Tiqatabua v Angel Club [2012] FJET 31; ERT Grievance 27.2011 (7 May 2012)

IN THE EMPLOYMENT RELATIONS TRIBUNAL

AT SUVA
ERT Grievance No. 27of 2011

BETWEEN:

PITA TIQATABUA
Grievor

AND:

ANGEL CLUB
Employer

Appearances:
Mr Tomasi Tokalauvere for the Grevior
Mr. Lum Moon Woot for the Employer

DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL

1.0 Employment Relations Grievance

1.1 Background to the Grievance

This grievance was registered with Ministry of Labour on 3rd November 2010. Mediation was attempted on 23rd December 2010 but was not successful. The mediator referred the grievance to the ERT in accordance with s194 (5) of ERP outlining the nature of unsettled employment grievance with the following terms of reference:-

"Unfair and Wrongful dismissal".

2.0 Cause before the ERT

2.1 In the Employment Relations Tribunal (or "the ERT"), the parties were directed to file preliminary submissions by the Hon. Chief Tribunal whereby the Employer filed its Preliminary Written Submissions on 8th April 2011 and Grevior filed her Preliminary Written Submissions on 16th June 2011.

2.2 Hearing was fixed for 1st November 2011 which commenced and completed on the same day. The parties also submitted their respective closing oral submissions and were given further 14 days as a liberty to file closing written submissions; the employer filed their closing submissions on 9th November 2011 and Grievor filed on 15th November 2011.

3.0 Issue(s) before the ERT

3.1 The issues before this Tribunal arising out of the grievance are twofold. The Tribunal has to assess first whether the dismissal without notice (vis-a-viz summary dismissal) was justified substantially and procedurally in accordance with the employment relationship that existed through an implied contract of service (there was no written contract of service between the parties) and secondly, whether the said dismissal was in compliance with the Employment Relations Promulgation 2007 (or "the ERP").

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

1. Whether the employer had justification to lawfully and fairly terminate the Grievor without notice in writing; and
   
2. 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 principles adopted in 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 Brief Facts

4.1 Grevior gave details of his claim with the following information in Form ER1:-

• He was employed from 22/08/10 to 20/10/10;
  
• The hours of work were: 7.30a.m. to 6.00pm, 7 days a week;
  
• Rate of his wages was: $200.00 per week;
  
• He stated that the reasons for termination were that: "I don't know the reason why I was terminated from the company. My boss just told me to go home without giving me any notice period. I was unfairly terminated as I do not agree on the reason given by my employer".
  
• He has sought compensation as a remedy as he says that: "...I am supporting my family..."
  

4.2 The Employer justified termination through their "Letter of Submissions" dated 8th April 2011 (filed on 16th September 2011) that the termination of its former employee, namely, Pita Tigatabua was "on fair ground". It was further stated that:-

"Mr Tigatabua has been abusing his duties as a security guard (watchman) whereby he had on numerous occasions sold empty beer bottles and had kept the money to himself rather than handing it to the management. Also last year our club had been undergoing renovation works and we had some building materials and electrical cables in storage, whereby some items went missing, which Mr Tigatabua was safeguarding. Also some of the construction workers who are willing to testify if required had come up and informed us that he had been stealing and selling numerous items from the storage which led to his termination." (Underlining is my emphasis)

4.3 The later part, through a witness presented from the employer's side, was attempted to be collaborated.

4.4 The grievor's preliminary submissions filed on 16th June 2011confirms that no employment contract was signed between the parties although it does not clarify when exactly the grievor had started and ended his employment. The submissions also stated that no termination letter with notice period or grounds of termination was given to the grievor.

5.0 Evidence During the Substantive Hearing

5.1 At the hearing-proper, the Employer called one witness, by the name, Yang Hen Qiu while the grevior, himself gave evidence to present his side of the story.

5.2 Yang Hen Qiu is an employee of Angel Club and whose evidence was translated through a Chinese speaking translator where he stated the following:-

• He had worked between September to October 2010 in the Angel Club undertaking renovation works for the employer;
  
• He was aware of the grievor where he told the ERT that the grievor was "...working there as Security...".
  
• He confirmed that while doing renovation he noticed that some wires were missing.
  
