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Labour Officer v Tiko [2014] FJET 2; ERT Criminal Case 38.2012 (1 May 2014)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL

Decision - Interlocutory Application

Employment Relations Promulgation 2007

OFFENCES – Sections 37(3) and (4) Employment Relations Promulgation 2007; Application for Ruling - No Case to Answer

Background

1. The Labour Officer in these proceedings, has brought two complaints against the Defendant under the Employment Relations Promulgation 2007 as follows:-
   

Count 1

Statement of Offence (a)

FAILING TO SUBMIT FOREIGN CONTRACTS FOR ATTESTATION: Contrary to section (37) (3) of the Employment Relations Promulgation, 2007.

Particulars of Offence (b)

Varinava Vutluikalu Tiko, of Access United (Fiji) Limited, Director, on or about December 2011, failed to submit for attestation foreign contracts of service to the Permanent Secretary for Labour, Industrial Relations and Employment.

Count 2

Statement of Offence (a)

ENLISTING OR RECRUITING ANY PERSON FOR EMPLOYMENT UNDER A FOREIGN CONTRACT OF SERVICE WITH NO AUTHORIZATION: contrary to section 37 (4) of the Employment Relations Promulgation, 2007.

Particulars of Offence (b)

Varinava Vutikalulu Tiko, of Access United (Fiji) Limited, Director, on or about December 2011, enlisted and recruited persons for employment under a foreign contract of service without obtaining authorization in writing by the Permanent Secretary for Labour, Industrial Relations and Employment.

2. At the close of the Labour Officer's case, Counsel for the Defendant Mr Moapa has made an application to this Tribunal, that the complaints should be dismissed on the basis that there is no case to answer. Temo J in State v Camaira –Ruling (No Case to Answer)[1] has set out the general principles that apply in the case where a Criminal Court considers there is no evidence that an accused committed an offence. This includes:
   

Whether or not, there is some relevant and admissible evidence, direct or circumstantial, touching on all elements of the offence

3. In relation to the first complaint, Section 37(3) of the Promulgation provides:
   

An employer who fails to submit for attestation any foreign contract of service commits an offence and is liable on conviction to a fine not exceeding $20,000 or to a term of imprisonment not exceeding 4 years or both.

4. The Labour Officer has not provided any evidence at all that Mr Tiko was in whatever capacity, an Employer for the purposes of Section 37(3). The first complaint must be struck out on that basis.
   
5. In relation to the Second Complaint, Section 37(4) of the Promulgation provides:
   

No person shall enlist or recruit any person for employment under any foreign contract of service unless the person is authorised in writing by the Permanent Secretary.

6. In this regard, the evidence of the Labour Officer, Mr Puli who attended on the Defendant, is that Mr Tiko had admitted to the Labour Officer, that he had been engaged in enlisting or recruiting persons for foreign contracts of service. According to Mr Puli, he was subsequently provided with copies of various foreign contracts in response to a request that he had made of the Defendant, some time on or after June 2012. Several contracts however and whenever they were acquired are before the Tribunal. One of which was entered into between the relevant parties on 26 September 2011, the other 15 March 2012.
   
7. While I note the particulars in the charge relate to an offence on or around December 2011, given that this time period falls within the dates of these two contracts, and having regard to the evidence presently before me, at least to a prima facie extent, the elements of this complaint have been addressed.
   
8. For the above reasons, I am unwilling to dismiss the Second Count on that basis.
   

Decision

This Tribunal Orders that

(i) Count 1 of the Complaint by the Public Officer be struck out, on the basis that there is no case to answer.

(ii) The outstanding Count 2 be continued by way of hearing in the Tribunal Court 1, Government Building, Victoria Parade Suva on 26 June 2014.

Mr Andrew J See

Resident Magistrate

^[1] [2013] FJHC 213