Analysis | Opinion

Analysis: Court Rules In What Is Believed To Be The First Case Of Its Type

In what is believed to be the first case of its kind, the Employment Re­lations Court (ERC) has referred a case back to the ERT to make a com­pliance order.
31 Aug 2019 16:16
Analysis: Court Rules In What Is Believed To Be The First Case Of Its Type
Darmodaran Nair.

What happens when a party does not comply with an Employment Relations Tri­bunal (ERT) order?

In what is believed to be the first case of its kind, the Employment Re­lations Court (ERC) has referred a case back to the ERT to make a com­pliance order.

Then the case would go back to the ERC for its decision in the event a party still defies the order.

The judge, Anjala Wati, of the ERC has delivered an interesting judg­ment that establishes the procedures that will eventually lead to a compli­ance order.

What has happened in the past was that parties in a dispute usually hon­our the ERT order

In this case, the ERT had originally ruled in a dispute between Rajesh Narayan and his employer, the Na­tional Roady Safety Council, now re­ferred to as the Land Transport Au­thority. Narayan’s employment had been terminated. The ERT ordered the reinstatement of Narayan to a po­sition similar to what he was holding prior to termination.

It also ordered that Narayan be re­imbursed with two years of lost wag­es as a result of the grievance and further six months wages as compen­sation for humiliation, loss of dignity and injury to his feelings.

The LTA applied for leave to appeal the ERT order out of time.

The application was filed on March 8, 2019, some nine months after the delivery of the ERT decision.

The LTA has said that when Naray­an served his application for compli­ance on it on September 28, 2018, it noticed that in the judgment of the ERT, it was not the respondent but the National Road Safety Council was.

This prompted the employer to con­duct the search of ERT file.

The search was delayed from Octo­ber until November 2018 as the origi­nal file was missing from the ERT Registry.

The employer says that the delay was due to the LTA not being a party to the case from the beginning.

It was not aware of the proceedings until it was served with a copy of the application for compliance.

But Justice Wati said file notes showed that the employer was fully aware of the hearing date and took part in the hearing.

“There is a deliberate attempt to mislead the court to obtain an exten­sion of time, which act I categorise as undignified on behalf of the employ­er,” she said.

She said the lawyer should have checked the files before making such false representations in court.

“Her conduct is equally despicable in the process.

“I come to a finding that the opportu­nity to produce evidence in this case and it only has itself to blame for not being able to tender the required evi­dence.”

Justice Wati said the rights and li­abilities of the National Road Safety Council were vested in the LTA by law. She said it could not avoid liabil­ity on the grounds that it was not sub­stituted as a party.

She ruled that in the final analysis the ERC “does not have powers to or­der compliance of the orders of the ERT.

“It has powers to order compli­ance of its own orders and also to punish a party for failure to comply with the compliance orders issues is­sued by ERT. She dismissed the appli­caton for compliance.”

Narayan, however, is at liberty to file an application in the ERT.

His lawyer, Darmodaran Nair said Narayan would now go back to the ERT for an order of compliance. If LTA does not comply, there will be another application in the ERC.

He welcomed the decision of Justice Wati. He said they were going to take serious consideration to seek con­tempt of court proceedings against LTA.

Under Section 228 of the Employ­ment Relations Act, only the ERC has power to deal with contempt proceed­ings.

Narayan’s case highlights yet again the fact that workers have access to seek redress in a court of law.

Feedback: nemani.delaibatiki@fijisun.com.fj

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