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Fiji Employment Tribunal |
IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT GRIEVANCE No. 77 OF 2011
BETWEEN:
MOHAMMED ABDUL RASHID SIDDIQUE
APPLICANT/GRIEVOR
AND:
MACUATA MUSLIM LEAGUE (VUNIMOLI JAME MASJID)
RESPONDENT/EMPLOYER
Appearances:
Mr Henry Rabubu for the Applicant
Mr. John Rabuku for the Respondent
Date of Judgment: 19th September, 2013
RULING ON INTERLOCUTORY APPLICATION
CATCHWORDS:
EMPLOYMENT LAW – RECUSAL SOUGHT BY THE GRIEVOR OF THE LEGAL TRIBUNAL OF THE EMPLOYMENT RELATIONS TRIBUNAL ("ERT") – WHETHER THERE IS ACTUAL OR APPEARANCE OF BIAS – WHETHER THE TRIBUNAL HAS PREJUDGED AND PREDETERMINED THE EMPLOYMENT GRIEVANCE.
LEGISLATION:
THE EMPLOYMENT RELATIONS PROMULGATION 2007 ("ERP").
Application Before the Employment Relations Tribunal (or "the ERT")
[1] The Applicant (grievor) had filed by way of Notice of Motion for Recusal with Affidavit in Support sworn by the grievor, Mr Siddique ("the Application") and which application was filed on 19th July 2013, inter alia seeking recusal of the Legal Tribunal from hearing and determining the employment matter on the following grounds: that-
[2] The Applicant had not indicated under which Rules of the Tribunal, being under the ERP or Magistrates' Court Rules (as per s238(2)(a) of the ERP) this application was filed. I am not declaring this application irregular although the basis of any application and laws that give it rise is quite important to ascertain whether or not any such application stands the test of validity and propriety. Here, the application was initiated by a Notice of Motion with an Affidavit in Support, where also the applicant has filed Submissions on the 26th July 2013. It seems that the applicant has relied on the European Convention on Human Rights under Article 6(1) which states that "...litigants are entitled to a fair hearing before an impartial Tribunal...", and which Convention is cited for this Tribunal's consideration.
[3] Let me begin by stating that the premise of fair hearing is a universal concept (now also enshrined in the Constitution of the Republic of Fiji 2013; section 15). This is no doubt inculcated at the very heart of the legal system, be it a tribunal or court of law. This however, is not the basis to apply for recusal of a legal member of the Tribunal unless the Tribunal had in its inherent and vested powers and jurisdiction under the law acted ultra vires or against the principles of natural justice and fairness that it would actually or through the appearance or perception cause bias to one party. For that reason I concur with the employer's oral submissions that there are bias of two forms: actual and appearance of bias. It seems that the whole application of the grievor is centered on my letter to the Immigration Department of Fiji dated 14th June 2013 that had attempted to seek explanation as to the grievor's immigration status in Fiji. This was done after hearing of complete evidence of the grievor through his examination-in-chief and later probed through series of questions by the opposing counsel through partial evidence in cross-examination.
[4] To that end some background facts are crucial to put in perceptive this application. When the grievor's own counsel had put the grievor on stand to give sworn testimony, he should have anticipated that the grievor was challenged by the language of the Tribunal in terms of the proceedings being conducted in English. This is a norm in Fiji Courts and Tribunals. Mr Siddigue is a Pakistani national who had come to Fiji after being granted a 'Permit to Enter and Reside' on 21 May 2008 and which permit was essentially for the purpose "to work as Chief/Priest/Religious Teacher for Vunimoli Jame Masjid, Labasa". The permit was to expire on 21 May 2011. He was however terminated from his employment on 19th July 2010 (undisputed fact). He lodged a grievance with Ministry of Labour on 13th December 2010. I note that the grievor had maintained throughout the proceedings that he did not understand English language, both written or spoken. Mr Siddigue was no doubt given full consideration by the Tribunal with a proper translator made available to communicate every piece of evidence that was recorded from the initiation of the hearing process.
