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Singh v Suva City Council [2019] FJHC 699; HBC94.2015 (16 July 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION


Civil Action No. HBC 94 of 2015


BETWEEN


JAGDISH SINGH of Wailoku, Tamavua, Suva, Civil Engineer.


PLAINTIFF


AND


SUVA CITY COUNCIL a statutory body established pursuant to the

Local Government Act whose Head Office is located at

196 Victoria Parade, Suva.


DEFENDANT


Counsel : Ms. Jackson L. for the Plaintiff.

Mr. Sharma D. with Mr. Deo S. for the Defendant.


Date of Hearing : 07th June, 2019


Ruling Date : 16th July, 2019


RULING

(On the Application for Striking Out)


[1] The plaintiff instituted these proceedings in the High Court (Civil) seeking the following reliefs:

  1. Special Damages in the following sums:
  2. General damages in respect of breach of contract to be assessed.
  3. Damages for injury to feelings, humiliation, embarrassment and emotional distress in the sum of $30,000.00.
  4. Aggravated Damages in the sum of 15,000.00.
  5. Exemplary Damages in the sum of in the sum of 20,000.00.
  6. Interest on the judgment sum at the rate of 10% per annum from the date of termination of employment to the date of judgment pursuant to section 3 of the Law reform (miscellaneous Provisions)(death and Interest) Act.
  7. Post judgment interest at the rate of 6% per annum from the date of judgment to the date of full payment.
  8. Costs of this action on an indemnity basis.

[2] The basis of the plaintiff’s claim is that on 24th September, 2008 the plaintiff and the defendant entered into a contract of employment for a term of three years commencing from 01st September, 2008 and on 08th January, 2010, whilst on annual leave he was advised that pending an external investigation into allegations that he was involved in acts of blogging against the government of Fiji he had been suspended and on 4th February, 2010 he was served with the letter of termination.

[3] On 04th June, 2019 the defendant filed summons to strike out the plaintiff’s claim seeking the following orders:

  1. A declaration that the plaintiff’s claim was filed illegally against the designated corporation and thus statute barred under section 30 of the Essential National Industries (Employment) Decree No. 35 of 2011;
  2. An order that the plaintiff’s statement of claim against the defendant be dismissed and struck out;
  1. Alternatively, the plaintiff’s claim be struck out for non-compliance with section 188(4) of the Employment Relations (Amendment) Act No. 4 of 2015.
  1. Alternatively, a declaration that any claim against a designated corporation or an essential service that arose prior to the enactment of the Employment Relations (Amendment) Act 4 of 2015 can only be dealt with by the Arbitration court.
  2. Costs of this action on an indemnity basis.

[4] The application of the defendant to have the matter struck out is based on the following grounds:

  1. At the time the plaintiff filed his writ of summons and statement of claim on 11th February, 2015 such a claim was statute barred under the Essential National Industries Employment Decree No. 35 of 2011.
  2. The defendant was deemed to a designated corporation under the Essential National Industries & Designated Corporations Amendment Regulations 2013.
  3. The defendant became a designated corporation from 18th December, 2013 under the Essential National Industries Employment Decree No. 35 of 2011 and an essential service pursuant to the Employment Relations Amendment Act No. 4 of 2015.
  4. The plaintiff’s employment grievance arose on 04th February, 2010 when the plaintiff’s employment contract was terminated and on 11th February, 2015 the plaintiff brought the claim in the High Court by which time the defendant was already decreed a Designated Corporation.

[5] The plaintiff’s position is that he is suing the defendant on a common law contract between them. However, in the statement of claim the plaintiff has referred the contract which is the subject matter of this action as an employment contract.

[6] The learned counsel for the plaintiff submitted that in applications such as this the court is required to exercise the ‘caution approach’. The jurisdiction of the court to summarily intervene in matters such as these ought to be very sparingly exercised and only in very exceptional circumstances.

[7] In support this argument the leaned counsel cited the decision in the case of Dev v Victorian Railways Commissioners [1949] HCA 1; (1949) CLR 62, 91 Dixon J said:

A case must be very clearly indeed to justify the summary intervention of the court. ..once it appears that there is a real question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and as abuse of process.

[8] Order 18 rule 18(1) of the High Court Rules 1988 provides as follows:

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

[9] In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch 506 it was held that the power given to strike out any pleading or any Part of a pleading under this rule is not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea.

In Drummond-Jackson v British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All ER 1094 it was held;

Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases.

In the case of Walters v Sunday Pictorial Newspapers Limited [1961] 2 All ER 761 it was held:

It is well established that the drastic remedy of striking out a pleading or, part of a pleading, cannot be resorted unless it is quite clear that the pleading objected to, discloses no arguable case. Indeed, it has been conceded before us that the Rule is applicable only in plain and obvious cases.

[10] In this matter the plaintiff’s employment was terminated following an executive directive of the Permanent Secretary to the Prime Minister. This directive was subsequently sanctioned by the Local Government Minister for Urban Development.