• In cross examination, he was asked by Mr. Tokolauvere, "...What did you see during these months between September-October 2010?", to which he responded, "... saw Ptia taking bottles out...".
  
• He further confirmed that he saw the grievor taking bottles out, but where to, he did not know. He also stated that "...not sure if his selling it but seen him taking it...".
  
• The opposing Counsel, Mr. Takolauvere further paused this witness that he was lying as to the evidence given in Examination-in Chief that the grievor was working in the Club during September –October 2010, as it was alleged that the grievor was in fact employed in 2009. To this, the witness stated that while he was weak in remembering names (I suspect due to his nationality and short stint in Fiji from China as an employee for the Club), he could however, identify and recognize the face of the man he was referring to. He was asked to look the "guy" or the person sitting in the ERT and he positively identified the grevior as "...the Security Officer at that time".
  

5.3 There appeared some confusion as to when the grievor was exactly working for the employer. The employer's representative, Mr. Lum Moon Woot was clearly adamant that the employee was working in 2010 and not 2009. Further the employer's witness (Mr. Yang Hen Qiu) also specifically testified that it was between September-October 2010 when the alleged incident (relating to theft) had taken place where the grievor was purportedly involved in.

5.4 Mr Tokolauvere continued to probe the witness as to whether the incident where he had seen the greivor collecting the bottles was reported to the employer or the boss, where the witness maintained that "...like others have told the boss but not sure if they told the police or not".

5.5 When the grievor took stand he gave the following evidence: -

• That he was employed in 2009, where he said that he started his employment on 2nd March 2009 and ended on 1st day of September 2009 (my emphasis).
  
• There was no contract of service between the grievor and the employer.
  
• He received $200.00 per week in wages where he did not sign anything when he received his pay. He also stated that he did not get overtime pay or FNPF deducted.
  
• He did not receive any letter of termination when he was fired in September 2009.
  
• He did not receive a reason (verbally or in writing) when he was fired.
  
• When questioned by his counsel regarding the "missing bottles" he explained that "...as a security in the Angel Club I was advised by the owner...Mr Billy. He told me whenever I started every morning at half past 6, I am supposed to collect all the empty bottles and wait for the chef for us to show the bottles together and give money to the chef..."
  
• When further asked the question whether he knew anything about the missing bottles or construction materials as alleged by the employer, he stated that "I cannot say anything because I don't know anything about the bottles and the materials". He further denied stealing construction items as alleged by the employer.
  
• In his cross examination he gave the following evidence:-
  
  • He was sure that his start date of employment was March 2009 and that he was fired (or terminated) in October 2009. In counter evidence, Mr. Lum Moon Woot pointed out that he being the Secretary of the Club knew when the Club had in fact started and it was not in 2009, to which the grievor did not respond adequately.
    
  • The grievor further admitted staying with some Chinese workers in a certain warehouse, where when paused the question whether he knew that the "Chinese workers" whom had been staying with at the warehouse were in fact employed from China and the time they arrived in Fiji was in 12th August 2010, the grievor only responded by saying: "according to Mr. Billy, he took me there to stay with them". [Evidently, the grievor was not able to explain the issue of start and end date of employment being either mistaken or misunderstood by him].
    
  • The grievor attempted to explain that the bottles that were sold by him together with a certain chef whom he remembered as David, he had in fact given the money to the chef or waited for the chef after collecting the bottles if the Chef was not there. The chef was not before the Tribunal to confirm or deny this evidence.
    
  • In terms of the missing wires, when asked to explain, he responded that: "... Only I know when I was a security in Domain, when they brought this wire, I thought it was rubbish because it was laying on the grass, that's why I took all this wires and threw in the rubbish...".
    
  • When questioned if he was told by the workers or the boss to do this (throw wires in rubbish), he responded "No". He further added that "...because I thought it was rubbish and the owner told me to clear all the rubbish...". [It appears that he regarded the wires (I understand electrical cable wires as referred to in the Employer's Preliminary Submissions) as 'rubbish' although he was aware of the construction works undertaken by the employer through the fact established that he was living with the construction workers employed from China. In counter evidence, the employer maintained he was never instructed to throw the wires as rubbish which was also admitted by the grievor initially].
    
