Nasinu Town Council v Nadan [2016] FJHC 6; ERCA14.2012 (11 January 2016)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE AND ORIGINAL JURISDICTION

CASE NUMBER: ERCA14 of 2012 and ERCC 10 of 2012

BETWEEN:

NASINU TOWN COUNCIL
Appellant

AND:

SHIU NADAN
Respondent

Appearances: Mr. Valenitabua for the Applicant.
Mr. N. Sharma for the Respondent.
Date/Place of Judgment: Monday11 January 2016 at Suva.
Coram: Hon. Madam Justice A. Wati.

JUDGMENT

Catchwords:
Employment Law – Appeal from decision of Tribunal – proceedings in Tribunal brought under the ERP- employer Nasinu Town Council appeals the orders - Nasinu Town Council designated as an Essential National Industry- should proceedings brought under the ERP and pending on appeal be terminated pursuant to s. 30(2) of the ENI Decree?
----------------
Compliance Proceedings by Employee – Can compliance application survive under s. 30(2) of the ENI Decree-Jurisdiction of Court to order compliance with order of Tribunal- proper recourse for party having the benefit of the order.

Legislation:

1. The Constitution of the Republic of Fiji Islands: s. 173.
   
2. The Employment Relations Promulgation 2007 ("ERP"):s. 212 (1) (a) and (b); 221(1) (a) and (b); 221(6).
   
3. Essential National Industries (Employment) Decree 2011 ("ENI Decree"): s. 30(2) and (3).
   
4. The Essential National Industries & Designated Corporations (Amendment) (No.2) Regulations 2013 ("ENI Regulations"): Reg. 2(f) (iv).
   

Cause and Background

1. There are two applications before the Court. The first is the appellant's appeal of 6 July 2012 against the Decision of the Employment Relations Tribunal ("ERT") of 08 June 2012 whereit was found that the employee was unlawfully terminated from employment. The ERT had therefore ordered that the employee be reinstated to his former position and that he be reimbursed half of the total wages that he had lost as a result of the grievance.
   
2. The second application is by the employee for the employer to comply with the decision of the ERT of 08 June 2012. This is the same decision that is the subject of the appeal.
   
3. The issue that confronted the parties was whether the appeal and the compliance order application can subsist in light of the ENI Decree.
   
4. The ENI Regulations came into effect on 18 December 2013. The effect of the above amendment was that Nasinu Town Council was designated as one of the essential national industries: Regulation 2 (f) (iv).
   
5. S. 30 (2) of the ENI Decree states that:
   

"(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 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.

(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".

6. The parties made submissions on the above section. In essence, the appellant says that the matter can continue on appeal and the respondent says that even if the appeal is terminated, this Court does not have powers to terminate the orders of the ERT which has already been determined and finalized in that Court.
   

Submissions

7. Mr. Valenitabua argued that the amendment which designated Nasinu Town Council as one of the essential national industries came into effect on 18 December 2013. The action that was instituted was well before the amendment came in force and so is not affected by the same.
   
8. Mr. Valenitabua argued that the 2013 Constitution of the Republic of Fiji Islands was promulgated after the ENI Decree. S. 173 (3) (b) of the Constitution states that any amendment of any law before the Constitution shall be made by the parliament and shall not be retrospective.
   
9. Mr. Valenitabua argued that this matter should not be terminated because the amendment being the ENI Regulations was post the constitution. Since the amendment was not with the assent of the parliament as required by the Constitution, it is not a valid law to be implemented.
10. The respondent's counsel Mr. Sharma submitted that pursuant to s. 30(2) of the ENI Decree, the proceeding which is caught is one that has not been determined or one that is pending on appeal. The court has to decide whether this matter has already been determined.
    
11. Mr. Sharma says that the appeal in this Court is pending. However the substantive claim for unfair dismissal has already been determined in that a final finding has been made in regards the claim. Since the matter is already determined, the provisions of s. 30(2) of the ENI Decree does not apply to this appeal.
    
12. Mr. Sharma then referred to the words "all orders whether preliminary or substantive made therein shall be wholly vacated" referred to in s. 30(2) and said that this refers to orders made in the matter not yet determined or all orders made in the proceedings that is pending on appeal. The vacation of the orders made on the appeal does not affect the orders made in the ERT as those orders were not made in the appeal matter. It was made in the matter which has already been finalized.
    
