Verebasaga v JS Hill & Associates Ltd [2011] FJET 12; ER Grievance 56.2009 (5 September 2011)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ER Grievance No. 56 of 2009

BETWEEN:

MR. EMOSI VEREBASAGA
WORKER

AND:

JS HILL & ASSOCIATES LIMITED
EMPLOYER

Appearances:
Mr. P. Howard for the Worker
Ms. B. Malimali and Mr. Juris Gulbis for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Relationship Problem

1] The termination of employment of Mr. Emosi Verebasaga on 20 March 2009 from his work as a Watchman for JS Hill & Associates Limited complex at Wailada, Lami. Mr. Verebasaga considers his termination to be unjustified, unreasonable, unfair and unlawful as it was in breach of the Employment Relations Promulgation 2007 and therefore demands appropriate relief in terms of the law.

References

2] For the purpose of this proceeding:

- the Grievor Mr. Emosi Verebasaga shall be referred to as ("EV")

- the Employer JS Hill & Associate Ltd. shall be referred to as ("JS")

- the General Manager Mr. Richard James Elder shall be referred to as ("RJE")

- the Assistant General Manager Mr. Andrew Golding shall be referred to as ("AG")

-the Supervisor Mr. Nand Kumar shall be referred to as ("NK")

- the Employment Relations Promulgation 2007 shall be referred to as ("ERP")

Background and Evidence

3] On 20 August 2007, EV was recruited by RJE to start working as a watchman at JS No. 3 Yard in Lami ad he was to report to NK the Supervisor of the yard. NK showed EV around the yard and explained to him what the duties involved; to patrol the yard and in the interest of safety to keep the work area clear of debris and was specifically instructed not to touch or operate any of the machines or bench saws. EV started work the same day and was also told to check the staff leaving at the end of the working day around 5:00 pm and to ensure that nothing that was not supposed to leave the yard was being taken out. All these happened on the first day at work.

4] About one year down the line on 12 May 2008 NK in a memorandum warned EV about coming late to work and in the same memorandum raised the fact that he had stopped at the yard on Sunday 11 May 2008 at about 6:30 pm, and that EV could not be seen at work, and a security guard who worked nearby the yard confirmed that he had not come in. The time for that day showed that EV clocked in at 9:21 pm which meant that he was four hours late. In his evidence NK confirmed that he was returning from the Fiji Palm job site and had decided to stop over at the No. 3 yard and spoke to the ADT security who confirmed that EV had not come in as yet.

5] Further in his evidence NK told the Tribunal that around the end of February and beginning of March 2009 he was receiving reports that the timber saw machines were being used after hours and he had asked for an investigation to be carried out.

6] On Friday 27 February 2009, NK gave Anand Prasad who worked under him a list of timbers required to be processed for the Fiji National Provident Fund job. The machine operator could not process all the timber and asked that it be completed on Monday 2 March 2009. NK in his evidence related to the Tribunal that on Monday morning he was advised that the balance of the timber left to be processed was missing.

7] NK continued and told the Tribunal that it would be normal to ask the watchman and he called EV who had knocked off and on his way to catch the bus. EV came in after twenty minutes or so and NK in the presence of Anand Prasad and Satish Chand questioned him as to the whereabouts of the missing timber. NK reported that EV admitted cutting up the timber to give to poor people as firewood.The value of the timber was about $400.00.

8] NK in evidence said that he took photographs of the sawn up timber and together with the entire records and notes on EV gave them to the Assistant General Manager Mr. Andrew Golding for review. NK further advised the Tribunal that Mr. Golding on the basis of the information presented instructed him to issue a letter of termination. The letter of termination was dated 16 March 2009 and was issued to EV on 24 March and he signed as receiving it.
9] EV in his evidence denied cutting the timber to the extent that he asked his counsel of how the story came into being in the first place.

10] EV was asked to explain the incident on 11 May 2008 where NK came into the compound at about 6.30. pm. and could not see him and that he clocked in at 9.30 pm. Further, EV told the Tribunal that NK was lying and could not have been there at 6.30 pm. as he had been there from 5.00 pm. EV continued that on that Sunday he went to work at 5.00 pm. and on entering went straight to the Guardforce security guard at the gate by the name of Semisi Seru who told him that people were working there in the day time. EV added that since there was a lot of debris around the yard, he started working right away without punching his card until about 9.30 pm. when he remembered and proceeded to do so. EV said that he informed the time clerk the next day and that the record book of the Guardforce security would have his reporting in time for that Sunday.