  • Mr. Lum Moon Woot further pointed out to the grievor that:
    

"Your job is to safeguard the place and safeguard anything inside the property that belongs to the company. If you touch anything that it means you stole it you never told anybody and that's the company property. Is that right or wrong. You told the court that you threw it in the rubbish bin. Who knows you might sell it?".

To this the grievor responded: "You was right, in this court you brought up the issues that I sell the bottles, I steal the wire, if you said I'm stealing why you didn't report to the police stealing is an offence..." (Underlining is my emphasis)

6.0 Is Summary Dismissal Justified in Law?

6.1 The first issue to determine is whether the employer had valid and good reasons (or lawful cause) to invoke summary dismissal under the provisions of the ERP and whether in compliance of those provisions, the employer had in fact, lawfully and fairly carried out dismissal without notice.

6.2 Clearly the ERP 2007 allows for summary dismissal (dismissal without notice) under s33 of the ERP.

6.3 It is irrelevant whether the contract of service is in writing or not (as per section 4 meaning of the 'contract of service' where both oral and written contract is implied or applied respectively), as the employer is not contesting but have agreed that Angel Club had hired the grievor as a Security Officer. All the same, I must highlight that section 37(1) (a) of the ERP requires that employment contract be in writing if an employee is employed for "a duration in excess of one month".

6.4 Here, there was some issue regarding the duration of the contract of service as both parties had different employment periods or duration in their testimony.

6.5 It was apparent from the gievor's oral testimony that he believed the date of his employment was between 2nd March 2009 to 1st October 2009. When further clarification was sought by the ERT after re-examination, the grievor stated it to be 2nd March 2009 to 1st September 2009. The correct date by the grievor was clearly not offered and it appeared that his representative also believed the exact date to be in 2009 and not 2010. In counter-evidence, the employer continued to maintain that the employment period was between September–October 2010.

6.6 After reviewing the evidence, I must point out that the grievor's claim reported in the Form ER1 (original source of complaint to Ministry of Labour) on 3rd November 2010 clearly and specifically states his start and end date of employment. This was stated as: Start date - 22/08/10 and End date - 20/10/10.

6.7 It was clear from Form ER1 that neither the grievor was mistaken nor had a misunderstanding in relation to his employment period as this grievance was reported after one month of the alleged termination. However, it is not clear why he would give such incriminating evidence that borders on simply lying or being dishonest to the ERT. While the onus in employment grievances fall squarely on the employer to prove that they had lawful and fair causes or justification (substantive and procedural reasons) for termination, it does not take way the employee's obligation to remain utmost honest, where he must come to the ERT with equal good faith, particularly when giving sworn evidence to resolve the impasse between the employer and himself. Such evidence not only weakens the grievor's credibility, it goes to establishing his conduct in an employment environment where in this circumstance the allegations evidently raise issues of mistrust, dishonesty and stealing on the part of the grievor. It also hinges on appropriate remedy (as compensation) sought by the grievor in the Form ER1 in terms of loss of pay (whole or part of the wages lost) under s230 (1)(b) of the ERP.

6.8 Therefore, I accept the evidence of the employer in terms of the employment period (being in 2010) which is more reliable and collaborated through Form ER1. The employment period in this case will be what is stated in the Form ER 1 - Start date - 22/08/10 and End date - 20/10/10.
6.9 The next issue to consider is whether the employer had lawful ground(s) under section 33 of the ERP to invoke 'summary dismissal', which is, carrying out a dismissal without notice under the law. In total assessment of the employer's evidence and ensuing allegation of theft pertaining to stealing of wires, pocketing the sale of bottle money and not performing his duties as a security officer in terms of safeguarding the property entrusted to the grievor alludes to the grievior's conduct (or misconduct) being questioned and not approved by the employer. Whether any such misconduct (such as dishonesty and stealing) with appropriate penalty (such as dismissal without notice) was made known to the grievor under a code of conduct or policy of the employer, this was not something before the ERT for assessment or consideration at all. This makes sense when there was no written contract of service.

6.10 In this case, section 33(1) (a) of the ERP, on the grounds of 'gross misconduct' appears to be implied by the employer by virtue of an implied or oral contract of service between the parties.

