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Labour Office v K.K. Komave Logging Company [2012] FJET 56; ER WC 43.2009 (20 July 2012)

IN THE EMLOYMENT RELATIONS
TRIBUNAL AT SUVA

ER WC 43 of 2009

BETWEEN:

THE LABOUR OFFICER (for and on behalf of the dependents of ORISI RASOVI of Nalovo, Nadi)
APPLICANT

AND:

K. K. KOMAVE LOGGING COMPANY (P.O. Box 10124, Nadi Airport)
RESPONDENT

Appearances:
Mr. S. Doko Turaga for the Applicants
Mr. S. Maharaj for the Respondent

DETERMINATION OF COMPENSATION CLAIM

Application before the Tribunal

1] The application was made by the Labour Officer acting for the dependent of the late Orisi Rasuvi under sections 6 and 12 of the Workmen's Compensation Act Cap. 94. The application which was initially made to the Nadi Magistrates Court was for the Respondent to be ordered to pay $24,000 to the dependent of the deceased

2] The Labour Department had conducted its investigations and has determined that the sole dependent of the deceased is Mrs. Asenaca Vitalina, a daughter.

Background and Evidence

3] The Labour Officer submits that the workman met with a fatal accident on 12 March 2006 whilst employed by the Respondent and was being paid $80 per week. On the basis of that earning, the Labour Officer made a claim to the Respondent for the amount of $16,640 and Sun Insurance Company for the respondent employer paid the amount claimed on 30 May 2007. The payment was acknowledged by the Labour Department on 8 June 2007.

4] On 6 July, the Permanent Secretary for Labour wrote to the Labour Officer Nadi informing him that the Respondent is covered by the Sawmilling and Logging Wages Regulation Order and as such the hourly rate should be $2.47 by thirteen hours a day, for seven days a week, would amount to $247.77 gross a week. Multiply that by 208 weeks as required by section 6 of the Workmen's Compensation Act would amount to $46,752.16 bringing the maximum compensation payable to $24,000. That was the basis of the application to the Nadi Magistrates Court before the case was transferred to the Tribunal.

5] Before the application was filed in Court, the Labour Officer Nadi informed the Respondent in the letter dated 20 August 2007 that its undertaking is covered by the Sawmilling and Logging Wages Regulation Order, that the required hourly rate is $2.47 an hour and that the maximum compensation payable would be $24,000. In that regard the Labour Officer requested the Respondent to pay the balance of $7,360.

6] The above letter was apparently referred to the Sun Insurance Company which asked in the letter of 5 September 2007 for clarification of the relevant law that would reflect the basis of the weekly earnings to be used for the calculation of the compensation payable

7] The Labour Officer Nadi replied in the letter dated 18 September 2007 that the application of the labour legislation in totality is important to ensure the fair remuneration of an employee in a given scenario and that it had considered the matter and concluded that the applicable rate is $2.47 an hour under the relevant Wages Regulation Order. In that connection the Labour Officer added that the deceased workman worked for seven days a week between 5.00 pm to 8.00 am and that his weekly earnings should be $224.77 instead of $80 as stated in the LD/Form C1. The Labour Officer then asked that the balance of $7,360 be paid to conclude the matter.

8] Sun Insurance in the letter dated 25 September 2007 did not agree with the new calculation and claim and since the matter was in dispute, asked for the refund of the amount of $16,640 already paid to the Labour Department, as company policy does not allow funds to be held by a Third Party if it is disputed.

9] The Labour Officer wrote back on 2 October 2007 refusing the refund and instead advised the insurance company that it was making an application in Court to contest the matter. The application was filed on 28th December 2007.

10] The Respondent maintained its position that the applicant was not entitled to $24,000 and filed the following answers to the application:

i] that the deceased was not a full time worker but only worked for about one hour in the evening and one hour in the morning;

ii] that the deceased was only required to switch on and off the security lights;

iii] that the deceased was paid the amount of $80 per week for the contracted periods / hours of work;

iv] that the deceased was not allowed to go into the area where he met his death and was guilty of negligence and or contributory negligence;

v] that section 6 of the Act clearly states that the applicant is only entitled to be paid on the basis of his earnings and which shall be a sum equal to 208 weeks' earnings and that the deceased was paid $80 per week and therefore the sum payable is $16,640;

vi] that the provisions of the said section are in mandatory terms and any other rules or regulations made thereafter and which are not in accordance with the said provisions of the Act are therefore null and void; and

vii] that there have not been any matters o facts pleaded to substantiate the dependency as there was no person depended on the deceased at the time of his death.

