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Labour Office v Meridian Services Agency [2012] FJET 49; Criminal Matter 011.2010 (7 February 2012)

IN THE EMPLOYMENT
TRIBUNAL AT SUVA
(Employment Jurisdiction)

Criminal Matter No. 011 of 2010

BETWEEN:

THE LABOUR OFFICER (hereinafter referred to as the "Prosecution")

AND:

MERIDIAN SERVICES AGENCY (hereinafter referred to as the Defendant Employer)

Appearances:
Mr. S. Lesi for the Prosecution
Mr. F. Vosarogo for the Defendant

RULING ON NO CASE TO ANSWER

The Charge

1) This was amended to reflect that the company is charged and not the natural person Mr. Timoci Lolohea. The details of the charge are as follows:

Statement of Offence (a)

Failing to obtain a current authorization from the Permanent Secretary for Labour, Industrial Relations and Employment to carry on an employment agency or an employment business contrary to section 4(1) of the Employment Relations (Employment Agencies) Regulations 2008.

Statement (b)

Meridian Services Agency Limited on 15th October 2009 carried out activities of an employment agency or employment business by recruiting persons for employment outside Fiji without the authorization of the Permanent Secretary for Labour, Industrial Relations and Employment.

Prosecution's Case

2) At the hearing held on 4th May 2011, the Prosecution called 3 witnesses:

(i) Akuila Tuileca, Assistant Labour Officer, Labasa

(ii) Shelvin Chand, Senior Journalist, Fiji Times

(iii) Malakai Raikoti, Principal Labour Officer, Suva

3) PW1 (Akuila Tuileca) in his evidence told the Tribunal that in 2009 he was stationed in Suva when on 26th November, his superiors asked him to carry out an inspection on the Meridian Services Agency regarding recruitment of local workers to work in Dubai. He went with his supervisor PW3 to Nadonumai where they had discussions with Mr. Timoci Lolohea at his house and they requested him to come to their Suva office to collect and complete the registration form for an employment agency. Mr. Tuileca recalled meeting and passing people who were on their ways to and from this particular house in Nadonumai.

Under cross examination PW1 confirmed that he was unaware of anyone who had already paid money for recruitment purposes with the Meridian Services Agency.

4) PW2 (Shelvin Chand) in his evidence said that he received a tip off that recruitment was being done at the residence of Mr. Lolohea at Delainavesi and that sometimes in October 2009 he with two others went to Nadonumai. They went to Mr. Lolohea's house which was crowded with people filling forms and that he asked to see Mr. Lolohea who replied that he did not want to give any comments to the press.

5) Under cross examination he confirmed that he spoke to people who told him that they wanted to go to Dubai but could not confirm the precise details of the documents which have been filled out.

6) PW3 (Malakai Raikoti) in his evidence said that he saw the headline "Recruitment for Dubai" in the Fiji Times and he instructed PW1 to investigate. Under cross examination PW3 confirmed that he recommended that the defendant company be charged for failure to obtain authorization to recruit for overseas employment.

No Case To Answer Submission

7) At the close of the Prosecution's case, the Defendant applied to the Tribunal pursuant to Section 178 of the Criminal Procedure Decree 2009 (CPD) for a no case to answer and sought time to file submissions. This was allowed by the Tribunal and the Defendant filed its submission by 20th September 2011 whilst the Prosecution filed its reply by 6th December 2011.

The Law On No Case To Answer

8) The law is provided for in Section 178 of the CPD which stipulates:

Acquittal of accused person where no case to answer

178. If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused.

9) Fatiaki J in State v Temo Roy Sekope Stuart, Cr. Appeal No. 20 of 1989, said that in his view the statutory question which a magistrate faced with a submission of no case to answer is required to ask is:

"Has the prosecution made out a case against the accused sufficient to require hum to make a defence?"

