IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT Grievance No. 200 of 2010

BETWEEN:

SACHINDRA KARAN
Grievor

AND:

NEW ZEALAND PACIFIC TRAINING CENTRE
Employer

Appearances:

Labour Officer, Mr. Shah for the Grievor
Mr. Maharaj for the Employer

Date of Hearing: 17th November, 2011
Date of Judgment: 22nd November, 2012

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 6th April 2010. Mediation was attempted on 12th May, 22nd May, 22nd July and again on 28th July 2010 but was not successful. The mediator referred the grievance to the ERT on 26th October 2010 in accordance with s194 (5) of the Employment Relations Promulgation (or "the ERP") outlining the nature of unsettled employment grievance with the following terms of reference:-

"The grievance is on unfair dismissal of the worker Sachindra Karan by the employer New Zealand Pacific Training Centre from 29/03/10. The worker is seeking appropriate compensation".

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 on 25th January 2011 whereby the Employer, New Zealand Pacific Training Centre (or "NZPTC") filed their Preliminary Written Submissions on 15th June 2011 and the Grievor filed his Preliminary Written Submissions on 8th July 2011. Employer also filed further Submissions In Reply on 7th September 2011.

2.2 Hearing of the substantive matter was carried out on 17th November 2011. Parties were directed to file their respective written closing submissions and only the Employer filed submissions on 29th November 2011.

2.4 The employer called one witness:- Mr Yashwan Singh.

2.5 The grievor gave evidence as the only witness from his side.

3.0	Issue(s) before the ERT

3.1 The general nature of allegations pertaining to unfair dismissal of the Grievor by the Employer requires the ERT in this instance to determine whether or not the dismissal was substantially and procedurally unlawful and unfair. In grievor's Preliminary submissions dated 8th July 2011 the Labour Officer has provided the following issues to be redressed and remedied by this ERT:-

a)	That it is submitted that the employer in this instance failed to follow the disciplinary and grievance procedure prior to the grievor's termination of employment; 

b)	That the grievor did not act unlawfully to warrant the said employer to terminate his employment under Section 33 of the ERP;

c)	That it further submits the termination of the grievor's employment by the employer was an act of bad faith, a tactic used to exit the grievor's employment unjustifiably; and

d)	That it finally submits the grievor be compensated for humiliation, loss of dignity and injury to his feelings in accordance with Section 230(1) (c) of the ERP.

3.2	In other words, this ERT will determine whether or not the purported (summary) dismissal was unlawful (or wrong) and unfair as alleged by the Grievor. If so, should relief (or remedies) sought by the Grievor including compensation (and costs) be awarded? 

4.0 Background Facts 

4.1 No written contract of service was presented to the ERP; however, there was no contention that the grievor was not a worker of NZPTC. The grievor had joined the NZPTC as a Tutor pursuant to appointment letter dated 28th January 2008 which was admitted by both, the employer and the worker.

4.2 The grievor was initially based at the Suva Centre, then transferred to the Nasinu Centre and later again transferred to the Nausori Centre. The grievor's duties and responsibilities entailed teaching Computer Studies to various students at NZPTC Centers.

4.3 The employer presented to the Tribunal that during the term of his employment with NZPTC, the grievor was given warning letters on two occasions for issues pertaining to late arrivals in reporting to his duties and failing to teach the students. The employer, NZPTC finally terminated the employment of the grievor by providing the following reasons in what appears to be the termination letter dated 29th March 2010 (Exhibit "F"):-

 "The reason for taking this drastic measure is stated below:

1.	Absentee rate is too high. As a result students are victimized a lot.

2.	Not taking a positive attitude towards work.

3.	Academic policies are taken too lightly.

4.	Salary level is too high for me to meet is currently.

5.	Majority of the time you are just sitting in the class which is breach of NZPTC Academic Policy".

4.4 In his original claim, that is, Form ER1, the grievor's major contention or issues pertaining to his grievance was that because he was sick for three days and did not appear to work, this was regarded as absenteeism from work without any reasonable excuse. He stated that as he was normally required to do 12 hours of work in a day and thus when he fell ill, the employer took an action to terminate him. He also stated that his continued plea for his entitlement to annual leave from the employer was denied and the major reason the employer had taken an action to terminate his employment was because they did not want to give him the pending leave he had been requesting. He wanted his leave pay and undue pay he was entitled to, including one year's salary to be paid by the employer for unfair termination. 

4.5 In his preliminary submission filed on 8th July 2011, these issues had somewhat evolved. The grievor submitted that he was never absent from work because he knew the students would suffer; he was never given the company policy and procedures; and that the employer gave him the warning letters to punish him for refusing to take up classes between 8am-11am; 11am-12pm; 2pm -5pm and 5-8pm. He did not raise anything regarding his annual leave being denied to him or that he was not given an employment contract (in writing), including a termination letter in writing or that his leave or other dues were still pending at the time of his dismissal.

