R at the instance of MLHRD v Employment Tribunal & Ano (MC 88/2017) [2018] SCSC 8276 (2 October 2018)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: MC 88/2017 (arising in CS ) [2018] SCSC ~ <;; \ THE REPUBLIC AT THE INSTANCE OF MLHRD Petitioner versus EMPLOYMENT TRIBUNAL PORT GLAUD RESORTS PTY LIMITED REPRESENTED BYALBERT GEERS Respondents Heard: Counsel: 23 July 2018 D Esparon for petitioner unrepresented for respondents Delivered: 3 October 2018 RULI:\TG ON PETITION Dodin J [I] The Petitioner brought a case before the Employment Tribunal whereby the 2nd Respondent stood charged with one count of terminating a contract of employment contrary to section 47(1) of the Employment Act read with section 76(2)(k) and punishable under section 77(1) of the same Act. The 2nd Respondent moved the Employment Tribunal by way of motion to dismiss the charge on the ground that the Employment Tribunal had no jurisdiction to hear criminal matters. The Employment Tribunal ruled on the 19th September, 2017 that it did not have jurisdiction to try the 2nd Respondent, the accused before the Employment Tribunal, and proceeded to dismiss the charge against the accused. [2] The Petitioner now petitioned this Court for leave to proceed with an application for judicial review. The Respondents were served but failed to put up appearances or be represented. Leave was granted on 7th February, 2018. The 2nd Respondent eventually appeared and was represented on the 23 rd March and 23rd May, 2018 and produced an undated document titled ANSWER TO PETITION FOR JUDICIAL REVIEW AFFIDAVIT signed by Mrs Mary Geers but not attested to by the notary. Such document does not meet the requirements of pleadings for petitions of this nature and cannot be given any consideration by the Court. The Respondents subsequently did not put up any appearance until the case was heard exparte on the 23rd July, 2018. [3] The matter to be decided is whether the Employment Tribunal has jurisdiction to try an accused charged under section 47( 1) of the Employment Act read with section 76(2)(k) and punishable under section 77(1) of the same Act. [4] Section 47(1) of the Employment Act reads: (1) Subject to Part VIII, an employer shall not terminate, or give 47. notice of termination of a worker's contract of employment except under section -19 or 50 unless the employer first initiates and complies with the negotiation procedure. [5] Section 76(2) (k) reads: 76. (2) An employer who - (k) terminates a contract contrary to section -I7(J); is guilty of an offence. [6] Section 77(1) reads: 77. (1) A person who is convicted ofan offence under section 76. other than an offence specified in subsection (2) of this section, of R.20, 000. is liable to afine [7] Learned counsel for the Petitioner moved the Court to find that the decision of the Employment Tribunal that it did not have jurisdiction to try the 2nd Respondent is: i) Illegal in view of the express provisions of the Employment Act namely section 78(2) of the Act: ii) Unreasonable in view that the Employment Tribunal has no basis to dismiss the charge against the 2nd Respondent on the grounds that the Employment Tribunal Lacksjurisdiction to try the 2nd Respondent. [8] Learned Counsel for the Petitioner moved the Court to issue a writ of certiorari quashing the decision of the Employment Tribunal in addition to granting leave to proceed by way of judicial review and the disclosure to the Petitioner all document relating to and incidental to the decision. [9] It must first be observed that the law of jurisdiction of the courts is neither procedural law nor substantive law. It has nothing to do with either the creation or recognition of substantive rights. It is simply a limitation on the power of a court to act as a court for which it is empowered to act. Procedural law provides the process that a case will go through and whether it goes to trial or not. It also determines how a proceeding concerning the enforcement of substanti ve law will occur. Substantive law defines how the facts in the case will be handled. as well as how the crime is to be charged. [10] In a nutshell, procedural law is about how the law gets passed. enforced and which court has jurisdiction over what whilst substantive law involves every law that is not procedural namely the laws defining and restricting rights and duties for their own sake. Hence the determination of jurisdiction of a court or tribunal would for that purpose be deemed procedural and subject to the supervisory jurisdiction of the higher court by way of judicial review whilst the finding of that court or tribunal on the substance of the case would be subject to appeal. 