IN THE EMPLOYMENT RELATIONS COURT AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA NO. 3 of 2010

BETWEEN:

BALRAM
APPELLANT

AND:

FIJI TEACHERS UNION
RESPONDENT

Appearances: Mr. P. Rae for the Appellant.
 Mr. V. Maharaj for the Respondent.
Date/Place of Judgment: Friday, 23rd December, 2011 at Suva.
Coram: Hon. Justice Anjala Wati.

JUDGMENT

EMPLOYMENT LAW – APPEAL – jurisdiction to hear matters relating to union and its members – commencement of proceedings – procedure – Tribunal's powers to validate proceedings.

_________________
Legislations
The Employment Relations Promulgation 2007 ("ERP"): s.4, s. 211 (1) (n), s. 234(1) (b), s. 238(2) (a), s. 242(3).
The Magistrates' Courts Rules, Cap.14 ("MCR"): Order VI Rule 1, Order XXVI Rule 1.

The Current Cause
1.	This is an appeal against the decision of the Employment Relations Tribunal ("ERT") delivered on the 3rd day of May, 2010. The decision relates to uplifting of the earlier orders of the Tribunal which it had granted on the 10th day of September, 2009. On this date of 10th September, 2009, the ERT had ordered that the Fiji Teachers Union, its executive committee and/or its representatives and agents be restrained from preventing the appellant from performing his functions as president of the Fiji Teachers Union.

The "Cause" at ERT

2.	The matter before the ERT came by way of a notice of motion which was assigned a miscellaneous application number 30 of 2009. The motion sought the following orders:-

a.	"That an order be issued declaring the decision of the respondent's executive committee of 26th August 2009 purporting to dismiss the applicant as President of the Fiji Teachers Union null and void.

b.	That the respondent be ordered to show that it has fully complied with the provisions of its Constitution in the matter of the purported dismissal of the applicant as President.

c.	That a declaration be issued declaring that the applicant is the duly elected President of the Fiji Teachers Union.

d.	That an order be issued restraining the respondent and its executive committee and/or its representatives and agents from preventing the applicant from performing his functions as the duly elected President of the Fiji Teachers Union".

3.	The motion was first listed before the ERT on the 10th day of September, 2009 and the ERT had ordered that decision of the respondent's executive committee of 26th August 2009 to dismiss the applicant as president of the FTU, be stayed. The ERT had also ordered that the FTU, its executive committee and/or its representatives and agents be restrained from preventing the applicant from performing his functions as the president of the FTU. The matter was further adjourned to the 17th day of September, 2009 at 2.30pm.

4.	On the 17th day of September, 2009, the ERT gave directions to the parties to engage in further social dialogue to resolve the issue amicably. The matter was adjourned to the 23rd day of October, 2009 on which day the parties requested the ERT to allow them 7 days to confirm the settlement.

5.	No signed settlement reached the ERT and on the 11th day of December, 2009, the parties were advised that the hearing of the motion was to take place on the 11th day of March, 2010. The hearing commenced on the 11th day of March 2010 and continued on the 23rd day of April, 2010. The closing submissions were made on the 2nd day of May, 2010. 

6.	The Tribunal gave its decision in the following form:-

"The Tribunal wants the parties to focus on the matter at hand; that is the "stay order" and the Motion by the Applicant, Mr. Balram the dismissed President of the Fiji Teachers Union.

The stay order is the result of a motion through an interlocutory application. During the hearing of the motion, the Tribunal was told that the substantive matter was being reported as an employment grievance and on inquires found out that was not the case. That virtually nullifies the whole interlocutory application as it did not comply with Order XXVI of the Magistrates Court Rules.

However, the Tribunal had to decide on the stay order which had been given through an application that has sort of sneaked its way in.

The Tribunal examined section 211(1) (b) that was cited by the Applicant. This section provides the following –

(1)	If a person has not observed or complied with an 

(b) order, determination, direction, decision or requirement made or given under this Promulgation by the Tribunal or a member or officer of the Tribunal, the Tribunal may, by order, require a party to a proceeding to do or cease to do a specific thing or activity, for the purpose of preventing further non-compliance with the provision, order, determination, direction, decision or requirement, and must specify a time within which that order is to be obeyed.

This stay order is an interim relief to enable the union to put its house in order as advocated by the Applicant and once the repair work is done everyone should revert to the status quo; that is the way of doing things as provided for by the Constitution and Rules. That is good faith and life must go on.

