IN THE TRIBUNAL
AT SUVA
ERT Grievance No. 91 of 2009

BETWEEN:

RESHMI GUPTA
GREVIOR

AND:

TOTAL (FIJI) LIMITED
EMPLOYER

Mr. D Nair for Grevior
Mr V Kapadia for the Employer
_____________________________________________________________________________
RULING ON PRELIMINARY ISSUE

Preliminary Application Before the Tribunal

The Counsel for the Employer, Mr Kapadia has raised a preliminary issue on 14 September 2011 that the part-heard matter should be deferred or stayed as the grevior is now criminally charged in another jurisdiction. This was Mr Kapadia's verbal application to the Tribunal that the criminal charges laid by the DPP's office are linked directly to the proceedings before the Employment Relations Tribunal (or "ERT"). 

Whilst it would have been prudent for my brother, the Chief Tribunal, Mr Sainivalati Kuruduadua to determine this issue as he has had the carriage of the part-heard matter when the substantive matter was heard on at least two occasions, given his commitment in Lautoka jurisdiction for the whole week pending this determination, I have sought advice from the Chief Tribunal and proceeded to determine this matter; first by perusing the transcripts of the part-heard matter, and second, upon constant prompting from the grevior's representative to continue with the proceedings without any further delays based on grevior's current difficult financial situation.

2.0 Nature of the Grievance

2.1 This grievance relates to summary dismissal of the grevior that the Chief Tribunal (or "CT") clearly stated would be an issue in his determination of 9th March 2010, yet another preliminary application that was raised in the earlier part of the proceedings. Here, CT also directed that this grievance includes alleged unfair, unjust and wrongful termination of the grevior effective from 17th September 2009. 

3.0 Part-heard Substantive Matter

3.1 It is to be noted that two preliminary applications were determined in the course of proceedings, both in favour for the grevior, where one such application was in relation to the same issue as this one: staying of proceedings while the criminal matter was to be determined. I have attempted to discuss this on pages 3 and 4 of this determination.

3.2 This matter was first heard on 19 April 2011 and continued on 23rd May 2011. 

3.3 It was later set down for continuation of hearing on 7th June 2011 but the counsel for the employer, Mr. Valenitabua who had carriage of this case resigned from Sherani & Company (law firm) compelling the new counsel for the employer to write to the ERT to seek time to review the file and brief the witnesses. 

3.4 Following at least three adjournments to set a hearing date to continue and conclude the matter expeditiously, the parties were finally able to fix a date after transcripts of two part-heard matters were provided to the counsels. The same transcripts in this preliminary determination are quite useful which I shall explain later. 

3.5 Suffice to note that the Hearing did not proceed on Saturday, 10th September 2011 when this matter was set down. On that particular day, the Chief Tribunal who presided to hear the case on the grounds of special and urgent circumstances pleaded by the grevior that she was in dire financial constraints and that the finalization of the hearing shall give her some comfort if it was expedited without any further delay, Mr Kapadia had alluded to the CT that the grevior was in the process of being criminally charged and served and in fact this would take place on the following Monday, 12th September 2011. 

3.6 The matter was adjourned for Mention on Wednesday 14th September and this fact was confirmed on the day, hence the preliminary application by Mr Kapadia to stay proceedings until the criminal matter is dealt and determined by the criminal court. 

4.0 Grevior's Submission

4.1 Naturally, the grevior's representative Mr Nair strongly objected to the application to stay or defer the proceedings as he stated that the Employment Relations Promulgation (or ERP") does not restrict the ERT's powers and jurisdiction to continue to hear the case that has originated as an action under the provisions of the ERP. He argued that there is no such provision in the ERP to block or restrict the ERT from proceeding to hear claims or grievance registered under the ERP which is a separate jurisdiction. He argued that there is nothing in the ERP stating that whilst the grievor is criminally charged, he/she cannot exercise his/her right to redress and remedy under ERP. 

4.2 Further Mr Nair was gravely concerned that the employer had waited this long to seek police intervention vis-a-viz police taking its time to charge the grevior. He was concerned that this was yet another attempt on the part of the employer to delay the hearing which already had taken so long to come to this stage. 

