Ledua v Pacific Habour Enterprise Ltd [2012] FJET 29; ERT Grievance 09.2010 (25 January 2012)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA

ERT Grievance No. 09 of 20010

BETWEEN:

KAMELI LEDUA
Grievor

AND:

PACIFIC HABOUR ENTERPRISE LIMITED T/A THE PEARL SOUTH PACIFIC
Employer

Appearances: Mr. Noel Tofinga
(appeared on instruction of National Union of Hospitality Catering & Tourism Industries Employees)
Mr. Kunal Singh for the Employer

DETERMINATION OF THE TRIBUNAL

1.0 Employment Relations Grievance

1.1 Background to the Grievance

1.1.1 This matter was registered as a grievance with the Ministry of Labour on 27th October 2009 as per Form ER1. There was no accompanying statement of the employer would set out the reasons for the dismissal attached to the Form ER1 under s114 of the Employment Relations Promulgation 2007 (or "the ERP").

1.1.2 Mediation was attempted on 30th November 2009 but was not successful as pertained in the Form ER4 forwarded to the Employment Relations Tribunal (or "the ERT").

2.0 Cause Before the ERT

2.1 The mediator referred the grievance to the ERT on 7th December 2009 in accordance with s194(5) of the ERP outlining the nature of unsettled employment grievance with the following terms of reference:-

"The grievance is over the termination of service of Mr Kemeli Ledua, Gas Fitter/Plumber with effect from 23rd October 2009 by his employer, The Pearl South Pacific. The grievor views that the action taken by his employer is unfair and harsh in terms of the Employment Relations Promulgation 2007 and therefore seek reinstatement without loss of pay and/or such other relief as deemed appropriate".

2.2 The matter was first listed for Mention on 9th February 2010. Filing of preliminary submissions was directed by the Hon. Chief Tribunal to both parties whereby the Employer (or "the Respondent) filed their written preliminary submissions on 14th April 2010 and Grievor filed his written preliminary submissions on 8th June 2010.

2.3 On 16th November 2010 the parties alluded the ERT that settlement was considered and that they needed time to facilitate and conclude any possibility of amicable resolution between the parties. Granting time, the ERT adjourned the matter to 8th December 2010 on the basis that if settlement failed, it will proceed to fix a hearing date thereafter.

2.4 Falling any settlement, on 8th December 2010, a hearing date was fixed and set down for 1st June 2011 at 10.30am. This date was vacated on consent by the parties and substituted for 14th September 2011 at 2.15pm.

2.5 On 14th September 2011, the matter was heard whereby the Employer called one witness (Executive Assistant Manager, Ms Natalie Marletta) and the Grievor himself gave evidence to present his version of the grievance.

2.6 After the hearing of the evidence, the ERT directed the employer to file written closing submissions within 21 days which they submitted on 5th October 2011 and thereafter the grievor filed his written closing submissions on 23rd November 2011.

3.0 Issue(s) before the ERT

3.1 The issues arising out of the grievance require this Tribunal to assess whether the suspension and/or ensuing alleged termination of the grievor was justified substantially and procedurally in accordance with the employment relationship that existed through a contract of service and whether this was in compliance with the relevant provisions of the ERP 2007.

3.2 In nutshell, the following main issues will be determined by this Tribunal:-

1. Whether the employer had justification for gross misconduct in substance to invoke suspension and later deem this to be a termination against the Grevior in accordance with the existing employment contract (marked as Exhibit "1");
   
2. Whether the employer accorded procedural fairness when the suspension and/or termination was effected; and
   
3. Whether the grevior was discharged with dignity at the time of his dismissal without any humiliation, in that he was treated fairly and with appropriate respect and dignity [as per the case of Central Manufacturing Company Limited v Yashni Kant [Unreported Fiji Supreme Court Case Number CBV 0010 of 2002 and followed by the Employment Relations Court in the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011].
   

4.0 Analysis of the Facts & Evidence

4.1 The following facts and evidence was established at the hearing:-

4.1.1 Grievor was employed as a Plumber/Gas Fitter from 29th October 2008 until 23rd October 2009. Exhibit 1, which is the letter of offer that was tendered in evidence by the employer's only witness and confirmed by the grevior, proved that there existed an explicit or written terms and conditions of an employment relationship between the employer and the grievor.

