Manufacturing, Commerce and Allied Employees & Staff Union v Goodman Fielder International (Fiji) Ltd [2021] FJHC 262; ERCA17.2018 (6 October 2021)

IN THE EMPLOYMENT RELATIONS COURT

AT SUVA

APPELLATE JURISDICTION

ERCA No.17 of 2018

BETWEEN:

MANUFACTURING, COMMERCE AND ALLIED EMPLOYEES & STAFF UNION

APPELLANT

AND:

GOODMAN FIELDER INTERNATIONAL (FIJI) LIMITED

RESPONDENT

BEFORE:
M. Javed Mansoor, J

COUNSEL:
Mr. D. Nair for the Appellant
Mr. R. Singh for the Respondent

Date of Hearing:
15 July 2019

Date of Judgment:
6 October 2021

DECISION

EMPLOYMENT LAW: Termination – Employment dispute – Failure to exhaust internal dispute resolution mechanism – Permanent secretary’s failure to consider whether internal mechanism was exhausted – Jurisdiction of the Employment Relations Tribunal to examine the permanent secretary’s power to accept or reject a dispute – Sections 168, 170, 211 (1) and schedule 6 of the Employment Relations Promulgation 2007 and Section 11 of the Employment Relations (Amendment) Act 2015

APPEAL: Leave to Appeal – Appeal – Sections 242 & 243 of the Employment Relations Promulgation 2007

The following cases are referred to in this decision :

1. Fiji Bank and Finance Sector Employees Union v Australia and New Zealand Banking Group [2010] FJHC 450; ERCA 01.2009 (12 October 2010)
2. The State v Air Pacific Limited; ex-parte: the Permanent Secretary for Labour, Industrial Relations and Employment and Fiji Airlines Pilots Association [2011] FJHC 303; HBJ 01.2009 (26 May 2011)

100. The Chief Executive Officer for Labour, Industrial Relations and Productivity and Another v Fiji Public Service Association and Others [2005] FJCA 66; ABU 0084JR.2004 (11 November 2005)

4. The State v Permanent Secretary for Education and Technology and The Secretary for Public Service Commission (1999) FJHC 46; HBJ 0030J.1997S (14 June 1999)
5. Aseri Radrodro v Fexco (Fiji) Limited [2015] FJHC 1034; ERCC 01.2015 (24 December 2015)
6. Fiji Public Service Association v Fiji Institute of Technology [2011[ FJHC823; ERCC 006.2008 (15 September 2011)
   

1. This is an appeal against the decision of the Employment Relations Tribunal (Tribunal) delivered on 12 July 2018, dismissing the employment dispute referred by the permanent secretary of the Ministry of Employment, Productivity and Industrial Relations (Ministry). This was after a dispute was reported by the appellant on behalf of an employee of the respondent and member of the appellant union, Mr. Rakesh Prasad, following the termination of his employment on 3 April 2017. The Tribunal upheld an objection raised at the outset of the hearing by the respondent. Notice of appeal was filed setting out the grounds of appeal and seeking the court’s leave to appeal. This decision disposes off the leave application and the appeal
   

Leave to appeal

2. The appellant union filed a notice of appeal seeking (a) leave to appeal and (b) for dispute numbered 15 to be reinstated and determined by the Employment Court. The application for leave was timely. Section 242 (5) (e) of the Promulgation states that no appeal shall lie except with the leave of the Tribunal or the court from any interlocutory decision.
   
3. A party to proceedings before the Tribunal who is aggrieved by a decision of the Tribunal in the proceedings may appeal as of right or by leave to the court^[1]. A party who is dissatisfied with an interlocutory order of the Tribunal may, within 14 days, apply to the court for leave to appeal. The respondent objected to leave being granted to the appellant.
   
4. The Court of Appeal decision in Gounder v The Minister of Health provides guidance to resolve the often vexed question of whether an order is interlocutory in nature. In this case, however, the appellant has filed the notice of appeal within the prescribed period and no difficulty arises on that point. Considering the matters in issue, this is a fit case in which to grant leave, and leave to appeal the decision of the Tribunal is hereby granted.
   

The dismissal

5. The dispute between the trade union and the employer arose as a result of the dismissal of Mr. Rakesh Prasad. The facts relating to the disciplinary inquiry and the worker’s dismissal – purportedly for consuming kava at the respondent’s ice cream factory premises – are briefly set out below, but they are not germane to the issue before court.
   
6. The letter of termination referred to a disciplinary process comprising several meetings with regards to what the respondent describes as the appellant’s serious misconduct. The letter detailed the findings of the investigation and terminated the appellant’s employment immediately without notice. The termination letter and the related documents show that the worker was not dismissed without an opportunity to show cause, and the employer has certified that the internal disciplinary process was completed.
   

