Rayawa v Duavata Taxis [2011] FJET 2; ERT Grievance 55.2011 (24 October 2011)

IN THE EMPLOYMENT TRIBUNAL

AT SUVA

ERT Grievance No. 55 of 2011

BETWEEN:

ELENI WATI RAYAWA
The Grevior

AND:

DUAVATA TAXIS
The Employer

Appearances:
Ms. Malani as Labour Officer for the Grevior
Mr. Henry Rabuku for the Employer

DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL

1.0 Employment Relations Dispute

1.1 Background to the Grievance

As I understand this matter was registered with Ministry of Labour on 8th December 2010 as a complaint and thereafter referred to the Mediation Unit on 18 January 2011 as a grievance as stated in Form ER1 where it reads "Details of employment grievance (the problem) – Please explain what caused your problem: the answer by the Grevior is stated as: "I Eleni Wati Raiyawa would like to state that I was employed by Duavata Taxis as an Operator (Telephone) and my start time was on the 24th September 1998 until the 19th of September 2010. I was terminated on the grounds that the company is saying that I do not follow the company procedure. I can say that I was following all the procedure I know but do not understand why the company is saying otherwise. I know that I have been unfairly terminated and I therefore kindly request the Mediation Unit to assist me in my case and I request that I be reinstated or any other appropriate relief."

Clearly mediation was attempted on 18th February 2011 but was not successful as pertained in the Form ER4 forwarded to the Tribunal dated 22nd February 2011. The mediator referred the grievance to the ERT in accordance with s194 (5) of ERP outlining the nature of unsettled employment grievance as and I quote:-

1. The decision by management to terminate the services of the grevior which she claimed was unjustified and unfair.
   

2.0 Cause before the ERT

In the Employment Relations Tribunal (or "the ERT"), the Dispute was listed for Mention on 30 March 2011 and thereafter on 19th April 2011 the parties were directed to file preliminary submissions by the Chief Tribunal, Mr Sainivalati Kuruduadua whereby the Employer filed its Preliminary Written Submissions on 26th May 2011and Grevior filed her Preliminary Written Submissions by 16th June 2009. Employer also filed response to grevior's preliminary submission on 30th June 2011.

Hearing was fixed for 4th August 2011 which commenced and completed on the same day. The parties also submitted their respective closing oral submissions on the day. The parties were given further 14 days as a liberty to file closing written submissions by no later than, 18th August 2011; however, only employer filed their closing submissions.

3.0 Issue(s) before the ERT

When the Hearing commenced, the employer's counsel put forward to the ERT in his opening statement that the only issue before the ERT is whether the termination was lawful and justified under the Employment Relations Promulgation 2007 (or "the ERP"). Since he stated that the grevior was aggrieved with the fact that she was not given notice at the time of her termination, Mr Rabuku attempted to outline his defence under sections 33 (1) & (2) of the ERP and stated that s33 of the ERP provided certain grounds upon which an employer can terminate an employee without notice. As also contained in the preliminary submissions of the employer dated and filed on 26th May 2011, the employer appears to be relying on the entire section 33 (1) & (2) which states:-

Section 31(1) No employer may dismiss a worker without notice except in the following circumstance:-

(a) Where the worker is guilty of gross misconduct;

(b) For willful disobedience to lawful order given by the employer;

(c) For lack of skill or qualification which the worker expressly or by implication warrants to possess;

(d) For habitual or substantial neglect of the worker's duties; or

(e) For continual or habitual absence from work without the permission of the employer and without other reasonable excuse.

Section 31(2) The employer must provide the worker with reasons in writing for the summary dismissal at the time he or she is dismissed.

I have noted that initially the employer was relying on all five grounds to justify summary dismissal as per their Preliminary Submissions dated and filed on 26th May 201, however during the hearing this was narrowed down to the employer specifically alluding to grounds (a) and (b) although in the closing submission of the employer dated 18th August 2011, they have also relied on section 33(1)(d) of the ERP.

The counsel for the employer also disclosed to the Tribunal that when the complaint was raised with the Ministry of Labour by the grevior, the issue that was mediated and settled therein was in regards to the grevior's leave pay of about $1, 344.00 which the employer had duly complied and paid the grevior. However, the only issue before the ERT on the basis of unfair dismissal is where the grevior is also claiming compensation in lieu of her unfair termination without notice. Mr Rabuku stated that employer remained firm on their decision that the termination was justified and that the grevior had received all her dues which was paid off by the employer during the mediation session which may have been in contention at the time of the termination.

Clearly for this ERT, based on the broad terms of reference from the Mediator, it points to one key issue – whether the summary dismissal without notice is justified in the circumstance and should the grevior be compensated for any alleged injustice done to her in the manner she was terminated?

4.0 Preliminary Remark

In the case of Fiji Bank Sector Employees Union v Australia and New Zealand Banking Group; ERT Appeal Case No. 01 of 2009 (ANZ case), Wati J noted that:

"The Tribunal is not limited in its jurisdiction to determine the legality of the termination of employment but also to consider the termination was just".

