Singh v Suncourt Hardware Ltd [2012] FJET 41; ERT Grievance 21.2011 (7 November 2012)

IN THE EMPLOYMENT RELATIONS TRIBUNAL

AT SUVA
ERT Grievance No. 21 of 2011

BETWEEN:

VISHWA ANUP SINGH
Grievor

AND:

SUNCOURT HARDWARE LTD
Employer

Appearance:
Labour Officer on behalf of the Grevior
No appearance on behalf of the Employer

JUDGMENT IN DEFAULT BY THE EMPLOYMENT RELATIONS TRIBUNAL
(ON FORMAL PROOF HEARING)

1.0 Employment Relations Grievance

1.1 Background to the Grievance

This grievance was registered with Ministry of Labour on 4TH September 2009. Mediation was attempted on 21 October 2009; 18th November 2009; 23rd February 2010; and again on 26th October 2010 but was not successful. The mediator referred the grievance to the ERT in accordance with s194 (5) of Employment Relations Promulgation 2007 (or “the ERP 2007”) outlining the nature of unsettled employment grievance with the following terms of reference:-

“I hereby declare that the employment grievance outlined below has not been resolved in mediation held on 21/10/09, 18/11/09, 23/2/10, 17/8/10 and on 26/10/10. The employer’s representative maintained that according to their records (time cards) the worker had not worked any overtime and had been paid all his dues. The worker maintained that the employer had employees sign for attendance on a separate record, not on normal time cards and also paid workers on a separate pay package with a normal rate only, for hours worked on public holidays and Sundays. The Company representatives with whom he made enquiries about this were not giving him a proper response and only frustrated him which caused him to leave his employment. Therefore in accordance with Section 194(5) of the Promulgation I hereby refer the employment grievance to the Employment Relations Tribunal.

Outline of unsettled employment grievance:

The grievance was referred as being on unfair dismissal of the worker Vishwa Anup Singh from 14/02/09 by the employer Suncourt Hardware. During mediation the emphasis changed as the worker maintained he was forced to leave due to his seeking to be given the proper payment for work on public holidays and Sundays for the past fifteen years he had been employed. The worker is seeking an appropriate amount as compensation.”

2.0 Cause before the ERT

2.1 In the Employment Relations Tribunal (or “the ERT”), the employer was represented by one, Ms. Harshika Darjee on behalf of Suncourt Hardware Ltd. She informed the Tribunal that even though there has been a change of name, the business operations and dealings is still under her guidance despite the employer’s business was bought out by a fellow competitor namely, Vinod Patel. The matter proceeded with Ms Harshika Darjee continuing to make appearance for the Employer, where the parties were directed to file preliminary submissions by the Hon. Chief Tribunal on 27th May 2011. The Employer filed their Preliminary Written Submissions on 17th June 2011 and the Grevior filed his Preliminary Written Submissions on 27th July 2011.

2.2 For purposes of this formal proof hearing it is important to highlight that the last appearance made by Ms Drajee was on 15th August 2011 on behalf of the employer, Company. Prior to that, the matter had been set down for Mentions on many occasions with the Employer’s Representative Ms. Harshika Darjee appearing and giving the impression that the Company would be able to settle the matter by paying the Grievor his dues.

2.3 Hereafter, again NOAHs were served on the employer to appear and on 12th September 2011, a hearing date was allocated to hear the substantive matter on 5th October 2011. NOAH was again directed by the Tribunal to be served on the employer to appear for the hearing on that day.

2.4 On the Hearing day, there was again no appearance from the Employer or their representative Ms. Harshika Darjee. The Tribunal was informed that the Registrar of ERT as directed to send a NOAH to the Employer informing them of the hearing date was in fact complied but the employer still made no appearance. The Labour Officer also informed the ERT that she had taken the liberty to telephone and remind Ms. Darjee about the hearing date. The Labour Officer further told the Tribunal that Ms. Darjee had stated that the Company will make an appearance. As the Employer did not appear on the hearing day and since the Grievor and the Labour Officer was ready to proceed with their witnesses, the Tribunal proceeded to hear the matter by way of a formal proof hearing.