4.3 Mr Nair also stated that the case before the Tribunal had no bearing on the substantive allegations of gross misconduct resulting in the termination or summary dismissal of the grevior but rather it was do with the due process that was not invoked by the employer at the time the grevior was terminated, in essence then violating her right to be heard through a grievance process. 

5.0 Employer's Rebuttal

5.1 Mr Kapadia rebutted that they were ready to proceed with the hearing on Saturday, 10th September 2011 as directed by the ERT and so there is no attempt on their part to delay the matter. 

5.2 However, he insisted that the fraud allegations leading to the summary dismissal of the grevior is what the employer perceived as a "gross misconduct" and that extensive forensic investigation over a period of time has revealed that a large sum of money is allegedly defrauded at the hands of the grevior and that there is implication of money laundering where the grevior is also alleged to have been involved in. He attempted to explain that that police has had to take time to collate evidence when crimes of such nature are reported. 

5.3 Mr Kapadia persisted that criminal proceedings should take precedence over the ERT matter which must be deferred until the determination of the criminal case.

6.0 Previous Preliminary Application

6.1 ERT notes that this is not the first time such application had been brought before it. In fact on 23rd May 2011 when the matter was continued for hearing, Mr Valenitabua, the counsel for the employer then also made a verbal application before my brother, Chief Tribunal, who considered the issue whether the proceedings should be stayed pending the criminal investigation and subsequent laying of charges against the grevior. He gave a ruling on the day, which I shall come to later. 

6.2 Suffice to say, both parties in my opinion have adequately argued this point or issue on two given occasions. In that sense any written submission whilst would have been appropriate to guide the Tribunal, I am of the view that I can rely safely on the transcripts of part-heard matter dated 23rd May 2011 to arrive at a determination.

6.3 Let me begin by highlighting some aspects of that particular transcripts (dated 23rd May 2011) where the counsel for the employer first raised this preliminary issue on pages 2 and 3 and I quote word for word:-

"My application is that you exercise your discretion under Order 28 Rule 1 of the Magistrate's Court Rules which is applicable to this court…When ERP is silent on such process,…it is entitled to postponement of hearing. (Rule) 1 - The Court may postpone any hearing of a civil matter in this case it would be the employment grievance or dispute on being satisfied that the postponement is likely to have an effect of better ensuring and determination of the questions between the parties from the merits and is not made for the purposes of mere delay. The postponement may be made on such terms as to the Court to seem just…"

6.4 Mr Valenitabua, went onto explain the grounds upon which he was relying on to stay the proceedings, where he said and I quote:- "We are asking that this proceedings be stayed pending the finalization of the criminal proceedings against Ms Gupta…"

6.5 Instead of quoting the entire page 3 of the transcript, I shall paraphrase to illustrate that Mr Valenitabua had informed the ERT that the file was with DPP, investigations had closed and the charges "…maybe laid soon". Soon did not come soon enough until lapse of almost 6 months but indeed charges have been confirmed that is now laid and served on the grevior. 

6.5 Mr Valenitabua further attempted to explain to the ERT that: "…the employer will have to show cause that the grevior's termination was fair and just and order to prove that we will need to show evidences in respect to Ms Gupta's case …fraudulent activities, abuse of authority, unfavorable threats,…" (at page 3 of the transcripts). 

6.6 At page 4, the counsel touched on how the criminal proceeding was going to ensure hearing and determination of the questions between parties on merits and he submitted and I quote:- "…firstly it will show us who committed threat, dishonest dealings and abuse of power beyond reasonable doubt …". I also quote at page 5 where the counsel submitted that: – "we have to show cause that termination was fair and just. That the termination due to fraudulent activities is fair and just. If police and DPP prove beyond reasonable doubt there shouldn't be any case before you…"

6.7 The Chief Tribunal after hearing counsel for the employer proceeded to hear Mr Nair who submitted that the issue before the Tribunal was that of an employment matter and whether the removal of Reshmi Gupta from her employment was justified or not (my paraphrase at page 7). He went on to say and I quote:-