[5] What was peculiar though to this Tribunal is that he read in English an excerpt from a holy book (known as 'Bhukari Sharif") during his testimony which I had thought was quite strange for someone who did not understand written English nor spoke the language. He further attempted to translate the English version in his own language, I believe to be Urdu in the same book which all indicated he was quite conversant with the English language, although I am not an expert to sustain this with total conviction. That said, to say he was not of the understanding of what was transpiring in the Tribunal during the hearing, is nothing short of stating to me that he was put on stand to give evidence which was communicated to him by his own counsel and which he did not completely comprehend in terms of the facts and evidence adduced. If this is the case, then any instructions from the client to Mr Henry Rabuku should be subject to scrutiny. On the contrary, through this application it seems that the scrutiny is being shifted onto the Tribunal. In response I can only say that after hearing the grievor's sworn testimony in the examination-in-chief, I had adequate basis to view Mr Henry Rabuku's allegation that the Tribunal had "failed to appreciate and accept the difficulties and disability of the Grievor in speaking and reading English language and writing and maintaining proper communication" [ground (j)] to be misguided and without justification.
[6] Indeed it was through grievor's own counsel's questioning in examination-in-chief that the grievor provided certain testimony that any reasonable Tribunal or bystander could not misconstrue in any other terms but what was literally and naturally meant by the grievor. I am referring to the grievor's evidence of the following:-
"Q: Until today are there people calling from Vunimoli for dua and tabiz?
Ans: Yes
Q: Do they give payment for return of dua and tabiz?
Ans: Yes"
[7] To blame the Tribunal that it had not fully appreciated that the evidence given by the grievor had intended to mean something else, is gravely mischievous and intolerable by any standards. Mr Henry Rabuku was the person coaxing the grievor to give sworn evidence of this nature which was later clarified by the opposing counsel through series of questions where the grievor did not dither or change his stance at all. Mr Henry Rabuku caused his client to state facts in the Tribunal that was perhaps, done unintentionally but may be detrimental to the overall merits of the case. I then agree with the applicant in terms of ground (l) of the application that "...conducting religious ritual of "Tavis and Dua" ...(is)... the core of the complain(t) raised by the employer" although to accuse the Tribunal that it drew unreasonable conclusion when the grevior had confirmed during his testimony that he was receiving payment for dua and tabiz after his termination in 2010 from various people to be deemed "salary" is again Mr Henry Rabuku's extension of laying blame on the Tribunal. The Tribunal had neither stated this in the letter to the Immigration Authority nor implied during the proceedings. Further, this was a re-trial and the grievor had already been through the process of hearing once with the same counsel. In that regard, Mr John Rabuku, representing the employer had raised a valid point that Mr Henry Rabuku ought to have been cautious with what he was leading his client in terms of the line of questioning he was imposing on Mr Siddique.
[8] As a matter of fact, when Mr John Rabuku proceeded to question him during cross-examination, he had stated the following:-
"Q: You stated in your last answer that you are still doing dua and tabiz for money?
Ans: Yes
Q: This has helped you finance your stay?
Ans: Yes"
Q: Also help finance this proceedings?
Ans: Yes, I also get money from friends
Q: You came to Fiji on work contract, permit for religious work?
Ans: Yes"
Q: You were to receive money only for work as per work permit for religious work?
Ans: Yes"
[9] For these reasons, I begin by declaring grounds (j), (e) and (l) of the application to be baseless and without merits. They do not prove that bias existed in any form. But what was proven during the trial is that the grievor had continued to carry on with his religious activities after his termination vis a viz religious ritual of tavis and dua for exchange of money as per his own testimony. At the outset, I should add that this trial was expedited through the grievor's own pleas to the Chief Justice's office through a letter dated 2nd April 2013. Grievor's counsel had argued that the letter was private and confidential. I beg to differ. If the grievor had used this to speed up the process of the Tribunal pleading special circumstances in terms of loss of job leading to loss of livelihood, revocation of work visa in Fiji affecting his immigration status as a foreigner and other associated hardships upon which the Tribunal considered this case to be exceptional requiring urgent resolution, and in the same breath the grievor comes to the Tribunal and indicates that he was not severely affected where his financial situation was concerned since his termination, he has not only misled the Tribunal but seen to have perverted the wheel of justice.