6.11 I am basing this opinion on the facts of this case, where the employer appears to have regarded the alleged actions or misconduct of the grievor in terms of the theft or stealing allegations to be a conduct so serious or gross (that the grievor also in his testimony regarded to be "offence" serious to be reported to the police), that has warranted a summary dismissal here. No doubt, the employer here is not conversant with the provisions of the ERP and how it applies to such employment situations. However, the question is does it still give the employer a right to invoke s33 of the ERP in cases where there is no written contract of service or where the employer cannot legally interpret the law and use it "lawfully" to justify a termination, particularly where a dismissal without any notice period is concerned.

6.12 I believe that if the employer had a good working knowledge of the ERP 2007 they would have tried to fit the said offence within s33(1) (a) of the ERP. Naturally in the absence of any written contract of service or indeed any understanding of the ERP, the employer here has failed to lawfully invoke this provision in the ERP which must be in writing through a letter of termination stating specifically what was the alleged conduct that was specifically breached under one (or combination or all) provisions of s33 (1)(a) – (e). If we are to assume that s33(1) (a) of the ERP was invoked here as per the facts of the case, then the second limb of this provision requires the employer to prove and justify to the ERT how serious or "gross" it was in terms of the employer's standard or rule set down which the employee has purportedly disobeyed or breached where he was found 'guilty' of that offence. Furthermore, the employer has also failed to satisfy s33(2) where they were required to provide reasons for dismissal in writing "at the time of dismissal".

6.13 Clearly when someone is facing summary dismissal, the law requires a written explanation for the justification [reasons, whatever they may be, to be regarded as "lawful cause') to be furnished to the employee. The facts of this case show that the employer was basing their decision to terminate on a 'cause'. Section 114 of the ERP further requires a statement of reasons to be furnished to the employee to allow the grievor to respond to the same by pursuing internal grievance procedures (if any) between the employer and him/herself (by virtue of section 111 (2) of the ERP], failing which, he/she can register a grievance under s113 of the ERP with an external party for mediation or invoke judicial proceedings under the ERT's powers and jurisdiction (s211 of ERP). Here, for purposes of external party, the Ministry of Labour has created both mediation and ERT avenues to be exhausted by a grievor.

6.14 I thus accept that the employer (a nightclub owner) does not understand and know the legal provisions under the ERP 2007 to appreciate how it is invoked or how they can send an employee home without notice in writing. This however, does not take away the employer's duty to comply with the law of this land where worker's rights are protected in such scenarios. I also understand that mediation was attempted where such factors could have been easily mitigated against any alleged wrongdoing of the employee and appropriate redress and remedies provided without the need for a judicial proceedings it has now turned into through the ERT avenue exhausted by the parties.

6.15 While accessing the ERT is the party's right under the ERP 2007, I cannot ignore the law protecting a worker's rights and interests enshrined in a statute at the time he/she is being summarily terminated. The employer has invoked the harshest of all the penalties. Section 33 of the ERP was designed to allow an employer to retain a right to send a worker home without a notice but within five stated grounds therein. No doubt, the requirements of s33 have to be adequately fulfilled prior to invoking such a measure or penalty (particularly when finding someone guilty of gross misconduct).

6.16 For that reason, my initial findings of the facts are that the employer has not complied with section 33 of the ERP by failing to adhere to, two fundamental requirements:-

• First, by not properly invoking s33 of the ERP and thus giving proper reasons or justification to the employee (that is, 'lawful cause' for termination as the employer has in their defence alleged that the grevior abused his position and stolen from the Club) where the employee's immediate or on-spot termination would be classed within one or more grounds pertaining to s33(1) (a)-(e); and
  
• Second, for not providing those reasons in writing pursuant to section 33(2) of the ERP.
  

6.17 That said, to assess the 'lawful cause' (pursuant to s34 of the ERP) as a justification for summary dismissal in the ERP, where under s33 of the ERP, termination without notice is allowed, I do not find that the law requires the ERT to take a narrow view or meaning of s33. The intention of the law is not to make the employer accountable on the strict application of labour rights through a statutory provision but equally places onus on the enforcing body through Labour Department to ensure that they carry out mandatory inspections, preferably every year and guide the employer to comply with the law. For example, Labour Department should peruse employment practices and books/records of the employer and advice when it is compulsory under the law to enter into a written contract of service. Clearly without one, the grievor is prejudiced here, devoid of adequate means to accessing reasonable internal procedures to resolve the grievance with the employer.