Ladyship Wati went onto further state that:

Section 230(2) of the ERP empowers the Tribunal to hear cases involving unfair and unjustified dismissals and that the definition of employment grievance and the employment grievance remedies provisions outlined in s230 of the ERP 2007 indicates the clear legislative intention that dismissed workers who do not have an ongoing contract of service can seek redress through an employment grievance procedure". (my emphasis)

This mater was reported as an employment grievance by the grevior and I shall later in the determination explain that the grveior did not have a contract of service or any established grievance procedures for almost twelve years of service she gave to the employer.

Section 4 of ERP 2007 defines "employment grievance" to mean – "a grievance that a worker, may have against the worker's employer or former employer because the worker claims that-

(a) The worker has been dismissed;

(b) The worker's employment or one or more conditions of it, is or are affected to the worker's disadvantage by some unjustifiable action of the employer;

(c) The worker has been discriminated within the terms of Part 9;

(d) The worker has been sexually harassed in the worker's employment within the terms of section 76; or

(e) The worker has been subject to duress in the worker's employment in relation to membership or non-membership of a union".

The ANZ case notes that there is requirement of two elements to be established if there is employment grievance – first, that the worker has a grievance against a present or former employer [which the grevior in this instance does have against her former employer], and second, that the grievance must relate to one of the five circumstances listed above including that the worker has been dismissed, and in this case, there is no contention that the grevior has been dismissed and is now without any employment.

"Dismissal" is defined in section 4 of the ERP to mean termination of employment by an employer including dismissal under s33 of the ERP (dismissal without notice).

To the ERT neither this definition nor s33 of the ERP at any point denies the worker his/her right to seek redress before the ERT which comes in the form of a "grievance" on the issue of whether their dismissal was justified or not which can only be done if the ERT is given the liberty to consider both issues of substantive and procedural justification for termination.

In addition, any employment grievance before the ERT must be considered and read in line with Schedule 4 of the ERP which lays down the standard grievance procedure and which expressly refers to dismissal, where under section 7 – if the worker is dismissed or not satisfied with the employer's written response, he/she can seek Mediation services which clearly shows that ERP at all times views with importance and accords the terminated worker's unfettered right to be heard.

Further, section 33 of the ERP also does not expressly state that here procedures invoked for termination is not required but instead you find that it imposes under section 33(2) of the ERP a mandatory statutory requirement on the employer to provide reasons for the dismissal and it can be only be achieved if arriving at a decision to terminate is accorded due process of fair investigation, reasoning and consideration on facts and evidence of the alleged wrongdoing. The termination without notice means that in extreme cases where the section 33(1) (a)-(e) grounds for dismissal suffices, at the time termination is considered, conventional practice of notice is not required. It does not, however state that arriving at a decision to terminate does not require that the employer should not or cannot use a fair and just reasoning process for termination. This would completely negate the "good faith" principle upon which ERP 2007 is modeled.

It is then this Tribunal's view that decision-making process cannot be based on one-sided facts, evidence and opinion where careful deduction of reasoning is not considered and that it can only be possible if the grevior is given a decent chance to put her side of the story.

The leading case of NZ Food Processing etc IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35 requires that a fair process must be followed in investigating employees misconduct where there are three hoops the employer must jump when investigating alleged misconduct:-

1. Notice should be given to the employee of the specific allegation and of the likely consequence if it is established;
   
2. The employee should have a real opportunity to attempt to refute the allegation or to explain or mitigate their conduct; and
   
3. The employer should give an unbiased consideration of the employee's explanation (avoiding predetermination) (my emphasis)
   

Thus the remarked distinction of s33of the ERP is to terminate "without notice" as opposed to the most general and common way of terminating and that is with notice. I do not see that the provision makes a distinction on the procedure for termination as I am not convinced on the premise of good faith that must exist between the parties throughout the employment relationship (and this is the very foundation and spirit of the ERP) and indeed based on the principles of natural justice that where notice is not required, the employee or the grevior does not still deserve to be discharged from her service with dignity.

Therefore for the benefit of both parties, this Tribunal considers where any form of employment grievances are concerned, both the issues of substantive and procedural termination needs to be examined to ascertain that natural justice was accorded to the grvior at the time she was terminated.

Even where there maybe justified (substantive) reason(s) for summary dismissal, the way the termination is accorded to the grevior depends on how the employer has set down the rules of the employment in the normal course of service through a contract of employment. As a general rule, the employer must have in place a proper grievance procedure where the employees are able to turn to when the need arises.

Summary dismissal is viewed as the last resort, after obviously the employer has exhausted in the past or before proceeding to summary dismissal all possible ways of counseling, mentoring, training and indeed taking lighter disciplinary actions against the grevior before he/she is given the on-spot termination, but for only in respect to five stated grounds under section 33 (1) of ERP.

The employer may even be entitled to terminate for first offence in most extreme cases but Section 33 of ERP places surmountable task on the employer to come before the ERT with more than a letter of termination but with evidence that the grevior's conduct or alleged offence was so "gross" as a misconduct that they had to consider terminating her services without considering any other penalty and without giving notice but, after according grievance procedure that an employee would be normally entitled to in terms of her right to be heard. A fair process for investigation and decision-making should suffice.