4.1.2 The incident relating to the grievance took place on 23rd October 2009 sometime during the night when Ms Marletta saw the grievor helping the bar workers in bringing out liquor and juice bottles to the bar in his maintenance uniform. She proceeded to advice the grievor that it was not "professional work" at the Resort to have a maintenance worker around the bar and that he should leave these tasks to the people in uniform at the bar.

4.1.3 Hereafter Ms Marletta left for her office and whilst she was sitting there with a colleague (a Manager) conducting a meeting, the grievor walked in at around 7.20pm to discuss the incident he had with her in terms of the grievor "helping out" the food and beverage staff. This eventually turned into a conversation where he questioned Ms Marletta whether she had a visa and right to work in Fiji. This later incident was confirmed by the grievor in his evidence where he admitted that he questioned Ms Marletta on her visa and employment status in Fiji.

4.1.4 According to Ms Marletta's evidence she explained the grievor that it was not the hotel policy for the maintenance staff to be in the bar area; it was only reserved for the food and beverage staff to be behind the bar. This is when the grevior appeared to have questioned her as to her "capacity" in pointing these policies of the employer, which he questioned in terms of her right to work and be in Fiji. This essentially led to the employer through the General Manager then, Mr Dean Swaggman having a meeting via a telephone conference call at around 8.10pm (approximately) in the presence of Ms Marletta and the grievor in order to discuss this matter.

4.1.5 Clearly after this conference call the grevior was told by Mr Swaggman to leave the hotel premises immediately where Ms Marletta told Mr Swaggman that she would also have the grievor escorted off the property by a security officer after he had collected his belongings. This was confirmed in evidence by both the witnesses.

4.1.6 Ms Marletta then recorded in writing (as per Exhibit 2) the entire account of the incident that had transpired that night resulting in the grievor being escorted out of the hotel property immediately as well as she typed and signed on behalf of the General Manager what was tendered in evidence as the "suspension letter" (marked as Exhibit 6).

4.1.7 Evidence of Ms Marletta proved that this suspension letter was neither given to the grievor at the time he was being escorted out of the hotel premises (which he told the ERT that at that time he thought and regarded this to be his dismissal from his employment) nor even later to allude him of the status of his employment with the employer. Ms Marletta could not confirm that the other management staff such as the human resource personnel may have given the suspension letter to the grievor or indeed any termination letter after any ensuing independent investigations were duly conducted and complete that allowed the employer to reasonably terminate the grievior for his alleged (mis)conduct with Ms Marletta, which they regarded as "gross misconduct".

4.1.8 The Tribunal noted and gave benefit of doubt to the grievor when he told the ERT that he never received any of the following:-

• Exhibit 3 which is the Stage 1- Verbal Warning;
• Exhibit 4 which is the Stage 2 – First and Second Warning Letter;
• Exhibit 5 – which is the Final Warning Letter; including
• Exhibit 6 which is the Suspension Letter dated 23rd October 2009.
  

4.1.9 I have also noted that no termination letter was tendered in evidence by the employer or the grievor which confirms that it never existed. This could be the reason why the grievor did not attach this to his initial complaint lodged with the Ministry of Labour to Form ER1 (under s114 of the ERP).

4.1.10 It was an established fact that Ms Marletta had officially joined the employer in November 2009.

4.1.11 Although Ms Marletta in her capacity as an officer relieving the General Manager in October was present during the incident relating to this grievance (that occurred on 23rd October 2009), there was some contention how she had access to the grevior's personnel file. Initially objections were raised Mr Tofinga (but later retracted) as to Ms Marletta's credibility and standing in tendering in evidence that directly related to human resource matters where the grievor's file records and documents therein dated back to 2008.