6.18 This does not imply that employer's ignorance of the law is justified. But, because s33 of the ERP places significant burden on the employer to satisfy mandatory requirements, especially under s33(2) where it states that, "The employer must provide worker with reasons in writing..", it then places an obligation on the ERT not ignore the employer's lack of legal understanding of the ERP. I believe it is for this reason that the ERP places a discretionary power on the ERT under s231 not to "be bound by the strict rules of evidence" and thus "accept and admit evidence as it thinks fit". In doing so, the Tribunal must act fairly [see: s216(2)].

6.19 I also view that by interpreting 'contract of service' to be both oral and written contract of service within the ambit of the ERP, this opens up a leeway to allow the employer to imply a "misconduct" that is alleged against the employee to be interpreted within s33 of the ERP. Where an employment relationship is orally implied and accepted by the employee until a 'grievance' surfaces, and where that employer is completely unaware of the legal provision in the ERP and its application, particularly for any ensuing termination, then a liberal approach to the entire "employment relationship' has to be taken and implied also for termination under the law.

6.20 Further, if an employment grievance is accepted by the Ministry of Labour where the worker is dismissed, then process of referral to the Mediation Unit to the ERT for adjudication is the grievor's unfettered right where the ERT must determine the 'lawfulness' and 'fairness' of the allegations on the facts of particular case to find the same in affirmative. At the very least, I find here that the grievor's conduct alleged by the employer cannot be overlooked or simply discounted against the employer's failure to lawfully invoke s33 of the ERP. In my opinion, it is still nothing short of a "misconduct". The grievor admitted throwing away the wires as "rubbish" which he was supposed to safeguard although no one had instructed him to do so.

6.21 Any reasonable person who is required to safeguard a property entrusted to them in the course of his/her employment cannot just take upon his/her judgment to throw away items belonging to the employer, who has the employee on their payroll to protect and mind the very materials or properties. He also did not inform anyone about this incident and the employer was right in considering it "missing" or "stolen".

6.22 Such actions certainly aggravate the current predicament when a security guard with implied duties and responsibilities in any given situation is required to act as the protector and minder of the said "properties". He should be able to reasonably inform the employer when asked about the property he is safeguarding (albeit, here it was empty bottles or construction materials) as to its whereabouts. If anything is missing and the security guard has reasonable knowledge of the materials being missing, then he must report the same immediately to discharge the duty of care in safeguarding that property. It is clear that the grievor had some inclination as to his misconduct alleged by the employer, when he said that it should have been reported to the police as stealing is an offence.

6.23 Suffice to say that in many of similar cases before the ERT, while often reporting to the police is not an option explored by employer who prefer to only dismiss the employee (and summary dismissal is a common action taken by the employers) this does not dampen the evidence that allows this ERT to draw reasonable nexus between the alleged wrongdoing and the subsequent termination in whatever form. Here, there was clear indication from the grievor's testimony that he had first lied about his employment period and then attempted to explain that he threw away the wires, which he was not instructed to touch, remove or discard as rubbish. Common sense allows us to place benefit of doubt on the employer's evidence as any construction site will have construction materials laying around and it was established that the grievor was a security officer, not someone hired to clear construction debris particularly when he was not told to perform this duty by anyone. He also did not ask or seek permission from anyone before discarding the wires as rubbish. As such, while I did not find that the employer's witness (Yang Hen Qiu) effectively established the allegation of the bottles stolen and sold by the grievor, I do find that the grevior was responsible for the missing or lost (or stolen) wires at the very least. If the grevior had discarded the wires thinking and believing it to be "rubbish" he should have informed the employer. Failing this, he has to be held responsible for the wires whether or not it was stolen. He is then answerable to the employer as to how these wires went "missing' that was under his protection and trust. It was not established how much these wires cost to the employer that was thrown away as "rubbish".