Naturally, the alleged misconduct has to be so "gross" in respect to other offences she/he may have committed in the past. If it is a one-off incident then obviously the employer has even a bigger task to prove that this particular offence being so "gross" or so serious in nature, such as that it posed danger to the employer or the business that it had to be actioned through an instant termination rather than to allow the employee to continue in service with a lesser penalty where she has worked for more than a decade.

The question then is whether sleeping while on duty is "gross" enough to suffice under section 33(1) (a).

Without doubt it assists the ERT when greviors are lodging complaints or grievance, they are able to provide adequate details as to why and how they perceive or regard their termination to be "unfair; "wrong"; and unjust", while the employer should appreciate the gravity of their action that has caused a worker to lose his/her job with an instant effect, thus impacting a person's livelihood adversely, in the short and long-term.

This is the primary reason why the employer has the onus to prove that they had valid and genuine reason(s) for termination (substantive reasons), that is, the allegations of any misconduct must amount to alleged "gross misconduct" [as the employer is relying on section 33(1)(a) of the ERP] that would justify the employer regarding the employment relationship (express or implied) and/or any existing contract as being discharged without notice. Accordingly, the employer has the additional burden to demonstrate to the Tribunal as to whether the termination was just and fair in the way it was accorded to the member. That is, whether due process was accorded and whether it was a fair and mutually accepted process as per any agreement between the parties.

5.0 Employer's Evidence

5.1 Summary of Evidence - Employer's Witness One - Mr Osea Roqica Moce

The employer put on stand their first witness, Mr Osea Roqica Moce, the President of Duavata Taxis (also called "DT"). His evidence is summarized as follows:-

1. He stated that he was a founding board member of DT since it started in 1983. He became a full board member of DT from 2006 and thereafter he has been acting in the capacity of the President of DT since 2010 to date.
   
2. During his time as the President of DT, a series of by-laws for taxi operation was created by the employer based on board meetings held on 2nd April; 4th May; and 8th May 2010 respectively.
   

100. Tendering in as evidence the By-laws, he stated that these were made and put in place by the Board in 2010 for the running of the Duavata Taxi base, where operators are required to work at the base and drivers are required to drive taxis for the customer needs. He stated that the focus is on customer service where the board of directors are mostly absent from the scene and the operators are at the base at all times to look after the business, morning and evening.
     

4. He has known the grevior as an operator before she was terminated who is the wife of a deceased pioneer member of DT, where she has been working as a telephone/radio operator for the company. He stated that the grevior's cores functions, responsibilities and duties as an operator was to attend to customer service which, essentially required her to answer radio telephone and send taxi drivers to collect passengers as required on the phone by the customers. He stated that the base operated within a 24 hour service on daily basis and that there were 3 operators working at different shifts between 7-8hrs per shift.
   
5. Through his evidence, he tendered in Exhibit marked as "No.1" (of 6 pages) that contained the following:-
   
   • Nos. 1-10- By-Laws – at Pg 1
   • Nos. 1-10 - Operators Duties – at Pg 2
   • Nos. 1-11 - Job Description of Taxi Drivers – at pg 3
   • Nos. 1-11 – Taxi Driver's Duties – at pg 5
   • Nos. 1-22 – Taxi Driver's Conduct and Duties – When Drivers, You must... - at pg 6
     
6. He further tendered in Exhibit marked as "No. 2"; which are:
   
   • A letter of complaint by Malesh Kumar against the grevior dated 6th September 2010– at pg 1
   • Agenda of Board meeting dated 13/09/2010 – at pg 2
   • Minutes of Board meeting – at pg 3
     
7. He also tendered Exhibit marked as "No. 3" – which is the Board Minutes dated 11/08/2010 and Exhibit marked as "No. 4" which is a letter of termination of employment of Eleni Wati Raiyawa dated 17/09/2010.
   

5.2 Summary of Evidence - Employer's Witness Two - Mr Malesh Kumar

In Kumar's evidence it was confirmed that he had written a letter of complaint against the grevior on 6th September 2011, the contents of which are as follows:-

"Dear Sir

I am writing this letter with great concern about the attitude commitment given by the operators concerning their work. There are many issues to be dealt with but at the moment I will just write about the latest issue which happened on Friday night the 3rd of September, 2010 when Wati was on shift.

It was a busy night and after 2am I was the only one operating who has the RT. I have been coming from far distances to pick up jobs that had been dished out by Wati on RT but after 4.15am I had not received any call on RT. So, after a while I called and asked Wati isn't there any calls coming in. She replied there is no call. I felt that there was something wrong. I came to the base Wati was fast asleep. I checked on the phone the volume was turned very low. I called on the phone it was ringing very low and still Wati could not wake up. So, I went out to pick up job on the road sides. I came back at 6.10am. Ereni was sitting outside and at the same time the phone was ringing and still Wati could not wake up. Ereni called heron her for a few times to wake her up. The phone went off and then another call came in. I banged on the wall and then she woke up. I think there has been too many warning letters has been given to them. So, I think now some actions has to be taken because we are losing our customers due to this kind of attitude by our operators. I hope you will give a deep concentration on this matter. Thank you."

5.2 Summary of Evidence - Employer's Witness Three – Ms Ereni Draunidalo

1. Ms Darunidalo gave evidence that she is still working for Duavata Taxi as an operator since April 2004.
   
2. She was the operator who was supposed to relieve the grevior from her night shift on 4th September 2010. Her shift started from 6.00am and according to her testimony, this is when she found the grevior asleep when she came to start her morning shift.
   