4.6 In counter-response, the Employer submitted that at the time of the termination of the employment, the grievor was paid all the wages that were due to him. They stated that in the view of the foregoing reasons stated in the termination letter, there was nothing wrong done by NZPTC as it did not unfairly dismiss the employment of the grievor. The employer further submitted that due to unprofessional and unethical conduct of the grievor in failing to conduct the Classes for Level 3 course for NZQA and properly assessing the assignments, two students namely Pooja Preeti Prasad and Rachana Devi, had in fact failed their Courses. The said students then filed a claim against NZPTC in the Small Claim Tribunal seeking refund of the course fee amounting to $10,000.00 for both the students. It appears that the grevior was also included as one of the co-defendants failing to assess their assignments. 

4.7 It appears that the Small Claim Tribunal had granted an Order against NZPTC to pay the two students $5,000.00 each. The employer submitted that although the said Order is on appeal, NZPTC apportioned blame entirely on the conduct of the grievor in failing to do his part as a Tutor responsible to assess the assignments, for which NZPTC then has had to take steps to defend/appeal against the claims, incurring substantial legal costs and which costs are still continuing.

4.6 In summary this is the evidence of the employer's witness:-

 Witness: Mr Yashwant Singh

o	He testified that he was familiar with alleged incident in his capacity as the Officer in Charge of NZPTC and currently he was in charge of the Suva Centre. He confirmed that Mr Karan had joined NZPTC as a Tutor in Suva Centre first and thereafter that he was transferred to Nasinu Centre as the Manager and Tutor. From there he was again transferred to Nausori Centre as a Tutor only. The grevior was tutoring in Business and IT.

o	He recognized and tendered in documents attached to the employer's preliminary submission marked as "Exhibits A-E" in the following order:- 

A - Copy of appointment letter dated 28/01/2008.
B - Copy of warning letter dated 09/02/2010.
C - Copy of warning letter dated 03/02/2010.
D - Copy of claim and other documents, Order in SCT Claim No. 0162/2010 Pooja Preeti Prasad vs NZPTC.
E - Copy of claim and other documents, Order in SCT Claim No. 0163/2010 Rachna Devi vs NZPTC.

o	He further stated the despite warning letters were issued to the grievor, his lateness and his behavior towards work was still the same. He said because of this he was in the position to give and hand over the grievor his termination letter that was tendered in as "Exhibit F". The Labour Officer initially objected saying he did not have a copy of the letter but later I noted that the Labour Officer admitted that the grievor was furnished with the letter which he had at least at the mediation level. 

o	Mr Singh told the Tribunal that the claims by two students in the Small Claims Tribunal were because they had complained against their Lecturer, being Mr. Sachindra Karan. It appears that their assignment was not properly marked which had been send to New Zealand, whereby it was returned. The students complained that the assignment was checked in Fiji by the respective Lecturer as the Lecturer had told them that he had marked and checked the papers before he had send the same to New Zealand. The students further alleged that Mr Karan had informed them that they had passed the course because he said he had marked the assignments. However, on the return of the marked papers from NZQA, they were later told that they had in fact failed due the reason that the students had copied each other's assignments. This was further aggravated, according to Mr Singh when the lecturer in charge, Mr Karan had failed to check the assignments before he had approved it to be sent to New Zealand. 

o	Mr Singh further testified that Mr Karan was paid one month's annual leave when he had sustained a personal injury to himself that was of no fault of the employer and that all his dues at the time of his termination were also paid to him. In cross-examination, it was clear that the Compliance and Mediation Unit had resolved this matter in their respective ways.

o	Mr Singh then clarified that the termination was fair because the employer expected all the employees to be at work on time but Mr Karan was always late when his work started at 8.00am. He attempted to justify that Mr Karan would come after 8.00am but mark his attendance such as 7.45am and sometimes 8.00am. He told the Tribunal that when the employer had begun to strictly monitor attendance as per a register kept by the employer, Mr Karan started to write the exact time of arrival and his absenteeism rate showed it was high. Mr Singh tendered in an extract from the "DAILY ATTENDANCE REGISTER" marked as "Exhibit G". 

o	In his cross- examination Mr Singh agreed that there should be a contract of service as alluded in Exhibit A but no employment contract was produced to the Tribunal. 

o	When questioned about the "Breach of NZPTC Academic Policy" as also contained in the termination letter, Mr Singh responded that: "Yes, we do have Academic Policy, have a Academic Staff Training whereby the Staff knows the rules and regulations. What are the things to be done in the classroom and things not to be done…"

o	When he was questioned that the grievor was not told or made aware of the Academic Policy, Mr Singh responded that "…He himself was one of the Centre Manager of Nasinu Centre so he should know the Academic Policy because when he was the Manager of the Centre …. It is one of the role as Centre Manager to tell the staff what the rules are what the regulations are. If he did not have if he has not seen it then what he must be doing with a staff?..."

o	Mr Singh also told the Tribunal that the grievor in the beginning of his employment was a good employee but his performance started to decline and in 2010 because he was late to work most of the time including being absent, they decided to terminate him.

