Chand v Joinery [2011] FJET 14; ERG 205.2010 (16 September 2011)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERG No. 205 of 2010

BETWEEN:

MR. KUAR CHAND
GRIEVOR

AND:

DIAMOND JOINERY
EMPLOYER

Appearances:
Mr. N. Tofinga for the Grievor
Mr. R. Prasad for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Relations Problem

1] On 6n August 2010 Mr. Ronil Prasad the Manager for the employer verbally told the grievor Mr. Kuar Chand to go home. The employer did not give any termination letter and the grievor is asking for compensation on the way he was treated.

References
2] In this proceeding:

- the Grievor Mr. Kuar Chand shall be referred to as ("KC")

- the Employer Diamond Joinery shall be referred to as ("DJ")

- the Manager of Diamond Joinery Ronil Prasad shall be referred to as ("RP")

Background and Evidence

3] KC claimed that he was employed by DJ as a polisher from March 2009 exact date unknown until 6 August 2010 when RP told him to go home as his services were no longer required.

4] The hearing of this matter was held on 16 May 2011 and DJ presented 3 witnesses whilst KC himself gave evidence on his behalf.

5] Mr. Pritesh Chand of Nausori, Company Foreman in his evidence stated that KC is a very important man in the company as he is the main polisher but every now and then he borrowed money from the company. Mr. Chand testified that once, KC did not come to work for 45 days and all orders for Morris Hedstrom and Courts were cancelled. Mr. Chand further told the Tribunal that he gave KC gave an opportunity to earn wages and to get a pay rise by improving on his attendance. That did not happen, and most of the times, he had to be picked from home.

6] Under cross examination Mr. Chand said there was no written termination letter as KC was not terminated, he was just not coming to work and that the Labour Inspector found out that he was absent for 45 days. Mr. Chand reconfirmed that KC used to borrow money from the boss and the rest of the workers and that he KC used to be found drinking at Nausori Club during working hours.

7] Mr. Robin Lal of Koronivia, Nausori Production Manager told the Tribunal that KC was not terminated but he was absent for most of the time. Mr. Lal related to the Tribunal that a Committee comprising of the Manager, Foreman and him sat down together with KC to discuss his problems like being frequently absent and drinking during working hours at Nausori Club. He continued that relationship with KC was good and his work was highly valued by DJ.

8] Under cross examination Mr. Lal confirmed that the joint meeting was not set up to terminate KC, that he has not been terminated, that he is still working and that DJ should be paying him.

9] Mr. Sevuloni Laqekoro, labourer of Naqeledamu told the Tribunal that he is a church worker and that he had worked with KC for about 3 years. Mr. Laqekoro stated that he used to advise KC that a son cannot beat the father and he should keep in mind that the company always helped him in time of his needs. Mr. Laqekoro advised him that many people were looking for jobs and since he has a good job with the company he should try to keep it by coming to work every day and cutting down on sick leave and other excuses like going to the Fiji National Provident Fund and so on.

10] KC is from Buiduna which is very near the workplace in Manoca but now he is living in Valelevu. He told the Tribunal that he had been a polisher for 23 years with DJ and that on 6 August 2010 he had come back from sick leave when RP swore at him and chased him from the work place without giving a letter outlying the reasons of his termination and outstanding pay.

11] Under cross examination KC told the Tribunal that on the day of termination, he was bringing his sick sheet to the manager when he was terminated. No wages or leave was paid and that was the reason why he went to the Labour Department.

Analysis and Conclusion

12] All the evidence points to KC as a skilled polisher but with a poor rate of attendance at work. He did not want to defend himself but alleged that the chemicals used in polishing were spoiling his eyesight. RP in his evidence had mentioned that the in house committee would meet to decide on any termination and that it did not decide to terminate KC.

13] From the evidence it is apparent that KC was not terminated by RP, as in September 2010 he had gone back to RP asking for a further loan but was refused, and that was when he stopped coming to work and he did not give any resignation as he joined Starest Furniture. From the employer's submission, KC has now joined Flour Mills of Fiji.

14] KC cannot claim unfair dismissal as it was apparent from the evidence that he was not terminated. Maybe, he could try constructive dismissal, but evidence would show that it was KC who was making the situation unbearable for DJ, not the other way round.

15] KC was not engaged on a written contract and that could be the reason for his wayward behavior. What was needed at the relevant time needed was a system of process management where he should be assessed for a certain period and given a warning, and if he could not improve performance termination would follow.

The New Zealand Employment Court decision in Morris v Christchurch International Airport Limited [2004] NZEmpC 58; [2004] 1 ERNZ 336 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.

16] From the evidence KC would be a perfect candidate for such a process if there was a written contract in place, and if KC was explained what was needed, definitely he would improve. Since there was no written contract the Tribunal will give KC the benefit of doubt notwithstanding the fact that DJ had not complied with the relevant provisions of the Employment Relations Promulgation 2007 (ERP).

17] In view of the above reasons, the Tribunal has determined that KC was unfairly and unjustifiably terminated and in accordance with section 230 of the ERP makes the following decision.

Decision

i] In accordance with section 230 (1) (b) KC to be reimbursed 3 months' lost salary as a result of the grievance;

ii] In compliance with section 230 (2) (a) the Tribunal considered the extent to which KC's actions contributed to the employment grievance and therefore reduced the 3 months by one month; and

iii] Therefore, in accordance with section 230 (2) (b) Orders that DJ reimburse 2 months' lost salary to KC within 28 days from the date of this decision.

DATED at Suva this 16th day of September, 2011

Sainivalati Kuruduadua
Chief Tribunal