That was the reason why the Tribunal asked the parties to explore further social dialogue. This is a Union matter and the Union should be dealing with it without interference from the Courts or Government which cannot in anyway interfere in Union affairs according to the International Labour Organisation Declaration of Fundamental Rights at Work.

Through evidence adduced from the Respondent, the parties were on the verge of settlement when the Applicant walked out. That evidence was not challenged and similarly the evidence of Mahendra Pal that the applicant was given time to relinquish his position until the legal opinion was obtained which confirmed that he lost his membership of FTU by virtue of compulsory retirement.

The Tribunal cannot decide on the Motion as it was not properly before it when the stay order was given but what it has recommended is that the Applicant lodge an employment grievance against the Fiji Teachers Union and seek some of the remedies in section 230 of the Employment Relations Promulgation 2007. More importantly the unchallenged affidavit evidence from the Respondent is fatal to the case of the Applicant.

Ruling

For those reasons the stay order against the decision of the Respondent's Executive Committee taken on 26th August 2009 to dismiss Mr. Balram as President of the Fiji Teachers Union is uplifted forthwith."

The Grounds of Appeal

7.	The Notice of Appeal contains 10 grounds of Appeal and they are as follows:-

"Ground 1
That the Learned Tribunal erred in fact and in law when he found that a draft settlement agreement had been agreed on 23 October 2009 when in fact the first draft was sent to the applicant by the respondent's solicitor by fax on 28 October 2009 as confirmed by the fax stamp on the covering letter. The draft was returned with amendments by the applicant. The amendments were rejected by the respondent and no settlement agreement was ever concluded. 

Ground 2
That the Learned Tribunal erred in fact in law in finding that the applicant had walked out of a meeting when the evidence adduced was that some members of the respondent's executive committee had walked out and returned after a few minutes.

Ground 3
That the Learned Tribunal erred in fact and in law in finding that the stay order was the result of a motion through an interlocutory application when it was in fact an interlocutory decision in a substantive motion.

Ground 4
That the Learned Tribunal erred in fact and in law in nullifying the application on his finding at page 4 of being told that the substantive matter was being reported as an employment grievance when in fact no such evidence was adduced at the hearing. The Tribunal was requested to rule on the respondent's executive committee's decision to remove the applicant as its president which was the substantive matter in the motion before the Tribunal.

Ground 5
That the Learned Tribunal erred in fact and in law in finding at page 4 that an application had sneaked in when the orders were being sought through a properly filed motion.

Ground 6
That the Learned Tribunal erred in fact and in law in finding that the respondent's evidence that the applicant had walked out of a meeting when the parties were on the verge of a settlement was not challenged when in fact no such evidence was adduced and in fact it was some members of the respondent's executive committee that had walked out.

Ground 7
That the Learned Tribunal erred in fact and in law in finding that the evidence of Mahendra Pal was not challenged when in fact the Tribunal had declined the applicant's request at the hearing for time to reply to the affidavit of Mahendra Pal and the supplementary affidavit in opposition of Agni Deo Singh.

Ground 8
That the Learned Tribunal erred in fact and in law in refusing to rule on the motion filed properly before him.

Ground 9
That the Learned Tribunal erred in fact and in law in recommending that the applicant lodge an employment grievance against the Fiji Teachers Union when the applicant was not a worker employed under an employment contract by the Union but an elected officer of the Union.

Ground 10
That the Learned Tribunal erred in fact and in law in uplifting the stay order when as an interlocutory decision the procedure for uplifting it ought to have been by way of an appeal to the Court with leave from the Tribunal".

Submissions - (Appellant)

8.	In respect of Ground 1, the appellant submitted that the ERT committed a serious error of fact in finding that there was a draft agreement for settlement which was presented to the ERT on the 23rd day of October, 2009. A draft agreement was sent to the Appellant on the 28th day of October, 2009 and it was returned with amendments to the respondent on the 30th day of October, 2009. It remains unexplained how the ERT could have got the documents on the 23rd day of October, 2009.

9.	In respect of Ground 2, the appellant submitted that the ERT again committed a serious error of fact in finding that the appellant had walked out of the meeting in the middle of a discussion. The finding is contrary to the affidavit of the respondent wherein one Agni Deo Singh had stated that "the Executive Committee members showed their anger and frustration and walked out of the meeting". In his oral evidence again, Mr. Agni Deo Singh had stated that "a lot of members had worked out ". Therefore there was no basis for the ERT to conclude that the appellant had walked out of the meeting.