[10] What aggravates the claim apart from attempting to mislead the Tribunal is that this individual used his special circumstance as a foreigner under distress to speed up the case while no doubt, paying absolutely no real heed to the laws of the country in terms of the conditions of his stay. It was an undisputed fact that he had arrived in Fiji on a work permit which he had stated in his own letter to Chief Justice to be revoked by the Immigration Department (at paragraph 3). He had further stated that:
"...I have been stuck in Fiji as my former employer refused to pay for my return fare to Pakistan...I have no work permit to practice my religious practice in Fiji...therefore with these difficulties and with no financial means, I humbly request that the matter be fast tracked with the ruling be issued to the Tribunal for a quick hearing... further I humbly request that the Tribunal be ordered to hear the matter in Suva as I do not have any financial means..." (at paragraphs 5,6, and 7 and bold and underlining is my emphasis)
[11] One of the employer's seven witnesses had testified that the Committee of Volimoli Mosque had secured a bond of $3000.00 with the Fiji Immigration Department for Mr Siddiqui's return to Pakistan when his work visa would have expired. Grievor's counsel did not put this to the grievor during examination-in-chief whether this fact was true or not or for that matter produced any evidence that the said bond was not secured with the Immigration Department. I do not think the position of the grievor would drastically change on this evidence alone, for argument sake, when Mr Henry Rabuku proceeds to re-examine the grievor. In fact as part of the trial records, I found in the file what were the terms and conditions of the permit granted to the grievor, where at Clause 5 this fact was mentioned therein. Rules of evidence, while not strict in the Tribunal under section 231 of the ERP, there is clearly no basis to cast doubt unless documentary or oral evidence from the Immigration Department stating otherwise was presented. Clearly then the grievor has not been entirely truthful as to his real financial position and his passage back to Pakistan being secured; and this is neither presumptuous nor an ill-considered conclusion here.
[12] I only note this for the record and so this is not my attempt to give opinion on this issue. One of the conditions of the permit at Clause 1 was that the grievor would be "employed solely by the employer", being Vunimoli Jame Masjid under the contract of service. It did not say that he could go ahead and self-employ, regardless of the situation. But, leaving aside the breach of immigration laws and any possible breach of the permit, I do not think any reasonable person would have misunderstood the above cross-examination evidence in any other context other than to plainly interpret what was being testified by the grevior in a very simple language. While I am not in the position to enter into the protocol pertaining to the immigration laws, rules and procedure, as a Tribunal and a member of the bench, I am duty-bound and obligated not to ignore a breach of law of this country that was confirmed to have been committed by the grievor albeit in another jurisdiction. For this reason, when Mr John Rabuku had proceeded to cross-examine the grievor on the issue as to whether he had received monetary payment for the similar religious activity (dua and tabiz for money) that was not condoned by the employer that in actual fact had lead to his termination (or which was the reason or cause for termination), I do not think it was unfair to halt the proceedings at this juncture. This was on the basis that Mr John Rabuku had indicated that the grievor has admitted to carrying on with the religious activities for exchange of money although his work visa no longer remained valid or extended. And this was a fact confirmed by the grievor through his letter to CJ's office.
[13] Again, I must remind that, where the contents of the letter is concerned, this Tribunal may accept it on the basis that the rules evidence in the Tribunal does not prevent or stop it from being considered, particularly when the grievor uses such devise to fast track his matter. All claimants must come with clean hands as no adjudicator can give one claimant preference over other cases unless special circumstances require so. And if I am to take Mr Henry Rabuku's ground (g) seriously, although I reiterate that my jurisdiction is limited to reporting an act admitted in my Tribunal that purports to break a law, and not proceeding to adjudicate or determining that person's guilt, and for which reason I had put the Immigration Department on notice, I cannot say whether the counsel here is on a fishing expedition or simply inserting such grounds to push forward an application of such nature to justify the accusation of bias. Even if the cross-examination was completed that was reserved as a right of the employer followed by re-examination, I do not believe that this Tribunal would have heard something from the grievor that would have completely turned around his testimony. Mr Siddique had admitted after a series of simple questioning process that he has been accepting money for dua and tabiz after his termination. Furthermore, he had admitted that the money obtained had assisted him to finance his stay and the tribunal proceedings although he also admitted that he was only entitled to do this under a work permit which he no longer had.
