IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
CIVIL JURISDICTION

ERCC No. 09 of 2020

BETWEEN:

SALENDRA PRASAD
PLAINTIFF

AND:

LAND TRANSPORT AUTHORITY
DEFENDANT

BEFORE:
M. Javed Mansoor, J

COUNSEL:
Mr. D. Nair for the Plaintiff
Mr. W. Raiubi for the Defendant

Date of Hearing:
8 September 2020

Date of Decision:
6 November 2023
DECISION
EMPLOYMENT		Dismissal – Originating summons – Strike out application – Whether defendant an essential industry – Time bar – Breach of contract – Sections 185 & 188, Employment Relations Act 2007 – Employment Relations (Amendment) Act 2015 – Sections 6 & 7, Land Transport Act 1998 
The following case is referred to in this decision: 
a.	Buksh v Bred Bank (Fiji) Ltd [2021] FJHC 259; ERCC 2.2019 ( 27 August 2021)

1.	The plaintiff filed an originating summons on 23 April 2020 seeking a declaration that the termination of his employment on 3 March 2020 was in breach of his employment contract, that it was unjust, unfair and unlawful and contravened section 77 (1) (C) of the Employment Relations Act 2007 and principles of natural justice, procedural fairness and fair labour practices. He asked for reinstatement and claimed damages. 

2.	The plaintiff said that he joined the defendant on 3 November 2003. On 12 December 2014, he was promoted as a senior vehicle examiner in Ba. On 14 November 2019, he was sent on annual leave pending investigation into certain allegations following a customer complaint. On 7 January 2020, he was issued a letter containing four charges. He responded on 8 January 2020. On 3 March 2020, the plaintiff was summarily dismissed. 

3.	The plaintiff said the disciplinary process was biased and did not allow him to present his case. Although he provided the employer with all documents, his request to summon the complainant to be questioned at the internal inquiry was denied. He was 40 years at the time of his dismissal, and says he could have continued in employment until retirement at 60. 

4.	The defendant’s team leader human resource, Matila Cama, filed an affidavit in reply on 26 May 2020 and denied the plaintiff’s claim of unjust and unfair termination. The deponent said that disciplinary charges were issued by letters dated 4 December 2019 and 7 January 2020 to the plaintiff, and he was summarily dismissed on 3 March 2020. He was represented by a lawyer at disciplinary hearings on 20 December 2019 and 6 February 2020. 

5.	On the same day, the defendant filed a summons to strike out the plaintiff’s action on the ground that it disclosed no reasonable cause of action and was also an abuse of the process of court. In its supporting affidavit, the defendant stated that an employment grievance must be filed within 21 days from the date on which the grievance first arose and relied on section 188 (4) of the Employment Relations Act 2007. The affidavit stated that the Land Transport Authority is an essential industry that comes within the definition of essential service and industry. 

6.	The defendant stated that the employment grievance first arose on 3 March 2020 when he was dismissed, while the originating summons was filed on 23 April 2020, after the lapse of 21 days, and that the plaintiff failed to refer his grievance to mediation services as required by section 110 (3) of the Act.

7.	The plaintiff filed an affidavit in reply on 30 June 2020 and denied that the defendant is designated as an essential industry. The plaintiff went into detail regarding the allegations against him and the inquiry process, and said that the action is based on breach of contract for violation of provisions of the collective agreement. He stated that the defendant has misconstrued the cause of action as an employment grievance when it is founded on an employment contract. 

8.	The defendant filed an affidavit in response to the affidavit in reply and stated that it is a statutory authority established under sections 6 and 7 of the Land Transport Act 1998 and an essential service industry in terms of section 185 of the Employment Relations Act 2007 as amended by Act No.4 of 2015.

9.	At the hearing into the strike out application, the plaintiff submitted that the Essential National Industries (Employment) Decree 2011 did not apply to all government statutory bodies. The plaintiff said that the intention of Parliament was not to include all employment sectors and businesses as essential industries, but to protect certain sectors from strike action. The plaintiff said that the minister has not declared the defendant an essential industry. 

10.	The plaintiff further submitted that its action is for breach of contract, and the court’s jurisdiction to hear the action is based on sections 219 and 220 (1) (h) of the Act. The plaintiff says the court has power under section 235 of the Act to amend or waive an error or defect in proceedings. 

11.	The allegation against the plaintiff is that he passed a vehicle without a physical examination. The plaintiff vehemently denies the charge. This proceeding does not concern the merits of the charges against the plaintiff or the disciplinary process followed by the defendant. The inquiry is into the defendant’s application to strike out the action mainly on the basis that the plaintiff does not have a reasonable cause of action. The defendant says that the claim is statute barred, as the plaintiff has not filed action within the 21 days period stipulated by section 188 of the Act. 