13. It was argued that s. 30(2) targets the proceeding which "had not been determined at that date or is pending on appeal". The use of the word OR indicates that there is an alternative and the effect of the alternative is that the orders granted in the Tribunal and the Appeal cannot be vacated jointly. Either of the matter can be vacated but not both.
    
14. The court can vacate any order made on the pending appeal but not the final orders of the ERT. If the orders have already been made and the parties have complied with it, then those orders need not be vacated. If there is any further challenge to the order, the proceedings would be terminated.
    

The Law and Analysis

15. I do not find that the issue before me is whether or not the orders of the ERT should be vacated. The issue is whether the proceedings currently before me in the appellate court ought to be vacated. The proceedings that I will refer to are the appeal and the compliance order application that has been filed.
    
16. The two provisions that I need to analyze to determine the issue is s. 30 (2) of the ENI Decree and s. 173 of the Constitution of the Republic of the Fiji Islands.
    
17. The ENI decree states that "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 had not been determined at that dateoris 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.
    
18. The above section unequivocally states that any matter that is pending on appeal shall wholly terminate. It is therefore crystal clear that the appeal that has been filed has to be wholly terminated. Even Mr. N. Sharma states in his submission that the appeal will terminate.
    
19. The compliance order application is brought under the ERP. That application should also be terminated because proceedings brought under the ERP is prohibited for continuation by s. 30(2 of the ENI Decree.
    
20. I find that s. 173 preserves all the law made prior to the first sitting of the parliament. The Amendment was made before the first sitting of the parliament and is a valid law. The validity, legality or constitutionality of it cannot be challenged in the Court.
    
21. In respect of the compliance application, there is also this issue of the jurisdiction of this Court to hear the compliance application.
    
22. Under s. 221(1) (a) and (b), the Court only has powers to orders compliance with the provision of the Promulgation or an order, determination, direction, or requirement made or given under the Promulgation by the Court.
    
23. The Court does not have powers to order compliance with the orders of the ERT. In fact that power is specifically vested in the Tribunal itself by virtue of s. 212(1) (b) of the ERP.
    
24. In this case the ERT had ordered compliance with a provision of the ERP which powers it has under s. 212(1) (a) of the ERP. Once a compliance order is given, and there is failure to comply, the recourse open to the applicant is section 212(6) of the ERP which states that:
    

"If a person fails to comply with a compliance order made under this section, the person prejudicially affected may apply to the Court for exercise of its powers under section 221(6)".

25. Section 221(6) reads:
    

"If a person fails to comply with a compliance order made under this section, or if the Court, on an application under section 212(6), is satisfied that a person has failed to comply with the compliance order under section 212, the Court may do one or more of the following things-

(a) (Not Applicable)

(b) (Not Applicable)

(c) order that the person in default pays a penalty in a sum not exceeding $10,000, or be sentenced to imprisonment for a term not exceeding 3 months; or

(d) order that the property of the person in default be sequestered.

26. The proper application before the Court should have been made under s. 212(6) for the respondent to be punished for the failure to comply with the orders of the Courts. The Court will then give the other party an opportunity to respond why any penalty should not be imposed.
    
27. Asking for a compliance order is not the same as asking for the defendant to be dealt with for not complying with the order of the Court.
    
28. There could be a possibility of the application being converted to one under s. 212(6) of the ERP but the respondent faces a bigger hurdle of s. 30(2) of the ENI Decree. Any conversion therefore will not assist.
    

Final Orders

29. In the final analysis, I find that the matter between the parties ought to be terminated under the ENI Decree.
    
30. I therefore refer the two actions to the Chief Registrar to issue the certificate of termination.
    
31. The Senior Court Officer of the Civil Division must transmit the file to the Chief Registrar.
    

AnjalaWati
Judge

11.01.2016
____________________
To:

1. Mr. Valenitabua for the Applicant.
2. Mr. N. Sharma for the Respondent.
3. The Chief Registrar, High Court, Suva.
4. File: Suva ERCA 14 of 2012.
5. File: Suva ERCC 10 of 2012.