[14] As to whether I had predetermined and pre-judged this matter before the entire evidence of the grievor was complete (grounds a-d), again I have to say, the grievor's own counsel is not entirely cognizant of the fact that the terms of reference for this employment grievance is "unjust and unfair termination" as per Form ER1. For the Tribunal, this is the legal parameters to adjudicate a claim.
[15] The Tribunal has foremost a duty to test the validity of the claim in terms of meeting the definition and criterion of an "employment grievance" as per the ERP including scrutinizing the process in which the claim was submitted; and whether there were prima facie merits in the claim where parties are given an opportunity to file preliminary submissions. In any employment matter the onus of proof lies on the employer and as a presiding Tribunal I had spent two days hearing seven witnesses of the employer. After considering relevant evidence, I had every basis to narrow down the claim of the grievor to understand what had really ensued between the contracted parties (employer and grievor) that had ultimately led to termination before the entire term of the contract of service was fulfilled. To me, the facts and evidence presented by the employer was adequate to make an informed opinion that this was a termination with cause where the primary reason hinged on the employer prohibiting the grievor using his religious duties and responsibilities (for which he was paid a salary) to further charge or accept money when delivering dua or tabiz to the community or the people he served.
[16] The grievor had maintained that seeking or accepting money for dua and tabiz is embedded into the religious practice. Thus I had spent a considerable length of time to hear the grievor's evidence during his examination-in-chief and then he was partially cross-examined where he had clearly admitted he was continuing his religious work till today (delivering dua and tabiz for money), reason for which he was terminated. How is this Tribunal then bias or perceived to be bias when it arrived at the opinion with a set of facts this clear. This application challenges that I have not been a neutral adjudicator when I am tasked to listen and weigh the probative value of the evidence I am presented and thus make a judgment. So far, I have simply discharged my judicial duty on the strength of evidence before me which was overwhelmingly clear in terms of the grievor's position in his unfair and unjust termination case.
[17] I also point out that where claims of unfair and unjust termination is concerned, the law is well established. For example, in the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011, the Employment Relations Court has stated and I quote for quote:- "...if there is serious misconduct, then it is the prerogative of the employer to terminate the employment immediately. If all these procedures of hearing and explanations are accorded to the employee, then the purpose of summary dismissal is lost..." (at page 8).
[18] Obviously when there is a clear-cut summary dismissal case this is quite a helpful decision. I am alleged to have formed a misconceived opinion that there was a summary dismissal in this case. One of my task as an adjudicator is to do just that, even when the termination process appears complex and does not present clear symptoms of summary dismissal or a dismissal with notice, with or without cause. Here, there was 21 days notice given effective from the date of the letter of termination (21st July 2010), nonetheless, this applied only to the grievor's entitlement to vacate his quarters he was occupying at the time within the mosque premises he was serving. Evidence from the employer was clear he was no longer serving the community as their chief priest from the date of the letter of termination: one of the employer's witnesses had testified that 21 days was given which was enough for him to vacate although the grievor had vacated within 3 days. This was confirmed by the grievor's testimony and also through his submissions filed on 26th May 2011.
[19] Therefore in terms of onus of proof, the employer bears the burden to justify that by taking a decision to terminate Mr Siddique's contract of service for a cause, thus relieving him from his usual duties and responsibilities on 21st July 2010 but allowing him 21 days to vacate his place of dwelling at the time was fair and reasonable. In my opinion where the termination is concerned he was given on-spot dismissal since he did not carry on with the usual work within the notice period of 21 days. The employer's letter was clear that the 21 days was to serve as notice for vacation and not as a notice for termination. Clearly Mr Siddique neither worked nor stayed (for more than 3 days) once he had received his termination letter.
[20] Going back to the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011, the Court had pronounced in this case that where the allegation of unfair dismissal is concerned:-
"...it is not the aspect of right to be heard that leads to unfair dismissal. It is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's actions must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in carrying out the dismissal..." (emphasis added).