4.1.12 In the ERT's view, this witness at the material time had authority of the employer to access the grievor's personnel file. However, rather than presenting the entire evidence through Ms Marletta, who was neither present nor employed at the material time nor she could give any valuable evidence to confirm what brought about the previous verbal or first, second and third stage warnings, the management or human resource staff who directly had knowledge of these incidents would have assisted the Tribunal in understanding the employer's overall "justification" in taking the action they did.

4.1.13 Clearly, Ms Marletta could not confirm the facts or disciplinary process that could have adequately proved the allegations at the material time when the first/second/third/final stage warnings were issued to allow the employer to rely on previous records to justify any dismissal.

4.1.14 Further, even though I have noted that the employer has annotated in Exhibits 4 & 5 that the grievor refused to sign that he was issued these warnings which appeared to be also witnessed by the human resource personnel, there was no evidence before the Tribunal that proved its authenticity that the alleged incidents did take place. As the grievor completely denied any knowledge of these past warnings, the Tribunal has to accept that it was never brought to his attention. Simply put, the employer was not able to present reasonable evidence to show grievor's habitual offending and how the employer viewed this in terms of the current incident pursuant to the terms and conditions of his employment contract (see below 4.1.15).

4.1.15 The contract of service dated 27 October 2008 is useful in assessing the validity and relevance of such previous records: where relevant and applicable it states that:-

"DISCIPLINARY PROCESS

To provide for an environment that is fair and equitable for all associates and where an associate is not performing to the required level of competency the following disciplinary procedures will apply.

During any discussion, the associate will be given an opportunity to address the lack of performance and will be informed of:

• The nature of the concern or problem
• The improvement required to rectify the problem
• The consequences of continued non performance
• Specific action the associate must take to resolve the issue
  

Other forms of misconduct and negligence will be severely dealt with. Please refer to the Sexual Harassment Policy, Attendance Policy, Grooming Policy and the House Policies.

Confirmation of the discussion

Verbal warning and other disciplinary action will be recorded in writing. This will include a brief account of the incident, any remedial action required, the associate's statement and comments and the consequences of a further failure to meet the required standard.

Stage One - Verbal Warning

The verbal warning is documented

Stage Two - First Written Warning

Continued inability of the associate to the required standards, procedures or policies and performance issues will justify a written warning.

Stage Three - Final Warning

Further inability of the associate to respond to the required standards, procedures and policies will justify a second and final written warning

Stage Four - Dismissal

Continued failure to achieve required standards after the warning process during which the associate has not adequately responded, will result in dismissal.

NOTE: One or more steps may be bypassed taking into account the seriousness of the offence, whereby a first and final warning will be issued.

Grievance/Dispute settling procedure

Where a grievance occurs between management and associate(s) including the transfer of an associate to another position, the parties agree to resolve the issues fairly and equitably using the following procedures. Whilst resolving the dispute, the parties undertake to continue to work as planned and without interruption. Changes to such will be at the discretion of the management

Any issue or dispute will be constructively discussed between the associate and the supervisor concerned. The Supervisor must attempt to resolve the matter speedily and equitably or advise what action is to be taken. If the matter is not resolved, the associate may refer the issue to the Department Manager or Human Resource Manager who will attempt to effectively resolve the matter.

Resignation/ Termination

Upon completion of the probation period, 1 week (6 calendar days) notice of termination shall be given. Should notice not be provided, either party shall forfeit one (1) weeks pay.

The Pearl South Pacific reserves the right to dismiss without notice where the associate is guilty of serious misconduct or negligence.

Terminated Employees are restricted from entering the premises for at least 3 months"

4.1.16 To this ERT, this particular witness did not prove the employer's position in terms of the previous employment record that was tendered in evidence to show a nexus between the previous warnings that was allegedly already issued to the grievor in conjunction with the current incident that finally gave the employer the basis to invoke any suspension and/or termination.

4.1.17 If the employer intended to rely on previous records which they said were in the grievor's file to furnish a basis to invoke suspension or termination as per the contract of service between the parties, it would have helped their position to present this evidence through a human resource or any other management staff who had direct link to the previous warnings and/or any written warnings. Further it was not clear as to the limitation period of these warning which occurred between February, June & September 2009.