6.0 Grevior's evidence

1. The grevior is a widow with six children who are fully dependent on her.
   
2. She is currently unemployed. She has worked for DT since 1998 for almost 12 years until she received her termination letter dated 17th September 2010 effective from 20th September 2010.
   

100. She stated that while working as a taxi operator she was aware of the By-laws which was pasted on the notice board inside the office (on the wall) where she was required to follow conduct or roles for operators. Here she was referring to the operators duties pasted on the wall.
     

4. She confirmed that she did not receive any verbal warnings from the Board of Directors. She also stated that she did not receive any written warnings either. She stated that one of the members of DT Board, Mr. Joseph Mow handed her the termination letter at the time she was working on the Sunday morning at around 11.00am which I presume has to be 19th September 2010 based on her evidence. Here, she waited to complete her shift up-til 2.00pm and left for home with her letter of termination. She confirmed that she only received the termination letter and was told that she has been terminated without any pre-warning or grievance process to defend herself.
   
5. In cross-examination when questioned by the counsel for the employer whether she was sleeping on her night shift on 3rd September 2010, she said "I was not really sleeping I was just closing my eyes ...".
   

7.0 Applying the Law and Evidence

7.1 In closing oral submissions, the counsel for the employer again reiterated that the employer was relying entirely on section 33 of the ERP to justify that that summary dismissal of the grevior was fair and that the grevior's application before the ERT had no reasonable grounds for relief.

7.2 Mr Rabuku stated that summary dismissal under the law does not warrant a grievances process or disciplinary procedure to be activated and that this dismissal of the grveior was without notice. He specifically quoted sections 33 (1) (a) – "guilty of gross misconduct" and s33(1)(b) – "for willful disobedience of lawful order" and further stated that there was no need for any procedure at all, just a letter and reasons to state why the grevior was terminated as was required under s33(2).

7.3 Suffice to note, Mr Rabuku did not support his legal arguments with any case-laws and is entirely basing his defence on the statute (ERP).

7.4 The grevior's representative in response to employer's closing submissions stated that:

"Eleni Wati Raya a widow of six children, working for Duavata Taxis for past 12 years. Her commitment, her loyalty to the company and serving the customers to the best of her abilities. ...what her contention before the court is that she has never been given any verbal warning and no written warning for that matter and for one incident where she is found sleeping and how it amounts to misconduct which we do not agree, falling off to sleep or dozing off to sleep for few minutes or so. It does not amount to gross misconduct. Dauvata Taxi have not followed the proper procedures in dealing with that matter at hand they have unfairly treated Ms Eleni Raya and they have denied her the right to voice her opinion or voice her concerns ..."

7.5 As I have noted in my preliminary remark, the employer's right to dismiss summarily depends upon a breach by the employee of the express or implied terms of her contract as a contract of service imposes upon the parties a duty of mutual respect [as per William –v- Racher (1974) ICR 428]. Any such agreement was not presented to the ERT as the evidence illustrated there is no contract of service between the parties which leaves the Tribunal to impose minimum requirements under the statute (ERP 2007).

7.6 Whilst the employer is entirely relying on section 33 of the ERP, I cannot help but note that there is absolutely no mention in the letter of termination dated 17th September 2010 that the employer is invoking section 33 of the ERP or has stated the specific grounds of termination [from (a) to (e)] that would be applicable to the grevior.

7.7 For that reason, even if sections 33(1) (a) and (b) is the defence or legal basis for the employer to justify and action any summary dismissal against the grevior, it cannot be ignored that the employer has not identified and made known to the grevior what the real allegations are for purposes of qualifying under section 33(1) of the ERP. If the actual grounds for termination are not clearly put to the grveior how would she be reasonably expected to appreciate any allegation put to her in terms of purported breach of any implied employment relationship between the parties in the absence of a contract of service. It is then no wonder she is confused as to which by-laws and its procedures she has breached as stated in her termination letter.

7.8 The test for justification which applies to claims of unjustifiable dismissal (see: Stapp v The Shaftesbury Society [1982] I.R.L.R. 326) is that:-

"...the question of whether a dismissal or 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...".

7.9 Let me examine Section 33(1)(a) of the ERP which retains the common law right of the employer to summarily dismiss an employee for gross misconduct which falls within one of the five circumstances listed in that section.

7.1 "Gross Misconduct" is not be defined by the ERP and in fact defining gross misconduct is difficult – a good yardstick is whether the conduct fatally undermines the relationship of trust and confidence that exists between the employer and employee. Normally the alleged misconduct must amount to a serious improper conduct that the employer may have laid out in the employment contract or indeed any Code of Conduct (or by-laws) that would be deemed "gross", and that would ultimately justify the employer regarding the employment relationship or contract, express or implied as being discharged.

7.2 As Scott J noted, with the approval of the Fiji Court of Appeal:-

" - - - the section did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 (of the then Employment Act Cap 92) was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (b) applied. [See Fiji Public Service Association and Satish Kumar –v- the Arbitration Tribunal and FTIB (unreported Civil Appeal No 13 of 1999 delivered 19 February 2002 at page 10) and also Awards 38 of 1999 and 4 of 2000].