[21] The Full Supreme Court when Johnson's case was appealed [see: Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011)], also echoed this by adding that:-
"...For a claim of this category to survive, there has to be a cause of action, evidence and causation shown. Simply, the employee has to plead that the manner of dismissal was unfair, evidence must be tendered on what constituted unfair treatment,
together with the evidence that the said treatment caused the employee distress or humiliation or physical and psychological harm. That is the legal parameter on which such a claim
operates and survives..."
[22] This is a case where the Supreme Court had looked at the principles set out in the case Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002) in terms of unfair termination allegations and stated that:-
"...Yashni Kant's case even made it clear that there has to be evidence that the manner of dismissal caused the humiliation. There has to be the link in the unfair treatment leading to humiliation without which the Court cannot speculate such breach of an implied term otherwise every dismissal case would succeed a claim based on the manner of dismissal because dismissal naturally leads to distress and humiliation..."
[23] The law is trite. When the counsel representing the parties in the Tribunal do not stay within the parameters of such case authorities to establish their case within the terms of reference, here, that being unfair and unjust termination claim, often they cause disruptions to the proceedings with such unsubstantiated and unmeritorious applications.
[24] When the onus of proof is on the employer to justify that the termination was lawful and fair, it is not for the worker or grievor to give the Tribunal justification for their claim except as the honourable Court had stated in Johnson's case, that "...the employee has to plead that the manner of dismissal was unfair, evidence must be tendered on what constituted unfair treatment, together with the evidence that the said treatment caused the employee distress or humiliation or physical and psychological harm." May I remind the greivor that he had pleaded three grounds of unfair termination claim through his submissions filed on 26th May 2011: -
(1) that the employer employed the grievor by making him sign an unlawful and unfair employment contract that is totally in breach of the ERP 2007;
(2) that the employer acted unfairly in reaching its decision therefore the termination is totally unfair; and
(3) the employer has caused embarrassment, humiliation, loss of dignity, injured feelings and loss of benefits. (Bold is my emphasis)
[25] The first ground is a technical legal issue. The other two grounds gel with the terms of reference, being unfair and unjust termination claim. Obviously cause and evidence has to be presented in the examination-in-chief and not through evidence tendered in the cross-examination or re-examination unless the matter was already visited in the grievor's testimony in chief. It is for the Tribunal to then consider on the strength of evidence that the employer has made a case or not in terms of justifying the termination of the grievor and conversely, whether the grievor's claims carries merits to warrant orders for remedies sought for any ensuing unfair termination, if proven (here monetary compensation is being sought as per the mediator's terms of reference).
[26] The evidence in question pertaining to the grievor admitting in the Tribunal that he has carried on with religious activities for exchange of money outside the scope of his work permit or termination of his employment perhaps has more bearing on immigration laws and issues as opposed to the claim here for unfair termination. Clearly the employer's conduct or "...the manner of treating the employee in carrying out the dismissal" is was what must be considered including "the employer's actions must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in carrying out the dismissal..." (as per Isoa's case).
[27] This particular evidence however, demonstrates and proves that the grievor was continuing with similar religious work which he was previously performing for the employer, Vunimoli Jame Masjid where he was paid a salary under a contract of service. But here he had admitted receiving payment from the people he had served on his own accord. This was an established fact through the hearing process and not something conjured in my mind before the grievor had been given an opportunity to provide his evidence in the witness box. The only issue here left for me to determine is whether this impacted his pain and suffering (both emotional and financial) after his termination.
[28] Finally let me turn to my letter to the Immigration Department which appears to be the centre of all the contention. In the grievor's affidavit in support, at paragraph 4, he has stated that I had acted unfairly and presented bias in the case when I had stated that "I concur with Mr John Rabuku on this issue as there was no doubt in my mind that the grievor was not in Fiji without any financial means as he had initially pleaded.". Like I have said above, based on the letter to the office of Chief Justice there was no fallacy as to this statement when the grievor gave compelling evidence in the Tribunal that he was still continuing with his religious work without a work permit and that he was still delivering dua and tabiz for the Vunimoli and other people in exchange of money. The tone of the letter may have been blunt but it did not attempt to cast unreasonable culpability on the grievor for something he had duly admitted doing. The fact was substantiated and any further testimony from the grievor in re-examination could not have changed this.
