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Nasinu Town Council v National Union of Municipal Workers [2012] FJHC 1440; ERCA 13.2011 (8 August 2012)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA 13 OF 2011

BETWEEN:

NASINU TOWN COUNCIL
APPELLANT

AND:

NATIONAL UNION OF MUNICIPAL WORKERS
RESPONDENT

Appearances: Mr. Tinivata for the Appellant.
Mr. Rae for the Respondent.

Date /Place of Judgment: Wednesday, 08 August 2012 at Suva.

Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:

EMPLOYMENT LAW – APPEAL- JUDGMENT ENTERED BY DEFAULT ON EMPLOYMENT DISPUTE- EMPLOYER FAILED TO TURN UP ON A DATE FOR CONTINUATION OF HEARING- MATTER MUST HAVE BEEN HEARD AND A FINDING MADE- DEFAULT JUDGMENT IS NOT PERMISSIBLE- DEFAULT ORDERS SET ASIDE AND COMPLIANCE OF ORDERS GRANTED BY ERT CANCELLED-RE-TRIAL.

LEGISLATION:

THE EMPLOYMENT RELATIONS PROMULGATION 2007 ("ERP").

THE MAGISTRATES' COURTS RULES, CAP. 14 ("MCR").

1. The appellant seeks an order for leave to appeal against the compliance order issued by the Chief Tribunal on 27 June 2011 for compliance of its orders of 25 May 2011. The appeal also seeks for setting aside of the orders made on 25 May 2011. The appellant wants that it be given an opportunity to be heard and a proper finding be made on the employment dispute.
   
2. It is important to outline the history of the matter.
   
3. On 22 August 2008, the respondent, on behalf of one Prem Chand Mahabir, reported a dispute to the Permanent Secretary in the following terms:-
   

"Suspension of Prem Chand Mahabir without pay from 23 April 2008 and his dismissal on 4 August 2008 which actions the Union views as harsh, unjust, unreasonable and unfair and seeks the payment of all wages and benefits for the period of suspension and his reinstatement without any loss of pay and benefits".

4. The dispute could not be mediated by the Mediation Services Unit and thus sent to the ERT for hearing.
   
5. The hearing commenced on 4 May 2011. The matter was part-heard and adjourned for continuation of hearing on 25 May 2011.
   
6. On 25 May 2011 the employer did not attend the hearing and the ERT ordered default judgment against the employer. The ERT made the following orders:
   
   1. The worker Prem Chand Mahabir to be reinstated to his employment with effect from 23 April 2008.
      
   2. The employer to pay to the employee all accrued wages and benefits from 23 April 2008 to 25 May 2011.
      
   3. The employer to pay $500 costs to the Union.
      
7. Thereafter on 3 June 2011 the employer filed a motion to reinstate the case and for a setting aside of the orders of 25 May 2011.
   
8. The motion was called in ERT on 9 June 2011 and adjourned for hearing on 27 June 2011.
   
9. On 27 June 2011 the employer did not turn up to ERT for hearing. The motion was struck out and in striking out the motion the ERT ordered that:-
   
   1. The employer complies with the orders of the ERT of 25 May 2011. This compliance order was issued under s. 212(1) (b) of the ERP.
      
   2. The employer cease and desist from further non-compliance in any form whatsoever of the orders.
      
10. Since the orders of 27 June 2011 are compliance orders, leave to appeal against it is necessary pursuant to s. 242(5) (e) (iii) of the ERP.
    
11. I also do not overlook the fact that the appeal is also against the substantive final orders of 25 May 2011.
    
12. The grounds of appeal are:-
    
    1. That the Chief Tribunal had erred in law and fact when he did not allow the appellant reasonable opportunity to present its case on the substantive employment dispute relating to the dismissal of Prem Chand Mahabir.
       
    2. That the Chief Tribunal had erred in law and fact when he issued the compliance order without first making a determination whether the dismissal of Prem Chand Mahabir was justified or unjustified.
       
    3. That the Chief Tribunal had erred in law and fact when he exceeded his jurisdiction by not following the provisions of section 212 of the ERP, 2007 in issuing the compliance order as the substantive dispute was only part heard.
       
    4. That the Chief Tribunal acted unreasonably when he issued the compliance order without giving any lawful reasons and justification.
       
    5. That the Chief Tribunal erred in law and fact when he did not allow the appellant reasonable opportunity to present its case on the substantive employment dispute.
       
    6. That the Chief Tribunal erred in law and fact when he issued the compliance order which is defective and erroneous as there was no such orders of the Tribunal issued on 26th May, 2011 as stated therein.
       
13. I do not condone the conduct of counsel in not appearing at the ERT on time or at all. However in light of my observations below I do not think that the orders of ERT of 25 May 2011 and 27 June 2011 can stand.
    
14. On 4 May 2011, when the hearing started, the employers witness Mr. Rohit gave evidence as the first witness. His evidence was completed and the matter adjourned for part heard and default judgment entered on the next date listed for continuation.
    
15. The claim for employment dispute is not of a nature where default judgment can be entered or permitted to stand after irregular entry.
    
16. Even if the employer did not appear, the ERT was an under obligation to hear the rest and remainder of the evidence available on the day and make a finding of whether there existed an employment dispute. If there was, the ERT could then assess the remedies.
    
17. Without making a finding on the dispute, the ERT erred in law and in fact in awarding the orders of 25 May 2011.
    
18. The appellant could apply for a setting aside of the orders pursuant to order XXX Rule 5 of the Magistrates' Courts Rules Cap. 14 but the compliance orders issued on 27 June 2011 triggered the leave to appeal application.
    
19. The basis of the orders of 25 May 2011 was a nullity thus the compliance orders of 27 June 2011 cannot stand.
    
20. The grounds of appeal in grounds 2, 3, 4, and 6 are allowed. I do not allow the appeal on the grounds that the employer should have been given a reasonable opportunity to present its case (grounds 1 and 5). The employer was given ample opportunity and it failed to take advantage of the due process accorded to it.
    
21. I thus set aside the orders of the ERT of 25 May 2011 and 27 June 2011 and order that the employment dispute be properly heard before a different Tribunal.
    
22. The employer is also guilty of not abiding by the orders of the ERT to make itself available for hearing at a specified time and as such I will not order any costs in favour of it for succeeding in this appeal.
    

Anjala Wati
Judge

08. 08.2012
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