Taking queue from this, the new statute (ERP) clearly gives the employer limited right to summarily dismiss, except in the categories stated in s 33 (1) (a) – (d). Having said this, the employer should not forget that a worker still retains his/her unfettered right to be heard at all times, and must be given the opportunity to offer rebuttal against any allegations at all cost. Just because a worker is summarily dismissed does not mean he or she does not deserve natural justice with full disclosure to the reasons and charges facing them for purposes of any summary dismissal. In fact section 33(2) of ERP provides a mandatory obligation on the employer to submit to the worker reasons in writing for their summary dismissal.

7.3 Was this done as asserted by the employer? The ERT is of the view that the grevior was not adequately provided the real reason for her termination which was categorically put forward to the Tribunal in terms of the grevior "sleeping on duty" when she was attending to her night duty as a telephone operator as per a complaint by a taxi driver to the DT board.

7.4 The reason she was provided in the letter of termination is as follows:-

"...It has come to our knowledge that you are ignorant towards the company's by-laws. You have been warned before hand by verbally and by letter still there was no sign of improvement towards your work commitments and also that you have no respect towards the board of directors..."

7.5 Clearly there is no mention of the alleged offence or complaint by Mr. Kumar, the taxi driver who apparently caught her sleeping during her night shift. This is the serious "gross misconduct" upon which the employer is relying to invoke section 33 (1) (a).

7.6 Why did the employer not specifically state in the letter of termination that the grevior was sleeping on duty and instead spoke of the breach of said By-laws, has not been explained to the grevior or the ERT. If the employer believed that the reason stated in the letter of termination qualified under any grounds of s33(1) of the ERP [say, either s33(1)(a) or (b)], it must still explain this to the grevior in terms of which specific ground applied and which clause in relation to the by-laws was breached. I shall explain in the later part of the decision that the said by-laws has no relevance to the operator's roles and duties and or indeed it sets out any basis to judge an employee's conduct, therefore the reasoning given to the grevior is inadequate and improper for purposes of section33(2).

7.7 In the case of Stapp v The Shaftesbury Society [1982] I.R.L.R 326 it was noted that "although every case turns upon its own facts, a single act is less likely to justify summary dismissal that a series of action; the quality of the breach is what counts, not the consequences flowing from it, and the more serious the breach more likely it will be held to justify summary dismissal"

7.8 If we were to apply this authority, is it possible the employer not only failed to satisfactorily fulfill its obligations under section 33 of the ERP but also used only one incident to regard it so gross as a misconduct as stated by the grevior's representative to invoke summary dismissal.

7.9 Let me begin by analyzing Mr. Moce's evidence presented by the employer. The following is observed:-

Analysis of Mr. Moce's Evidence

1. Mr Moce's evidence clearly indicates that the Board had received the letter dated 6th September 2010, which in essence is a letter of complaint against the grevior by a taxi driver known as Malesh Kumar. In that letter, Mr Kumar had alleged that "...I am writing this letter with great concern about the attitude and commitment given by the operators concerning the work. ...Wati was fast asleep I checked on the phone the volume was turned very low..."
   
2. According to Mr Moce, the Board had tabled this as an item on the Agenda dated 13th September 2010 for discussion (as per Exhibit No. 2) and thereafter took disciplinary action based on board decision to eventually terminate the grevior on 17th September 2010, effective from 20th September 2010.
   
3. At this juncture, I wish to briefly mention that when Mr. Moce was probed by Mr Rabuku as to whether the main reason for termination ensued from any non-payment of FNPF dues to the grevior as stated in the grevior's preliminary submission, Mr Moce confirmed that it had nothing to do with the grevior's termination as they purely based their decision on the formal letter of complaint by Mr Malesh Kumar. I am not sure what the relevance of this issue was or why the grevior alleged this in her preliminary submission but since the Ms Malani did not purse this issue at all in her cross-examination, I do not wish to expand any further.
   
4. For the purposes of this grievance, Mr Moce had very clearly stated that the letter of complaint dated 6th September 2010 was their only foundation or the main reason for termination which was agreed by all board members (at page 34 of the transcript).
   
5. Turning to the evidence relating to how DT Board attempted to consider the letter of complaint against the grevior, all I can say is that it does not really assist the employer's position in proving justification of the grevior's termination. Clearly much of the evidence centered on certain Board meetings held by DT where the counsel for the employer tried to gel in the nexus between the summary dismissal of the grevior with the fact that her allegations and ensuing actions of the employer was discussed at the Board level. To the ERT, unless the grevior was summoned at the Board level to attend to any allegations apportioned against her with a possibility of facing disciplinary action or for that matter termination of service, it is a moot point whether any anticipated disciplinary measure or penalty discussed therein impacts on the justification of substantive and procedural termination in the absence of the grevior.
   
6. No evidence was shown that the grevior was called before the Board or that the alleged misconduct or possibility of termination was put to her and discussed in her presence in the Board meetings. Therefore such evidence is of no significance when proving justification (or valid reason) for termination unless the grevior was also part of the process.
   