[29] Further, while Mr Henry Rabuku attempts to state at ground (g) of the application that I should exercise superior powers in matters where someone admits to breaching a law outside my jurisdiction, and I am above the Immigration Department this is his own opinion. Simply I have no jurisdiction over immigration matters other than report a wrong or crime admitted within my jurisdiction. I reported when an application was made by the employer's counsel who had alluded that to proceed further would prejudice their client as well as turning a blind eye knowingly to a breach of law alleged to have been committed by the grievor. How was the reporting then unfair to the grievor? How could this have caused him bias in any context and what difference would it have made if his evidence was concluded on that day. End of the day I was still duty-bound to report this to the Immigration Department as no doubt the evidence was very convincing and had merits for further clarification. In fact if I had not done this, on the day, Mr John Rabuku had indicated that there was nothing stopping the employer from reporting although he also stated that there was no malice intended. The reporting was not to cause the grievor any harm or persecution but to seek clarity on immigrations status of the grievor which Mr Henry Rabuku has attempted to blow out of proportion by writing a letter dated 28th June 2013 copied to Chief Justice's office and other offices before filing for a formal application. He said he wanted everything on the record.
[30] Need I remind anyone that the trial here was a process of open trial in the Tribunal. Public is entitled to sit in and evidence given is no longer treated as though given within closed doors. To suggest that it was unfair and improper to divulge the grievor's sworn testimony given in an open Tribunal where he admits breaching his stay conditions in Fiji is obviously not a well-thought argument on the part of the grievor's counsel. In the letter I agree that I had stated that "I concede to the fact that I am only obligated to inform your office for you appropriate action, whatever they maybe. If he is granted further stay by your office through a report, I shall proceed to hear the rest of the evidence in this matter. Or alternatively, if your office indicates that it needs more time to investigate and provide a report to the Tribunal, you may seek this via writing to the Registrar of the ERT or by appearance before the Tribunal at the next Mention date, 8th July 2013 at 11.00am." There is absolutely no malice or prejudice intended on the part of the Tribunal through the letter.
[31] Mr Henry Rabuku was aware that the employer's counsel had sought adjournment for clarification purposes when the grievor had given testimony to the effect that clearly alluded that he had breached his conditions of stay in Fiji. The Tribunal had granted a short adjournment. To that end this application is a mere tactic to again misconstrue my intentions which was to simply allow the department to clear the air on Mr Siddique's present immigration status in Fiji as a foreigner as well as clarify what he was entitled to do in order to sustain a livelihood when his work permit was revoked. The fact that a law was perceived to be broken and it was proper that I report it, does not qualify as a fact or evidence that I attempted to prejudice Mr Siddique.
[32] Further at paragraph 8, the grievor has stated that he had applied and paid for a 'SPECIAL PURPOSE PERMIT" to reside in Fiji until his two cases pending in Fiji was complete. Let me categorically state that despite the Tribunal questioning Mr Henry Rabuku as to any evidence of this, and thus giving him 14 days to produce the said permit from the Immigration Department, nothing has been presented so far. Indeed it baffles me that neither the grievor's counsel has shown any keen interest in presenting proper immigration information to the Tribunal by subpoenaing the department nor the department has come forward to assist the Tribunal. For the grievor to then allege that the Tribunal was seeking his immediate deportation to the effect I am alleged to have stated in the letter that the grievor did not have a "legitimate immigration status in Fiji" is a blatant attack on the integrity and honour of this Tribunal.
[33] In addition, in the letter dated 28th June 2013, Mr Henry Rabuku had accused this Tribunal for insulting his client stating that "our client is not an alien or a refugee as implied therein" (at paragraph 5). At no time this Tribunal implied this to be the case. It seems that the insult and baseless attack is on the Tribunal when clearly from the start the grievor has not come with clean hands. He has lied to have his matter expedited and his own testimony has caught his counsel and him off-guard. Hence the attempt to remove the Tribunal from further adjudication. I cannot allow this.
The Law on Bias
[34] It follows that there is no basis upon which it can be held that this Tribunal was actually biased against the applicant. The question remains whether objectively there existed a reasonable apprehension that the Tribunal may be biased. The test for recusal on that basis was formulated as follows in President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA (CC) 147 at para 48:
"The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel."
