IN THE EMPLOYMENT RELATIONS COURT 
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER:			ERCC 02 of 2017

BETWEEN:	ESTHER PRUDENCE
									PLAINTIFF

AND:	WYNDHAM VACATION RESORTS (FIJI) LIMITED
									DEFENDANT
Appearances:				Mr.  R. Vananalagi for the Plaintiff.
Mr. J. Apted and Ms. K. Naidu for the Defendant.
Date/Place of Judgment:		Friday 22 October 2021 at Suva.
Coram:					Hon. Madam Justice Anjala Wati.
_____________________________________________________________________________________

RULING
A.	Catchwords:

EMPLOYMENT LAW – STRIKING OUT – Is there is a cause of action for “unlawful termination” recognized in Fiji –Does the Court have jurisdiction over “unjustified dismissal” claims – Does the Court have jurisdiction to hear “employment grievance” cases – Is it that the allegations of unjustified or unlawful dismissal can only be reported as an employment grievance which can only be determined by the Tribunal –Has the claim for wrongful dismissal been properly pleaded and whether the pleadings disclose a cause of action for wrongful dismissal – Does the Court have jurisdiction to hear matters concerning the breach of Commerce Commission Act – whether the claim contains an independent cause of action for breach of natural justice or absence or lack of impartiality or independence and is sustainable and properly particularized.

B.	Legislation:
1.	The Employment Relations Act 2007 (“ERA”): ss. 4, 30; 110, 188, 200, 211, 218, 220, and 230.
2.	Employment Relations (Administration) Regulations 2008 (“ERAR”): Reg. 11.
___________________________

Cause       
1.	The plaintiff Esther Prudence brings a claim for damages on the grounds that her dismissal from the employment was unlawful, wrongful, unjustified and in breach s. 75 of the Commerce Commission Act.

2.	The plaintiff was employed as Developer Representative since May 2011. She was based at the sales office in Denarau Nadi. The defendant operates a resort in Denarau, Nadi.

3.	The plaintiff was terminated from her employment on 23 May 2014. She says that the reasons for her termination were based on the allegations that she was obtaining monies from certain workmates and/or sales consultants at the employer’s sales office for transmitting their deals in breach of the employer’s business principles.

4.	The application before me is by the employer. It is for striking out of the plaintiff’s claim on the grounds that it:

a.	discloses no reasonable cause of action;
b.	is scandalous, frivolous or vexatious;
c.	may prejudice, embarrass or delay the fair trial of the action; or
d.	is otherwise an abuse of the process of the court.

5.	The application is brought pursuant to Order 18 Rule 18 of the High Court Rules which allows for striking out on the above grounds.

Grounds for the Application
6.	The summary of Mr. Apted’s argument is that the claim does not disclose a proper cause of action in that:

a.	There is no cause of action for “unlawful termination” recognized in Fiji;

b.	The Court has no jurisdiction over “unjustified dismissal” and any allegations of unjustified or unlawful dismissal can only be reported as an employment grievance which can only be determined by the Tribunal;

c.	The claim for wrongful dismissal is not properly pleaded and does not disclose that cause of action;

d.	The Court does not have jurisdiction to hear matters concerning the breach of Commerce Commission Act; and

e.	There is no independent cause of action for breach of natural justice or absence or lack of impartiality or independence.

Submissions/Law and Analysis
7.	I will deal with the application under various heads. 

A.	Unlawful Termination

8.	Mr. Apted’s argument essentially is that the cause of action for “unlawful termination” is not recognized in Fiji. He says that this is not a term that is used in the ERA. Therefore the references to unlawful termination in the claim must be struck out.

9.	My view is that the term “termination” and “dismissal” has been used interchangeably in this country. The term “termination” is not foreign to employment law in Fiji. It is understood by the parties that the term “termination” means and includes “dismissal”.

10.	S. 4 of the ERA defines “dismissal” to mean “any termination of employment by an employer including those under section 33”.

11.	It is therefore incorrect to assert that the term “termination” is not used in the ERA. The definitions provision makes it clear that where the term “dismissal” is used, the meaning that should be affixed to it is that of “termination” of the contract.

12.	S. 30(6) of the ERA fortifies my view that the term “termination” and “dismissal” is used interchangeably. The section reads:

“Upon termination of a worker’s contract or dismissal of a worker, the employer must provide…”.

13.	The above provision says “termination” or “dismissal”. The use of the word “or” clearly indicates that the two words bear the same meaning. Similarly, there are other places in the ERA which uses the term “termination” to denote dismissal. I need not go through each provision as I have clearly arrived at a finding.

