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Raibili v Permanent Secretary, Ministry of Agriculture and Fisheries [2003] FJHC 43; Hbj0054j.1999s (13 March 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 54 OF 1999S

Between:

WATISONI RAIBILI & OTHERS
Plaintiffs

and

THE PERMANENT SECRETARY, MINISTRY
OF AGRICULTURE AND FISHERIES
First Defendant

and

THE ATTORNEY-GENERAL
Second Defendant

D. Sharma for the Plaintiffs
K. Keteca for the Defendants

JUDGMENT

In 1985 it was decided to dredge the Rewa river. A second dredger was acquired and the two dredgers were sent to Luvuluvu. Joji Tuwai, the 24^th named Plaintiff and about five of his co-Plaintiffs (see Schedule B to the Statement of Claim) were recruited, initially as deck hands. As appears from Document 3 in the agreed bundle of documents it was envisaged that the dredging project would be completed in three months. In fact it took 13 years.

On 30 November 1998 (Document 14) the First Defendant (the Permanent Secretary) wrote to the Plaintiffs (who by then included the remaining plaintiffs who had been recruited to the projects in the years following 1985 – see Schedule B to the Statement of Claim). The Plaintiffs were advised that they would be “laid off”. They were required to return protective clothing and tools before collecting their final pay. They were told that dredging works were shortly to commence at Labasa and if they wished to work at Labasa then they were welcome to submit an application “for consideration along with others”. The Permanent Secretary concluded the letter by thanking the Plaintiffs for their services to the Ministry “during the tenure of your employment”.

Although there was some initial hesitancy by the Defendants it was eventually agreed that the Plaintiffs were made redundant. In the face of documents 9 and 14 that was, in my view, unarguably the case. The central question for determination now is whether the Plaintiffs’ redundancy entitled them to receive redundancy payments.

The first witness called by the Defendants was Ashish Chand. He is a senior employee relations advisor with the Public Service Commission. He told me, and I accept, that employees within the Public Service are either established or unestablished. The Plaintiffs were not established and were therefore unestablished. Unestablished workers may be permanent or non permanent. The Plaintiffs were not permanent and therefore they were non permanent. As accepted in paragraph 10 of Mr. Keteca’s closing submissions the Plaintiffs:

“may be classified as non permanent unestablished employees”.

The terms and conditions of unestablished workers, Mr. Chand told me, are those contained in what is known as “the JIC Agreement” a document reissued in March 1986 by the Joint Industrial Council for Government Unestablished Employees, a copy of which is document 1.

Section 1 of the JIC Agreement reads:

“Application These terms and conditions of employment will be applicable to all unestablished employees of government, including part-time employees and trade apprentices.”

Sections 47 and 48 of the JIC Agreement deal with redundancy. Documents 3 and 9 specifically refer to the JIC Agreement. Mr. Keteca conceded on the third page of his closing submission that the Defendants treated the “laying off” of the Plaintiffs as redundancy and followed sections 47 and 48 of the JIC Agreement. The JIC Agreement does not however make any provision for redundancy payments.

The precise nature of employment in the public service since Fiji was declared a republic has not, so far as I know, been examined. For the purposes of these proceedings however it was accepted (i) that the Public Service Commission has the power to remove persons from the public service and (ii) that it may make rules governing such removals (see Constitution 1997, Section 147 (1) and Public Service Act 8/1999 and the Regulations thereto).

In October 1996 the Public Service Commission published a document entitled “Redundancy Policy for the Public Service”. A copy of this document is Document 2 in the agreed bundle. From examination of the document it will be seen that the PSC (without any reference at all to the JIC Agreement) set out a redundancy policy for the public service. Broadly, the document set out the circumstances in which redundancy can occur, the procedures for notifying redundant employees (both established and unestablished) and the benefits to which redundant employees become entitled upon being made redundant.

Paragraph 2.2 of the Policy is particularly important for this case since the paragraph makes clear that the “termination of appointment (lay-off)” of project workers is not a type or example of redundancy. The Defendants’ case is that the Plaintiffs are project workers and are therefore not entitled to the redundancy benefits which they are claiming. The Plaintiffs’ case is that the circumstances of their employment were such that the Plaintiffs’ could not reasonably be regarded as mere project workers.

One would normally expect that it would be fairly simple and straightforward to discover the exact terms of employment of government employees but unfortunately this is not the case here.

In the first place, the only instruments of appointment which have been discovered (Document 3 and exhibits C) make no mention of project workers. In Document 3 the appointee is offered “casual employment”. In Exhibit C the appointee is offered “temporary employment”. In both cases the terms of employment are specified to be those set out in the JIC agreement. Although section 1 of the JIC agreement refers to “part-time employees” it does not refer to casual employees, temporary employees or most importantly, project workers.

In the second place, it is clear that the Plaintiffs were treated in a manner rather more consistent with long term employment than with employment on a casual basis. Thus, one Plaintiff received a letter of “confirmation of appointment” (Exhibit B) after the satisfactory completion of a “probation period”. Temporary employment does not involve probation. Only employees (as defined by the Act) are appointed initially on probation (see Public Service Act 8/99, Section 3 and Public Service (General) regulations 1999 – LN 48/99 – Regulations 8 and 9).

As can also be seen from Documents 4, 5 and 6 at least one Plaintiff was upgraded while his pay slip describes him as being on the unestablished pay roll. He was also a member of the Public Service Health Scheme. Documents 7 and 8 show that he was twice sent on training courses. Document 11 shows that he qualified not only for annual leave but also for long service leave. That at least one of the Plaintiffs was regarded as a permanent unestablished employee is evident from Document 13.

There is no doubt that the Public Service Commission has the power to appoint on contract (regulation 7 of LN 48/99). That power includes the power to appoint for the duration of a project. As conceded however by Mr. Chand most projects would only be expected to last a matter of months. The longest he had ever come across apart from the present so-called project had lasted 2 years.

In my view it is a misuse of the word “project” to describe an activity such as dredging which was on-going for 15 years and which, with the two dredgers the government now owns is likely to continue for the forseeable future. It would seem to me to be quite unfair for a temporary unestablished employee to become entitled to re-deployment or transfer or at the worst redundancy payments after a period of employment lasting only 12 months (see paragraphs 3.2, 3.3 and 6.1 (a) of Document 2) while another employee after working continuously for 12 years becomes entitled to nothing, merely because he has been labelled a project worker.

Mr. Chand conceded that the JIC Agreement had not been modified in the light of the more recent Redundancy Policy. It seems that the public service needs to tidy up the method and conditions under which it appoints temporary or contract employees howsoever described. There is nothing objectionable about the concept of a project worker but like all other workers the conditions of their employment must be precisely set out.

Looking at the circumstances of the employment of these Plaintiffs in the round and in particular their length of service I am satisfied that they should properly be regarded as unestablished employees entitled to redundancy payments. I so find.

Mr. Keteca, who most ably argued a difficult brief, suggested that a finding that these Plaintiffs were not project workers would constitute an unfortunate and expensive precedent. As can be seen however from Section 30 of the JIC agreement crews of vessels operate under special conditions and furthermore Mr. Chand was not aware of any other projects whose employees were in a similar position to these Plaintiffs. The solution to this type of problem is a more carefully thought out contract of employment.

There will be judgment for the Plaintiffs as prayed.

M.D. Scott
Judge

13 March 2003