3.0 Background to Grievance

3.1 According to the Labour officer’s submission, this employment grievance had arisen from a disagreement between the Employer and Mr Singh upon his inquiry in terms of his entitlement to Annual Leave Pay and Overtime Pay. It was alleged that the Employer had denied Mr Singh his annual leave pay in conjunction with payment for the days he had put in as ‘overtime’ which was not paid by the employer whilst the grievor was still in employment with the Company. Because the employer refused to pay the Grievor his entitlements this left him no choice but to report his grievance to the Ministry of Labour. It is further alleged that when he reported the matter to Ministry, this resulted in him losing his employment with the Employer.

3.2 Because this submission of the Labour Officer on behalf of the grievor suggests that the employer had taken steps to impose what is usually deemed or regarded to be a constructive dismissal as in this instance the grievor had utilized the services of the Ministry of Labour to seek redress against his annual leave and overtime pay to be paid to him which the employer refused, I have to examine the origins of the actual grievance that was reported to the Ministry and assess if there any merits in this additional allegation.

3.3 Constructive dismissal (also called constructive discharge) occurs when employees resigns or is forced to leave his/her employment because the employer's behaviour become so intolerable or is so heinous that it makes the grievor’s life so difficult that the employee has no choice but to resign or walk of his employment under pressure. Since the resignation or being forced to walk out is not truly voluntary, it is in effect becomes a termination. The employee may resign or be forced to leave his/her employment over a single serious incident or over a pattern of incidents. Generally, the employee must have resigned soon after the incident. Therefore, the notion of constructive dismissal comes from the concept that: "...an employer must not, without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee." (Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84, EAT.)

3.4 Generally a constructive dismissal leads to the employee's obligations ending and the employee acquiring the right to make claims against the employer and notably, the exact legal consequences differ between different countries. Accordingly, it appears a claim for constructive dismissal thus originating as an "unfair dismissal" and a claim for "wrongful dismissal" is not contained in the ERP 2007. For this reason, there is usually a burden placed on the claimant to come to the grievance systems and processes under the ERP within the confines of law and only in very genuine cases, the Tribunal may consider such allegations, if there is concrete evidence of any form of constructive dismissal. It would seem that the onus shifts to the claimant to prove first that indeed unfair dismissal occurred by virtue of a forced discharge or resignation. Once this is established as the foundation of "unfair" or "unlawful" dismissal, then the employer is required to bear the burden of proof to provide justification as to the reasons provided to the grievor for his/her dismissal.

3.5 A good starting point is by examining the original claim as contained in Form ER1 as to how it was initially detailed where it seeks "Details of employment grievance (the problem) – Please explain what caused your problem" – here, the grievor penned the following claim:-

"I Vishwa Anup Singh would like to state that I was employed by Suncourt Hardware as a Salesman. I was paid $3.20 per hour .My start date was on the 17th January 1994 until the 14th of February 2009. I had a conversation with the Shop Manager in regards to the annual leave and the manager stated that if you want to work, you work and if you do not want to work then you can go home. I was a bit upset since I have worked for the above company for nearly fifteen years and the way the manager talk to me is not the right way. I therefore had no other option but to report this matter to the Ministry of Labour. I kindly request the Mediation Unit to assist me in my case and I request that I be compensated". (Bold is my emphasis)

3.6 This grievance was reported on 4th September 2009 as stated in Form ER1. Clearly the grievor was not in his employment when he had allegedly raised the issues of annual leave pay (or overtime pay, as this was not pleaded in Form ER 1) not being paid by the company whereby he then came to the Ministry to Labour to complain, hence the employer taking steps to terminate or discharge his employment. He has clearly stated in Form ER 1 that his "... start date was on the 17th January 1994 until the 14th of February 2009..." I am in doubt that he was already dismissed from his employment on 14th February, 2009 whereby he waited for almost seven months to lodge his grievance with Ministry.

3.7 For this reason also, I suspect the Mediator added in her terms of reference the following:-

"Outline of unsettled employment grievance:

The grievance was referred as being on unfair dismissal of the worker Vishwa Anup Singh from 14/02/09 by the employer Suncourt Hardware. During mediation the emphasis changed as the worker maintained he was forced to leave due to his seeking to be given the proper payment for work on public holidays and Sundays for the past fifteen years he had been employed. The worker is seeking an appropriate amount as compensation."

(Bold and underlining is my emphasis).

3.8 It is my opinion then that the grievor was dismissed on 14th February, 2009 and subsequently he came to lodge a complaint or claim of unfair dismissal with the Ministry. In effect, this grievance did not arise out of any issues of constructive dismissal.