10.	In respect of grounds 3 and 5, it was submitted that there was nothing sneaky in the appellant's act of filing the motion. This statement of the ERT demonstrates bias on the part of the ERT. The Tribunal should not have uplifted its earlier orders without determining the merits of the substantive matter.

11.	In respect of ground 4, Mr. Rae submitted that there was never any mention of any "employment grievance" procedure by the appellant.

12.	In respect of ground 7, it was submitted that the ERT declined the appellant an opportunity to respond to the affidavit of Mahendra Pal. 

13.	On grounds 8 and 9, it was submitted that in refusing to rule on the motion, the ERT prejudiced the appellant. The appellant was an elected officer of the FTU. He was not an employee under an employment contract with the Union and as such the issue cannot be reported as an employment grievance.

14.	In respect of ground 10, it was submitted that the initial orders of the ERT was an interlocutory decision. The ERT exceeded its jurisdiction in uplifting it before determining the substantive issues in the motion. Subject to s. 242(5) (e) (i) of the ERP 2007 the proper procedure for the respondent would have been, for the respondent to appeal to the Court after first obtaining leave of the ERT.

Submissions - (Respondent)

15.	Mr. Maharaj, counsel for the respondent submitted that the application for stay was an interlocutory relief and should not have been entertained by the Tribunal without a substantive action. There was no substantive action in the Tribunal. Mr. Maharaj further submitted that the stay order was uplifted after a proper hearing of the same.

16.	It was further submitted by Mr. Maharaj that the appeal should fail on the basis that the decision of the ERT is an interlocutory one and as such the appellant ought to have obtained leave of the Tribunal or the Court to file an appeal. No leave was obtained and as such the appeal should not be permitted.

The Law and Analysis

17.	I will deal with each ground in turn. On ground 1, I find that the Tribunal does make mention of the draft agreement and the parties being on the verge of settling the matter, but it never ruled that the parties had agreed on the draft terms of settlement or that the draft terms of settlement was dated 23rd October, 2009. The Tribunal's exact statement was that "when the matter was called for further mention on 23rd October 2009, the parties requested the Tribunal to give them seven days to confirm settlement which was drafted alone these lines…" This statement of the Tribunal is not the same as saying that the draft terms of settlement was dated the 23rd day of October, 2009.

18.	Ground 1 is misconceived and ought to be dismissed.

19.	On ground 2, I have perused all the affidavits but I do not find any deposition to the effect that the appellant had walked out of the meeting. I wonder of the source from which the Tribunal made this finding.

20.	The third ground states that the Tribunal erred in fact and in law in finding that the stay order was the result of a motion through an interlocutory application when it was in fact an interlocutory decision in a substantive motion.

21.	The application that the appellant had filed at the ERT clearly stipulates that the application sought substantive and interlocutory relief pending the determination of the substantive hearing.

22.	The ERT clearly has jurisdiction to hear matters relating to the trade unions or their members. This is clearly provided for under s. 211 (1) (n) of the ERP which reads as follows:-

"The Tribunal has jurisdiction…to adjudicate on any matters relating to trade unions or their members …"

Underlining is Mine

23.	It appears that the motion was heard in it's entirely but the ERT only concentrated on the stay order it had issued. If the motion was not heard in its entirety then it should have been, in light of the wide jurisdictional powers vested on it.

24.	On ground 4, I have searched the Court records and I could not find any notation to the effect that the appellant had assured the Tribunal that the substantive action was filed as an employment grievance. It may be that the ERT did not record the same, but realistically, ERT has immense knowledge and experience of the nature of issues that could be reported as an employment grievance. Under s. 4 of the ERP, employment grievance is defined as:-

""Employment grievance" means a grievance that a worker, may have against the worker's employer or former employer because of the worker's claim that-…"

""Worker" means a person who is employed under a contract of service, and includes an apprentice, learner, domestic worker, part-time worker or casual worker;" 

""Employer" means a corporation, company, body of persons or individual by whom a worker is employed under a contract of service; and…."

25.	It is very clear and undisputed that the appellant was not employed by the trade union under any contract of service. He was an elected member and so he could not possibly file an employment grievance. The ERT ought to have given recognition of this and the fact that because it had jurisdiction to hear the claim, which could neither be filed as an "employment grievance" nor as an "employment dispute", it ought to have considered the matter and determined the same. 