14.	I therefore find that the cause of action for unlawful termination is the same as the cause of action for unlawful dismissal and is recognized in Fiji under the ERA.

B.	Wrongful Dismissal.

15.	Mr. Apted argued that the plaintiff brings a claim for wrongful dismissal but there is no reasonable cause of action pleaded in respect of this claim. Specifically, the statement of claim does not plead any details of the contract relied upon or of the term alleged to have been breached, or of the nature of the breach of the term.

16.	It was argued that the claim is wholly deficient as it does not plead wrongful dismissal as a contract claim at all. The claim appears to proceed as if the alleged misinterpretation of a document referred to in the reasons for the dismissal is in itself enough to found an action, when that is not the case.

17.	In my view, a claim for wrongful dismissal includes a claim that the contract was terminated without a proper cause and/or without following proper procedures. 

18.	The plaintiff’s claim does say that his employment which began from 4 May 2011 was terminated. He says that the reason for the termination is wrong as he was accused of obtaining monies from certain workmates and/or sales consultants for transmitting the employer’s deals or sales in breach of the employer’s Business Principles – A Code of Conduct for Employees. 

19.	The plaintiff’s claim is that the Business Principles was wrongly interpreted when his employment was terminated. I therefore find that there is a cause action for terminating the contract by wrongly interpreting the Business Principles in relation to work done by the plaintiff.

20.	It is true that the plaintiff has not spelt out the details of the contract under which he was employed but that does not indicate that there is no cause of action for wrongful dismissal. It is clear from the pleadings that the plaintiff was under a contract of employment which was terminated wrongly when the work he conducted under the contract was found to be in breach of the Code of Conduct for Employees. The claim also indicates that the Code of Conduct for employees also forms part of the contract of employment.

21.	It would be clearer if the plaintiff spelt out the details of the contract under which he was employed and what formed his complete contract but even in absence of that I can clearly discern a case for wrongful dismissal.

22.	The plaintiff also alleges breach of natural justice, lack of impartiality and independence. He does not state in his claim whether that was an express contractual requirement for natural justice, impartiality and independence in determining whether the plaintiff was in breach of the Employees Code of Conduct or that he is relying on the implied terms of good faith. This needs to be addressed in the claim clearly. I will be dealing with more of this under the last subheading.

C.	Unjustified Dismissal
23.	Mr. Apted argued that although none of the substantive paragraphs of the claim uses the term “unjustified”, it appears in prayer 1 where the plaintiff seeks a “declaration that the termination of the …employment was unlawful, wrongful and unjustified”.

24.	It was argued that although a claim for unjustified dismissal can now be made under the ERA, it falls outside the jurisdiction of the Employment Relations Court and lies exclusively within the employment grievance jurisdiction of the Employment Relations Tribunal.

25.	Mr. Apted stated that that the only reference to “unjustifiable dismissal” and “unfair dismissal” in the whole of the ERA is found in s. 230 which is a provision on remedies for employment grievance. So it is apparent that the claim for unjustified and unfair dismissal can only be made in context of the employment grievance and he repeated that only the Tribunal had the powers and jurisdiction to hear an employment grievance and not the Court. 

26.	Mr. Apted pointed out that s. 211 of the ERA creates the jurisdiction of the Tribunal. S. 211(1) (a) gives the Tribunal express jurisdiction to “adjudicate on employment grievances”. In contrast, s. 220 of the ERA which creates the jurisdiction of the Employment Court does not mention “employment grievances” at all. If the legislature intended to give the Employment Court powers to determine employment grievances, then it would have expressly said so in s. 220 as it stated in section 211.

27.	Reference was then made to s. 110 (3) of the ERA and Regulation 11 of the ERAR. Mr. Apted stated that s. 110(3) required that all grievances be first referred for mediation and Regulation 11 of the ERAR required that all unresolved grievances be referred to the Tribunal. To allow the grievance to be brought in the Court would be inconsistent with s. 110 (3) of the ERA. There is no provision in the ERA for filing a civil action in the ERC. It is true that s. 220(1) (h) gives the ERC jurisdiction to “hear and determine an action founded on an employment contract” but Mr. Apted says that that cannot refer to claims for unjustified and unfair dismissal because at common law no such action was recognized and the ERA itself does not recognize or create any such action. The only right given by the ERA in relation to unjustified and unfair dismissal is in relation to an employment grievance.