7. Even if I was to take into consideration evidence of Mr Moce that the members discussed the grevior or any allegations against her at the Board level, I do not see the link with the employer's justification for summarily dismissal and grevior's right to be heard vis-a-viz the grevior been given a fair chance to argue her defence against the allegations. Simply put, the grevior was not given a chance to understand the allegations, mitigate penalties or disciplinary action considered by the employer because it is employer's defence that due process is not to be activated under section 33 of the ERP. Discussion as to the letter of complaint and actions considered by the employer could have occurred in any forum, but keeping the grevior out of this avenue where she could have at least attempted to offer her side of the story, is no basis for the employer to establish that they seriously considered the allegations in respect of it being declared "gross misconduct", even at the board level. As far the ERT is concerned, due process was not available to the grevior and it only proves that natural justice was denied to the grevior.
   
8. The crux of the substantive termination here is that the employer is alleging that the grevior has committed a "gross misconduct" by sleeping on duty or whilst on job. It is then this allegation of "gross misconduct" that is the substantive reason for the employer to terminate the grevior which the employer has not proven that it amounted to a serious improper behaviour with substance and merits and not a mere shortcoming or even a minor offence.
   
9. Undeniably this is the only complaint before this Tribunal as a basis to show any justification for the termination as no employment record was placed before the ERT to indicate that this grevior has had a history of similar offences.
   
10. The employer did attempt to show through the evidence of Mr Moce that there were similar past incidents, but no actual evidence was tendered to prove records were kept by the employer or for that matter, formal warnings either in the form of verbal or written warnings ever existed. It is only Mr Moce's words before the ERT and I cannot accept this without any documentation to back up employer's assertions. This is because employers must understand that they have the burden of proof when an employee is made jobless, particularly when they are terminated with immediate effect which has larger than the normal impact when notice is provided. Here, the livelihood is instantly affected and to face family in that position, not knowing your future is not an easy task for any terminated worker and even more difficult time for the family who depend on the only income earner for basic needs and survival.
    
11. Therefore, the employers must ensure that they safeguard their position with at least proper record keeping if they are going to use past track record to justify their action to terminate a worker on-spot as pertained in the letter of termination of the grevior.
    
12. It would be useful for the employer to note that the recent decision of the English Court of Appeal in Airbus UK Ltd v Webb [2008] EWCA Civ 49 clarifies the position that an expired warning can be taken into account when deciding to dismiss the worker but the Tribunal has to consider whether employer has acted reasonably or unreasonably. Here there is no records kept and no evidence whatsoever whether same type of warning was really issued to the employee and the time this incident took place. Therefore I cannot accept the evidence of Mr Moce as employer cannot rely on an expired warning that has not been presented before the ERT.
    
13. Further, the grevior had worked for DT for almost 12 years since September 1998 and she had no contract of service or proper guidelines as to what she was expected to do until the Board established the said "By-laws" sometime between April – May 2010 and she was terminated in September 2010. To begin with, there are no records of her past employment and then within four months of the by-laws coming into effect, without proper counseling or training she was sent home – no evidence was given whether she was counseled and trained regarding the said "By-laws" other than it existed by virtue being pasted on the wall which hardly qualifies for any employee truly comprehending its objectives and purpose.
    
14. It does not help the employer's position either when said By-laws appears to be a "general guidelines" that seemingly applies more to the Board members/shareholders and their related roles and functions. As such, it concerns very little with the operator's daily functions except in two instances: when they encounter RT problems, it states how they must act then; and how the operators would be paid (as contained in Nos. 5 & 8 respectively). I therefore, again saw no relevance of this evidence that would have assisted in proving the employer's defence that they had any basis (of justification) in relation to the said "by-laws" to terminate the grevior.
    
15. Evidently the employer was relying on the said By-laws to demonstrate that it was established to sustain business operation, where the grevior played an important and major part in that process. In fact, Mr Moce indicated that at most times the Board members are absent from the daily operation and only the operators are present to look after the running of the business. According to him, the operators are then responsible for whatever happens on daily basis to the business per se. I do not agree with this. The grevior, being a mere telephone operator is not in the position to be held accountable for the day to day running of the business or indeed should be held responsible for any shortcomings in the business operation. I am of the view that such responsibility lied squarely on the shoulders of the Board members.
    
16. To the ERT, this should not allow the employer to relieve itself from its own responsibility who has the power to hire and terminate its employees and so they must be accountable to the business operation, not the operators where any such by-laws would be applicable. And to leave the daily operation in the hands of the operator entirely who in this case does not appear to have the required skills or knowledge to run the business in totally unfair.
    
17. The ERT noted that the (telephone) operators played a role in ensuring that customer service was satisfactorily provided and as such, if the employer was able to show that there were complaints or certainly any past record that customers constantly displayed their dissatisfaction with the grevior's performance and conduct, it would have assisted in appreciating that the grevior was unable to perform her duties with utmost care and diligence. As such, the grevior should not be blamed as she did not play a significant role in ensuring the objectives of the By-laws were met except that it gave her some indication what the business was aspiring towards in terms of being successful and sustainable.
    
18. While I agree that any adverse image created by the operator would impact negatively on the employer being in the service industry, in fairness to all, how can her attitude or image be an issue based on one complaint by another fellow taxi driver who was also working for the employer? Thus to use "sleeping on duty" which is one-off incident before the ERT in absence of any proof of past incidents, as a justification to show that it affected the customer service is no defence here.
    