[11] It is common ground that the plaintiff was employed by the defendant under a contract of employment. It is not in dispute that the defendant as at 18th December, 2013 was a designated corporation pursuant to the Essential National Industries & Designated Corporation (Amendment) (No. 2) Regulation 2013.

[12] In paragraph 17 of the affidavit in support of Bijay Chand it is averred that on 08th January, 2010 the permanent Secretary of the Prime Minister’s Office wrote to the Special Administrator of Suva City Council and directed that the plaintiff, along with other employees alleged of blogging were to be immediately terminated from their employment from SCC. This position has been admitted by the plaintiff in paragraph 10 of his affidavit in opposition.

[13] Section 28 of the Essential National Industries (Employment) Decree 2011 provides:

This Decree has effect notwithstanding any provision of the Employment Relations Promulgation 2007 or any other law and, accordingly, to the extent that there is any inconsistency between the Decree and the Employment Relations Promulgation 2007 or any other law, this Decree shall prevail.


Except as otherwise provided in this Decree, the provisions of the Employment Relations Promulgation 2007 shall not apply to any essential national industry, designated corporation or any person employed in any designated corporation or any essential national industry.

[14] Section 30(1) of the Essential National Industries (Employment) Decree 2011 provides:

(1) No court, tribunal, commission or any other adjudicating body shall have the jurisdiction to accept, hear, determine or in any other way entertain any other proceeding, claim, challenge or dispute by any person or body which seeks or purports to challenge or question-
(2) Any proceeding, claim, challenge or dispute of any nature whatsoever in any court, tribunal, commission or before any other person or body exercising a judicial function, against any designated corporation that had been instituted under or involved the Employment Relations Promulgation 2007 before the commencement date of this Decree but had not been determined at that date or is pending on appeal, shall wholly terminate immediately upon the commencement of this Decree, and all orders whether preliminary or substantive made therein shall be wholly vacated and a certificate to that effect shall be issued by the Chief Registrar or the registrar of the Employment Relations Tribunal.
(3) Where any proceeding, claim, challenge, application or dispute of any form whatsoever, is brought before any court, tribunal, commission or any other adjudicating body, in respect of any of the subject matters in subsection (2), then the presiding judicial officer, without hearing or in any way determining the proceeding or the application, shall immediately transfer the proceeding or the application to the Chief Registrar or the registrar of the Employment Relations Tribunal for termination of the proceeding or the application and the issuance of a Certificate under subsection (2).

[15] Section 3 of the Employment Relations Promulgation 2007 was amended by repealing the entire section and substituting the following section:

(1) Subject to subsection (2), this Promulgation applies to all employers and workers in work places in Fiji, including local authorities, statutory authorities and the Sugar Industry.
(2) This Promulgation does not apply to the Government, Including the Public Service Commission, and members of the Republic of Fiji Military Force, Fiji Police Force and Fiji Correction Service; Provided however that the Government shall be subject to the Tribunal for any claims under the Workmen’s Compensation Act (Cap 94) and the Health and safety at Work Act 1996

[16] Section 266(1) of the Employment Relations (Amendment) Decree 2011 provides:

Any action, proceeding, claim dispute or grievance of any form whatsoever (except for any claims under the Workmen’s Compensation Act (Cap. 94) and the Health and Safety at Work Act 1996) in any court, Tribunal or any other adjudicating body which purports to or purported to challenge or involves the Government of the Republic of Fiji, any Minister or the Public Service Commission which has been brought by virtue of or under this promulgation shall wholly terminate shall wholly terminate upon the commencement of the Employment Relations (Amendment) Decree 2011, and a certificate to that effect shall be issued by the Chief Registrar, Tribunal or any other person or body exercising judicial function.

[17] This section has taken away certain powers of the court and tribunals. Any decision of any Minister, the Registrar or any state official or body, made under this decree cannot be challenged in any court. On the face of the provisions of this section this court does not have even entertain any complaint against the decisions made officials referred to above.

[18] In Buksh v Bank of the South Pacific Group [2012] FJHC 1055; ERCC8.2011 (2 May 2012) the plaintiff filed an originating summons under the Employment Promulgation 2007 seeking a declaration that the defendant breached the terms and conditions of the employment when it demoted him and an injunction restraining the defendant effecting its demotion.

[19] The High Court arrived at the conclusion that section 28(2) of the Essential National Industries (Employment) Decree 2011 is applicable to the plaintiff and the action cannot be maintained.

[20] The learned counsel for the defendant relying on the decision in Hazelman v Fiji Hardwood Corporation Ltd [2014] FJHC 101; HBC79.2010 (25 February 2014) submitted that in order for the defendant to be able to seek refuge in section 30 of the Essential National Industries (Employment) Decree 2011, it must first establish that the plaintiff’s claim was instituted or involved the Employment Relations Promulgation 2007.