28.	A claim for unjustified and unfair dismissal is also not necessarily founded on a contract. These claims do no turn on what the contract provides. Rather they turn on the reasons for and process followed for dismissal and the manner in which a dismissal was carried out. Thus a dismissal may be found unjustified in a personal grievance even though the contract allows for the employer to dismiss without cause. This is the purpose of sections 33(2) and 114 of the ERA which require reasons for every dismissal to be given. S. 220(1) (h) is instead a recognition of the High Court’s longstanding original jurisdiction to hear common law contract claim such as wrongful dismissal.

29.	Mr. Apted then referred me to s. 111 (2) to (4) of the ERA. This provision is one that discusses the right of the worker to submit a grievance to the employer which must be done within 6 months unless the employer consents to extend that period or if consent is not given, the Tribunal can on the application extend the time period. If extension is granted then the Tribunal may either hear the grievance or refer the same to the mediation services. Mr. Apted submitted that if grievances could be heard by the Court then s. 111 would have allowed for a reference by the Tribunal of a grievance to the Court at the application of a worker.

30.	Mr. Apted finally argued that the Court can only consider an employment grievance on an appeal or transfer under s. 218 or s. 242 of the ERA. This is similar to what the New Zealand court does where all personal grievances are heard by the Tribunal and the Court’s function limited to that of appeals. The Court can however hear cases for breach of contract.

31.	Firstly, I do not agree with Mr. Apted that a claim for unjustified dismissal means unfair dismissal. In my finding a claim for unjustified dismissal can include a claim for breach of contract, a claim that the employer does not have any justification in terminating the employment and breach of express of implied procedures in terminating the contract.  A claim for “unfair dismissal” concerns the manner of termination. 

32.	What Mr. Apted is effectively saying is that the parties who allege unlawful dismissal of contracts can only bring a case in the Tribunal and not the Court. If the Tribunal can hear a claim for unlawful dismissal of contracts then there is no justification that the Court should not have powers to hear the claims for unlawful dismissal of contracts. The legislature has not excluded the Court from exercising jurisdiction in such claims. It is absurd that a subordinate Court is given powers to hear cases for unlawful dismissal but the higher court is excluded from hearing the same. In absence of any clear exclusion, I am not prepared to hold that the Court does not have jurisdiction to hear unlawful dismissal cases.

33.	Mr. Apted’s argument that the Court is excluded from hearing employment grievances is negated by s. 230 (1) of the ERA which states that if the Tribunal or the Court determines that a worker has an employment grievance then it can order certain remedies. If the legislature intended that the Court has no jurisdiction to hear employment grievances then it would not even state that in s. 230.

34.	This is the opportune time for me to refer to s. 188 of the ERA. This section applies to essential service and industry. The section specifically indicates that the Tribunal and the Court does not have jurisdiction over trade disputes concerning an essential service and industry. The section clearly states that the Tribunal and Court have jurisdiction in “employment grievances” relating to an essential service and industry.

35.	Although the defendant is this case is not an essential service and industry the principle that applies in this case is that if the Court was to be excluded from exercising jurisdiction in particular matters, the legislature would have said so clearly like it said in s. 188. Secondly, s.188 fortifies my view that the Court cannot be excluded from exercising jurisdiction in employment grievances. If the Court can hear employment grievances relating to an essential service and industry then why should it be excluded from hearing employment grievances which concerns an employer which is not designated as an essential service and industry? Why would the legislature promote such disparity?

36.	It is correct that s. 220 of the ERA which vests the Court with the jurisdiction to hear certain types of cases does not mention the word “employment grievances” whilst s. 211 which vests the jurisdiction in the Tribunal uses that term. The lack of use of the term “employment grievance” in s. 220 does not mean that the Court cannot hear “employment grievances”.

37.	The term employment grievance means to include that the worker has been dismissed. A person who has his contract of employment terminated can claim unlawful dismissal. He can then bring an action on the employment contract for unlawful dismissal. The Court can hear claims founded on an employment contract: s. 220 (1) (h) of the ERA. If the term employment grievance includes dismissal then dismissal can occur with those having contracts of employments. Under s. 220 (1) (h) of the ERA the Court can hear claims founded on an employment contract which means that the Court can hear employment grievances. 

38.	I will now turn to Mr. Apted’s reference to s. 110(3) and Regulation 11 of the ERAR. In my finding the effect of the two provision is that those workers who wish to bring a claim in the Tribunal must start the process in the Mediation Service. If the matter is not resolved at the Mediation Unit, their claim will be referred to the Tribunal. The one way a worker can decide whether he wishes to make a claim in the Tribunal or the Court is upon deciding what he or she is seeking as compensation. 