19. There was also no need to tender any evidence as to (taxi) driver's roles, duties or functions. This evidence would have been more pertinent to a taxi driver being a grevior before the ERT and as such bears no significance whether the operators were aware of this information or not as it is not applicable to them. ERT is only concerned with the grevior being an operator, that she knew and understood the duties and responsibilities of the operators. Therefore only Exhibit No.1 at page 2 - operator's duties has relevance to this case.
    
20. Since there was no contract of employment between the parties, the ERT can assume that the only way the grevior really knew what she was required of her duties and responsibilities was reflected in this document.
    
21. "Operator's duties" was drawn up on 15/05/2010 which would be simultaneously put in place when the "by-laws were considered, and hence it would be safe to assume that the grevior had barely few months to understand what was required of her after almost a decade of operating without any proper rules and procedures. What concerns this Tribunal is that there was insufficient time between May to September 2010 when the grevior was terminated to truly comprehend its objectives and adapt to the changes and induct into the new environment. There is no evidence whether training or counseling of any nature was accorded to the grevior if she had a past trend of similar offences.In fact, no evidence was tendered to demonstrate that the disciplinary process was invoked at any time in the past if truly the grevior had a past history.
    
22. I also found that the Board members who played a significant role in discharging the grevior's service in this instance did not at least investigate and present their findings to the grevior rather than relying entirely on one complaint by another taxi driver. This is deemed unilateral termination where it was not accorded in a fair and neutral manner.
    
23. The rest of the evidence by Mr. Noce as to daily operation of DT is not relevant other than alluding to the ERT that the DT's Board members considered the complaint lodged by Mr Kumar which they regarded sleeping while on duty as a gross misconduct and willful disobedience of order of the Board of Directors (as per page 50 of the transcript). The entire evidence of Mr Moce pointed out that the grevior's fate was unilaterally decided based on one incident where it is possible she would have dozed off for at least two hours between 4am to 6am. But not to be given a chance to explain herself when a complaint was received by the DT board before considering a serious penalty such as summary dismissal is harsh and unfair.
    
24. It is ERT's final analysis that albeit a summary dismissal, the employer still has the burden to prove that they had accorded the grevior due process before or at the time of her termination on the principles of "good faith" and "natural justice". This allows any outgoing employee to preserve their dignity and face the loved one who relies on the employee for their livelihood. The grevior is a widow with six children and sole bread winner. If the employer has failed to provide a grievance procedure, then it is expected that she accepted her termination letter and left her workplace without a fuss and thereafter came to Ministry of Labour seeking redress and remedies under the ERP.
    

6.18 Analysis of Mr. Kumar's Evidence

1. Because Mr Kumar gave evidence based on his letter of complaint, here I have attempted to examine the strength of this evidence to conclude whether it gave any valid reason to the employer to invoke s33 of the ERP.
   
2. The evidence before the Tribunal confirmed the overall contents of the letter in terms of the grevior sleeping around 4.15am whilst she was stationed on duty during her night shift on 3rd September 2010. According to this witness when he suspected that the RT was off the hook and maybe the operator was sleeping, he went to check at the base, where he stated that "...the receiver was sitting nicely but Wati was fast asleep..." (at pg 54 of the transcript). He then attempted to call on the phone to wake the grevior up but he said "...the phone only rang". He then went away to pick passengers from the road-side and returned after 6.10am to the base, where he stated that he still found the grevior sleeping so he banged on the wall to wake her up.
   
3. In his cross-examination he was paused the question by the Labour Officer whether he would agree that normal human beings would be sleeping at that particular time and therefore, grevior might have just dozed off to sleep to which he replied "...Dozed off to sleep YES but deep sleep NO...". It appears that he was sure that the grevior was in a deep sleep and had not merely dozed off as maybe expected in a normal circumstance. While the Labour Officer continued to probe him whether he had remembered the exact time as to when the alleged incident had had occurred or that he should agree that 4.15 to 5.00pm is normal for human being to be sleeping at that time, one thing that was clear from the evidence of this witness is that he was very sure that the grevior had fallen asleep whilst on her duty on that particular night for at least 2 hours from somewhere between 4.15pm to 6.10pm.
   

6.19 Analysis of Ms Ereni Draunidalo's Evidence

1. This witness's testimony confirms that the grevior was caught sleeping during her shift when she got at the base at 6.00am.
   

6.20 Summary of Evidence

1. From the above analysis of all three evidence presented by the employer, the employer appears to have one reason for termination, but not a substantive one, which is that the grevior was caught sleeping on duty between sometime 4.00-4.14 am to 6.00-6.10 am.
   
2. I have carefully weighed the evidence against the allegations of "gross misconduct" to consider whether the employer has met the required justification to invoke the harshest of all penalties, being instant or summary dismissal. In other words, I have taken into account whether one incident before the ERT is so gross and/or serious in nature that the section 33 of ERP could be invoked.
   
3. Clearly s33 grants employers a certain amount of leeway but the employer must test the offence in terms of the nature and seriousness of the misconduct and certainly consider all other possible forms of disciplinary action before applying summary dismissal as the last resort. The question is did the employer do this?
   