POINTS FOR DETERMINATION

10) For the Prosecution to prove its case, it has to prove the following elements of the charge:

i] That the Defendant Company (Meridian Services Agency);

ii] Carried out the function of an employment agency or an employment business;

iii] Without authorization from the Permanent Secretary for Labour

11) There was no evidence led about the Defendant Company, the Meridian Services Agency; there was no evidence adduced about its existence. There was no registration certificate tendered or evidence by a witness that he or she did a search or attempt to determine the registration of this employer. Both PW1 and PW3 who are both Labour Officers did not adduce such evidence

12) There was no evidence that the Defendant Company carried out the function of an employment agency or an employment business as both PW1 and PW3 went to Nadonumai to Mr. Lolohea's residence had discussions with him and returned to their office after inviting Mr. Lolohea to come down to the office and complete the registration forms. PW1 recalled passing people going to and from Mr. Lolohea's house and he did not take any statement. Similarly, PW2 went up to Nadonumai after a tip off where people were gathered supposedly for recruitment purposes but could not confirm seeing the precise details of the document which have been filled out.

13) There was no evidence led at the hearing of the failure of the Defendant Company to obtain authorization as the Prosecution failed to provide either documentary or oral evidence that the Defendant Company did not have a current authorization.

Prosecution Response

14) The case was brought due to the public interest in this matte whereby Mr. Timoci Lolohea as a Director of the defendant company Meridian Services was recruiting people for employment outside Fiji.

15) The Prosecution relied upon the Fiji Times article written by one Mr. Shalveen Chand and called Mr. Shalveen Chand to testify accordingly. The Defence objected to the tendering of this Prosecution exhibit saying that according to the rules of evidence, only originals should be tendered in as evidence.

16) The Prosecution disputes this under section 231(1) – (2) of the ERP 2007 which states:

Evidence

"231.- (1) In proceedings brought before the Tribunal, the Tribunal may accept and admit evidence as it thinks fit.

(2) The Tribunal is not bound by the strict rules of evidence."

17) Therefore, the Labour Officer submits that this prosecution evidence should be admitted as it highlights or indicates the public interest in this matter.

18) On a correspondence dated 28th of December 2010, the Permanent Secretary for Labour, Industrial Relations and Employment had written to the Managing Director of the defendant company clearly outlining his directive in that the company does not have written authorization to enlist, recruit or deploy any person for employment in Fiji or outside Fiji, Senior Labour Officer testified to this.

19) The Labour Officer has proven its case on the evidence tendered and the witnesses called in that the accused company under the leadership of its Director Timoci Tupou Lolohea did fail to and was not the holder of a current authorization granted by the Permanent Secretary under Regulation 4(1) of the Employment Relations (Employment Agencies) Regulations 2008.
20) Therefore, there is a case to answer here in that the defendant company through its Director Timoci Tupou Lolohea indeed operated an employment agency, recruited people and took their money without adhering to the labour laws of Fiji and without any employment promises being realized here or outside Fiji.

21) It is the best interest of the public and of the people of Fiji at large that the accused company under the leadership of is Managing Director Timoci Tupou Lolohea answers to these charges.

Analysis of Evidence

22) From the evidence, the Tribunal finds the following:

i] that there is no evidence led to prove the existence of the defendant company at the hearing;

ii] that there is no evidence led to prove the Defendant Company's failure to obtain authorization from the Permanent Secretary for Labour; and

iii] that there is no evidence shown to the Tribunal of proof of offer of employment outside Fiji on 15th October 2009.

23) The Tribunal has taken note that the Prosecution had argued section 231 (2) of the Employment Relations Promulgation 2007 in that the Tribunal is not bound by the strict rules of evidence and in that connections agrees with the submission made by the Defendant that the charge is criminal in nature and as such the threshold is different. For this charge, the Prosecution must discharge the legal burden of proof beyond reasonable doubt.

24) As was said by Shameem J in Abdul Gani Sahib v The State, Suva High Court Criminal Appeal No. HAA0022/2005S the correct test in the Magistrates Court is:

I] Whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence; and

Ii] Whether on the prosecution's case at its highest, a reasonable Tribunal could convict; and

Iii] Whether the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission of no case.

Judgment

25) The Tribunal has discredited the Prosecution's evidence following the Defendant's submission and accordingly totally acquit the Defendant Company, Meridian Services Agency from the offence of failing to obtain a current authorization from the Permanent Secretary for Labour, Industrial Relations and Employment to carry on an employment agency or an employment business contrary to section 4(1) of the Employment Relations (Employment Agencies) Regulations 2008.

DATED at Suva this 7th day of February, 2012.

Sainivalati Kuruduadua
Chief Tribunal