26.	In dealing with ground 5, I must say that how a proceeding relating to the trade union and its members must be initiated is not provided for by the ERP. In absence of that, the Magistrates' Courts Rules, Cap. 14 could be used as guidance by virtue of s. 238(2) (a) of the ERP. In Magistrates' Court, every substantive suit must be begun by a writ: Order VI Rule 1 and every interlocutory application must be begun by a motion: Order XXVI Rule 1.

27.	Perhaps because of the rules on commencement of proceedings, the ERT considered that the motion was an interlocutory application. Instead of refusing to hear or rule on the substantive case, the ERT could have ordered the proceeding to be properly commenced or determined the motion as if it were properly commenced but it was too harsh a course of action by the Tribunal not to hear or rule on the application. 

28.	Under. S. 234(1) (b), an informality can be validated upon application of the person interested. In this case, no opportunity was given to the appellant to correct the procedures invoked but simply because of the existence of the motion, the ERT deduced that the application was interlocutory in nature. I am of the judgment that it would have been prudent if a determination was made after perusal of the orders sought and not after analyzing the process that was involved to commence the suit.

29.	It is appropriate for me to make my observations recorded, that, in the recent past, the Tribunal has dealt with matters begun by a motion. A writ action has not been encouraged by the Tribunal as it is understood to be time consuming for the due processes to be completed prior to the trial. 

30.	Ground 6 is a duplicate of ground 2 and I apply my earlier reasoning to this ground as well.

31.	The seventh ground states that the Learned Tribunal erred in fact and in law in finding that the evidence of Mahendra Pal was not challenged when in fact the Tribunal had declined the applicant's request at the hearing for time to reply to the affidavit of Mahendra Pal and the supplementary affidavit in opposition of Agni Deo Singh. The records do not indicate that the appellant sought time to file a response to the affidavits and so I cannot conclusively find that the appellant was denied the right. 

32.	The eight ground states that the Learned Tribunal erred in fact and in law in refusing to rule on the motion filed properly before him. I have discussed this in detail. 

33.	The ninth ground states that the Learned Tribunal erred in fact and in law in recommending that the applicant lodge an employment grievance against the Fiji Teachers Union when the applicant was not a worker employed under an employment contract by the Union but an elected officer of the Union. I have discussed this aspect above.

34.	The final ground is that the Learned Tribunal erred in fact and in law in uplifting the stay order, when, as an interlocutory decision, the procedure for uplifting it ought to have been by way of an appeal to the Court, with leave from the Tribunal. Initially when the order was granted, it was done so to only maintain the status quo for the parties to attempt some settlement. In deciding whether the order should continue, the Tribunal heard the parties. There was no need for an appeal from the grant of the stay as there was no proper hearing accorded on the application. Whilst, I am of the view that the ERT ought to have heard the substantive application and considered the aspect of stay together, it is now not prudent that a stay be granted as the Union by now would be having a different elected member and the administration run by that member. It is too drastic to reinstate the appellant without finalizing the cause and even if the cause is in favour of the appellant, I do not think that the situation is best served by reinstatement of the appellant. Instead the union could be asked to compensate in some other way, perhaps, damages is the answer to the issue.

35.	I must also very briefly state that the ERT's order to uplift the stay and the dismissal of the substantive application was final in nature and as such no leave is required to appeal from the said decision. I also cast my mind to Mr. Maharaj's other preliminary objections on the way the appeal was drafted and the records of the pages not numbered properly or the record not complied in a chronological order. The appeal was properly drafted under s. 242 (3) of the ERP. All other objections cannot be sustained as I do not see any prejudice caused to the respondent or any miscarriage of justice flowing as a result of the appeal record not numbered or complied in chronological order. However, the Registry must be more careful in compiling appeal records in future, for ease of reference. 

Costs

36.	The appellant is successful in his appeal and as such he shall have costs of the appeal proceedings which I must summarily assess.

Final Orders

37.	Grounds 2, 3, 4, 5, 6 8, and 9 are allowed. Grounds 1, 7 and 10 are dismissed.

38.	The ERT must deal with the substantive orders sought vide the motion without prejudice to its powers to order amendment of the application to reflect the proper initiating process or without prejudice to its powers to validate the current process.

39.	To be fair on the parties, the application must be heard by a different personnel of the ERT, as some of the observations of the presiding officer may be detrimental to the appellant's case.

40.	The appellant shall have costs of the proceedings in the sum of $1,000.

41.	Orders accordingly.

ANJALA WATI
Judge
23.12.2011

To:
1.	Mr. P. Rae, representative of the appellant.
2.	Mr. V. Maharaj, counsel for the respondent.
3.	File Number: ERCA No.3 of 2010.