The dispute

7. On or about 20 April 2017, the appellant union lodged the ER 5 form at the Ministry of Employment, Productivity and Industrial Relations (Ministry), claiming that Mr. Prasad’s termination was unjust, unfair and unlawful.
   
8. The Ministry’s acting permanent secretary accepted and referred the dispute to the Chief Tribunal by letter dated 18 May 2017. This was within 30 days of the appellant reporting the dispute to the permanent secretary. The acceptance was in compliance with the stipulated period in section 170 (1) of the Promulgation as amended. According to the letter, forms ER 5, ER 7, acceptance letter and the parties’ submissions were enclosed. The forms and the acceptance letter are available, but the “submissions of the parties’ referred to by the acting permanent secretary are not a part of the record.
   
9. When hearing commenced, the respondent raised a preliminary objection before the Tribunal. The decision of the Tribunal sets out the objection in this manner:
   1. “The union by-passed the collective agreement by referring the matter to the permanent secretary before exhausting the internal dispute resolution mechanism available and;
      
   2. The permanent secretary in considering and referring the dispute to the Tribunal despite the union not exhausting the internal dispute resolution system, has acted outside her discretion under the Employment Relation Act”
      
10. In other words, the respondent’s position is that the dispute was not properly before the Tribunal as the workman had not exhausted internally available alternative remedies. The Tribunal upheld this position and dismissed the application filed on behalf of the dismissed employee.
    
11. The Tribunal held that the “parties should use their best endeavour to resolve their dispute under the collective agreement or in the event there is no collective agreement in place, the procedures set out in schedule 6 of the Employment Relations Promulgation (Promulgation). Further, the Employment Relations (Administration) Regulation 12 (2) requires parties to attempt to settle their dispute in good faith”. The Tribunal referred to the decision in State v Air Pacfific Ltd; Ex parte: Permanent Secretary for Labour Industrial Relations & Employment v Fiji Pilots Association^[2] in support of the decision to dismiss the dispute.
    
12. The appellant’s grounds of appeal are to the effect that the Tribunal erred when it dismissed in its entirety the dispute which was referred for adjudication; that the dispute was dismissed without first determining what internal dispute resolution mechanism was available and by holding that the aggrieved party had to exhaust alternative remedies when there is no such statutory requirement concerning dismissal cases.
    
13. The appellant submitted that where an employee is summarily dismissed, there was no requirement to exhaust internal dispute resolution procedures. It was submitted that the employer had not identified the internal procedure that was not followed on behalf of the workman. In support of this contention, the appellant relied on the decisions of Fiji Bank and Finance Sector Employees Union v Australia and New Zealand Banking Group^[3], The Chief Executive Officer for Labour, Industrial Relations and Productivity and Another v Fiji Public Service Association and Others^[4] and Aseri Radrodro v Fexco (Fiji) Limited^[5].
    
14. These decisions are not relevant to the disposal of the issue before court.
    

Powers and duties of the permanent secretary in relation to a dispute

15. Parliament has vested the permanent secretary with certain statutory duties. Section 170 of the Promulgation makes provision for the performance of these duties. The section was amended by the Employment Relations (Amendment) Act No.4 of 2015, which changed the scope of the permanent secretary’s powers pursuant to the report of a dispute by an employer or trade union. The permanent secretary must accept all employment disputes within 30 days of its report provided that the dispute is not vexatious or frivolous, all existing internal procedures have been exhausted in resolving the dispute and the dispute is reported within three months from the date on which the employment dispute arose unless there was good cause for the delay^[6].
    
16. Section 170 (10) of the Promulgation states that if an employment dispute is not accepted or is rejected by the permanent secretary within 30 days of it being reported, then the employment dispute shall be deemed to have been accepted. This was introduced by Act No. 4 of 2015.
    
17. Prior to the amendment by Act No.4 of 2015, the permanent secretary had the power to accept or reject a dispute within 30 days of receiving the report of a dispute. While a dispute can be rejected even under the amended law, the power to do so has been eroded by the changes to the law.
    
18. The permanent secretary must inform the parties whether the dispute is accepted or rejected. Reasons must be given for rejecting a dispute^[7]. Once accepted by the permanent secretary, the dispute becomes an employment dispute for the purpose of the Promulgation^[8]. An employment dispute is defined to mean a dispute accepted by the permanent secretary under section 170 of the Promulgation^[9], and a dispute is defined to mean a dispute or difference between an employer and a registered trade union connected with the employment or non-employment, the terms of employment, or the conditions of labour of a worker^[10].
    