01] It is for the above reason that leave was granted ex-tempore for the Petitioner to proceed with this matter on the merits. [12] In reading the judgment of the Employment Tribunal, it is clear that the Tribunal restricted it's consideration the paragraph 3(1) and (2) of the sixth schedule of the Employment Act which reads: "3. (J) The Tribunal shall have exclusive jurisdiction to hear and determine employment and labour reLated matters. the Tribunal shall (2) Without prejudice to the generality of the foregoing, hear and determine mailers relating to employment and labour that have not been successful at mediation if a party to the dispute instigates such matter. " The Tribunal failed to consider at all section 3(1) and (2) of the Criminal Procedure Code and crucially section 78 of the Employment Act. [13] Section 3(1) and (2) of the Criminal procedure Code read: "3. (J) All offences under the Penal Code shall be inquired into, tried and otherwise dealt with according to the provisions hereinafier contained. (2) All offences under any other law shall be inquired into, tried and to the time being inforce regulating the manner or place of otherwise dealt with according to the same provisions, subject, however. any enactment/or inquiring into, trying or otherwise dealing with such offences. " [14] The proviso of section 3(2) is clear in that it states that other offences not contained in the Penal Code but under other subsequently enacted legislation shall be dealt with in accordance with the enactment (or the time being in (orce regulating the manner or place o[inquiring into, Irving or otherwise dealing with such offences. In addition, it extends the powers and jurisdiction the Employment Tribunal so that when read in conjunction with section 78(2) of the Employment Act it expends the powers and jurisdiction of the Tribunal accordingly. [15] Section 78 of the Employment Act reads: "78. offence under this Act is commenced without to section 72(1), no prosecution for an in writing of the (J) Without prejudice the consent Chief Executive. (2) A prosecution for an offence under this Act may be conducted by a competent officer before the Tribunal (3) Nothing in this section derogates from the powers of General in respect of the prosecution a/criminal offences. the Attorney (. J) Wherever any person is convicted ofan offence under this Act and in of wages. consisting connection with that offence moneys. whether compensation, benefits earned, payment in Lieu of notice or otherwise, are due and payable to another person in respect of whom the offence has been in addition to any penalty imposable under committed. this section, order the person convicted to pay La the other person the moneys due .. , the Tribunal, shall, [16] Section 78(2) leaves no doubt as to where the offence commi ned under the Employment Act may be tried. By failing to consider that specific and most relevant and crucial enactment giving the Employment Tribunal the power and jurisdiction to hear the matter I find that the Employment Tribunal came to the wrong and unsustainable conclusion that it lacked the jurisdiction to try the 2nd Respondent. [17] Secondly where a Court or Tribunal finds it lacks jurisdiction to hear or try a matter, it cannot proceed to make a substantive finding giving final disposal of the matter. It can only decline to entertain the matter and may if necessary give direction as to which forum has the jurisdiction to hear the same. The Employment Tribunal's judgment is therefore not rational or logical in that having concluded (wrongly) that it did not have jurisdiction to try the 2nd Respondent then assigned itself the power and jurisdiction to dismiss the charge against the 2nd Respondent. [18] I therefore find that the Employment Tribunal does indeed have power and jurisdiction to try criminal matters committed under the Employment Act. [19] For the above reasons. I have no hesitation to invoke and exercise the supervisory jurisdiction over the Employment Tribunal pursuant to rule 2( 1) of the Supreme ('ourl 6)upervisory jurisdiction over subordinate Courts. TribunaLs and Adjudicating Authority) Rules and make the following orders: 1. I issue a writ of certiorari quashing the Ruling of the Employment Tribunal dated 19 September 2017 in its entirety that is both in respect of it finding on jurisdiction and the discharge of the 2nd Respondent; 11. I remit the matter before the Employment Tribunal with direction to try the 2nd Respondent on the charges initially levelled against it. Signed, dated and delivered at Ile du Port on 3 October 2018 o n Judge of the Supreme Court 6