"Like the Counsel has said that the proceedings back up on the merits of the case…we are basing our case on procedures whether the procedure due process and right to be heard was accorded to Reshmi Gupta or not, that's all. Whether there was fraud of half a million or 3 million that is not our case. What we are saying here is whether the process was followed…"

6.7 The Chief Tribunal on the day also entertained the testimony of a witness called by Mr Valenitabua who was subpoenaed to confirm that the file against the grevior was with DPP for review and to give evidence in respect of the application made by Mr Valenitabua on the preliminary matter that it should be stayed in the event DPP was getting ready to charge the grevior and such charges related to issues pertaining to the hearing of the substantive matter. Mr Rakesh Prasad of the CID Headquarters established in the ERT on that day that the grevior was not charged or served with any ensuing summons to appear before a criminal jurisdiction. 

6.8 But clearly his testimony indicated that police investigations were in place when the matter had proceeded to hearing of the substantive matter in the ERT.

6.9 Given Mr Valenitabua's persistence on the day for the consideration of Order 28, Rule 1 of the Magistartes Court Rules in light of his preliminary application albeit in the verbal form, the Chief Tribunal agreed that if a written ruling as indicated by the counsel was required, then he would have to look at similar cases as he noted that there has never been similar cases before him (paraphrased at page 15).

6.10 This is where Mr Nair attempted to assist the Tribunal on that day and in doing so, he stated and I quote:-

"Sir, just to assist this Tribunal. Your Worship will recall that there was a case of Alipate, LTA in Lautoka when the Counsel, LTA raised the criminal charge in the Magistrate's Court that Your Worship had deferred it. There was a proceeding in place. Here, there is no proceeding. If she was charged, I would consider even before coming here. I would have just written a letter that we defer the hearing" (at page 15 of the transcript and my emphasis). 

6.11 No doubt, there are known incidence when criminal charges are laid against a grevior such application has succeeded for staying of proceedings until the criminal matter is resolved. This information was supplied to the Tribunal by Mr. Nair who appeared to have been assuring the Tribunal that he would have sought deferment of hearing at that time if the grevior was charged.

6.12 On that day, however, the Chief Tribunal ruled after hearing both sides:-

"…The position is very clear, she (grevior) hasn't been charged even though the file is with DPP to review and make final decision on this one. The matter here should proceed…" (at page 16 of the transcript). 

6.13 In my opinion this was fair decision at that point in time since there were no charges laid against the grevior in the criminal court to cast any prejudice or disadvantage on the party seeking to stay proceedings. Contemplation of being charged in the future and being charged at the time the proceedings is on-going in the Tribunal are two separate and distinct issues. What is of more significance is to test whether a case against the grevior in another jurisdiction would impact the current proceedings, and if so, would it prejudice any party in terms of the outcome of that case? 

7.0 The Present Preliminary Application

7.1 The question now posing the ERT is fourfold as per this application:

1.	Whether or not the grevior still has a right to be heard in the normal course of proceedings before ERT (that is, whether her matter should be continued for hearing) when she has been charged in another jurisdiction? 

2.	Can the grevior only plead procedural wrong done to her by being denied due process at the time of termination and restrict the ERT from considering the substantive matter of gross misconduct that led to her suspension and then summary dismissal, which is the case (or defence) of the employer for her termination? 

3.	In consideration of No.2 above, will the ERT prejudice the party seeking stay of proceedings if the substantive allegation of gross misconduct (or fraudulent acts and so on) being at the heart of the offences alleged in the criminal court is disregarded and not considered?

4.	Can the ERT stay proceedings under its powers and jurisdiction conferred under the ERP which is silent on the issue and can it take queue from the Magistrate Court Rules?

7.2 In this instance, it is my opinion that the broader scheme of things have changed and it cannot be ignored or taken lightly that the grevior is now facing some very serious charges laid against her in a criminal jurisdiction. 