11] In his evidence, EV agreed that he received two warning letters: one on 12 May 2008 regarding punctuality to work in particular relating to the Sunday incident and the second one on 2 March 2009 involving the cutting of timbers meant for some other projects. Apart from those two, there were no other warning letters until he received his letter of termination.

12] The letter of termination was dated 16 March 2009 and was given to EV on 24 March 2009. In his evidence EV told the Tribunal that NK did not explain to him the letter, that he was confused and that the reasons were not compelling enough. He said that what he told NK was that he could not be sacked on the alleged offences as there was no gross misconduct on his part.

13] In the process of giving evidence EV was asked by his Counsel whether he did sit down with management to give his side of the story, he replied that he was not afforded the opportunity and instead he was sort of passed around and eventually RJE advised him to wait for the Assistant General Manager AG who was then in Taveuni.

14] EV told the Tribunal that he had to force his way into AG's office and was told to wait outside for more than 45 minutes. When EV did meet AG, he took him aside and said that the company did not have any grudge against him and did not want him to go, that it was NK, and as he was in charge of the yard, the company had to let him go.

15] In his evidence EV told the Tribunal that subsequent to meeting AG, he went back to RJE and after relating to him his meeting with AG, RJE advised him to rest at home and when additional work was found, the company would call him back. That was when he decided to report his grievance to the Labour Department.

Analysis and Conclusion

16] The Tribunal in evaluating the evidence restricted itself to the terms of reference of the grievance which was the unlawful, unjustified and unfair dismissal of EV. It did not consider the number of hours worked and the classification of the work carried out as those would be matters best dealt with under an appropriate action under the relevant Wages Regulation Order.

17] From the evidence the Tribunal finds EV to have fitted nicely into the organization and carrying out of tasks at the Lami No. 3 yard as a watchman and sees that as coming out of experience as he had worked for JS at Nadera in 2006 also as a watchman. When EV called RJE on 19 August 2007, RJE did not hesitate to re-hire him and that was when he was sent down to NK at the Lami yard for orientation before commencing work on 20 August 2007.

18] There was nothing in evidence to show that EV was given a letter of appointment which would mean that there was no written employment contract. August 2007 was pre ERP period and it was common practice for workers to be engaged on oral contracts of service with implied terms consistent with provisions in the Employment Act and the relevant Wages Regulation Order.

19] During the above period, there was no need for a grievance and disciplinary procedure during the time of engagement (August 2007) and JS did nothing when the ERP came into effect on 2 April 2008.

20] From the evidence there is nothing to show that a disciplinary inquiry was ever conducted. There were two written warnings followed by termination. There was no evidence that a discussion was ever conducted with JS or its representatives as the meetings with NK were more of a confrontation than a discussion.

21] The Tribunal finds that EV in many instances was not telling the truth and appeared to have a different perception of what was going on, in particular on the issue of the cutting of timber where he had confessed that he had given it to poor people as firewood and on the other hand, he denied it in his evidence in chief.

22] EV had worked for JS in Nadera in 2006 and if there were any deficiencies in his character or performance, JS should know; RJE certainly knows and that was the reason he re-hired EV which meant that as a worker, he was alright and NK accepted him to start work at yard number 3 along that recommendation.

23] On 12 May 2008, EV received his first warning letter and this was the time that management should have moved in and put him on a performance management process, advising him that it would be for a certain period, that improvement would be expected and any further act of coming late to work or incompetence would not be tolerated. The Tribunal is raising this issue as it can see that EV was sort of left loose in the yard, there were no written instructions and he had claimed that he was a watchman and cleaner at the same time. JS did not try to deny that during the hearing and in that regard the Tribunal refers to the New Zealand Employment Court decision in Morris v Christchurch International Airport Limited [2004] NZEmpC 58; [2004] 1 ERNZ 336 which is illustrative of the distinction between the acts that should be dealt with as part of an ongoing performance management process, and single acts of incompetence or negligence that would justify dismissal. In Morris, an employee who was subject to a performance management process was dismissed as the result of a single act that occurred one month into a review period intended to take up to six months. Her dismissal was held to be unjustifiable.

24] The Tribunal from the evidence wants to believe that if EV was subjected to a management performance process he would not have ended up cutting the timber during that weekend; the beginning of March 2009.

25] The time of dismissal of EV is covered under the ERP and the Tribunal has to evaluate the action under the philosophies of the ERP like the justification for unfair dismissal.

