Kumar v Nausori Club [2011] FJET 17; ERT Grievance 96.2011 (17 November 2011)

IN THE EMPLOYMENT
TRIBUNAL AT SUVA

ERT Grievance No. 96 of 2011

BETWEEN:

MR. DEO KUMAR
GRIEVOR

AND:

NAUSORI CLUB
EMPLOYER

Appearances:
Mr. Tomasi Tokalauvere for the Griever
No appearance for the Employer

DEFAULT JUDGEMENT

Background and Evidence

1] This matter was set down for hearing on 3 October 2011 and the Secretary /Manager of the Nausori Club was present on 19 August 2011 during mention when the hearing date was fixed. Due to the high number of cases before the Tribunal, it had to re-arrange its schedule to accommodate that hearing and that was the reason why it was set down for 2. 15 pm.

2] On 3 October at the time of the hearing Mr. Tomasi Tokalauvere was present for the grievor whilst there was no appearance for Nausori Club. That being the case Mr. Tomasi Tokalauvere asked for a default judgment.

3] The Tribunal considered the request and since both sides have made initial written submissions, agreed to hear the evidence of the grievor.

4] The grievor agreed that he commenced working for the employer as the Secretary/ Manager from 2 August 2010 until 27 September 2010 when he was terminated with effect from 30 September 2010.

5] The grievor got his job through a normal application when the post of "Secretary/ Manager" was advertised in the Fiji Times and he was terminated when his performance was rated as below par.

6] In his submission, the grievor outlined that he was President Finance Committee of Nausori Club in 2002 and 2003 and during that period managed to save $32,000 and that he also acted as President in the absence of the incumbent.

Analysis and Conclusion

7] In the absence of any evidence to the contrary the Tribunal says that the grievor is a current financial member of the Nausori Club. The Tribunal will also hold that the grievor was employed for a total of 59 days and without a written employment contract which is a breach of the Employment Relations Promulgation 2007 (ERP). Since there was no written employment contract, it would follow that there was no grievance procedure and this is another breach of the law.

8] At this juncture, the Tribunal reminds this employer of the need to comply with existing labour laws as it does not want to have another case similar to this one brought before it.

9] Looking through the submission, the Tribunal cannot see the appointment letter and it is sad that the grievor regarded the circular dated 2 August 2010 as his appointment letter. That circular was prominently for the information of the members that Mr. Jitendra Bhan was leaving the Club and that he had asked management to look for a replacement to be provided training and the handing over of all responsibilities. At the bottom of that circular was the portion titled "Appointment Manager/Club Secretary; this was the part that stipulated the appointment of the grievor with effect from 2 August 2010.

10] The Tribunal is raising the appointment issue to establish a connection with the termination letter which says the following:

Dear Deo,

Nausori Club Management was happy to appoint you as a Club Secretary /Manager on 3 months' probation period.

During this period your performance was reviewed by the Executive Management and sadly to say that your performance was rated below par.

In view of the above we regret that your service will finish by end of this month and meantime you are required to hand over all Secretarial duties to Mr. Jitendra Bhan our former Club Manager.

Mr. Bhan will call in on Tuesday for proper hand over.

The Club wishes to thank you for your probation service for the last eight weeks.

All the best

(The letter was signed by the Club President – Mr. Ambika Nand)

11] Since an appointment letter cannot be sighted, the Tribunal will assume that the appointment was verbal apart from the 2 August circular bit. If the grievor was appointed for 3 months on probation, surely he could not be terminated for any period less than 3 months from the date of appointment, on anything that is less than gross misconduct. If the Nausori Club with all its good intentions wanted to try the grievor out for 3 months, the Club must inform him in writing, for any person's labour is not expendable, it is a sacred commodity and that is the reason why there are so many laws and international Conventions for the protection of workers.

12] This grievor did not commit any gross misconduct to justify summary dismissal. He was terminated because his performance was below par. That being the case the Tribunal equates this case with 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.

13] Similarly, the Tribunal finds that the grievor's termination was unjustified. The Tribunal will not discuss the absence of a written contract and the need for a grievance procedure as it has already reminded this employer of the need to comply with the law.

14] There is also the issue of compensation under Section 230 (1) (c) (i) for humiliation, loss of dignity and injury to the feelings of the grievor. He has some standing in the Nausori community, being an ex – police officer and also was once acting President of the Club. The amount of compensation will be determined when the whole issue of termination is considered.

15] The grievor is claiming a total of $38,000 in compensation and loss of wages and that is one of the reasons why the Tribunal asked to hear the evidence of the grievor. Secondly, in Mahesh Chand & Ravindra Chand – v – Carpenters Fiji Ltd (1995) 41 FLR 155 Fatiaki J, ruled that except for rules regarding default judgement, quite plainly even where a defendant fails to appear at the hearing of his case the resident magistrate must still hear the plaintiff's evidence before entering default judgment..

16] From the evidence the Tribunal makes the determination that the grievor Mr. Deo Kumar has a grievance in that his termination was unjustified and the following is the default judgment.

Default Judgement

(i) One month's wages, being the balance from his 3 months' probation period;

(ii) A further 3 months' wages, as compensation for humiliation, loss of dignity and injury to the feelings of Mr. Deo Kumar; and

(iii) The total of 4 months' wages to be paid within 28 days from the date of this decision.

DATED at Suva this 17th day of November, 2011

Sainivalati Kuruduadua
Chief Tribunal