4.7 In summary this is the evidence of the grievor:-

 Mr Sachindra Karan

o	He had been working for NZPTC for 2 years. He had stated work at the NZPTC Suva Centre as a Tutor. At Nasinu, he was the Centre Manager and at Nausori Centre he was a Tutor again. His salary as a Tutor was $6,500 and as the Centre Manager he was paid $8,500.

o	He testified that when he was in Suva Centre majority of the time he used to start at 8.00am and finish work at 8.00pm. According to the grievor, it was a 12-hour work mostly on Mondays, Tuesdays and Wednesdays. 

o	When asked if he knew the reasons for his termination, he told the ERT that the employer told him he was sitting down in the classroom, the wages were too high for the pay and that his absenteeism was high that resulted in his dismissal. However, he justified that had he been frequently absent as alleged by the employer then he would not have received an award for being the most dedicated staff in 2008. In 2009, he admitted he was absent for one or two days but was not late to work. He said he was only late to work on one or two days.

o	When asked what procedure was exhausted by NZPTC prior to his termination, he told the Tribunal that there was an email given to him (which was not presented to the Tribunal) and then three or four days later he was given a termination letter. He was not counseled or given an opportunity to explain himself.

o	He further told the Tribunal that no student had complaint against him. In his cross-examination he admitted he knew the two students who had lodged a claim with Small Claims Tribunal but he said he was not responsible as he was not only person taking that course where the two students had failed.

5.0 The Law: Summary Dismissal under the ERP 2007

5.1	It was the employer's defence that they had generally invoked section 33(1) of the ERP 2007 to carry out summary dismissal against the grievor as per their legal submissions filed on 29th November 2011. The exact ground(s) as stated under s33(1)(a-e) of the ERP was not stated and it seems all the grounds were pleaded.

5.2 The facts in this grievance indicate that the Grievor was provided the following reasons for his termination as contained in the termination letter:- 

•	Absentee rate is too high. As a result students are victimized a lot.
•	Not taking a positive attitude towards work.
•	Academic policies are taken too lightly.
•	Salary level is too high for me to meet currently.
•	Majority of the time you are just sitting in the class which is breach of NZPTC Academic Policy".

5.3	Although no legal (closing) submissions was provided by the grievor, his main contention (as reflected in the preliminary submissions) pertained to the allegation of unfair dismissal deriving out of the employer's disciplinary action whereby they had purportedly failed to follow the grievance procedure prior to the grievor's termination. It was further alleged that the grievor did not act unlawfully to warrant the summary dismissal of his employment under Section 33 of the ERP and that the termination of the grievor's employment by the employer was an act of bad faith, as it was a tactic used to exit the grievor's employment unjustifiably. The grievor thus seeks to be compensated for humiliation, loss of dignity and injury to his feelings in accordance with Section 230(1) (c) of the ERP.

5.4	Indeed, the first point of reference for termination or dismissal on the premise of good faith relationship between an employee and the worker is always the contract of service. This goes to the definition of an employment; employer; and worker in the ERP which all make reference to 'contract of service' being a basis for an employment. 

A contract of service is defined as: "…a written or oral contract, whether expressed or implied, to employ or to serve as a worker for fixed or indefinite period…". 

5.5	Sections 36 and 37 of the ERP however, make it mandatory to have a contract of employment in writing, particularly where the duration has exceeded the one month period. A written contract of service makes it easier for the worker to understand his/her employment terms and conditions, duration or length of contract of service, notice period for termination, and most significantly the kinds of situation that can give rise for termination that also allows for summary dismissal as a right of the employer under section 33 of the ERP to send a worker home without notice and on-spot.

5.6	In the grievance matter before me, clearly there is an implied contract of service between the parties as there was no written contract of service adduced in evidence to demonstrate what were the employer's terms and conditions of the grievor's employment. The Labour Officer raised this to be an issue of importance to the grievor's case where he also pointed out to the Tribunal that the grevior was not provided the policies referred by the employer that was supposedly breached by the grievor to warrant a summary dismissal. 