26] The test for justification which applies to claims of unjustifiable dismissal is the following:

...The question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

The employer must show that a dismissal was justified substantially and procedurally and this was where JS fell short. All the circumstances at the time the dismissal occurred would include the type, resource and size of the organization.

JS is a big employer in the South Pacific region. For JS to treat one of its employees in the way it did to EV, like the way it allowed him to work without supervision, without a management process was unethical, as it came to a stage where EV believed what he was doing was right and would be accepted by management.

A dismissal following poor or unfair procedures will not necessarily result in the Tribunal finding that the dismissal was unjustified if the conduct was bad enough but may result in compensation.

27] However, the Courts in New Zealand have recognized that most employers will not be able to provide perfectly fair procedures for dismissing employees. In BP Oil v NDU [1992] 3 ERNZ 483 (CA): the Court of Appeal said - "The question is essentially whether it was open to a reasonable and fair employer to do so in the circumstances."....

In NZ Food Processing IUOW v Unilever New Zealand Ltd (1990) 1 NZLR 35 the Court also said that.. "the employer's conduct of the disciplinary processes is not to be put under a microscope and subjected to pedantic scrutiny."

This means that minor procedural inadequacies should not render a disciplinary action unjustified but in this case the Tribunal found that the worker was confronted with the allegations, denied the formal disciplinary procedure in his employment contract and served the termination letter. That would not qualify as a minor procedural inadequacy.

28] From the evidence the Tribunal is satisfied that JS did not make any attempt to accord EV all the fair procedures as stipulated in the leading Unilever case which says that the employee must be given:

• Notice of the specific allegation and its gravity and possible outcome;
• An opportunity to refute the allegations (with an opportunity to have a representative, not simply a witness, present); and
• Unbiased consideration of the employee's explanation.
  

In the same token, the Tribunal recognizes that employers are not perfect and their conception of what a fair procedure is varies and the Courts in New Zealand have recognized that most employers will not be able to provide perfectly fair procedures for dismissing employees. In BP Oil v NDU [1992] 3 ERNZ 483 (CA): the Court of Appeal said - "The question is essentially whether it was open to a reasonable and fair employer to do so in the circumstances."....

29] In the earlier Unilever's case the Court also said that... "the employer's conduct of the disciplinary processes is not to be put under a microscope and subjected to pedantic scrutiny."

This means that minor procedural inadequacies should not render a disciplinary action unjustified, but in this case, EV was being dealt with by his supervisor NK who presented the entire records and notes on EV to AG. AG then directed NK to issue a letter of termination. AG did not give EV an audience, he did not hear EV's explanation and that was denial of natural justice and that would not qualify as a minor procedural inadequacy.

30] The Tribunal in analyzing the evidence and arguments has come to the conclusion that EV has a grievance in that he was unjustifiably and unfairly terminated in that JS did not follow fair procedures especially the right to be heard. The right to be heard in person is very important as it gives an opportunity to reply especially when a person's livelihood is under threat of being adversely affected.

31] The Employment Relations Promulgation 2007 in sections 230(2) (a) & (b) provide for the following -...in deciding the nature and extent of the remedies to be provided in respect of the employment grievance, consider the extent to which the actions of the worker contributed towards the situation that gave rise to the employment grievance; and if those actions so require, reduce the remedies that would otherwise have been decided accordingly.

32] EV was terminated on 16 March 2009 and then lodged a complaint with the Labour Department on 23 June 2009. The grievance was referred to the Mediation Services on 21 August 2009 and on 31 August mediation proceedings failed to resolve the grievance and it was referred to the Tribunal for adjudication on 1 September 2009. The hearing in the Tribunal was concluded on 21 September 2010.

Decision

The Tribunal has determined that Mr. Emosi Verebasaga has a valid claim for unfair dismissal and in that regard Order the following remedies:

i] It has been about 2 years and 6 months since the date of termination and Mr. Emosi Verebasaga has to be reimbursed a sum equal to the whole wages lost by him as a result of the grievance;

ii] The above period of 2 years and 6 months to be reduced by 6 months in consideration of the extent to which the actions of Mr. Emosi Verebasaga contributed to the situation that gave rise to the employment grievance; and

iii] Mr. Emosi Verebasaga to be reimbursed the lost 2 years' wages as a result of the grievance within 28 days of this decision.

DATED at Suva this 5th day of September, 2011.

Sainivalati Kuruduadua
Chief Tribunal