4.0 Formal Proof Hearing

4.1 The law that entitles a grievor to proceed to have his case heard in the absence of the employer who fails to comply with various notices for appearance derives from section 233 of the ERP, where it states that:

"Power to proceed if parties fail to attend

233. If, without good cause shown, a party to proceedings before the Tribunal or the Court fails to attend in person or by representation, the Tribunal or the Court may act as fully in the matter before it as if that party had duly attended or been represented."

4.2 This is further supplemented by s238 (1) and (2) (a) of the ERP: that is, if further practice directions are sought pursuant to the Magistrates Court Rules. To that end, here, Order 30, Rule 3 will apply where it states that:-

"ORDER XXX – NON-ATTENDANCE OF PARTIES AT HEARING

Of defendant

3. If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant".

4.3 The Tribunal had provided ample time and opportunity to both parties to prepare themselves for the hearing of the evidence in this matter. Given that the Employer had failed to appear on day of hearing and in addition, failed to give due notice to the Tribunal and to the Labour Officer as to a good cause for non-appearance, the Tribunal had then rightly and fairly proceeded to hear the substantive matter in terms of evidence adduced by the Labour Officer.

4.4 The Labour officer called the following witnesses:-

1ST Witness – Mr Vishwa Anup Singh, the Grievor

• The Grievor testified to have been employed by the Employer for nearly fifteen (15) years from 1994 to 2009. While being employed by the Employer, the Grievor was a Salesman at the hardware shop. He told the Tribunal that he walked off his employment due to a dispute that arose between him and the Employer regarding overtime pay as the employer would not pay him, both in the year 2008 and at the material time. He also said the employer refused to pay his 2009 annual leave entitlement that was for about two weeks or 10 working days.
  
• He testified that his normal hours of work were from 8am – 5pm, Monday to Saturday. He was further required to work overtime by the Employer in order to do extra work such as setting up the shelves but was paid the normal rate as if he had worked normal hours only. He also testified that he had never had to report the matter before as he was made to believe by the Employer that his arrears of overtime would eventually be paid to him until the dispute arose in early 2009.
  
• He testified that he had never signed an employment contract with the Employer and he was not aware of any employee that had signed any employment contract with the Employer to date. The Grievor testified to the contents of his statement which he gave in Mediation and which had been tendered in an "Exhibit 1" during the hearing.
  

2nd Witness – Mr. Rajen Prasad

• Mr. Prasad testified that he was the Supervisor of the Grievor during their time of employment with the Employer. He also testified that the Grievor was a hardworking individual who worked hard at his workplace.
  
• The witness further testified that they had indeed worked extra hours from their normal working hours whereby the Employer would urge them to do so. They would also sign on different time cards while doing overtime as to that on which they usually sign when they do normal hours of work. The witness further testified to have received a similar pay slip as that tendered in as "Exhibit 2" during the hearing.
  
• The witness further stated that the Employer made a lot of his employees work overtime and threatened them to either work or go home which left most to the employees work as they all had families to support and mouths to feed.
  

4.5 The Labour Officer submitted through the two witness's evidence that:

1. The Grievor did work overtime during his employment with the employer between 2008 and 2009;
   
2. The Grievor signed on two different time cards – one for normal time and another for overtime; and
   
3. The Grievor received normal pay for hours worked overtime contrary to section 72 of the Employment Relations (Administration) Regulations 2008.
   

4.6 The onus in any employment grievance matter lies on the employer to disprove the claim of unfair dismissal as alleged by the grievor in this instance. Here, the employer has waived that right by not appearing on the day of hearing to defend the claim when the evidentiary hearing of the substantive matter was scheduled despite several NOAHS was served on the employer. The Grevior is thus not required to prove his case to this Tribunal.

4.7 However, at the formal proof hearing there was compelling evidence to establish that the employer was engaged in certain unfair employment practice, particularly by denying its workers overtime pay which they appeared to deliberately conceal or evade by keeping two books or wage records. The Supervisor, Mr Prasad's evidence independently collaborated that the employer was able to get away with such seemingly unwarranted and unjustifiable practice by threatening their workers vis a viz their only source of livelihood. It seems that if the workers were to complain or show defiance against such practice of the employer, the employer would always threaten to fire the workers or give them a choice to leave their employment if they were unhappy with what the employer was doing.

4.8 Evidence proved that the workers' source of livelihood was threatened by the employer, which was the reason both the witnesses testified that it made Mr Singh to condone the unfair practice of the employer under fear and oppression until he was terminated when he must have voiced against it.