5.7	The ERP 2007 is indeed, now the established law of Fiji governing employment relationship between an employer and employee (or worker). Therefore the law on summary dismissal has been codified in the ERP 2007 and the employer's counsel has rightly pointed out, which was confirmed by the Court of Appeal in the case of Shell Fiji Ltd v Johnson [2010] FJCA 54; ABU0012/2009 (23 September 2010) at paragraph 30 and 31 (and which was also upheld by the Supreme Court at paragraphs 26 and 27). His Lordships, Byrne and Callanchini J have stated that:-

"The right of an employer to summarily dismiss an employee at common law has been modified in Fiji by statute. At the relevant time, section 28 of the Employment Act Cap 92 (now repealed) stated:

"28 An employer shall not dismiss an employee summarily except in the following circumstances:

(a)	 where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of service;

(b)	for willful disobedience to lawful orders given by the employer;

(c)	– (e)…."

5.8	In the same Court of Appeal case, his Lordships went further and stated that:

"In the absence of a more generous term in an employee's contract of service, the summary dismissal of an employee will be wrong if it is inconsistent with the provisions of section 28."

5.9	Here, the Lordships considered the case of Fiji Public Service Association and Satish Kumar –v- the Arbitration Tribunal and Another (unreported Civil Appeal No. 13 of 1999 delivered on 19 February 2002) where the Fiji Court of Appeal had said (approving the comments made by the judge at the first instance) at page 10:

"Section 28 provided that an employer should not dismiss an employee summarily except in the circumstances specified therein. …. His Lordship said that the section did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (e) applied. He added that if any of the paragraphs applied, the common law right continued and there was not statutory or other objection to that right being fettered by an agreement between the employer and its employees…."

5.10	Section 33 (1) of the ERP 2007 repealing section 28 of the Employment Act is no doubt similar in various ways. It does not also confer an unfettered right to the employer to dismiss an employee except under those matters specified under s33(1)(a)-(e) where it clearly stipulates that:

"No employer may dismiss a worker without notice except in the following circumstances –

(a)	where a worker is guilty of gross misconduct;
(b)	for willful disobedience to lawful orders given by 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."

5.19 Under the old law (and certainly the position under the current law would be same) that where there is legal confusion or lacuna in the statute, often common law position has guided the Tribunal and Courts for a clearer interpretation: however, now in the face of explicit statutory provisions (ERP 2007), to better understand how to determine whether or not a summary dismissal is unfair and/or "wrong" in law (substantially and procedurally), other relevant and applicable provisions in the ERP must be read and considered in its totality. These provisions are:-

"Section 33 (2) which stipulates that:-

The employer must, provide the worker with reasons, in writing, for the summary dismissal at the time he or she is dismissed.

Section 34 states:

If a worker is summarily dismissed for lawful cause, the worker must be paid on dismissal the wages due up to the time of the worker's dismissal.

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." 

(Bold and/or underlining is my emphasis)

5.20	In a normal cause, the grievor has a right to come before the ERT for redress and remedies for 'employment grievance' under sections 109, 110 and 111 of the ERP for any type of "dismissal" pursuant to section 7 of the Schedule 4. Under section 4 of the ERP:
"Dismissal" means "any termination of employment by an employer including those under section 33" (my emphasis).

5.21	In a similar manner, the drafters of ERP have generally intended Section 33 of the ERP as a presumption in favour of the employers where clearly the requirements for a "lawful summary dismissal", must be adhered to. This is confirmed by section 30(4) of the ERP where it is clearly stated that:-

"Nothing in this Promulgation precludes either party from summarily terminating a contract of service for lawful cause".

5.22	This was further clarified by your Ladyship, Wati J in her judgment of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011, where the Court had looked at how contract of service can be interpreted in view of termination methods. Here, the Court noted that there were two mutually exclusive dismissal regimes (in the worker's employment contract) where dismissal could occur either by a week's notice or payment in lieu, or summary dismissal for serious misconduct without notice or payment in lieu. Additionally, the Court noted in Isoa's case that the employer was entitled to dismiss summarily for gross misconduct pursuant to s33 of the ERP. The Court went onto say and I quote:-

"…Indisputably the termination clause permits termination without cause….and also for summary dismissal, without notice for serious misconduct. Once the employer made serious misconduct the basis of termination, it is then correct for the Tribunal to make a finding as to whether the cause for termination was established by the employer as the onus to establish the ground is always on the employer. When the Tribunal made a finding that the lawful cause to terminate was not established, the termination became wrong and unlawful…" (unquote)

5.23	Suffice to note that where good faith requirement is concerned in this case, it is my opinion that there was no clear understanding on which ground the employer had chosen to exercise its statutory right under s33 of the ERP to invoke summary dismissal against the grievor as per the letter of termination ("Exhibit F"). This is perhaps, the most fundamental step in satisfying the requirement under section 33 (2) and section 114 of the ERP. The worker or employee must know what is the actual breach of law or contract of service that has given rise to the grievance or dispute in the first place. To test whether or not the employer satisfactorily under the law complied with the mandatory requirement of section 33 (2), that is to provide reasons in writing at the time of dismissal, I am of the view that it must be first established whether or not there was a lawful cause for summary dismissal (as per Section 34 where it states that: "If a worker is summarily dismissed for lawful cause, the worker must …"). 