4.1.18 That being said, Ms Marletta's honesty where she denied having any knowledge whatsoever as to the previous warnings (in terms of facts, merits of the allegations and disciplinary process) other than what she said contained in the grievor's personnel file assisted this ERT somewhat to examine that it was not the first time the grievor was suspended as per the Stage 2 warning dated 30 June 2009 (Exhibit 4) although this was not a fact proved to the ERT whether it happened or not. It also allowed some insight into examining "due process" of the suspension and/or the subsequent termination as per the contract of service. I will come to this later.

5.0 Is the suspension or any termination justified?

5.1 In the suspension letter dated 23rd October 2007 the following (six) reasons was given by the employer for the grievor's suspension:-

1. Have received multiple written and verbal warnings
   
2. Not completed your duties as per Maintenance Manager Report 24.10.09
   
3. Gross misconduct – confront the relieving General Manager asking her for her "work permit" and is she was "legal" and threaten to call the union, disrupting Sales Meeting on 23.10.09
   
4. Refusing to answer to the questions of the General Manager – Dean Swaagman via Telephone Conference call on 23.10.09
   
5. Disruption of the hotel operations, impacting on financial result of operations
   
6. Your employment has been suspended effective immediatebly until a full investigation has taken place (emphasis provided).
   

5.2 Since the grievor admitted in his evidence that he had questioned Ms Marletta in her office regarding her visa and employment status in Fiji, this lead to Ms Marletta putting through a telephone conference call to the General Manager (GM) and later making a note of the incident and filing the same in the grevior's file after the grevior was escorted out of the hotel premises.

5.3 Suspension letter was typed and signed by Ms Marletta on behalf of the GM but was never given to the grievior as evidence indicated.

5.4 It was obvious that the grievor was aggrieved with Ms Marletta indicating that he was not to perform his duties outside the scope of his usual duties which evidence Ms Marletta gave was contained in his contract. I have noted that there is reference to this in the part with a heading – Title - where it is mentioned 'Position Profile' although this was not submitted to the Tribunal to assess what were the duties and responsibilities which clearly would "...vary over time in accordance with business requirement..." (at page 1 of Exhibit 1).

5.5 While it is not for this ERT to ascertain what should an employer's reasonable policies be that staff must adhere to rather than assess whether the actions taken by the employer at the time the grevior was suspended or terminated was reasonable under those circumstance, I must comment that the Tribunal was not presented with any policies of the hotel that would have stated that strictly each staff was to remain within their demarcated roles and responsibilities. There was no evidence that staff was not permitted to "help out" which was what the grievor was doing as a maintenance staff – he was attempting to help the food and beverage (bar) staff to bring out liquor and juice bottles when he was asked to step out of the bar area by Ms Marletta.

5.6 Evidently, this was not a reason given by the employer to invoke suspension (within the six stated reasons above in 5.1). This leaves me to assume that it was conduct of the grevior when he confronted Ms Marletta regarding her visa and employment status and ensuing telephone conference with the GM that gave rise to his suspension in terms of this particular incident.

5.7 Obviously this ERT has had no good or valid basis to explore any previous incidents as there was no good evidence or indeed no evidence directly leading to those incidents to justify why the employer used past track record to also invoke suspension. As such I will not be considering past employment history in terms of Exhibits 3, 4, & 5 as the employer failed to prove its propriety, validity and relevance to this Tribunal. In addition, reasons 2 and 5 above (in point 5.1) was also not put before this Tribunal in evidence. Hence to this ERT, there was no basis for justification for suspension pertaining to reasons 1, 2 & 5.

5.8 This leaves reasons 3 & 4 (in 5.1 above) as the employer's substantive reasons for suspension.

5.9 As for the grevior's conduct amounting to "gross or serious misconduct", this Tribunal is often hesitant to substitute its own views where the employer has set down its own standard for judging what is deemed "gross misconduct" as long as it is properly laid out and made known to the employee. In the contract of service the employer had these relevant provisions:-

1. "The Pearl South Pacific reserves the right to dismiss without notice where the associate is guilty of serious misconduct or negligence."
   

[This provision does not spell out what constitutes serious (or gross) misconduct.]