19. The permanent secretary must refer the employment dispute to the Tribunal if the dispute relates to the interpretation, application or operation of an employment contract; or, in any other case, refer the employment dispute to mediation services^[11]. The permanent secretary must make the reference accordingly, and has no discretion in the matter.
    
20. The provisions of the Promulgation are reinforced by the Employment Relations (Administration) Regulations 2008. In terms of regulation 13, the permanent secretary must be satisfied that the parties to the dispute have taken all reasonable means to exhaust the procedures for settlement of disputes under section 168 of the Promulgation and have engaged in good faith in attempting to resolve the dispute^[12]. The permanent secretary may reject the dispute and refer the dispute back to the parties if the parties have not exhausted the procedures for settlement of disputes, and have not engaged in good faith negotiations in attempting to resolve the dispute^[13]. However, these regulations, which came into effect in 2008, appear to be not entirely consonant with section 170 as amended in 2015.
    
21. It is apposite to consider the report of the employment dispute and examine the manner in which it was dealt in the context of the provisions referred to above. The appellant reported the dispute to the permanent secretary on 20 April 2017. The permanent secretary accepted the dispute and referred the employment dispute to the Tribunal within the stipulated 30 days. If the permanent secretary had failed to accept the dispute, then the dispute would have been deemed as accepted. Had the permanent secretary rejected the dispute within the 30 day period, the dispute would have been deemed to have been accepted^[14]. The deeming provisions are not required in this case as the permanent secretary has accepted the dispute within time. The law does not require reasons to be given for acceptance of the dispute. The respondent was not entitled to appeal the permanent secretary’s decision to accept the dispute reported by the appellant. Had there been a rejection, however, the permanent secretary would have been obliged to give reasons^[15]. In that event, the appellant would have been entitled to appeal to the Tribunal^[16]. A party aggrieved by the decision of the Tribunal could appeal to the Employment Court^[17].
    
22. The opening paragraph of the ER 7 form dated 18 May 2017, signed by the acting permanent secretary states: “I have accepted and hereby refer the employment dispute(s) outlined below to the employment relations tribunal, after exercising the decision making powers vested in me under the relevant provisions of section 170 of the Act”. The dispute was outlined to be over the alleged unjustified, unfair and unlawful dismissal of Rakesh Prasad. By letter dated 18 May 2017, the permanent secretary wrote to the appellant stating that she has examined the submitted correspondences and opined that “this matter will be best handled by the Employment Relations Tribunal”. She notified the appellant of her acceptance of the report of the dispute in terms of section 170 (2) (a) of the Promulgation, and referred the employment dispute to the Tribunal in terms of section 170 (4)(a).
    
23. The respondent submitted that the union had declared to the permanent secretary in its ER 5, “that all internal procedures for settling disputes, as applicable, have been exhausted in accordance with section 168 and schedule 6 of the Employment Promulgation”. This declaration, the employer submitted, was false, and that the permanent secretary accepted the dispute and referred the matter to the Tribunal based on the appellant’s false declaration. In my view, this is an objection that the employer ought to have taken up immediately upon being notified on behalf of the permanent secretary.
    
24. In The State v Air Pacific Ltd ex parte, permanent secretary for labour industrial relations and employment^[18], which the respondent relied upon, the High Court held that a preliminary question as to whether an employment dispute is properly before the Tribunal is an issue which must be determined by the Tribunal as part of the exercise of its jurisdiction to adjudicate an employment dispute. In its ruling, the Tribunal referred to the decision in Air Pacific and held that the union had not exhausted all the provisions of the Promulgation. The respondent submitted that the failure to do so was fatal and that the permanent secretary – not having jurisdiction to accept (or to reject) the dispute – had no power to refer the matter to the Tribunal.
    
25. The Air Pacific case concerned an employment dispute, and discussed matters that needed to be considered by the permanent secretary before a decision to accept or reject could be made. The court was of the view that the permanent secretary had made his decision in accordance with the requirements of the legislation. The dispute in that case was over the interpretation, application and operation of an employment contract and on the validity of an employment bond which the employer required pilots employed by it to execute at or before commencement of their employment. The Air Pacific case was decided in May 2011, prior to the changes made to section 170 of the promulgation by Act No.4 of 2015.
    
