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Nisha v Subrail's Furniture Centre (Pte) Ltd (trading as Subrails) [2025] FJHC 114; ERCC 10 of 2024 (13 March 2025)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCC 10 of 2024

BETWEEN:
NAZMEEN NISHA
PLAINTIFF

AND:

SUBRAIL’S FURNITURE CENTRE (PTE) LIMITED

T/A SUBRAILS
DEFENDANT

Appearances: Ms. S. Prasad for the Plaintiff.
K. Goundar and Ms. K. Chand for the Defendant.
Date/Place of Judgment: Thursday 13 March 2025 at Suva.
Coram: Hon. Madam Justice Anjala Wati.

RULING
(Application to strike out for want of jurisdiction)

1. Catchwords:

Employment Law – defendant’s application to strike out claim on the basis that the court does not have jurisdiction to hear the same – plaintiff has brought an employment grievance to the Employment Court – the Employment Court does not have jurisdiction to hear an employment grievance; it has jurisdiction to hear claims for unjustified or unfair dismissals if it is properly founded on an employment contract- “the Employment Court has no jurisdiction to hear employment grievances but if a claim for unjustified or unfair dismissal is “founded on a contract of employment”, and properly pleaded as such, the Employment Relations Court has jurisdiction under s. 220(1) (h) to hear and determine such a claim”: per Madam Justice Clark in ANZ Banking Group Pte. Limited v. Ajendra Sharma Court of Appeal of Fiji - Civil Appeal No. ABU 030 of 2022 at para. 64.

2. Cases:
   1. ANZ Banking Group Pte. Limited v. Ajendra Sharma Court of Appeal of Fiji - Civil Appeal No. ABU 030 of 2022.

_________________________________

Application

1. The plaintiff has brought an employment action seeking damages for unlawful dismissal from work. She is also claiming unfair dismissal.
   
2. The defendant has filed an application to strike out the claim on the basis that the claim is an employment grievance and that the Employment Court does not have jurisdiction to hear an employment grievance. The application is opposed.
   

Issues

3. The central issue is whether the plaintiff has a right to bring an employment grievance in the Employment Relations Court. In essence the question of jurisdiction needs determination.
   

Law and Analysis

4. The defendant’s concerns are addressed by the recent judgment of the Court of Appeal: ANZ Banking Group Pte. Limited v Ajendra Sharma Civil Appeal No. ABU 030 of 2022.
   
5. Her Ladyship Madam Justice Clark said at para. 34:

“[34] Section 220 confers no jurisdiction on the ERC to hear and determine employment grievances whether as defined in s4 or s185 (relating to workers in an essential service industry). There are, however, three routes by which an employment grievance might find its way to the ERC;

(i) for the purpose of enforcing a settlement reached in mediation;

(ii) on appeal; a party who is aggrieved by a decision of the Tribunal may

appeal as of right to the ERC. Provided an appeal is made in the prescribed manner, an appeal lies as of right from any first instance decision of the Tribunal.

(iii) by transfer; as previously mentioned, a proceeding may be transferred by order of the Tribunal or if a party seeks special leave from the ERC. In either circumstance the transfer can only be ordered if “an important question of law is likely to arise” or if the case “is of such a nature and of such urgency that it is in the public interest that it be transferred”.”

6. Her Ladyship further went onto say at paragraphs 44 and 45:
   

“[44] The question is whether an employment grievance may be brought under s220 (1) (h) which gives the ERC jurisdiction to “hear and determine an action founded on an employment contract.”

[45] The answer is “no”. The ERC has no jurisdiction to entertain an employment grievance claim as such (unless transferred from the Tribunal or on appeal). The ERC does have jurisdiction to hear claims founded on contract where, as a matter of pleading and evidence, the contract will necessarily be central. Crucially, Mr. Sharma’s statement of claim before the ERC made no mention of a contract”.

7. At paragraph 64 Justice Clark answers the question on the issue of jurisdiction. She says:
   

[64] The two questions of law are set out once more, and answered as follows:

(i) Under Part 19 and Parts 13 and 20 of the Employment Relations Act 2007, can a worker in an Essential Service and Industry bring an Action or employment grievance in the Employment Relations Court or is s/he restricted to reporting an employment grievance to Mediation Services which can only refer this to the Employment Relations Tribunal if the grievance is not settled in mediation?

Answer: The Employment Relations Court has no jurisdiction to hear and determine an employment grievance brought by a worker in an essential service and industry. Such a worker is bound to pursue their employment grievance first, by lodging it in accordance with s 188(4) and secondly, in accordance with Part 13 pursuant to which the employment grievance will “first be referred for mediation services ...”

(ii) Can any worker in Fiji (whether or not employed in an Essential Service and Industry) bring a claim of unjustified dismissal or unfair dismissal directly to the Employment Relations Court (which has unlimited jurisdiction) or must those claims only be made in an employment grievance that can only be reported to Mediation Services and the Employment Relations Tribunal (which has jurisdiction not exceeding $40,000).

Answer: The ERC has no jurisdiction to hear employment grievances but if a claim for unjustified or unfair dismissal is “founded on a contract of employment”, and properly pleaded as such, the ERC has jurisdiction under s220 ((1) (h) to hear and determine such a claim”.

8. I have gone over the plaintiff’s claim. The claim does not plead the contract.
   
9. The claim does not state what terms and conditions of the contract were breached or how the action is founded on the contract. The alleged negligence of the employer in the statement of claim are basically particulars of how the employer failed to act fairly in determining the whether the reasons for the termination were proper. Without pleading the contract and the terms which are breached, the action cannot survive in the Employment Court.
   
10. In terms of the judgment of ANZ Banking Group Pte. Limited v Ajendra Sharma Civil Appeal No. ABU 030 of 2022, the plaintiff’s claim is an employment grievance and ought to be filed in the Tribunal and not the Employment Court.
    
11. The Employment Court does not have jurisdiction to hear the employment grievance.
    

Final Orders

12. I make the following orders:
    
    • (a) The claim is struck out for want of jurisdiction.
      
    • (b) There shall be no order as to costs.
      

...................................................
Hon. Madam Justice Anjala Wati
Judge
13.03.2025
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To:

1. Shahrukh Ali Lawyers for the Plaintiff.
2. Kumar Goundar Lawyers for the Defendant.
3. File: Suva ERCC 10 of 2024.