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Labour Officer v Prasad Nationwide Transport Express Courier Ltd [2012] FJET 34; ERT Criminal Case 47.2011 (16 July 2012)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA

ERT Criminal Case No. 47 of 2011

BETWEEN:

LABOUR OFFICER for and behalf of JOHN ADESH PRASAD
CLAIMANT

AND:

PRASAD NATIONWIDE TRANSPORT EXPRESS COURIER LIMITED
RESPONDENT

Mr. S. Lesi, Labour Officer for the Claimant
Mr. K. Jamnadas for the Respondent

Date of hearing: 28th May 2012
Date of Judgment: 16 July 2012

______________________________________________________________________________
RULING ON INTERLOCUTORY APPLICATION

1.0 Interlocutory Application Before the Employment Relations Tribunal (or "the ERT")

1.1 The Respondent has filed by way of Summons on 31st October 2011, inter alia seeking for the following Orders from the ERT:-

1. That the present proceedings and/or charges laid against the Respondent be struck out and dismissed on the grounds that the charges are statute-barred, is an abuse of the process of this Tribunal, as they are scandalous, vexatious and frivolous.
   
2. That the Respondent be acquitted and/or the charges be forthwith dismissed and struck out.
   
3. That the Claimant and John Adesh Prasad jointly and severally pay costs to the Respondent on indemnity basis.
   

1.2 The Respondent's application was supported with an Affidavit of Vimal Deo Prasad sworn on 12th October 2011 and filed on 31st October 2011.
1.3 The Claimant, John Adesh Prasad in opposition to the said application has sworn an Affidavit in Response on 14th February 2012 and filed the same on 14th February 2012.

1.4 This interlocutory application made by the Respondent intends to seek Orders from the Tribunal on the basis of a Judgment delivered by his Hon. Chief Tribunal on 19th May 2011 where he had then dismissed charges laid against the Respondent, acquitting the Respondent in respect of all the charges because these were declared statute-barred by the Chief Tribunal.

2.0 Brief Facts & the Claims

2.1 The Labour Officer (or the LO") on behalf of the claimant, John Adesh Prasad has filed the following claim and where relevant and applicable, states in his submissions that:-

1. The claimant was employed by the Respondent between the period from 1998 to 16th June 2007 and that the Respondent did not at any time denied having employed the claimant.
   
2. On 7th September 2009, a Criminal Action No.2 of 2009 was instigated by the Labour Officer of the Ministry of Labour Industrial Relations and Employment against the Respondent for:
   
   1. Failing to produce on demand records of wage payments in respect of the claimant contrary to Section 45(2) of the Employment Relations Promulgation 2007 (or "the ERP 2007"). It is further stated by the LO that "the charge under such criminal action was accepted and registered by the then Registrar of this Honourable Tribunal to be initiated within the stipulated timeframe. However, a second charge was again laid against the Respondent by the LO later on by way of an Amended Charge for:-
      
   2. Failing to pay annual leave to the worker contrary to section 59(1) of the ERP 2007".
      
3. The LO further states "unfortunately the learned Tribunal handed down his decision on the 19th day of May 2011 that the said proceedings was statute-barred subsequent to an application made by the Respondent in view of s262 of the ERP 2007 and section 178 of the Criminal Procedure Code 2009 as at the close of evidence of such proceedings which to my opinion seemed to be solely due to some administrative misapprehension".
   

(Bold is my emphasis)

4. Following the judgment of the Chief Tribunal, the LO has proceeded to lay fresh charges against the Respondent where he asserts that due to time constraint in terms of section 214(2) of the ERP (which states that "an action under this section may be commenced within 6 years after the day on which the money became due and payable"), he decided to lay new charges against the Respondent without delay rather than to appeal the decision of the learned Tribunal as it may consume a great deal of time.
   
