Lal v Labour Officer [1985] FJSC 1; Criminal Appeal 041 of 1984 (11 January 1985)

Fiji Islands - Lal v Labour Officer - Pacific Law Materials

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA
Appellate Jurisdiction

Criminal Appeal No.41 of 1984

BETWEEN:

MANI LAL
s/ Lal
Appellant

AND:

LABOUR OFFICER
Respondent

Mr. S.D. Sahu Khan, Counor the Appellant

>

Mr. M. Raza, Counsel for the Respondent

JUDGMENT

The appellant was charged with two offences under the Wages Regulations (Wholesale and Retail Trades) Order 1980 with failing to pay statutory remuneration. The first offence related to the period from 1/10/79 - 26/1/80 and since this was prior to 28/1/80 when the Regulations came into force, the learned magistrate found there was no case to answer. The particulars of the second charge are -

“Mani Lal s/o Bir Lal trading as B. Mani Lal and Company at Ba in the Western Division, between 28th January 1980 and 17th October 1981, being the employer of Zohra Bibi d/o Akbar Ali, an unskilled worker to whom Wages Regulations (Wholesale and Retail Trades) Order 1980 applied failed to pay not less than the statutory minimum remuneration of 95 cents per hour payable to an unskilled worker of18 years and over as laid down in the Schedule to the said Order, thereby under paying the said Zohra Bibi the gross sum of $3054.65”.

Having been convicted of this second offence the appellant was fined $50 and ordered to para Bibi $3054.65 in unpaid paid wages plus costs assessed at $30. He now appeals against conviction and sentence.

The charge was laid under section 9(2) of ages Council Act which reads as follows -

(2) If an employer fails to pay to a worker to whom a wages regulation order applies reation not less than the stae statutory minimum remuneration, or fails to pay to any such worker holiday remuneration, at the times and subject to the conditions specified in the order or fails to allow to any such worker the holidays fixed by the order, he shall be liable on conviction to a fine not exceeding one hundred dollars or to a term of imprisonment not exceeding three months for each offence, and where the employer or any other person charged as a person to whose act or default the offence was due has been found guilty of an offence under this section consisting of a failure to pay remuneration not less than the statutory minimum remuneration, the Court may order the employer to pay such sum as is found by the Court to represent the difference between the amount which ought to have been paid to the worker by way of remuneration if the provisions of this Part had been complies with, and the amount actually so paid.

Section 9(3)(a) reads as follows -

(a) “if the employer or any other person charged as a person to whose act or default thence was due is found guiltguilty of the offence, evidence may be given of any like contravention on the part of the employer or such other person in respect of any period during the three years immediately preceding the date of the offence”.

One of the grounds of appeal - ground 2(as that the charge is bad for duplicity, and this raises the question whether it is right foht for the prosecution to lump into one count under - payment for a period covering almost 2 years. In fact it is not easy, from the wording of section 9(2) to decide what period of time is involved. Now the Wages Regulation (Wholesale and Retail Trades) Order 1980 lays down certain wages rates, but they are stated as hourly rates. Does that mean that every hour which an employer underpays an employee he commits another offence? And must the charge be specified in terms of hours underpaid? Or perhaps it means that each normal pay period - say weekly, fortnightly or monthly represents a separate period constituting the basis for the offence? But what it cannot mean is that almost 2 years can be lumped together to constitute one offence. This interpretation is reinforced by consideration of section 9(3)(a) which clearly envisions conviction for a single contravention, and then dealing with all other contraventions for the previous three years to enable the full extent of the short payment to be calculated and paid to the employee. This is clearly to avoid the multiplicity of counts if each contravention is charged. Section 9(2) itself shows that each offence attracts a penalty of a fine of $100 or imprisonment for 3 months, and clearly it is rather absurd to lump together almost 100 offences - assuming that Zohra Bibi was paid weekly, which seems to be the case, when each week, at least, an offence was committed attracting a fine of $100.

The next ground of substance is that though the charge stipulates Zohra Bibi was an unskilled worker, the evidence showed that she was not. The Order contains a definition of “unskilled worker” which is as follows -

“Unskilled worker means a worker who is employed wholly orly on any of the following wing duties, that is to say, the opening, closing, sweeping, and cleaning of the premises, and the lifting, carrying and opening of goods, or on manual work of a similar nature, or on any duty not otherwise specified in this Order in any establishment to which the provisions of the Wages Council (Wholesale and Retail Trades) Order applies”.

The words “wholly or mainly” must be givenct to, so that it is necessary for the court to come to some conclusion as to what Zohra Bira Bibi’s main duties were. The fact that the appellant said that she was employed as an unskilled worker is only one factor to consider, after all he probably is not relating her position to the definition contained in the Order. She may well not have been a skilled worker, and thus would be loosely described by someone not concerned with definitions as an “unskilled worker”. It is not sufficient that she may have, in the course of her duties swept and cleaned the premises, or opened parcels, but the question is what duties was she mainly employed in.

Zohra Bibi herself she worked as a salesgirl and cleaner, but mostly sales work. She also said that if there here were large orders she also did sewing work. P.W.4, Raj Mati said that Zohra Bibi did sewing work, sewing on buttons and also worked as a salesgirl, in fact her main work was salesgirl.

The appellant elected to make an unsworn statement and merely said Zohra Bibi was casual labour, not full time and was paid for work she did. Well that cannot be correct because a ‘casual worker’ is defined as one whose terms of engagement provide for payment at the end of each days work and who is not engaged for a longer period than 24 hours at a time. There was no other evidence as to what work Zohra Bibi was doing. Now the business premises here concerned were said to be a wholesale and retail business with 2 sewing machines, presumably to make clothes. So there would be a need for someone to sell goods and someone to sew clothes. The premises were registered as “Tailors, drapers and fancy goods”.

It may well be that Zohra Bibi was a worker to whom the Order applied and that whatever ory of worker she came unde under she was grossly underpaid. No doubt she can still sue for underpayment of wages.

But the prosecution can be said to have “d its colours to the mast” when it stipulated in the charge that she was an “unskilled work worker”. And the prosecution, when it used the term “unskilled worker” must have been using the term knowingly in the light at the term (sic) contained in the Order. And the fact is, that the evidence did not show that Zohra Bibi was an “unskilled worker” within the meaning contained in the interpretation clause. It showed that she came within some other category of worker.

It was argued on behalf of the Crown that the words in the charge descr Zohra Bibi as an unskilled worker were surplusage, that itat it was only necessary to specify that she was a worker to whom the Order applied and that she was underpaid. That cannot be correct because a person charged with an offence is entitled to know exactly what he is charged with, and if necessary could always ask for further particulars. But if the prosecution chooses to specify the particulars on which it will rely, then it is necessary for it to prove them. If the particulars were incorrect the prosecution could at any time before concluding its case have sought leave to amend the charge. The court could have done this of its own volition, but did not do so.

These matters were all raised in the Magistrate's Court, but defence arguments were rejected. But they are valid grounds of appeal and in the light of them the conviction and sentence are set aside and the appellant acquitted. Any fine paid, or any other monies paid as a result of the conviction are to he repaid to the appellant.

Dated This 11th Day of January, 1985.

G.O.L. Dyke

(Judge)