4. My answer is NO they failed to appreciate what really constitutes "gross misconduct".
   
4. It is my view "misconduct" is a behaviour that an employer deems inappropriate for an employee. It usually relates to an employee's conduct during working hours. There are varying degrees of misconduct, ranging from minor misconduct or serious (gross) misconduct.
   
5. Gross misconduct is conduct on the part of the employee which is so bad that it destroys the employer/employee relations, and merits instant dismissal without notice or pay in lieu of notice (as per the case of Lamb v The Commissioner of Police [2011] NZERA 72]. Misconduct shall be so serious that the employer is entitled to dismiss even for a first offence, as long as the employee knows and understands when this will be applied and in which circumstance. Therefore, the employee shall reasonably expect the severe penalty which should be premised on good faith relationship between the parties and applied within the principles of natural justice. What it means is that it depends in part on the individual workplace, and the test is ---"what is the standard practice in a particular workplace" and how the practice is conveyed to the employees – "Is it contained in a contract of service or any other form such as a handbook".
   
6. In general, employers that want to enforce higher than average standards have to make it clear where the limits lie. The stricter they want to be, the more careful they must be to make sure everyone is aware of the rules.
   
7. The Tribunal would consider a range of factors in deciding whether a dismissal for gross misconduct was reasonable such as:-
   
   • Was the offence gross misconduct – that is, was it serious enough to destroy the contractual relationship?
     
   • Whether correct procedures were used, taking into consideration the law?
     
   • Whether the response of the employee was within a band of response that a reasonable employer would take?
     
   • Whether employer considered alternative sanctions (e.g., demotion or suspension)?
     
   • Whether mitigating factors were taken into account such as the past history of the employee, his or her age, position, length of service and previous warnings?
     
8. Although the statute (ERP 2007) does not spell out the above, Lamb's case and Air New Zealand v Hudson [2006] NZEmpC 46; [2006] ERNZ 415 provide guidance and are good authorities to rely on. This Tribunal is of further view that once an employee has had at least one year's continuous service he/she deserves more protection from being unfairly dismissed and due process becomes even more important where such employees are concerned. And, if there is a potentially a fair reason for dismissing an individual and the employer carries out the dismissal in a fair manner summary dismissal is thus allowed.
   
9. In this instance, the ERT has the task to consider whether the employer spelled out and listed in the said "By-laws or indeed in the "duties of the operators" certain conduct that would be deemed "gross misconduct". That is whether "sleeping on duty or on job" falls within the category of any "misconduct" identified by the employer.
   
10. And at what point could the employer send an employer home without notice if he/she was caught committing that offence listed as a "gross misconduct". Would one offence suffice or should there be a series of offences following the most serious one to attract such severe penalty, being summary dismissal.
    
11. To the ERT, the evidence is crystal clear that the employer did not set down the required parameters or "standard" of the employee in terms of "conduct". How is then an employee required to know what constitutes "gross misconduct" if the employer has not spelled out under which circumstance he/she could be summarily dismissed. Because the employer has failed to clearly outline the limitations of conduct expected of the grevior, it is unfair for the employer to expect that the grevior will assume any conduct of hers will amount to "gross misconduct" where she will most definitely be facing termination without notice.
    
12. Even for argument sake, should this Tribunal discount the employer failing to list the nature of misconduct that would attract summary dismissal, given the type and resources of the taxi business, and not forgetting at least twelve years of continuous service given by the grevior to the employer, it then becomes more imperative to consider whether the grevior was accorded natural justice at the time of her termination. This is where I find grievance or disciplinary process was not invoked and the grevior was not accorded a chance to defend herself and mitigate any decision taken by DT or its Board members.
    
13. Therefore, in all instance, in regards to substantive and procedural termination, I find that the employer has failed to accord natural justice to the grevior.
    
14. I do not find that the employer has adequately proved to this Tribunal that it had justification for "gross misconduct" to summarily terminate the grevior. I also find that the test for summary dismissal is not satisfied in terms of section 33 (1) and section 33(2) as the real reason for termination is not given to the grevior where she was at crossroad not understanding what the employer implied when they stated that she was "...ignorant towards the company by-laws" (paragraph 2 of the letter of termination dated 17/09/10).
    
15. I also accept that the evidence of the employer indicated that the grevior was caught sleeping on job between 4.00am to 6.00am but I do not accept that this window of two hours of sleeping or dozing off to sleep is so serious or even amounted to "gross misconduct" that the grevior deserved to be summarily dismissed.
    

Decision and Orders

Taking into consideration of all circumstances, the Tribunal gives the following decision and orders:-

1. The summary dismissal of the Member was wrong, unjust and unfair.
   
2. The ERT directs that the Employer re-instates the grevior to her position at the time of her termination with effect from the date of this decision.
   
3. The Grevior is also to be paid eight months pay by the Employer in addition to extra 2 months pay for loss of dignity and injury to feeling, while the rest of the months to be treated as leave without pay.
   
4. Given that the grevior is a contributory factor to this grievance, I shall take off two month's pay and therefore in total the employer will pay the grevior eights months pay from date of this decision within 30days.
   
5. Each party will bear their own costs.
   

DATED at Suva this 24th day of October, 2011.

Legal Tribunal