26. In the matter before court, the permanent secretary made the decision to accept and refer the employment dispute on 18 May 2017. Notice of the decision has to be given to all parties, and the respondent must be presumed to have had timely notice of the decision to refer the dispute to the Tribunal. Though the ER 7 form refers to the submissions of the parties, as these are not a part of the Tribunal’s record, the respondent’s position before the permanent secretary cannot be assessed. After referral, the dispute came for hearing before the Tribunal on 3 April 2018, and the respondent’s preliminary issue was taken up. Thereafter, both parties filed submissions. The employer has contended that the permanent secretary did not have the power to accept or reject the dispute as the appellant had failed to comply with the internal measures. The record does not disclose correspondence whereby the failure to comply with internal measures was brought to the notice of the permanent secretary.
    
27. The general function of the Tribunal is to assist employers, workers and their representatives to achieve and maintain effective employment relations, in particular, by adjudicating and determining any grievance or dispute between parties to employment contracts. The Tribunal has the jurisdiction, powers and functions conferred on it by the Promulgation or other written law^[19], and the jurisdiction to adjudicate on matters referred to it by the permanent secretary^[20] and to adjudicate on employment disputes^[21]. When the permanent secretary accepts an employment dispute and makes a reference, in my view, the Tribunal assumes jurisdiction in the matter^[22].
    
28. Courts and tribunals must exercise caution when called upon by a litigant to interfere with an administrative decision exercised through powers granted by Parliament. Unless permitted by law, the Tribunal must not go into the merits of an administrative decision and seek to substitute its own decision. The acting permanent secretary must be taken to have acted in terms of section 170 (1) of the Promulgation as amended prior to making a decision on whether or not to accept the dispute as an employment dispute.
    

The statutory requirement to settle disputes

29. Section 168 (1) of the Promulgation states that an employment contract must contain procedures for settling disputes. If there are no agreed procedures, the procedures set out in schedule 6 to the promulgation must be followed.^[23]
    
30. Under the heading, “STANDARD CLAUSES ON PROCEDURES FOR SETTLEMENT OF DISPUTES”, the following are the clauses under schedule 6:

“Clause 1 &# Application of procedrocedures

The procedures set out in clauses 2 to 8 apply to the settlement of a dispute.

Clause 2 &#1/b>Persho may invoke voke procedure

A union oion or employer that is a party to a dispute may invoke these procedures.<160;Submission of tespu otto other party

(a) &160; #160; The existence e thpute;

(b) &#16 basithe dise dispute;

(c) The solution sought in respect of the dispute.
&
C 4 &##160;eetin>
< ##160&   &116; Trties must tust then toen to di the te.

Clause 5; Wn ttetement

If parties fail to r to resolvesolve thee the disp dispute, the party who invoked the procedure must within 7 days give to the othery or es a written statement setting out-

(a)&#1a) < &&#160naturnature of the dihe dispute;

(b) The relefacts in relation tion to the dispute; and

(c) Thution sought in respect oect of the dis
&
C 6 Response

I the other party is or parties are not pnot preparrepared ored or able to provide the solution sought,the de hasotherwise been settledttled, the other party must no later than the 7^th day afte after ther the day of receiving the written statement of the dispute under clause 5, provide a written response setting out –

(a) ټ The party&#82v&#82view of the facts; and

(b) &#The reason whyn why that that party is not prepared or able to provide the solution s.

Clause 7 Waiver of written sten statements

If the parties ages agree in writing that the exchange of written statements under the preceding provisions is inappropriate or unnecessary, the parties may dispense with parts of these procedures.

Clause 8

If-

(a)& #160; The party invoking the pureedure is not satisfied with the other party’s written response; or

(b) &#1e othai provwprovwithi 7thi 7 day period required, a wria written response; or

(c) Theiearties have have agreeagreed to waiverequit for an exchange of written statements and the pthe party arty invoking the procedure is not satisfied that the dispute has been res,
;

he party invy invokingoking the the procedure may refer the dispute to the Permanent Secretary in the prescribed manner”.

31. On behalf of the respondent, it was submitted that the collective agreement provided an internal mechanism for the settlement of disputes, and that this was not resorted to before reporting the matter to the permanent secretary. The appeal record, however, does not contain the collective agreement for the court’s examination. Nor is the relevant provision set out or dealt with in the decision of the Tribunal. Neither party has mentioned whether the collective agreement was made available to the permanent secretary. Without such material, the reasoning of the decision, in concluding that the internal mechanism to resolve the dispute was not exhausted, is not clear. If a specific internal procedure to deal with summary dismissal was available, it was not submitted to court by either party.
    
32. The ER 5 contains a printed clause with a declaration to be made by the person reporting the dispute to the effect that all internal procedures for settling disputes have been exhausted in accordance with section 168 and schedule 6 of the Promulgation. The contents of ER 5 – not being a part of the statute – is not determinative that agreed procedures to settle must necessarily be followed in the event of a dismissal. The form includes a note stating, “if the dispute relates to a dismissal, please attach a copy of the employer’s statement that sets out the reasons for the dismissal. An employer is required to provide this statement under section 114 of the Promulgation”.
    