5. The Labour Officer hereafter has in fact proceeded to lay the following fresh charges against the Respondent:-
   
   • (a) Count 1 – failing to pay its workers overtime remuneration during the period from 02/07/2005 to 18/06/2007 amounting to $14, 854.66 as stipulated under Clauses 9(a) (b) and (c) of the Wages Regulation (Road Transport) Order, 2004;
     
   • (b) Count 2 – failing to pay its worker meal allowance during the period from 02/07/2005 to 18/06/2007 amounting to $2,448.00 as stipulated under Clause 11 of the Wages Regulation (Road Transport) Order, 2004;
     
   • (c) Count 3 – failing to pay a worker his annual holiday pay contrary to section 59(1) 60(2) 70(3) and 256(b) of the ERP amounting to $460.73; and
     
   • (d) Count 4 – failing to pay its worker public holiday pay during the period from 02/07/2005 to 18/06/2007 amounting to $575.92 under Clauses 7 (1) and 9(c) of the Wages Regulation (Road Transport) Order, 2004.
     
6. The LO further told the ERT that he then proceeded to amend Charge (c) above which he says was to "...erase Count 3 since it was irrelevant due to the fact that those three other charges were made out under the Wages Regulation (Road Transport) Order, 2004 and were payable during the period the Claimant was employed by the Respondent and consequently accepted by the Registrar of this Honourable Tribunal to be in order...".
   
7. The LO went onto say that "since the Amended Charge has already been accepted by the Registrar and filed accordingly, we pray therefore that this Honourable Tribunal to regard this paragraph as a formal Application for the said Amended Charge to be wholly binding since we are of the firm belief that this Honourable Tribunal is not bound by any strict rules laws in as far as the amended charge is concerned".
   
8. The LO further asserted that although Wages Regulation (Road Transport) Order, 2004 was revoked and superseded with Wages Regulation (Road Transport) Order, 2007 but the amounts claimed was calculated based on relevant wage rate payable at the time the Claimant was working for the Respondent. However, the LO's position is that it should be noted that there is no provision under the ERP to prevent any claims made retrospectively as long as it's within the confine of Section 214(1), (a), (b) and (2) of the ERP and as such claims are duly effective and tenable under the ERP.
   
9. The LO finally stated in support of the claims vis a viz charges laid by the Labour Officer (for and on behalf of the Claimant) that it is well with ambit of Section 265(7) of the ERP where it provides that: "At the commencement of this Promulgation any subsidiary legislation made under the Acts repealed under subsection (1) continues as if it were made under this Promulgation to extent that it is not inconsistent with this Promulgation".
   
10. LO also disagreed with the Respondent that the Section 172 of the ERP quoted by Respondent "that the decision of the Tribunal can have retrospective effect but there is nothing contained in the said legislation that there can be retrospective application of the law" is misleading and irrelevant because according to him, such section basically deals with Employment Disputes. The LO stated that the claims now currently before the Tribunal is not of employment dispute but wholly criminal in nature and as such it has merit.
    

2.2 In its defence, the Respondent stated that:-

1. The Respondent, is a limited liability company, operating its own business as a courier service company operating from various towns, where the Claimant was employed by the Respondent at its Suva Branch for a number of years but he left employment on 11/06/2007 by tendering his resignation which was supported with annexure "C" in the Affidavit of Vimal Deo Prasad filed on 31/10/2011.
   
2. At the time of his resignation from the employment, the Claimant was paid all his dues and left the employment with the Respondent happily and without any complaint, except after about two years or so; the Claimant with the assistance of the Labour Officer on 07/09/2009 laid charges against the Respondent on two counts as follows:-
   

Count 1 - failing to produce on demand wages and the records.

Count 2 - failing to pay annual leave pay to the worker.

3. The previous charges laid against the Respondent was heard on 25/11/2010 and in the Judgment delivered on 19/05/2011, the learned Tribunal dismissed the charges and acquitted the Respondent because the charges were statue barred. A copy of the said Judgment was enclosed as annexure "A" in the Affidavit of Vimal Deo Prasad filed on 31/10/2011. Following the Judgment and after two months, the Labour Officer vide letter dated 05/02/2011 demanded from the Respondent, payment of the sum of $18,339.31 being overtime wages, meal allowance, annual holiday pay and public holiday pay as shown through annexure "D" in the Affidavit of Vimal Deo Prasad filed on 31/10/2011.
   