4.9 I am completely disturbed and concerned that Ministry of Labour has also failed in its mandatory inspection of workplace under its statutory powers to regulate these sorts of practice by annual inspection of Employers, mostly through on-spot checks of the labour practices imposed upon the employees. To begin with, there were no employment contracts for any workers. Mr Prasad also appeared to have no contact of service signed with the employer as a supervisor. Then the suggestion of the employer keeping two books to maintain records is not only a stark reminder of the regulator's failure to protect the employees' interests but also that the employer was able to act dishonourably and carry out such unfair labour practice for a long period of time whilst finally escaping law by selling its business operations to a new investor.

4.10 That said, the new owners have taken on all the company's interests including those interests that went against the very principles of good faith and trust that is invested between the employer and its employees. The new owner was aware of this grievance and yet, they did not come to the Tribunal on the day of hearing to defend this case.

4.11 Further I noted that there was no reasons given to the worker why his employment was taken away by the employer in writing or verbally. He was told not to demand his entitlements and if he was to demand then he was free to leave his job, and that too, the employer's attitude towards an employee who had given fifteen years of service to the Company was no different to any other employee who was not happy with their unfair terms and conditions. The employer had submitted only the employee's records kept in their custody via Preliminary Submissions filed on 20th June 2011. There was no written justification for the reasons as to what facts had led to Mr. Singh's usual employment being taken away from him, either in the form of a dismissal or termination of terms and conditions of his contract of service (implied or express).

4.12 In that regard the employer has breached s114 of the ERP (see below) where "dismissal" clearly means any termination of employment (s4 of ERP) and "employment grievance" is defined to be:

"employment grievance means a grievance that a worker, may have against the worker's employer or former employer because of the worker's claim 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' disadvantage by some unjustifiable action by the employer;

(c) - (e)"

"Section 114 provides:

If a worker is dismissed, the employer must, when dismissing the worker provide to the worker with a written statement setting out the reasons for the dismissal.

Section 7 of Schedule 4 (Section 110) stipulates: If-

(a) the worker is dismissed; or

(b) the worker is not satisfied with the employer's written response; or

(c) the employer fails to provide, within 7 days after the day on which the employer receives the worker's written statement, a written response; or

(d) the employer and worker have agreed to waive the requirements for an exchange of written statements and the worker is not satisfied with the employer's response to the grievance,

the worker may refer the employment grievance to the Mediation Services in the prescribed manner."

4.13 Here, the grievor believes that he was sent home unfairly without reasonable cause when he merely sought his entitlements he was impliedly agreed to in a contract of service for 15 years by the employer. He is within his right to seek the same as he was not seeking anything above or beyond which was his minimum labour right as per a contract of service. There is no contention that there was no oral or implied contract of service in this matter.

4.14 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).

4.15 I am satisfied that the imminent threat of loss of job vis a viz his only source of livelihood whenever the grievor wanted to seek payment of overtime pay or annual leave established he was unfairly treated. Further, without the employer coming to the Tribunal to provide any reasonable cause for the grievor's allegation of unfair dismissal or providing the facts ensuing from the time he was asked to leave his employment or forced to leave his employment (that is the circumstance that compelled him to either leave involuntarily or being dismissed, whatever these reasons were), the manner in which he was treated by the employer was nothing short of on-going disrespect to his dignity and worth. He was obviously suffering at the hands of the employer's dictatorial attitude to the effect that they told him that "...if you don't like our terms and conditions, you can leave..."

4.16 He was also not protected by the Regulator and actual perpetrators finally managed to sell their business and escape the brunt of the law.

4.17 This does not mean that the grievor can be denied remedies he seek from this Tribunal and I will leave the enforcement part of this judgment to the Labour Officer against the new owner or company that bought out Suncourt Hardware Ltd.

5.0 Decision and Orders

Taking into consideration evidence adduced in the Tribunal, this ERT gives the following decision and orders:-

1. The allegation of unfair dismissal has merits and is found to be wrong, unjust and unfair. The Grevior is ordered to be paid two weeks of his annual leave pay that he was entitled to prior to his dismissal.
   
2. In addition, he will receive from the Employer as compensation for any overtime pay he was denied in terms of six months pay for loss of dignity and injury to his feeling, particularly for being placed under constant fear and threat of loss of his job.
   
3. The Employer will also pay cost to Ministry of Labour of $300.00 as a penalty for non-appearance.
   

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

LEGAL TRIBUNAL