39.	If the claim is beyond 40,000 than the claim must be made in the Court and if it is below that than the claim can be initiated in the Mediation Unit. If it is unresolved, the matter will be sent to the Tribunal for determination.

40.	I direct my attention to s. 200 (1) (a) of the ERA which refers to the kind of matters that may be referred to the Mediation Services and it includes an employment grievance as well. S. 200(1) (a) uses the word may unlike s. 110(3) which uses the word must. 

41.	S. 110(3) makes it mandatory that the grievances be first referred to the Mediation Unit whilst s. 200(1) (a) grants the discretion on the person filing the grievance to choose whether he or she wishes to first go for mediation.

42.	Upon reading both the sections on mediation, it can be safely concluded that if a person wishes to access the Employment Court, s. 200(1) (a) can apply and there will not be a need to go through the Mediation Services first. This is because if a person accesses Mediation Services first and the matter is not resolved, the claim will be referred to the Tribunal. 

43.	I therefore do not feel that mediation is a prerequisite for adjudication of matters in the Employment Court. There is no provision close to requiring this although it is desirable that parties consider settling employment grievances before coming to Court.  I therefore do not endorse Mr. Apted’s submissions that the scheme of the Act does not allow for employment grievances to be heard by the Employment Court.

44.	If the Court is to be excluded from having jurisdiction in “employment grievances” then the effect of the decision would be that all workers who have a claim for “unlawful dismissal” are forced to put a ceiling to their claims and the ceiling is $40,000. The effect of this would be that all workers, irrespective of their position, income, and profession cannot make a claim beyond $40,000. This would result in unfairness to those who are on higher income bracket and are dismissed. 

45.	For example, if a person who earns $200,000 per annum is dismissed and wishes to bring a claim for lost wages for 6 months. Should he be forced to abandon his claim because he cannot file his claim in the Court? Should he limit his claim to the jurisdiction of the Tribunal? Why should that be imposed on him when s. 230 allows him to make claims for all wages lost as a result of the grievance?

46.	Mr. Apted has very conveniently outlined that in New Zealand, all personal grievances are heard by the Tribunal. He has failed to convince me that in New Zealand, the Tribunal’s jurisdiction is limited to $40,000 like in Fiji. He has also not shown me any convincing material that everyone in New Zealand can make claims up to only $40,000 and not beyond that. If Fiji is to be compared to New Zealand than the situation must be alike.  I am not convinced that what happens in New Zealand should apply here as it would result in absurdity, unfairness and deprivation of rights of the workers.

47.	I now turn to s. 218 of the ERA which gives the Tribunal powers to transfer cases to the Court for hearing and determination of the matter. There is no prohibition in transferring of employment grievances which makes me raise this question: if the court can hear employment grievances transferred to it under its original jurisdiction then why should it be excluded from hearing employment grievances filed in its original jurisdiction? If the Court did not have powers to hear “employment grievances” then it should not have powers to hear it upon transfer. It makes no sense that it could hear “employment grievances” upon transfer and not upon filing. 

48.	Finally, I refer to s. 111 raised by Mr. Apted. S. 111 does not say that the Tribunal can refer the grievance to the Court but nothing turns on that. There is a general provision on transferring cases to the Court. If there is any ground for transfer, the Tribunal will transfer. Why should a Tribunal be given powers to refer cases to the Court? If there was powers to refer, will it mean that the Court has jurisdiction to hear the employment grievances? Then why is the same argument not applied given the existence of s. 218 being the power on transfer? 

D.	Claims under Commerce Commission Act

49.	Mr. Apted argued that the plaintiff pleads a claim for misleading and deceptive conduct under s. 147 of the CCA and seeks compensation under s. 147 of the same Act. He stated that this is a claim that falls clearly outside the Court’s jurisdiction since the CCA claims do not come within any provisions of s. 220 of the ERA. Mr. Apted also highlighted that the plaintiff can only seek damages under the Act if he is a consumer and in the context of the claim, the plaintiff is not a consumer. For this reason the claim under the Commerce Commission Act should be struck out.

50.	I agree with Mr. Apted entirely on this point that a claim for breach of the Act and any misleading and deceptive conduct cannot be maintained under the ERA in the ERC. Any claim under the said Act is a matter for the civil court. Further, the plaintiff fails to state in his claim how his right as a consumer was breached. I find it bizarre that this Act has been brought in to find a claim for termination of the employment. 

51.	To that end I find that any cause of action under the Commerce Commission Act and in particular paragraphs 9, 10, and 12 (vi) of the claim be struck out.