6.24 It can be then inferred reliably that the employer in such circumstance had no choice but to assume that the grevior had taken the wires without authorization or approval of the employer. To that end, this ERT will not substitute its views for that of the employer in determining whether the employer acted reasonably; rather the Tribunal has a task to test objectively whether the employer acted reasonably: (see: Michael Strouthos v London Underground Limited, England and Wales Court of Appeal (Civil) Decisions, [2004] (18 March 2004).

6.25 I have also noted his Lordship Justice Gates (now the Hon. Chef Justice) decision in the case of Philips Thomas v Fiji Electricity Authority [2004] FJHC 303 where he applied the ratio in the English Court of Appeal case of X vY [2004] EWCA Civ 662 as follows:-

"the law on dismissal for conduct is clear. It has been said to be a four pronged test. The Foley test was cited with approval in X v Y (supra at para 18):-

"the employer must show that he believed that there had been misconduct by the employee; that there were reasonable grounds for that belief; that he had carried out as much investigation into the matter as reasonable in all the circumstance; and that the decision to dismiss him for that conduct reason was within the range of reasonable responses of a reasonable employer."

6.26 The Tribunal is of the view that the employer had reasonably drawn conclusion that the (missing) wires was removed by the grievor (which he had admitted to be thrown way as rubbish) at the time he was entrusted to safeguard the said construction material, no matter what was the intention of the employee. I am also a little concerned why any right thinking person would do this without being asked to throw the wires in the rubbish at a construction site. And then not inform the employer what he did with the wires as there was some suggestion in the employer's Submission that workers at the site informed them that the security guard was in fact stealing the materials. No worker came forward to give evidence and Yang Hen Qiu's evidence did not adequately confirm this.

6.27 In spite of that, there is no contention that the grievor had in fact removed the wires without any authorization, regardless of whether or not he considered it to be rubbish or that he removed with an intention to steal. This clearly establishes a basis for the employer's justification for alleging "gross misconduct" in terms of having a valid reason or cause where "theft" can fall within the ambit of gross misconduct if employer has set down a standard of conduct where any form of theft is unacceptable. The fact that the grievor was employed as a security officer also placed a doubt in the mind of the employer as was apparent from the evidence that they could no longer trust him to safeguard their property. As such, the continuing good faith and trusting relationship between the employer and employer could no longer be sustained.

6.28 Accordingly, the employer (despite being unrepresented by any legal counsel) to the satisfaction of this Tribunal has established that there was a gross misconduct on the part of the grievior although they have failed to lawfully invoke s33 (1)(a) in writing and/or failed to give reasons in writing.

6.29 I have duly noted that no written contract of service was entered into by the parties in terms of assessing the reasonable notice period, grievance procedures and how the grievor's final pay and entitlements on the day he was summarily terminated could be applied (see: section 34 of the ERP). There was some assertion by the grievor that his over-time pay and FNPF dues was also not paid although this issue was not raised in his original claim or explored by the Labour Department after inspecting the wages record and books of the employer. Indeed, FNPF dues are mandatory statutory requirement where the grevior can purse the same with the FNPF authority directly as evidence before me does not prove this allegation where the grievor merely mentioned this during his oral evidence. Overtime pay is not something that is claimed in the original claim either and for that reason I will not venture out to new claims raised during the hearing when the grievor should have put the employer on notice prior to the hearing to allow them to defend their position (as per 112 of the ERP).

7.0 Is Summary Dismissal Justified in Procedure?

7.1 In the case of Carpenters Fiji Limited v Isoa Latianara ERCA No. 7 of 2011, Wati J has said that:-

"...if there is serious misconduct, then it is the prerogative of the employer to terminate the employment immediately. If all these procedures of hearing and explanations are accorded to the employee, then the purpose of summary dismissal is lost..."

7.2 I have accepted that there is justification for "gross misconduct" in substance in that the grevior's conduct at the time of his dismissal was within a range of reasonable responses as alleged by the employer. The above case alludes that once a serious (or gross) misconduct is established then procedural fairness or justice is not required. To that end, the employer can immediately proceed to terminate the grevior and this was what the employer in fact did.