5.24	Lawful cause is vital when determining whether or not it sufficed for purposes section 33(2) of the ERP on basis of good faith that must exist between the parties at all times, more so at the time of 'without notice' terminations. The circumstances and the exact nature of the alleged offences (that is the substantive allegations) that gave rise to instant termination without complying with the usual notice period must be able to justify lawful cause under s33 of the ERP. Otherwise as stated by Ladyship Wati J in Isoa's case, if "…lawful cause to terminate was not established, the termination became wrong and unlawful…". 

5.25	Clearly the onus rests on the employer in employment grievance matters.

5.26	I must say that section 34 of the ERP makes only a reference but does not elaborate what really constitutes a "lawful cause". However, one would assume section 33(1) of ERP gives the prerequisite premise upon which any summary dismissal can be effected, as long as it is based on one or any of the lawful grounds [s33(1)(a-e)] stated therein. 

5.27	In the Court of Appeal case of Shell Fiji Ltd v Johnson his Lordships, Byrne and Callanchini J (in Full Court of Appeal) has stated that:

"…The termination of employment by summary dismissal in this case will be wrong unless (a) the Respondent's misconduct fell within one of the circumstances listed in section 28 and (b) was of sufficiently serious nature that it would entitle Shell to regard the contract of service as being at an end…"

5.28	Because this aspect was not challenged, I regard the Full Court of Appeal's finding in the Johnson's case to be intact or the current position as the contentious issue that was in fact appealed to the Supreme Court revolved around only one major point of contention: this was in regards to the award of general damages of $10,000 based on the legal principle outlined in the case of Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002). Yashni Kant's case outlines the common law principle which implies a term in an employment contract to deal with employees fairly at the time of dismissal. I will discuss this later when determining whether or not the grievance was also unfair in the manner it was accorded to the grievor.

5.29	In the current case, the employer did not specifically state in the termination letter but has submitted generally by implication that NZPTC had relied on all the grounds contained under section 33 (1) (a) – (e) of the ERP for their justification for summary dismissal (as per Clauses 3- 3.3 of the Legal Submissions of the Respondent filed on 29th November 2011). It seems I am left to fit the facts and evidence in this case into their appropriate categories to seek which ground(s) applied (and whether it indeed applied) and whether or not there was lawful cause to invoke those ground(s) for summary dismissal.

5.30	By and large, it is my opinion that s33 of the ERP being generally invoked without any specific reference being made to any of grounds contained under s33(1) (a)-(e) as the "lawful" ground(s) of the employer, does not automatically contradict or fall foul of s33(2) of the ERP (in terms of providing the exact reasons) for termination. The employer should be able to assert and allege any of the grounds for summary dismissal, say, in relation to a gross misconduct [s33(1)(a)] if in the body of the termination letter there was implication that the alleged (mis)conduct was considered to be a serious breach of the contract of service (implied or express) and/or code of conduct imposed by the employer; and where, of course, they found the grievor also guilty of the alleged gross misconduct. 

5.31	As seen here, it becomes more problematic when you are confronted with matters where there is no proper compliance with s33(2) of the ERP, in terms of the employer not making it known to the grievor the actual grounds in writing why he/she is being summarily dismissed under the five grounds listed in section 33. This grievance matter clearly has shown that the grievor was made known via email, contents of which were unknown to this Tribunal that he had been alleged to have breached the employer's policies. These policies were not presented to the Tribunal but it appears that it had something to do with Mr Karan's attitude towards his work in that he was either frequently arriving late to work or was absent. There was also no contract of service to allow the Tribunal to understand the exact breaches alleged by the employer. 

5.32	It was the grievor's evidence that following the email correspondence, the employer within three or four days summarily dismissed him, that is, terminated his employment without notice where he was provided a range of reasons such as absentee rate is too high; not taking a positive attitude towards work; academic policies are taken too lightly; salary level is too high; and majority of the time the grievor was just sitting in the class which was a breach of NZPTC Academic Policy.

5.33	The Employer further submitted to the Tribunal that: "Yaswant Singh in giving his evidence in the hearing of the matter told Court that Sachindra Karan's application to work was very bad indeed and the grounds stated in the termination letter fits with grounds ….for summary dismissal" (Clause 3.2 of the of the Legal Submissions). 

5.34	Here the employer is generally referring to the conduct of the grievor and his application to his job as being very bad. 

