
    
17. The claim was not decided on merits and since the application was struck out, the plaintiff has the right to file an application in the proper Court or forum. The plaintiff has now chosen to file an application in the ERC. Under s. 220 (1) h) of the ERP, the ERC has jurisdiction to hear and determine an action founded on an employment contract.
    
18. The claim in the ERC is not an abuse of the process of the Court as the initial matter was struck out by the ERT for want of jurisdiction and not on the merits.
    
19. I must also deal with the aspect of the striking out which was done for "no reasonable cause of action". This takes me to the order of the ERT. It says that "the plaintiff's action be struck out for want of jurisdiction and no reasonable cause of action".
    
20. I do not understand why the ERT stated that the action is struck out for no reasonable cause of action. The ERT did not have any jurisdiction to make that finding. The claim was beyond $40,000 and the only jurisdiction the ERT had was to strike it out for want of jurisdiction.
    
21. Although there is no appeal against that finding, the plaintiff cannot be precluded from trying his claim in a proper court especially on the basis that the ERT did not have any jurisdiction to strike out the action on the basis that there was no reasonable cause of action. If any appeal was filed, it would result in the same conclusion that I have arrived at. The plaintiff must therefore not be prejudiced on an order which is plainly wrong in law.
    
22. I now come to the issue of the time limitation under s. 111(2) of the ERP. The section reads:
    

"A worker who wishes to submit an employment grievance to that worker's employer in accordance with the applicable employment grievance must, subject to sections (3) and (4), submit the grievance to that worker's employer within the period of 6 months from the date of which the action alleged occurred unless the employer consents to extend that period".

23. Section 111(2) refers to internal grievances where the employee is still in employment and wants the employer to deal with the grievance. It does not apply when the worker has been dismissed because then there is no reason why the employee will want the employer to deal with the grievance. The employee would be more interested in having his claim determined by the Court.
    
24. Even if I am wrong in the above finding, the section has no powers to preclude the plaintiff from filing a case in the ERC. It only restricts any grievance being submitted to the employer and therefore places no obligation on the employer to consider the grievance and deal with it.
    
25. I also find that when the initial claim filed in the ERT was served on the employer, it was done so within six months which means that there was submission of the grievance to the employer thus there being compliance of section 111(2) of the ERP.
    
26. In the final analysis I find that the claim in the ERC is neither an abuse of the process of the Court nor filed outside the limitation period.
    

Final Orders

27. I make the following orders:
    

(a). The defendant's application to strike out the plaintiff's claim is dismissed.

(b). The defendant is ordered to pay the plaintiff costs of the proceedings in the sum of $1, 500, summarily assessed, within 21 days.

(c). The defendant is given 14 days to file the statement of defence.

(d). The plaintiff must file any reply within 14 days thereafter.

(e). A summons for direction must be filed within 7 days after the time limited for filing of reply to defence.

(f). The time for filing the above pleadings starts after the end of judicial vacation.

Anjala Wati
Judge

24.12.2015
____________________
To:

1. Tuifagalele Legal for the Plaintiff.
2. Messrs Sherani & Company for the Defendant.
3. File: Suva ERCC 1 of 2015.