11] The Applicant in its reply to the Respondent's grounds of opposition submitted the following:

a] that by virtue of his employment as a security officer for the Respondent since 13 May 2005 and pursuant to the spirit and intent of section 2 of the Act, the deceased falls into the category of a 'workman' and is so entitled to enjoy the benefits provided for in the Act;

b] that between the evening of 11 March to the early morning of 12 March 2006, the deceased died whilst being employed and in the course of providing security at the premises of the Respondent's undertaking;

c] that the cause of death is consistent with the impact of the falling of the steel frame door of the KILN (timber drier still under construction) of about 4.9 meters in length and four meters wide ad weighing about one ton, over the body of the deceased from the chest upwards;

d] that by virtue of the foregoing and applications of sections 5 and 12 of the Act, a sum of $24,000 shall be paid by the Respondent to the deceased sole dependent in this case, Mrs. Asenaca Vitalina;

e] that the deceased had died from the accident inside the premises of the Respondent company and that the deceased was required to work within the premises;

f] that it defies logic and commonsense therefore to regard the deceased as negligent or as a trespasser and such assertion is misleading and misdirected; and

g] that all in all the grounds of opposition is contradictory to the expressed admission of liability under the Act by the Respondent, as demonstrated by its insurance company Sun Insurance paying of $16,640.00 to the applicant on 7 June 2007.

Analysis and Conclusion

12] The Tribunal must record its concern on how this case was handled from the date the death was reported to the Labour Department for investigation. From the date of death which was 12 March 2006 it took nearly one year for the statement to be taken from Mrs. Asenaca Vitalina the daughter of the deceased on 16 February 2007 although the employer reported the death through L. D Form C/1 on 18 March 2006.

13] When the Respondent was asked to pay the amount of $16,640 it did not hesitate and paid within three weeks. This was when the path to litigation was drawn up. The Labour Department headquarters advised that the hourly rate for the deceased was wrong as the Respondent is covered by the Sawmilling and Logging Wages Regulation Order and that the compensation should be $24,000.

14] When the Respondent refused to pay the balance of $7,360 the matter was referred to Court and then transferred to the Tribunal.

15] Looking through the whole case and the evidence submitted during the hearing, the Tribunal finds that a lot of time was spent arguing about fundamental issues which would not have occurred if there was a system and process of handling death cases and workmen's compensation claims. What the investigators should have done first was to determine the employment status of the deceased; was he employed on contract and what type of contract, the hourly rate, the number of hours and days worked and what was the purpose of his presence at the place of accident? Those were not made available and during the hearing different rates and wages were given and the two witnesses from the Labour Department, that the Tribunal would classify as expert witnesses confirmed that section 6 of the Act has not been amended and that there is no connection between section 6 and the relevant Order (the Sawmilling and Logging Wages Regulation Order in this case).

16] The two expert witnesses also agreed that the deceased was earning $80 a week at the time of death and that was the basis of the calculation. This was the main issue between the parties and not whether or not the death was work related. It was not the employer's liability under the Act, as neither the Magistrates Court nor the Tribunal has determined that or need to do that as liability was admitted when the Respondent insurance company paid up the amount of $16,640.

17] Section 6 states that the amount of compensation in the event of death shall be a sum equal to 208 weeks' earnings. The Labour Officers in evidence testified that the deceased was being paid $80 a week and there was no evidence as to the actual number of hours worked and that is the basis of the Tribunal ruling that the amount already paid was the correct amount of compensation. To rule otherwise, would need invoking the provisions of the relevant Wages Regulation Order which due to the level and extent of investigations carried out could not be possibly done, as the Tribunal could not impose the Wages Regulation Order without the benefit of the deceased employment details.

18] As liability is no longer an issue, the Tribunal will not consider the issue of contributory negligence, refuses the application by the Labour Officer initially filed with the Nadi Magistrates Court for the payment of $24,000 compensation and makes the following Orders.

Orders

19] That the Labour Department releases the amount of $16,640.00 compensation paid to it on 7 July 2007 to Mrs. Asenaca Vitalina as the sole dependent of the deceased Mr. Orisi Rasuvi.

DATED at Lautoka this 20th day of July 2011

Sainivalati Kuruduadua
Chief Tribunal