4. The Respondent upon receipt of the said letter of demand, through its Solicitors wrote a letter dated 18/7/2011, denied owing any monies and further advised the Claimant, that the fresh demand made were statute barred and a Tribunal of competent jurisdiction had dealt with the matter on the same facts and evidence and had dismissed the charges.
   
5. Despite being advised by Respondent's Solicitors, the Labour Officer on behalf of John Adesh Prasad, proceeded to lay fresh charges against the Respondent and the four counts are as follows:-
   

Count 1 - fail to pay overtime wages

Count 2 - fail to pay meal allowance

Count 3 - fail to pay annual holiday pay.

Count 4 - fail to pay public holiday pay.

6. The Respondent has since denied the charges and has filed Summons to have the charges dismissed and stuck out summarily.
   

3.0 Final Determination

3.1 After assessing the claims/charges brought forward by the Labour Officer and defence put forward by the Respondent, I am of the view that this interlocutory application is not so much centered or directed at seeking relief on the substantive allegations where comparison can be easily made against the old and new (or fresh charges) laid against the Respondent, and thus proving that the principles of law relating to 'Resjudicata' or 'Esttopel' is relevant and applicable here. While this is a small part of the application when comparing the dismissed charges by the Chief Tribunal through his judgment dated 19th May 2011 against the new ones to test whether they are similar, if not, same charges have re-surfaced despite the Tribunal has ruled on the same, the critical and foremost issue of contention between the parties that needs to be determined is the process of bringing the charges before the ERT for adjudication. This, in any event must be within the ambit of statute (ERP 2007) and its limitations such as the time frame accorded in the ERP for laying those charges fairly, without causing grave injustice or prejudice to a party where the charges will clearly be criminal in nature.

3.2 Thus, the procedures to be followed for prosecuting the alleged perpetrator, if there are reasonable grounds of action to proceed here is somewhat misguided and not clear on the part of the Labour Officer particularly. Indeed, in a criminal action before the ERT instituted by the Labour Officer, the burden of proof lays with the Labour Officer at all times on the standard of "beyond all reasonable doubt", where he/she must bring only those charges supported by reasonable evidence to prove their case and theses charges must comply with the ERP requirements for prosecution purposes. For example, the charges must not be defective in nature by not clearly giving particulars of the offence or be bare allegations on mere words of the claimants. This in itself can occasion grounds for dismissal on "no case to answer" applications, with costs.

3.3 I also agree that generally speaking, strict rules of evidence does not apply in the ERT under s231 of the ERP, however, ERP requires that the Tribunal must act fairly in all proceedings, civil and criminal in nature under s216(2) of the ERP.

3.4 In doing so, the Tribunal can only discharge its powers vested under an array of broad jurisdiction pursuant to s211 of the ERP by fairly adjudicating on matters that are properly before it, and not by a simple reason that it was accepted by the Registrar of the ERT for purposes of filing an action to be heard by the Tribunal, hence it should be validated as formal proceedings to be regarded as being properly within the jurisdiction of the Tribunal.

3.5 When a filed matter (in whatever form) is called before the Tribunal and the Tribunal after hearing both sides gives a direction or makes an Order, such Orders and Directions are given for a purpose and must be adhered or complied with, or it would constitute nothing less than a blatant disregard and breach of that order or direction. For example, if the ERT orders that a Charge laid by the Labour Officer cannot be amended as there is an interlocutory application on the very issue pertaining to the way it was brought before the ERT that offends the rules and procedures of the ERP and this is a "question of law" being queried where relief is being sought by the Respondent by way of Summons, then such an order is given for an interim purpose and must be complied until the Tribunal rules on the interlocutory issue before it. I will come to this issue in the later part of this decision.