5.35	To this Tribunal, in order to discipline and possibly dismiss an employee for say, "gross misconduct" or "for willful disobedience to lawful orders given by employer" or for habitual or substantial neglect of the worker's duties or "for continual or habitual absence from work without the permission of the employer and without other reasonable excuse", the employer must prove that the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

•	that the rule was a valid or reasonable rule or standard; 
•	the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; and
•	the rule or standard has been consistently applied by the employer. 

5.36	Further, while s33 does not set out any such guideless, this ERT cannot just substitute its views for that of the employer in determining whether or not the employer acted reasonably. Rather the Tribunal has a task to test objectively whether or not the employer had acted reasonably when dismissing the grievor (as per the principle in Michael Strouthos v London Underground Limited, England and Wales Court of Appeal (Civil) Decisions, [2004] (18 March 2004). I have also noted his Lordship Justice Gates decision (as he was then) 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."

5.37	In addition, in the case of Sinclair v Neighbour [1967] 2 WLR 1, the Court of Appeal ruled that one act of dishonesty was sufficient to warrant summary dismissal where it cautiously demarcated between placing less weight to the labeling of the act or misconduct with that of the facts that establish that misconduct. The employee in this case was summarily dismissed and his claim for damages for wrongful dismissal succeeded in lower court but Court of Appeal overturning verdict stated that:

"… I think that he (the trial judge) fell into error in attaching too much weight on the label and not enough to the facts. The facts were established. The fact that the manager took the money from his employer's till behind his back knowing that the employer would not consent was established; and it seems to me that it does not really matter very much whether it justifies the label 'dishonest" or not…" (Bold is my emphasis).

5.38	Bearing in mind these guidelines and/or case authorities, as per Mr Singh's evidence pursuant to the "DAILY ATTENDANCE REGISTER" marked as "Exhibit G", at least in six instances in January 2010 it was proved that Mr Karan had in fact arrived to work after 8.00am and in most extreme cases, he arrived after 10.00-11.00am. Obviously he was pulled up for these late arrivals and it seems that the grevior did not have good or valid reasons for arriving late as during his testimony he told the Tribunal that everyone has personal problems and he was not alone. Clearly this is not a reasonable explanation by any standards and I am not one to find these kinds of answers permissible at any workplace. I also noted that where staff had already annotated, for example, 8.00am or 9.00am, following the same line beneath that annotation Mr Karan annotated 7.45am. In usual circumstance, these registers are kept to collate the arrival of the staff as they clock in. Visibly this is an unusual occurrence and no explanation was provided by the grievor.

5.39	That said, the record submitted showed that Mr Karan was absent from work on one day only in January 2010 and since I did not have compassion for other months, that is, before Jan 2010 or after, at least for February 2010 or up-til the time he was dismissed, it is hard to say exactly what was his absenteeism trend. There were also no records to show how many days in 2009 he was absent without justification in terms of not complying with his leave (sick or annual) entitlements, whatever they may have been. 

5.40	The evidence from the employer's witness, Mr Singh indicated that the allegation of late arrivals to work prior to the grevior's dismissal had some merits, at least on six occasions in January 2010. But, this is a picture of one month only as presented through the daily attendance register. There was no other record of such pattern in the previous months nor I had any reliable evidence of Mr Karan being absent from work on regular basis to prove that this conduct had consistently contravened the policy of the employer. Yet, such policy or contract of service was not presented to the Tribunal at all. Because the employer bears the onus of proof, it is my opinion, that the employer has failed to justify lawful cause to qualify any of the grounds contained under s33(1)(a) – (e) of the ERP.

5.41	Further the employer relied heavily on two claims that were registered in the Small Claims Tribunal by two students where there was indication in the Referee's judgment that the grievor had wronged the students by failing to do his duties as required of a Tutor, which had caused both these students to fail the course. A careful perusal of the Referee's decision of the Small Claims Tribunal shows that Mr Karan had offered to pay for the students to re-sit the papers but he had failed to appear on the designated days causing the two students considerable loss in money and time including missing out on an opportunity to graduate from the institution. The students were eventually successful in their claim at the Small Claims Tribunal. 

5.42	Suffice to note for reference, the students allegations against Mr Karan was reflected in the Exhibit E at clauses 7 and 8 as facts were substantiated in favour of the students whereby the Referee found that: "…The primary reason for the Claimant's failure was attributed to her assignments not being marked by the local Tutor.."