12.	The principles concerning the striking out of an action are settled in Fiji. The jurisdiction to strikeout an action will be exercised sparingly and on the pleaded facts. The defendant says that the action is statute barred, while the plaintiff insists that provisions concerning essential national industries do not apply to the defendant. An important issue to be determined at the outset, therefore, is whether the defendant is an essential national industry within the meaning of section 185 of the Employment Relations (Amendment) Act 2015.

13.	The long title of the Land Transport Act says it is an Act to establish the Land Transport Authority, to regulate the registration and use of vehicles, the licensing of drivers of vehicles and the enforcement of traffic laws and to provide for the repeal of the Traffic Act and for related matters. Section 6 of the Act established the Land Transport Authority. The importance of the authority is made evident by the long title. Section 7 sets out the composition of the authority. The members of the authority are appointed by the minister responsible for the subject of enterprises with the approval of the prime minister. Section 8 states the functions of the authority and section 9 sets out its powers. 

14.	Section 185 of the Employment Relations (Amendment) Act 2015 states essential service and industry or essential services and industries means “a service listed in schedule 7 and includes those essential national industries declared and designated corporations or designated companies designated under the decree, and for the avoidance of doubt, shall also include  
(a)	The Government
(b)	A statutory authority
(c)	……”

15.	The Land Transport Authority, being a statutory authority, is governed by part 19 of the Employment Relations Act, which deals with essential services and industries. Therefore, a worker employed in an essential service industry must file an employment grievance within 21 days. 

16.	In his submissions, the plaintiff says his action is founded on an employment contract and that the defendant is liable to compensate him for breach of contract. If the complaint is for breach of contract, section 4 (1) of the Limitation Act 1971 provides a period of six years from the time the cause of action accrued within which to file action. The plaintiff’s contention must be considered on the basis of the pleadings before court. 

17.	The orders sought by the plaintiff and the grounds relied upon are reproduced below: 
1.	“A declaration that the termination of the Plaintiff’s employment from 3 March 2020:
(a)	Is in breach of the employment contract and is further unjustified, unfair and unlawful;
(b)	Contravened section 77 (1) (c) of the Employment Act 2007 that restricts the termination of employment in the prevailing circumstances when the worker was performing his duties as authorised by his appointment as the senior vehicle inspection;
(c)	Contravened the principles of natural justice, procedural fairness and fair labour practices;
(d)	An order for the Plaintiff to be reinstated to his employment without loss of salary and benefits.  

2.	Any other order or orders that the court may deem just in the circumstances.

3.	Damages”.

18.	The plaintiff relied on the following grounds:
“That the dismissal was based on a complaint that was not established during the disciplinary enquiry held on 6 February 2020 for reasons stated below:
i.	The source of the complaint was not disclosed and the complainant did not give evidence during the inquiry. 

ii.	The defendant relied upon hearsay complaint without without evaluating all relevant evidence but had formed a preconceived decision to terminate the employment.

iii.	The investigation was not conducted in a fair and transparent manner and this was prejudicial to the plaintiff in presenting his case.

iv.	The non-disclosure of all pertinent documentary evidence that the defendant relied upon had incriminating against the plaintiff.

v.	The defendant through its unjustified actions has discriminated and caused detriment to the plaintiff”. 

19.	The plaintiff refers to a breach of contract in paragraph 1 (a) of the originating summons. Although this reference is made, the supporting grounds make it clear that the plaintiff’s action is grounded on unfair termination. These grounds do not claim or set out a contractual breach. The plaintiff has not pleaded the contract as a basis for the cause of action. 

20.	The plaintiff’s affidavit in support of the originating summons makes no reference to a contract to be enforced or to provisions of a contract that are in breach by the defendant’s actions. On the contrary, the affidavit contains material detailing the defendant’s unfair conduct. The plaintiff claimed that his action is founded on an employment contract only when the defendant filed summons to strike out the action on the basis of a time bar. 

21.	Therefore, it can be said that the originating summons supported by the plaintiff’s affidavit does not disclose a cause of action based on breach of contract. Although the jurisdictional objection concerning an employment grievance was not taken up, it is apposite to state that this court does not have original jurisdiction to hear an employment grievance except in the situations allowed by the Act. These matters are discussed in Buksh v Bred Bank (Fiji) Ltd. 

Conclusion
22.	The plaintiff did not file an employment grievance within the period stipulated by section 188 (4) of the Employment Relations Act. The plaintiff’s pleadings and supporting affidavit do not disclose a cause of action based on breach of contract. This court has no original jurisdiction to hear the plaintiff’s action as constituted by the originating summons.  

ORDER
A.	The plaintiff’s action is struck out.

B.	The parties will bear their costs. 

Delivered at Suva this 6th day of November, 2023.

M. Javed Mansoor
Judge