3.6 But first, I note that it is an uncontested fact that the Chief Tribunal who had presided over Criminal Action No.2 of 2009 has duly dismissed and acquitted the Respondent of charges then laid against the employer on the basis that it was statute-barred. I do not wish to go into the decision of the Chief Tribunal to test whether the same charges have re-surfaced in this proceedings as it is admitted by the Labour Officer, Mr Lesi that he did not appeal the decision of the Chief Tribunal on the basis that it would be a time consuming effort, although it is obvious that he was dissatisfied with the Chief Tribunal's decision regarding it to be "solely due to some administrative misapprehension".

3.7 I simply do not see it fit to comment or make any further determination in an attempt to question my brother, Chief Tribunal in terms of his decision dated 19th May 2011. It would be most inappropriate and imprudent for the same Tribunal member to do this when it has neither the jurisdiction nor any fair basis to cast doubts or query judgment delivered by another member of the Tribunal. That jurisdiction and powers is solely vested in the appellant or higher court, being the Employment Relations Court under s242 of the ERP 2007.

3.8 The Labour Officer has clearly waived the right to appeal within 28 days from the date of the ERT's decision, which is the only way he could have proceeded to file any fresh charges if the higher court did not agree with the Chief Tribunal's decision.

3.9 In the same connotation, it cannot be ignored that it is a trite law that until a decision is overturned by the higher court prescribed in the governing legislation, it remains the presiding legal authority's (here the ERT's) final decision.

3.10 To me, it appears that the LO has made a judgment call on his opinion solely and proceeded to file fresh charges despite a decision was in place by the ERT that the charges were statute barred pursuant to s262 of the ERP.
3.11 Here, in my opinion there is no contention that similar and/or in some regard same charges have been filed via a claim by the same Claimant against the same Respondent, except a new provision of the ERP is invoked in this instance in terms of section 214(2) of the ERP. Facts also allude to the same employment period contested then and now.

3.12 To me it is irrelevant to test whether the substantive charges are equivalent, modified or different in this proceedings in terms of the new charges laid under s214(2) of the ERP. The issue that is only of relevance to me is whether the time limitation accorded in the ERP in bringing or laying the criminal charges is proper, justified, lawful and/or within the law. And here, there is already a decision by the ERT in regards to this very fundamental "question of law" in the ERP.

3.13 Until his ruling stands unchallenged, I cannot disregard the Chief Tribunal's decision that the charges in any event, either as the old or new charges are statute bared. Further, I completely concur that any charges that is criminal in nature and which is invoked or instigated under Part 21 of the ERP pertaining to "OFFENCES", is subject to s262 of the ERP.

3.14 To therefore proceed with fresh charges under s214(2) of the ERP is rather a peculiar and prejudicial action against the Respondent reeking of bad faith that ERP is clearly not premised on. In my opinion, such action on the part of the Labour Officer is unjustified and unfair towards the Respondent when the ERP has not provided any exception to the rule set down in s262 of the ERP under any circumstance. Further s214(2) does not state that it takes precedence over s262 of the ERP, whatever the case maybe. Or that if s262 fails to allow the statutory time-frame to proceed with an "offence" related provision under Part 21 of the ERP, then s214 of the ERP can be substituted allowing for fresh charges to be brought against an alleged offender who maybe have escaped liability under s262 of the ERP.

3.15 In my view the claim for recovery of wages and other money as stipulated under s214 of the ERP is somewhat arising within the ambit of a grievance or dispute claims which is more a civil action in nature, although section 215 of the ERP allows the Labour Officer to show the ERT that because the employer failed to keep their wages records and books in order (say up-to 6years), this has prejudiced the worker's ability to bring an accurate claim under the ERP.