33. This raises the question whether the provisions in section 168 of the Promulgation and the provisions in schedule 6 of the Promulgation are mandatory or merely directory. Parliament must be taken as having intended the consequences of the laws it enacts, and for those laws to be implemented. Prima facie the legislature’s intention must be taken as requiring the parties to an employment contract to observe these measures, and the court must be cautious in favouring a construction that negates the procedures prescribed by Parliament. That the efficient settlement of employment related disputes is an objective of the statutory framework of the Promulgation has not escaped the court’s attention.
    
34. Similar provision calling for settlement procedures is set out under Part 13 of the Promulgation in respect of employment grievances. The object of that part is to provide for grievance procedures and for workers to pursue employment grievances either personally or through the assistance of a representative. An employment contract must contain procedures for settling an employment grievance, including confidentiality and natural justice^[24]. If there are no agreed procedures for settlement between the employer and the employee, the procedures set out in Schedule 4 to the Promulgation must be followed^[25].
    
35. Schedule 4 to the Promulgation relating to section 110 is titled, “Standard Clauses on Procedures for Settlement of Employment Grievances”. Seven clauses are set out in this schedule. Clauses 2 to 6 apply in respect of the submission of the grievance to the employer, the time within which such grievance must be submitted and the written statement of the worker, the employer’s written response and with regard to the waiver of such written statements. Clause 1 (2) provides that where an employment grievance relates to dismissal paragraphs 2 to 6 do not apply and the aggrieved party could refer the employment grievance directly to mediation services under the Promulgation.
    
36. Schedule 6 of the Promulgation, however, makes no mention of a waiver when the employment dispute relates to a dismissal. The statute distinguishes between an employment grievance and an employment dispute, but no further needs to be said on the matter.
    
37. Section 170 (1) (b) states that the permanent secretary must accept all employment disputes reported to him or her provided that all existing internal procedures have been exhausted in resolving the employment dispute. No reference is made to the requirement in section 168 of the promulgation. If internal procedures were part of the employment contract, the failure by either party to perform in terms of those procedures, would result in a breach of those provisions. An employment contract is defined to mean a collective agreement or apprenticeship contract specified under the Promulgation or any other written law or an oral or written contract of service between a worker and an employer. There is no evidence that agreed procedures were brought to the notice of the permanent secretary.
    
38. In my view, section 168 must be construed in the light of the changes made to section 170 (1) where a duty is imposed on the permanent secretary to accept all employment disputes provided the three specified requirements are met. Therefore, the procedures mentioned in section 168 and schedule 6 of the Promulgation must be taken as having a directory effect.
    
39. It suffices to say that the appellant has generally established the substance of the grounds on which this appeal is made. The case is remitted to be heard by another resident magistrate.
    

ORDER

1. The appeal is allowed. The case is remitted to be heard by another Magistrate.
   
2. The respondent is directed to pay the appellant costs summarily assessed in a sum of $ 1,000 within three weeks of this decision.
   

Delivered at Suva this 6^th day of October, 2021

M. Javed Mansoor
Judge

---

^[1] Section 242 (1) ibid
^[2] [2011] FJHC 303; HBJ 01.2009 (26 May 2011)
^[3] [2010] FJHC 450; ERCA 01.2009 (12 October 2010)
^[4] [2005] FJCA 66; ABU 0084JR.2004 (11 November 2005)
^[5] [2015] FJHC 1034; ERCC 01.2015 (24 December 2015)
^[6] Section 170 (1) ibid
^[7] Section 170 (2) ibid
^[8] Section 170 (3) ibid
^[9] Section 4 ibid
^[10] Section 4 ibid
^[11] Section 170 (4) ibid
^[12] Regulation 13 (2) of the Employment Relations (Administration) Regulations 2008
^[13] Regulation 13 (3) ibid
^[14] Section 170 (10) supra
^[15] Section 170 (2) (b) supra
^[16] Section 173 (1) supra
^[17] Section 173 (2) supra
^[18] [2011] FJHC 303; HBJ 01.2009 (26 May 2011)
^[19] Section 202 (3) supra
^[20] Section 211 (1) (j) supra
^[21] Section 211 (1) (b) supra
^[22] Section 211 (1) (i) & (j) supra
^[23] Section 168 (2) (b) supra
^[24] Section 110 (1) (a) supra
^[25] Section 110 (2) supra