5.43	However, this was not a reason given by the employer at the time of grievor's dismissal. If this was an indication of two reasons namely, not taking a positive attitude towards work and academic policies are taken too lightly, then the employer should have made reference to these claims registered in the Small Claims Tribunal and indicated how it had breached their Academic Policy including showing a pattern of poor or bad performance by the grievor. There was no evaluation of performance of the grievor in the time he was employed by NZPTC that should have been presented to the Tribunal to prove that the grievor was indeed not positive towards his work when both Mr Singh and the grievor told the Tribunal that Mr Karan started off as a dedicated employee for which he was awarded by NZPTC in 2008 for his good performance. 

5.44	The two warning letters where only one questions about the late arrival is not a credible piece of evidence to prove he was always late to work although I am mindful that six instances of late arrivals in one month would mean that he was late at least once a week on average basis. This could be acceptable or unacceptable by standards set down by the employer within the confines of a contract of service. In that sense, the grievor should have been given an analysis of his late arrivals as contained in the daily attendance register and asked to provide good reasons for his conduct. Then he should have been given an opportunity to improve his late arrivals. If he had failed consistently after monitoring for a period of time (not for one month only) then it would have sufficed as a lawful cause being something so serious or grave in nature that it would have completely gone against the rules and standards that was applied in such situations by a reasonable employer. 

5.45	Clearly, for even an isolated incident, the onus is on the employer to prove that one act could constitute a serious breach of employer's policy and which policy was made known to the grievor [see: Sinclair v Neighbour [1967] 2 WLR 1]. If he had still violated the policy when he knew he would commit a serious offence, the employer can justify summary dismissal. But there was no contract of service nor did I see any such policy of the employer, which then leaves me to find that the employer has fallen short of meeting the standard of proof on the balance of probabilities to justify lawful cause under s33.

5.46	Finally, I am concerned whether the reason "salary level is too high for me to meet currently" was the real reason for such drastic measure to be taken against the grievor which cannot in any circumstance meet the criterion set down to qualify lawful cause under s33 of the ERP. 

5.47	In my opinion, none of five listed reasons or offences was so serious in nature to allow the employer to summarily dismiss the grievor. 

5.48	This is mainly because the employer has failed to establish that the offences alleged could meet the standard required to declare it "lawful cause(s)" to warrant summary dismissal which in any employment relationship is considered the most harsh and "last resort" punitive action or penalty against an employee, particularly one that was performing satisfactorily in the beginning. 

5.49	Once lawful cause is not established, the dismissal becomes wrong and unlawful. However, if the dismissal was established to be lawful, then the employer could have proceeded to terminate the grievior immediately (without notice) and this could have been done without according the usual procedures for hearing, mitigation or appeal [see: Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011].

5.50	Because the allegations or the offences based on the evidence adduced have not been established to be so serious in nature that it warranted summary dismissal, in that regard, the employer should have carried out reasonable "procedures" for investigation as per any agreed grievance procedures and then communicated their findings to the grievor in such a way that good faith employment relationship was not compromised, whether or not dismissal was the end result. Any agreed internal grievance procedures within the confines of a contract of service (express or implied) requires giving both parties an opportunity to be heard including an appeal system where the decision of the employer can be reviewed or alternatively if there was termination methods to be explored mutually then these options could have been invoked. Under the law such internal mechanisms for grievance procedure will need to be respected and carried out by the employer under s110(4) of the ERP where it states that:-

"110.— (1) An employment contract must—

(a) contain procedures for settling an employment grievance, including confidentiality and natural justice; and

(b) where possible, in the case of sexual harassment complaints, the need for women to be represented on the grievance panel.

(2) The procedures required by subsection (1) must be—

(a) agreed by the parties and consistent with the requirements of this Part; or

(b) if there are no agreed procedures, the procedures set out in Schedule 4.

(3) All employment grievances must first be referred for mediation services set out in Division 1 of Part 20.

(4) Where an employment contract includes an internal appeal system it must not provide for appeal to the Tribunal or Employment Court, and the internal appeal system must first be exhausted before any grievance is referred for Mediation Services." (Bold is my emphasis)

6.0	Unfair Dismissal

6.1	This grievance was reported to the Mediation Unit where it was then referred to the Tribunal on the basis of unfair dismissal allegations as per the Mediator's terms of reference. 

6.2	I have already stated that there was no justification for summary dismissal in law in that the grevior's conduct at the time of his dismissal was not within a range of reasonable responses (as per the principle in X v Y [2004] EWCA Civ 662) or valid enough to be considered lawful causes under s34. Hence, the summary dismissal was wrong or unlawful.

6.3	Where the allegation of unfair dismissal is concerned, the Court in Isoa's case has made it abundantly clear that:- 

"…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).