2. Stage Four - Dismissal

Continued failure to achieve required standards after the warning process during which the associate has not adequately responded, will result in dismissal.

[This process allowed dismissal but evidence did not show that the employer invoked this provision as per the contract nor it was proved by the relevant evidence that pervious warnings were legitimate and the employer's basis for invoking suspension or dismissal]

5.10 Therefore this Tribunal has to examine objectively whether a reasonable employer would have acted in a similar manner in terms of the conduct alleged of the grevior and in doing so, did the employer accord natural justice in ensuring that the grievor was treated with proper respect and dignity and made known the reasons for his suspension or dismissal/termination as per s114 of the ERP 2007.

5.11 Here the facts are somewhat distressing to note that the grievor may not have been treated with appropriate respect and dignity at the time he was discharged, either through suspension and/or termination, particularly where procedural fairness and justice is concerned.

5.12 But first, this Tribunal accepts that Ms Mareltta did not purse the grevior's actions she witnessed at the bar other than cautioning him to refrain from carrying out any bar duties as a maintenance staff. There was no evidence before this ERT that he was humiliated or that he was considered for disciplinary action for this incident.

5.13 Instead, the grievor interrupted Ms Mareltta's meeting fairly late in the night to discuss his grievance which he could have pursued in a civil manner following day or in writing.

5.14 The grevior's admission that he raised questions out of the ordinary in terms of Ms Marletta's visa and employment status is indeed disrespectful to an officer in a managerial position. If he had such concerns it was not his place to question her which in essence is very sensitive and confidential information.

5.15 As for the employer attempting to resolve this impasse through a conference call that late in night, this Tribunal can appreciate and understand the need and urgency when a staff has bypassed the usual decorum and requires immediate action. Usual protocol would have demanded that both parties use the following grievance procedure:-

"Grievance/Dispute settling procedure

Where a grievance occurs between management and associate(s) including the transfer of an associate to another position, the parties agree to resolve the issues fairly and equitably using the following procedures. Whilst resolving the dispute, the parties undertake to continue to work as planned and without interruption. Changes to such will be at the discretion of the management.

Any issue or dispute will be constructively discussed between the associate and the supervisor concerned. The Supervisor must attempt to resolve the matter speedily and equitably or advise what action is to be taken. If the matter is not resolved, the associate may refer the issue to the Department Manager or Human Resource Manager who will attempt to effectively resolve the matter." (Underlining is my emphasis).

5.16 Clearly the employer was put to an urgent test to resolve this grievance that night and thus the conference call by the employer was justified to discuss this matter outright and immediately which was in fact necessitated by the grevior's own actions rather than attempting to constructively discuss any grievance where it could have easily waited for the next day.

5.17 Given that Ms Marletta stated in her evidence that the grievor was refusing to talk to the GM during the conference call, this compelled the employer to order his removal from the property with immediate effect. The grievor did not negate nor offer his side of the story as to what truly transpired during the conference call. Thus I have to rely on the evidence given by Ms Mareltta and accept that the employer ordered the grevior to leave the property after he refused to talk to the GM.

5.18 The actions of the grevior starting from the moment he interrupted a meeting of the relieving GM, then admitting to questioning her on what was very sensitive and confidential information which he neither had the position nor right to ask and then not responding to the then GM during the conference call, all can be deemed insubordination and willful disobedience of the employer's orders and instructions which then sufficiently satisfies the requirement of serious or gross misconduct.

5.19 Under section 33(1) of the ERP if the employer had invoked summary dismissal, it would have had basis to justify s33 (1)(a) of the ERP (for gross misconduct). However, here the facts indicate that the grevior was told to leave the hotel premises immediately after the conference call and a suspension letter was later typed and signed by Ms Maretta and inserted in his file. He was not informed or given in writing his reasons for suspension and/or ensuing termination.

5.20 Hence section 33 of the ERP does not apply to this grievance as facts are clear that he was not accorded procedural fairness at the time of his suspension or termination. If that was the case, it was mandatory for the employer under section 33 (2) to provide the grievor reasons in writing for his summary dismissal. Hence I do not accept the employer's closing submissions (at point 19, at page 5) that section 33(1) applies where summary dismissal of the worker is allowed without notice as the requirements of this particular provision in the ERP was not adequately fulfilled.