3.16 It would appear that the ERP gives two equitable platforms to the claimants to come before the ERT that can either originate as a criminal or civil claim. A claim pertaining to same facts and law cannot be originated as both, a criminal and civil action (here as grievance or disputes) simultaneously under the ERP as this will completely negate the "good faith" principles the ERP is clearly modeled upon. For example, if a grievance is registered or submitted under the ERP provisions (see: s111 of the ERP) that are in relation to recovery of monies owed to the employee then, mediation is a mandatory step to resolving the same. Any resolution under the mediation process in the ERP is declared final and binding (see: s196(2) of the ERP) and one that cannot be challenged in "any proceedings" under s197 of the ERP. This means that the same claimant cannot have a second bite at the law and also file a criminal proceedings against the same employer for breaching his/her labour rights which can also be deemed an "offence" provision under Part 21 of the ERP, say pursuant to s247 of the ERP.

3.17 I believe the only time an alleged claim becomes enforceable as an OFFENCE provision thus becomes a criminal action is when Part 21 of the ERP comes into play. For example, the LO initially chose to bring all charges under the section 45(2) and section 59 (1) of the ERP. Section 70(3) provides that "an employer that does not observe any provision of Part 7, commits an offence and therefore General Penalty in section 256 comes into effect". Hence the LO is entitled to bring a criminal action under the General Penalty provision, which he did. He did not file any grievance on behalf of the claimant then and he has not done the same in this instance.

3.18 In this instance, he has again invoked section 55 and section 256 of the ERP, where s256 pertains to "General Penalty" provision. This is very clearly an action criminal in nature which is also substantiated with an action number, being "ERT Criminal Case No ...". The new charges are no different from the old charges in the way it has come about as also confirmed by the Labour Officer that it is a criminal charge and not a dispute claim under s214(2) of the ERP. Falling any effective criminal prosecution subject to s262 of the ERP, the Labour Officer is now trying his luck with s214(2) of the ERP with these new or fresh charges.

3.19 The question that this ERT needs to objectively ask is: can the LO fairly have a second chance at the law that is created with a purpose, intention and requirement that cannot just be invoked for mere prosecution without the procedures being applied properly and without allowing the defending party a chance to seek remedy against the law that has been already applied once where the Respondent has been acquitted of all charges?

3.20 To me, it seems that the LO is trying to deliberately bend or flout the rules and procedures in the ERP 2007, that would tantamount not only an abuse of process through a seemingly vexatious and malicious claim here but one, that is also bordering on contempt of the Tribunal's decision. If he was aggrieved with the judgment headed down by the Chief Tribunal (or "the CT"), he could have proceeded to have it set aside or overturned by appealing CT's decision and respectfully seeking to have the charges restored if he was successful. He cannot use arguments that it was a time consuming effort and so he decided otherwise.

3.21 Simply put, the Labour Officer cannot take upon himself to unilaterally decide and push aside the Chief Tribunal's ruling that is currently in place and one which is evidently not overturned by the ERC. Consequently, he cannot proceed to file new or fresh charges until the CT's decision stands, steadfast.

3.22 Such a personal and heavy-handed decision by any officer at law who obviously has statutory powers (as per s19 of the ERP) to bring such claims or charges in fact disallows the Respondent their right to defend in an appeal process when clearly the CT had exonerated the Respondent of any criminal liability. The fact remains that the Respondent was acquitted and all charges laid then were duly dismissed by the Tribunal on 19th May 2011. The said decision is not appealed to date and still applicable.

3.23 I thus accept the Respondent's position that the principles of Resjudicata applies to this proceedings. There is no contention that the Labour Officer is using the same facts to allege the fresh charges, where the Chief Tribunal has already heard and ruled after dealing with similar facts and law in a previous proceedings within a competent jurisdiction and that decision stands final when it fact it has not been appealed. Therefore, the Claimant is not entitled to have this matter re-heard on the same facts and charges pertaining to the old proceedings, where the Respondent was already acquitted and all charges was dismissed for two important factors at the close of evidence:-

• The Tribunal held that the Labour Officer did not make out a case against the accused to the required standard; and
  
• That the claim was statute barred under s262 of the ERP 2007 and section 178 of the CPD 2009.
  