[21] In Hazelman v Fiji Hardwood Corporation Ltd (supra) the court made the following observations:

It is admitted fact that the Defendant had been included as designated corporation in Essential National Industries & Designated Corporations (Amendment)(No.2) Regulation 2013. Prima facie the Defendant is governed by Section 30 of the Essential National Industries (Employment) Decree 2011 (Decree No. 35 of 2011). So the section is applicable to the Defendant, but that is not sufficient to terminate this proceedings. The mere fact that application of Section 30 to the Defendant not necessarily terminates all the actions against the Defendant. If that was the intention that could have been stated in the said provision, but it is not. Only a designated types of actions are ousted from the jurisdiction of courts, tribunals etc. As the heading of the Section 30 of Essential National Industries (Employment) Decree 2011 (Decree No. 35 of 2011) indicates only 'Certain decisions' of the Defendant will 'not to be challenged'. The types of actions or decisions are exclusively spelt out in the said Section 30 and if the present action cannot be included in any of them this action cannot be terminated, despite the Defendant being named as a Designated corporation under the Essential National Industries (Employment) Decree 2011 (Decree No. 35 of 2011).

The counsel for the Defendant has to satisfy that the present action can be in included under the Section 30 of the Essential National Industries (Employment) Decree 2011 (Decree No. 35 of 2011). For that it needs to be established that this action was instituted or involved with Employment Relations Promulgation 2007.

[22] The subtitle of section 30 of the Essential National Industries (Employment) Decree 2011 reads thus:

“Certain decisions not to be challenged”.

[23] In Hazelman v Fiji Hardwood Corporation Ltd (supra) the court took the view that there is no specific provision in the said section that the particular action is not exclusively spelt out in the section.

[24] As I stated earlier in this judgment it is a fact admitted by the parties that the defendant is a designated corporation. The words “Certain decisions” contained in the subheading of section 30 is not the law. The law is found in the section itself. Subheading is only a brief introduction of the section. What section 30 of the Employment Relations Promulgation 2007 says is any decision of any Minister, the Registrar or any State official or body, or any decision of any designated corporation made under this Decree. It is also important to note that the purpose of enacting these provisions are clearly spelt out in the Decree which says “A DECREE TO PROVIDE FOR THE GOVERNING OF RELATIONS BETWEEN EMPLOYEES AND EMPLOYERS IN ESSENTIAL NATIONAL INDUSTRIES IN FIJI”. I do not think the court needs anything more to decide whether a particular matter or dispute comes within the purview of these provisions.

[25] In the present action the dispute is between the employer and the employee and also the employee’s services were terminated on the directives of the Prime Minister. Therefore, the dispute between the plaintiff and the defendant is clearly governed by the provisions of section 30 of the Employment Relations Promulgation 2007.

[26] In Vinod v Fiji National Provident Fund [2016] FJCA 23; ABU0016.2014 (26 February 2016), the appellant reported an ‘employment grievance’, over the issue of transfer, to the Permanent Secretary in terms of the Employment Relations Promulgation 2007. The grievance having being referred to Employment Relations Tribunal it commenced the hearing the matter in July 2010. While the hearing was pending the FNPF dismissed the appellant for some other reason in August 2011. In the meantime, the Essential National Industries (Employment) Decree 2011 came into operation on 09th September, 2011. The FNPF made an application pursuant to the said decree for the determination of a preliminary issue as to whether the matter before the Employment Relations Tribunal should be terminated under section 30(2) of the Essential National Industries (Employment) Decree 2011. The court ordered that the maters pending before the Employment Relations Tribunal to be terminated. When the matter came up in appeal before the court of appeal the following objections were raised:

Objection 1- The Court has no express jurisdiction to hear an appeal relating to designated corporation, by virtue of the wording of Section 28(2) of ENIED 2011.

Objection 2 – The Chief registrar has already exercised his powers pursuant to section 30 [3] of the ENIED 2011 to issue a Certificate to terminate there was nothing else left to determine. There is no right for any Court to listen to any challenge to the issuance of a Certificate of Termination.

The court of Appeal in paragraph 11 the judgment had made the following observations:

Hence it is manifestly clear that the legislature intended to end all matters pending before a Court against designated corporations. Such objective was propelled by the need to replace all the dispute related matters pending before courts or any other judicial body with a new mechanism to provide for the prompt and orderly settlement of all disputes. The necessity for urgency or the need to terminate proceedings with immediate effect, arose as a corollary of introducing the new mechanism in order to prevent overlap of proceeding and to resolve matters urgently. The intention of the legislature was to replace the old system with a new mode of mechanism with immediate effect and therefore it is apparent that there was some urgency, as such the new law sought all the matters pending before the court also to be terminated with immediate effect.

[27] In Vucago v Fiji Harwood Corporation Ltd [2016] FJHC 91; HBC239.2015 (12 February 2016) in a similar matter this court held that in view of the provisions of section 30(1)(2) of the Essential National Industries (Employment) Decree 2011 the court has no jurisdiction to accept, hear or to make a determination on the correctness of the decision of the 1st defendant.

[28] For the reasons aforesaid I hold that this court has no jurisdiction to deal with this matter since it is barred by section 30 of the Essential national Industries (Employment) Decree 2011.


ORDERS

  1. The writ of summons is struck out and the plaintiff’s action is dismissed.
  2. The plaintiff is ordered to pay $3000.00 as costs of this action.

Lyone Seneviratne

JUDGE

16th July, 2019

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