E.	Claim for Breach of Natural Justice and absence of Independence and Impartiality.

52.	Mr. Apted argued that the plaintiff pleads breach of natural justice and absence of independence and impartiality as causes of action independent of the earlier causes of action. There cannot be an independent cause of action for breach of natural justice and absence of independence and impartiality. These may be grounds for judicial review or may be pleaded as aspects of unjustified dismissal but not as independent causes of action that a worker can bring against an employer in a common law claim. He argued how can an employer dismissing a worker for misconduct even be impartial or independent when it is acting to protect its own interest?

53.	Mr. Apted also argued that this claim is also objectionable on the grounds that no material facts are pleaded in support of the bald assertions.

54.	In respect of the first argument under this head that the claim for breach of natural justice and absence of independence and impartiality cannot be pleaded as an independent cause of action, I refer to the claim on this aspect. 

55.	The plaintiff pleads in paragraph 11 and paragraph 12 (iii) as follows:

“11. 	Further and/or in the alternative the Respondent’s decision to terminate the Applicant’s employment was made in breach of the principles of natural justice and the process followed lacked impartiality and independence”

12 (iii).	Declaration that the Respondent’s decision to terminate the Applicant’s employment was made in breach of the principles of natural justice and the process followed lacked impartiality and independence”.

56.	I do not think that the claim for breach of the principles of natural justice and lack of impartiality and independence is pleaded as a separate cause of action. The claim is linked to the termination and the words “the decision to terminate” in paragraph 11 makes that clear. However, what concerns me is the plaintiff’s pleading that the decision to terminate was in breach of natural justice when the principle of natural justice in employment context applies to the procedure and process followed to arrive at a decision and implementing the same. 

57.	The plaintiff does say that in regards lack of impartiality and independence and links it to the process followed but on the aspect of breach of natural justice I find that the plaintiff needs to amend the claim to better reflect what is actually meant.

58.	I also agree with Mr. Apted that there needs more particulars on how there was breach of natural justice, lack of impartiality and independence. That is necessary so that the employer is able to meet the claim in its defence.

59.	I reiterate my earlier finding that the plaintiff should also state in his claim whether there was an express contractual requirement for the employer to follow the principles of natural justice, impartiality and independence in determining whether the plaintiff was in breach of the Employees Code of Conduct or whether he is relying on the implied terms of good faith. This needs to be addressed in the claim clearly. 

Orders

60.	In the final analysis, I make the following orders:

(a)	I dismiss the employer’s application brought on the grounds that:

(i)	there is no cause of action for “unlawful dismissal” recognized in Fiji;

(ii)	that the Employment Relations Court has no jurisdiction over “unjustified dismissal” and any allegations of unjustified or unlawful dismissal can only be reported as an employment grievance- which can be only determined by the Tribunal (and on transfer or appeal by the ERC);

(iii)	and that the claim for wrongful dismissal is not properly pleaded and does not disclose that cause of action.

(b)	I allow the employer’s application that the plaintiff cannot maintain a claim under the ERA for breach of the Commerce Commission Act and as such I strike out paragraphs 9, 10 and 12 (vi) of the statement of claim.

(c)	In respect of the employer’s claim to strike out the claim for breach of the principles of natural justice and lack of impartiality and independence, I order the employee to amend the claim to reflect properly as to how the employer breached the principles of natural justice, impartiality and independence in terminating his contract and whether these requirements are expressly or impliedly required by the contract of employment.

(d)	For the progress of the matter, I now grant the following orders:

(i)	I grant the plaintiff 14 days to file and serve the amended claim. Thereafter the defendant is to file and serve an amended statement of defence within 14 days. The plaintiff’s reply to defence shall be filed within 7 days thereafter. 

(ii)	Within 14 days of filing of the reply to defence, both parties are to simultaneously file their Affidavits Verifying List of Documents within 14 days. Inspection and discovery is to take place within the next 14 days.

(iii)	After the time limited for discovery has expired, the parties are to conduct a pre-trial conference within 21 days and file minutes of the same within the same time frame.

(iv)	The matter will be allocated a date for call-over to monitor the progress of the matter. This will be done in consultation with the parties.

(e)	Since the employer is partly successful in its application, I find that an order for costs against any party will not be justified. The costs shall be borne by each party.

…………………………………….
Hon. Madam Justice Anjala Wati
22. 10. 2021

To:
1.	R Vananalagi & Associates for the Plaintiff.
2.	Munro Leys for the Defendant.
3.	File: Suva ERCC 02 of 2017.