7.3 It is my view also that without touching on the substantive issues of termination on the grounds of gross misconduct, which can be a reason for termination under the section 33 of the ERP, the due process being denied at the time of termination (or any alleged procedural wrong) to be considered in isolation would be difficult for the Tribunal. While the grevior alleges that due process was not accorded to her, the employer's defence is that they took steps to terminate the grevior in such manner based on what they perceived to be "gross misconduct" arising out of fraudulent acts by the grevior. The Tribunal cannot limit the scope of grievance and center its decision on the due process alone. In fact the preliminary determination of my brother Chief Tribunal of 9th March 2010 clearly alluded that the ERT intended to look into the issues of unfair, unjust and wrongful termination which are both issues of substance and procedural in nature. 

7.4 Under the ERP, the onus is clearly on the employer to prove that their actions to terminate the grevior in the manner she was terminated was justified and fair under the circumstances and that any reasonable employer would have acted in the same way. The burden of proof in the ERT is lower or less than the burden in the criminal court. In criminal jurisdiction, the prosecution will have to prove beyond reasonable doubt that the charges against the grevior have substance or merits. This higher burden of proof and any result therein would be useful in determining the outcome of the present case in terms of especially the remedy sought by the grevior.

7.5 Clearly loss and fraud of monies in the vicinity of half a million dollars or more is no light matter and if the grevior has been charged even after almost 2 years of investigation (forensic or otherwise), the fact is she is now charged in a criminal court. I see that the criminal charges are quite serious amounting to seven counts with offences relating to fraudulent falsification of accounts to money laundering. 

7.6 Without really going into the details, I conclude that similar facts are contained in the Preliminary Submissions of the Employer dated 9th December 2009 and subsequent submissions dated and filed on 18th April 2011 which really sums up "the employer's defence" against unfair and unjust termination alleged by the grevior. According to the employer's Preliminary Submissions, the grevior allegedly faced six count of misconduct as per Charge Sheet dated 3rd September 2009 that has considerable bearing on the criminal offences today facing the grevior in a criminal court. This is the position of the employer and the ERT cannot overlook the employer's defence and only give prominence to the grevior's position on the procedural wrong done to her at the time of termination when both, substantive and procedural issues are intertwined. In this instance, alleged misconduct appears so serious in nature that any prudent adjudicator cannot do justice to either party without at least understanding how and why the termination became necessary under those circumstances. In essence, not considering the substantive issues of gross misconduct at all would be denying the employer their right to be heard or simply prejudicing them from putting forward defence as they are entitled to disprove grevior's allegations of unfair and unjust termination. 

7.6 On the issue whether ERT can consider granting any application for stay of proceedings, this is already known to the greviors's representative to have been done in the past but clearly in the absence of ERP making any reference whether this can be done or not, I am of the opinion that s238 (2) can aid when rules and procedures are not that clear. Section 238(2) allows ERT to rely on the Magistrates' Court Rules in absence of any provision in ERP, where states:-

S238 (2) In the absence of such rule or where no provision is made for a particular circumstance – 

(b) the Magistrates' Court Rules apply to the proceedings before the Tribunal…" 

7.7 I therefore apply Order XXVIII, Rule 1 which states: POSTPONENT OF HEARING
"The Court may postpone any hearing of a civil cause or matter on behind satisfied that the postponement is likely to have effect of better ensuring the hearing and determination of the questions between the parties on the merits and is not made for the purposes of mere delay. The postponement may be made on such terms as to the Court seem just."

7.8 This Rule gives the Court or for matter this Tribunal discretionary powers to adjourn a hearing of any civil matter to do justice between the parties. For future reference, this Tribunal will lay out what sort of test it shall use to consider any such application (as per case of Plastic Manufacturing (Fiji) Ltd –v- ICI Fiji Limited [1984] FCA Reps 84/457 ABU 27/84 13 July 1984; and Geoffrey Miles Johnson & others –v- Norman Hepburn [1986] 32 FLR 92): the Tribunal has taken into account:-

1.	The importance of proceedings and their likely adverse consequences to the party seeking adjournment;
2.	Risk of the party being prejudiced in the conduct of proceedings if application is refused;
3.	Risk of prejudice or other disadvantage to the other party if adjournment is granted;
4.	Convenience of the court;
5.	Interest of justice generally in the efficient dispatch of the court business;
6.	Desirability of not delaying future litigants by adjourning early and leaving the Court idle; and
7.	The extent to which a party applying for adjournment is responsible for creating the difficulty which has led to this application.