7.3 However, the grevior is also alleging that he was unfairly terminated. The case of Central Manufacturing Compnay Limited v Yashni Kant [Unreported Fiji Supreme Court Case Number CBV 0010 of 2002] clearly states that in carrying out the dismissal, the employer must treat the employee fairly and with appropriate respect and dignity. This was followed by Ladyship Wati. J in the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011: here evidently Wati J considered that where the allegation of unfair dismissal is concerned:-

"...it is not the aspect of right to be heard that leads to unfair dismissal. It is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's actions must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in carrying out the dismissal" (emphasis added).

7.4 In this case, it has been established that the grievor's actions was within a reasonable response of "gross misconduct" for the missing or stolen wires which he was entrusted to protect as a security officer. But, it was also established that he not given any reason for termination in writing under s33(2) of the ERP. He also appeared to state that generally he did not know why he was terminated as reflected in his claim made under Form ER1.

7.5 That said, the general direction of the evidence swayed me to view that he was somewhat aware as to why he may have been terminated, although I agree that the employer did not produce good evidence to prove that they had put the grievor on reasonable notice pertaining to the theft allegations in the past (either through verbal/written warnings).

7.6 In addition, it appears that when the wires went missing the employer acted through a summary dismissal by not explaining (even verbally) to the grevior why they had opted to take the harshest of all the penalties against him (criminal action is excluded) within almost three months of his employment.

7.7 For this reason. I am persuaded by the grievor that for fair termination to persist, he is entitled to know why his employment is being snatched away from him without notice: here, not as a right to know under the ERP but for simple transition from one moment having a job and losing it the next, meaning the manner in which he receives this information at the time he was sent home.

7.8 The grievor had stated in Form ER1 that he wanted compensation because he was a man with a family, supporting their needs financially from this employment. Therefore, to go home and tell your family that you no longer have a source of income and how you will thereon provide for the family requires channeling the termination without notice with dignity and respect to find another employment. I cannot imagine that critical moment whether or not he sustained any hurt to his feelings, but in ordinary circumstance, being sent home without any explanation whosoever (least being given an opportunity to be heard) had to have his dignity and self-respect offended in the manner in which he was terminated.

7.9 This is not to say that while summary dismissal, being the most severe penalty is not expected in the normal conduct of duties, it can take only one offence to invoke one (see: the case of Sinclair v Neighbour [1967] 2 WLR 1 where the Court of Appeal ruled that one act of dishonesty was sufficient to warrant summary dismissal). For this reason, it is even more imperative to ensure there is utmost fairness in the manner in which it is dealt with. It is not clear how he was sent home and whether his dues were fully paid at the time of his dismissal as there was no evidence to assume otherwise.

7.10 In that regard, while there is incontrovertible ground to imply and justify gross misconduct to invoke summary dismissal against the grievor as a penalty for his wrongdoing, clearly the employer fell short of discharging the grevior from his employment with respect and dignity at the time they allegedly carried out the summarily dismissal.

8.0 Remedies and Orders:-

1. The Employer had valid reasons to invoke summary dismissal on the grounds of gross misconduct. However, the Employer has failed to properly carry out summary dismissal, in procedure and law, particularly by failing to provide reasons in writing at the time of dismissal under section 33(2) of the ERP.
   
2. I have accordingly, assessed that an appropriate remedy for not invoking s33 lawfully for a summary termination without notice to prevail is best mitigated against what would be a reasonable notice period in a normal termination under the law. Under s29 (1) (b) of the ERP in terms of his wages paid weekly, he is entitled to 7days notice or payment in lieu of notice. Therefore he is entitled to a seven days pay for employer's failure to lawfully comply with s33 of the ERP.
   
3. The Employer has further unfairly carried out summary dismissal by denying respect and dignity to the grievor at the time of his dismissal as they have no doubt failed to clearly inform the grievor why his employment was terminated on-sport without a notice, entitling him to be compensated for loss of dignity and injury to his feelings in terms of one month's wages. This is assessed in terms of his short stint with the employer where he was established to have been employed from 22 August 2010 to 20 October 2010 only.
   
4. Given that the grevior is a significant contributory factor to this grievance, I shall take off one week's pay and therefore in total the employer will pay the grevior one month's pay from date of this decision within 30 days.
   
5. Each party will bear their own costs.
   

Dated at Suva this 7th day of May, 2012.

LEGAL TRIBUNAL