6.4	The Full Supreme Court when Johnson's case was appealed [see: Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011)], also echoed this by adding that:- 

"…For a claim of this category to survive, there has to be a cause of action, evidence and causation shown. Simply, the employee has to plead that the manner of dismissal was unfair, evidence must be tendered on what constituted unfair treatment, together with the evidence that the said treatment caused the employee distress or humiliation or physical and psychological harm. That is the legal parameter on which such a claim operates and survives…"

6.5	This is a case where the Supreme Court looked at the principles set out in the Yashni Kant's case in terms of unfair termination allegations and where it observed that:-

"…Yashni Kant's case even made it clear that there has to be evidence that the manner of dismissal caused the humiliation. There has to be the link in the unfair treatment leading to humiliation without which the Court cannot speculate such breach of an implied term otherwise every dismissal case would succeed a claim based on the manner of dismissal because dismissal naturally leads to distress and humiliation…"

6.6	In this instance, the original claim of the grievor pertains to unfair termination and per se there was no evidence to lead the Tribunal to the fact that the termination was unfair in the manner it was accorded to the grevior other than the grievor centering the grievance on the allegations of denial of procedures and natural justice as deemed to be any grievor's right to be heard. This included his right to respond to the allegations framed by the employer including being given an opportunity to mitigate and also appeal against the employer's decision if and when an action was taken to terminate his services. Because this was not accorded, this was the foremost contention pleaded by the grievor as the unfair treatment by the employer. In that sense, I should find that there was no unfair termination in terms of Wati J's dicta in Isoa's case: that "…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…".
6.7	That being the case, because the employer has failed to establish that there was lawful cause(s) to warrant summary dismissal, the termination of the grievor's employment then in essence, become wrong or unlawful and also unfair. 

6.2	Since there is no justification for summary dismissal in this case, how can it remain fair regardless the way employer treated him at the time of dismissal. While there was no evidence of humiliation, to send someone home without lawful cause and without notice period, and that too without keeping the employment boundaries well established within the ambit of a written contract of service to allow the worker some idea when he can be summarily dismissed, I am sure the dignity, self-respect and self-worth of an individual under such delicate circumstance will be hurt. Losing a job means losing your source of livelihood. You have to channel such news with some sense of loss, hurt to feelings and emotions, whether mental or psychological. It is then a subjective matter to assess how much someone would be hurt or even humiliated when an employer inflicts unjustified and unlawful termination without any notice period. 

6.3	Here Mr Karan may have been given three or four days indication that he was about to lose his job but the employer has failed to prove that they had taken due process of establishing lawful cause before firing Mr Karan. They just handed him a termination letter and sent him home. Even if it was done in a humane manner I am in doubt that Mr Karan had suffered an injury to his feelings and self-respect which then compelled him to come to the Mediation Unit for help.

6.4	Evidently if the decision to summarily dismiss Mr. Karan was found to be lawful (which it was not), then the decision of a dismissal following poor or unfair procedure would not have necessarily resulted in the finding that the dismissal was unjustified if the conduct was bad enough although it still may have resulted in the employee being awarded monetary compensation. For example, if he /she was a contributory factor to the grievance or if humiliation was proved as per s230(2)(a) & (b) of the ERP – see below. But here he was unlawfully summarily dismissed under a statutory requirement not being fulfilled (s33 and s34) which also made his termination unfair and unjustified. 

Employment grievance remedies

"230.—(1) If the Tribunal or the Court determines that a worker has an employment grievance, it may, in settling the grievance, order one or more of the following remedies—

(a)	reinstatement of the worker in the worker's former position or a position no less advantageous to the worker;

(b)	the reimbursement to the worker of a sum equal to equal to the whole or any part of the wages or other money lost by the worker as a result of the grievance;

(2) If the Tribunal or Court determines that a worker has an employment grievance by reason of being unjustifiably or unfairly dismissed, the Tribunal or Court may—

(a)	in deciding the nature and extent of the remedies to be provided in respect of the employment grievance, consider the extent to which the actions of the worker contributed towards the situation that gave rise to the employment grievance; and

(b)	if those actions so require, reduce the remedies that would otherwise have been decided accordingly."

7.0 Decision & Orders:-

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

1.	The Employer has failed to establish lawful cause to invoke summary dismissal under s33 of the ERP 2007 against the grievor. Clearly, the summary dismissal is wrong, unlawful and unfair (substantially and procedurally). 

2.	Re-instatement was not sought by the grievor, therefore he should be paid six months pay by the Employer in addition to extra two months pay for loss of dignity and injury to his feelings, while the rest of the months to be treated as leave without pay. 

3.	Given that the grievor appears to be a contributory factor to this grievance to a certain extent when the January 2010 Daily Attendance Register records showed six instances of late arrivals, I shall take off two month's pay and therefore in total the employer will pay the grievor six months pay from date of this decision within 60days.

i.	Each party will bear their own costs.

Dated at Suva this 22nd day of November, 2012.

LEGAL TRIBUNAL