8.0 Decision

8.1 Because it vests discretionary power on the ERT under the said Rule which I am invoking to grant the stay of proceedings in this instance, it is fair I explain my reasons:-

i.	The criminal charges against the grevior relates to the substantive issues of gross misconduct, being fraudulent acts alleged by the employer, which is before this Tribunal. This is the employer's case and to deny them an opportunity to be heard on the substantive matter will mean prejudicing their position. To proceed with the hearing regardless, when knowing that criminal court has higher burden of proof on the alleged misconduct will also be unfair to the employer who has lost a significant amount of money that was entrusted to the grevior that may have a bearing on the reason(s) for termination under the ERP provisions.

ii.	For now, the ERT views the criminal charges to be "serious" in nature and with the higher burden of proof, it shall most certainly impact on the outcome of the hearing before ERT when it proceeds after the conclusion of the criminal matter. No doubt, the substantive issues of termination pertaining to gross misconduct will eventually come out in employer's defence. The impact of the criminal case can be in favour of the the grevior, but that all depends when and if the grevior is declared innocent or guilty of the criminal charges. If she is declared innocent, then the employer will have surmountable task to prove their case in terms of having a valid justification or reason for termination of the grevior and this will be in favour of the grevior in terms of the remedy(s) sought. Further any remedy sought by the grevior in terms of compensation should she be successful in her claim would require holistic determination of both, substantive and procedural termination. The Tribunal cannot ignore any substantive issues of termination if evidently the grevior may have contributed to it through an alleged improper behaviour that can be treated as a misconduct and which would be sufficiently serious in nature. 

iii.	The delay of this application should not be an issue as it was already proposed some time back except at the time the grevior was not charged. Obviously, the counsel of the employer cannot be blamed for the police work and indeed the time DPP has taken to conclude its investigation and thereafter taking steps to lay charges against the grevior. Now that she is charged, the employer's counsel has a right to re-visit the stay application and seek granting of the same if they feel the decision of the criminal court will make an impact on their case before the ERT.

iv.	I also note that Mr Nair in earlier application on 23rd May 2011 gave the Tribunal assurance that if there were any proceedings in another jurisdiction where the grevior would be charged, he would himself seek deferment. I assume at that time, he appreciated the impact of the criminal charges that may have on the grevior's case and I do not see much has changed in the six months.

v.	As such, I do not think that the grevior will be prejudiced if the proceedings is stayed in this jurisdiction. Even if for argument sake this proceeding was to go on, then the grevior would still have to deal with her criminal charges simultaneously. If the grevior manages to clear her name in the criminal jurisdiction, I feel it will only strengthen her case before the ERT when seeking appropriate remedy(s). However, if she is found guilty and convicted, it may be prejudicial to the employer who would have lost a considerable amount of money through a serious misconduct of the grevior and still not been given a balanced redress under the provisions of the ERP. 

vi.	In my opinion, the risk of prejudging the employer's case far outweighs the grevior's position, who must appreciate the gravity of facing criminal proceedings which are in place for a reason and that comes with severe penalties unless these charged are dropped by the DPP's office or she is acquitted. If indeed the grevior was accountable for the monies that is allegedly lost or defrauded as claimed by the employer, then she must answer what happened to it before she can come to the ERT on good faith principle and seek appropriate remedy. I am not convinced with Mr Nairs' argument that such alleged act of gross misconduct can be perceived as a "non-issue" in such cases and only focus of the employment grievance to be around the due process of termination. While due process is equally important, reasons for termination are also an issue of considerable importance when determining remedies in such matter. 

vii.	Looking at the seriousness of the offences alleged, it is best to allow criminal court to first deal with the charges therein. The criminal proceedings should take prominence over these proceedings for the reasons explained above.

viii.	I hereby grant the application by the employer to stay these proceedings until the determination of the criminal proceedings against the grevior pursuant to Order XXVIII, Rule 1 of the Magistrate Court Rules.

DATE at Suva this 27th day of September 2011.

LEGAL TRIBUNAL