[35] The onus rests on the applicant. On the evidence presented so far, the correct facts are that the grievor did not give the Tribunal his true picture of the financial position which then paved a way to a re-trial based on his special hardship circumstances he had pleaded when he penned a letter to Chief Justice's office.
[36] The letter is not part of the evidence although its probative value cannot be underestimated. This is because I find that the grievor had not been entirely true in terms of the facts pertained in that letter. Further, I am not bound by strict rules of evidence. Given he maintained his existing unemployed status since his termination, undeniably it came as a surprise to everyone that during the trial the grievor had given sworn evidence when he had admitted with continuing to provide religious duties being rituals of "dua and tabiz" for the people of Fiji. And this too, in exchange of money. This evidence was introduced in the Tribunal at the behest of his own counsel in examination-in-chief and later probed by Mr John Rabuku to be confirmed in the cross-examination evidence. In fact, it was not disputed that this was the actual reason or cause for termination. Naturally then this led to the halting of the substantive proceedings as the counsel for the employer made an application to the Tribunal in order to seek clarification from the Immigration Department. This was to determine whether the grievor was in breach of any laws of this country vis a viz allowed to do this when his work permit was revoked. Neither the grievor nor the Immigration Department has made any clear attempts to put forward the true facts of the grievor's stay conditions or permit which he had stated in terms of a 'special purpose permit". He was given time from the Tribunal to produce evidence of this; he failed at that too.
[37] Mr Henry Rabuku had relentlessly argued that I should remove myself from the proceedings as I have already formed an opinion as to the substantive matter without the entire case being concluded. Again I have explained that this particular part of the evidence would not have changed or be construed otherwise when the facts were plainly clear and duly admitted by the grievor: if it did change in the re-examination of the grievor, again this would not give favourable picture of the grievor's evidence being consistent and credible. Further because the onus of proof in such matters lies with the employer, and I had heard seven witnesses where I was presented with ample evidence, both oral and documentary, to doubt my ability to remain neutral and fair in formulating an opinion is outlandish and baseless belief. I had sufficient basis to make an informed opinion as to the merits of the claim as per the terms of reference before me. This includes the reasons for termination, the type of termination that occurred and the procedures that followed in terminating the grievor. As per the submissions, the grievor's overall claim is centered on the procedural unfairness and denial of natural justice and fairness. On these facts there can be no question of a reasonable, objective person apprehending that the Tribunal has not so far brought an impartial mind on the adjudication of the case.
[38] In the result the application must be dismissed as I see this to be an attempt to dissuade the Tribunal to proceed further when all the allegations in the application are circumstantial at its best. There is no iota of facts or evidence other than a mere casting of doubt on the integrity of the judicial officer in understanding the grievance matter or having the capability to sieve through irrelevant evidence and keeping the focus on the terms of reference.
[39] I also note that the grievor has continuously visited the Tribunal seeking my audience and raising various complaints of delay without appreciating that this application was his own doing. His counsel was put on notice that there is no other Tribunal member to complete or initiate a new trial if my recusal was granted. They are aware of there being only two members adjudicating in the ERT, where the Chief Tribunal had heard the initial trial. Yet after coming to the Tribunal for an expeditious re-trial, they had filed for this application that had the potential to delay this matter indefinitely if the application was successful.
[40] Indeed it leaves me to wonder whether the grievor truly appreciates the judicial proceedings in this matter which may take longer if appeals are filed by either side. In that case, he is best placed to come to the Tribunal with more forceful evidence presenting his true immigration status in this country so that he is assisted with a workable solution to meet his survival needs in Fiji until the case is resolved. His decision to remain in Fiji for this case is understandable. But this Tribunal is not responsible for his hardships if the process takes its natural course. He should in fact apply to the Immigration Tribunal for immediate relief, particularly where his passage back to Pakistan is concerned. This is on the basis if truly there is no bond secured.
Decision and Orders
In accordance with the aforesaid, the Tribunal declares and orders that:-
DATED at Suva this 19th day of September 2013.
Ms Joshika Samujh
LEGAL TRIBUNAL
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