5.21 In any event s114 of the ERP clearly has been breached by the employer where they did not provide any written reasons when the worker was dismissed. It was an established fact that the grevior neither was given his suspension letter nor any subsequent termination letter which would have been contingent as to how the employer's investigation progressed. This is based on their reasons provided in the suspension letter where it was stated that:-

" Your employment has been suspended effective immediately until a full investigation has taken place"

5.22 There was no evidence that any investigation was carried out. Further there was no evidence that the grevior was duly notified of his termination or dismissal. I cannot substitute or interchangeably accept that the suspension and dismissal occurred simultaneously in the absence of the employer being upfront, honest and clear on these two matters to the grevior. Surely good faith is at play here and I have always been mindful of the 1997 decision of the Supreme Court of Canada in Wallace v United Grain Growers Ltd., 1997 CanLII 332 (SCC); [1997] 3 S.C.R. 701, where the Court noted that:-

"..., at minimum, ... in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive..." (my emphasis).

6.0 ERT's final Determination

6.1 The breaches of procedural fairness outlined above are relatively significant for this Tribunal to conclude that the employer acted unreasonably when it purported to summarily dismiss the Grievor pursuant to section 33 of the ERP.

6.2 Denying reasons in writing for dismissal is one thing. Denying clarity as to suspension and ensuing termination which kept the grievor in a confused state of mind where he regarded his suspension as his day of dismissal is bordering not only on unfair treatment but inhumane and insensitive treatment. All the employer was required to do was to put in writing their reasons for suspension (which they subsequently did) but failed to hand over the letter to the grievor when he was escorted out of the premises. Further, there was no evidence that the grievor was ever provided any suspension or termination letter.

6.3 At this point, I must state that it was not necessary to engage a security guard to escort the grevior as no threat to person(s) or property was proved by the employer, This aggravated the employer's position whose insensitivity not only extended to their failure to accord respect to the grevior at the time the suspension/dismissal was carried out (in terms of providing written reasons for termination) but being escorted off the property by a security guard as though he was a stranger to the employer and not their employee for at least a year is quite spiteful treatment.

6.4 As for an appropriate remedy, the Tribunal has carefully considered all the material placed before it and has concluded that re-instatement is not appropriate. There was ample material before the Tribunal for it to conclude that the Grievor could no longer go back to his position as he is currently employed by the Water Authority of Fiji where he is in fact earning more than what the Respondent was paying him. Further, it is clear that he cannot perform in an environment in accordance with the Respondent's procedures and policies and certainly no longer can be regarded as an effective member of the Respondent's team.

6.5 Since I have found that the grievior's actions had merits to be considered within the range of reasonable responses for "gross or serious misconduct" which contributed to this grievance, compensation for loss of earning as any remedy will then be dependent on the breaches established in terms of procedural fairness that was denied to the grievor at the time he was terminated. I am also mindful of the employer's conduct where they failed to accord the grievor appropriate respect and dignity at the time of this dismissal.

6.6 As a result the Tribunal has concluded that the Grievor should be paid four months wages in lieu of his suspension and subsequent termination without notice. He is awarded a further one month pay in respect of the unfair manner in which the Grievor was treated at the time of his dismissal.

Decision & Orders

1. The suspension and/or summary dismissal of the Grievor pursuant to section 33 of the ERP was wrong, unreasonable and unfair in procedure.
   
2. Re-instatement is not appropriate.
   
3. The Grievor should be paid four months wages in lieu of his suspension and subsequent termination without notice. The rest of the remaining months where he continued on suspension or was unemployed is to be treated as leave without pay in view of his contribution to this grievance.
   
4. The Grievor is awarded a further one month pay in respect of the unfair manner in which the Grievor was treated at the time of his dismissal.
   
5. In sum total the Employer will pay the Grievor five months pay from date of this decision within 60 days.
   

DATED at Suva this 25 day of January 2012.

Legal Tribunal