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Silimuana v Telecom Fiji Ltd [2009] FJET 3; Misc06.2008 (20 January 2009)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Misc No 6 of 2008

BETWEEN:

RUPENI SILIMUANA

AND:

TELECOM FIJI LIMITED

Worker: In person
Telecom: Mr I Sagoa

DECISION

This is an application by Mr Rupeni Silimuana (the worker) for an extension of the period for him to submit his grievance to Telecom Fiji Limited (the Employer) pursuant to section 111 (3) of the Employment Relations Promulgation 2007 (the Promulgation). The application was made by letter dated 22 December 2008.

The Employer had not consented to the worker having an extension of the period beyond 6 months for submitting his grievance. The Employer opposed the application before the Tribunal.

The application was listed for mention on 13 January 2009 before the Chief Tribunal. On that occasion it was pointed out to the worker that there was a question of jurisdiction that needed to be addressed before the application itself could be considered.

The worker's application letter revealed that his employment was terminated with effect from 28 February 1995 by letter dated 7 March 1995. It would appear that worker proceeded to exercise an internal right of appeal against his dismissal to the Employer's Managing Director. It would also appear that the appeal was not successful.

The material provided by the worker indicated that there was then protracted litigation in the Fiji courts. The end result of that litigation was that the Supreme Court decided procedural matters against the worker but the substantive issues were not fully litigated.

The Employment Relations Promulgation came into effect on 2 April 2008. The legislation does not operate retrospectively. The worker's dismissal occurred in 1995, some 13 years before the coming into operation of the Promulgation. The matter had not been reported to the Permanent Secretary as a trade dispute (as defined) under the Trade Disputes Act Cap 97 prior to 2 April 2008.

As a result the worker's case is not covered by the transitional arrangements that are set out in the Employment Relations (Administration) Regulations 2008 (the Regulations). Regulation 58 states :

"(1) This regulation applies to trade dispute cases accepted by the Permanent Secretary for resolution under the Trade Disputes Act (Cap 97) but in respect of which no referral has been made to the Arbitration Tribunal before the commencement date.

(2) On and after the commencement date all trade dispute cases that have not been referred to the Arbitration Tribunal by the Permanent Secretary and other outstanding cases are to be transferred to either the Mediation Services or the Employment Relations Tribunal in accordance with the criteria required under section 170 (4) of the Promulgation.

(3) - - - "

After further discussion between the Tribunal and the parties, the application was listed for further mention on 19 January 2009 to enable the worker to seek legal advice and to consider the future of his application.

On 19 January 2009 the worker made further submissions concerning his application but did not address the question of jurisdiction in any detail. The worker did refer to section 29 of the Constitution that relates to access to courts and tribunals. It would appear that the worker was relaying on section 29 (2) which states :

"(2) Every party to a civil dispute has the right to have the matter determined by a court of law or, if appropriate, by an independent and impartial tribunal."

However the right under section 29 (2) is not an absolute right. This is made clear by section 29 (3) which states that every party to a civil dispute has the right to have the case determined within a reasonable time. In other words the right to have a civil dispute determined by an independent and impartial tribunal under section 29 (2) is a right that is available to a party for a reasonable time under section 29 (3). Section 29 (3) not only imposes an obligation on the court or the Tribunal to determine the matter within a reasonable time, it also has the effect of limiting the right under section 29 (2) in the sense that the right must be exercised within reasonable time. What is a reasonable time will be determined by reference to the various written laws that prescribe time limits for any particular cause of action to be commenced.

The Tribunal is not satisfied that section 29 of the Constitution has the effect of converting legislation that was not expressed to be retrospective into legislation that has retrospective effect going back at least 13 years.

As a result the application is dismissed.

DATED at Suva this 20th day of January 2009.

EMPLOYMENT TRIBUNAL