3.24 I have also noted that the LO is apportioning blame on the Registrar of the ERT for accepting his applications, particularly where new charges and/or its amendment is concerned, hence it is deemed accepted by the Tribunal. Such scenarios are not new to the Tribunal in the absence of proper "Rules and Practice Guidance" for the ERT where it would seem that the Registrar is compelled to accept any type of claim, criminal or civil and thus leave it to the ERT to rule in terms of its legality, legitimacy, jurisdiction to hear the claims or allegations and so forth. It does not automatically declare that the claim valid and justified under the law. It is unfair to blame the Registrar who is purely performing administrative function in delivering the services of the ERT and it is vested only in the ERT's powers and jurisdiction to accept or reject a claim on the basis of its merits and justification (in law and procedure).

3.25 I have checked my file records and I agree with the Respondent's submissions that amended charges were attempted to be filed by the Labour Officer but this was not allowed by the ERT given that the interlocutory application was already in place before the ERT by the Respondent, which (amended charge) was in effect then struck out on 10th February 2012 by the Tribunal. Mr Lesi was in attendance before the ERT on this day while Ms Marie Chang appeared on instructions of Suresh Maharaj & Associates. For Mr. Lesi to state otherwise in his claims vide his oral arguments on 28th May 2012 and thereafter his submissions dated 19th June 2012, is no doubt a conduct nothing short of bad faith in an attempt to misled this Tribunal.

3.26 In an ordinary circumstance I would have understood why he would consider this aspect an important component of his case. This particular charge or count he attempted to erase or amend (count 3) is no doubt what was also directly reflected in the previous charge in terms of holiday pay. But because the Respondent's application was at the heart of this issue, by amending the same he would seek to demonstrate that the charges are different and not what he had laid in the previous proceedings in the Criminal Action No. 2 of 2009. He would have been successful in showing that the fresh charges were different in fact and law, however, despite such lame effort, I am not convinced that the new or fresh charges being different makes much difference to this proceedings when the question of law pertaining to statutory limitation is still in place.
3.21 That said, this conduct is no doubt dishonest and unbecoming of a Labour Officer charged with such an important role where the Labour Officer has attempted to mislead this Tribunal in regards to the charges. Such conduct can be declared unmeritorious and reprehensible where the Respondent has been unnecessarily dragged into this new proceedings yet, once again despite a hearing has already been conducted and a ruling delivered by a competent jurisdiction of the Tribunal.

4.0 Decision and Orders

1. I find that the new charges are still statute barred and estopped from further adjudication when applying the principles of Resjudicata.
   
2. The Charges and Claims are dismissed forthwith.
   
3. Where costs are concerned, I find the Respondent is entitled to costs on indemnity basis although I consider $5000.00 sought by the Respondent to be rather on the high side. There have been five Tribunal appearances and one was not attended by either party. I also take into account in the way this proceedings was brought to the ERT's jurisdiction, the decision that is still in place by the Chief Tribunal and more importantly, the conduct of the Labour Officer to mislead this ERT. I have thus considered the Rule in the case of Police Service Commission vs Beniamino Naiveli (Civil App. No. 52/95S- Judgment 16/8/96) where at p.6 the Court inter alia states that:-
   

".... neither considerations of hardship to the successful party nor the over optimism of an unsuccessful opponent would by themselves justify an award beyond party and party costs. But additional costs may be called for if there has been reprehensible conduct by the party liable - see example discussed in THOMSON VS SWAN HUNTER AND WIGHAM RISHARDSON LIMITED (1954) 2 ALL E.R. 859 and BOWEN JONES VS BOWEN-JONES (1986) 3ALL E.R. 163"

4. I, therefore, order a cost of $1,500.00 to be paid by the Claimant and the Labour Officer jointly and severally to the Respondent within two months of this decision.
   
5. This matter is struck out.
   

DATED at Suva this 16th day of July 2012.

LEGAL TRIBUNAL