Siddiqui v Macuata Muslim League Vunimoli (Jame Masjid) Branch [2012] FJET 48; ERT Grievance 77.2011 (1 February 2012)

IN THE EMPLOYMENT
TRIBUNAL AT SUVA

ERT Grievance No. 77 of 2011

BETWEEN:

MAULANA ABDUL RASHID SIDDIQUI
GRIEVOR

AND:

MACUATA MUSLIM LEAGUE VUNIMOLI (JAME MASJID) BRANCH
EMPLOYER

Appearances:
Mr. Henry Rabuku for the Griever
Mr. Mohammed Talib Khan for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Relations Problem

1] This is not clearly spelt out in the terms of reference sent to the Tribunal via the Form 4 however, after reading the accompanying Form 1 the Tribunal confirms that the claim for a grievance is based on the making of an unlawful employment contract, the unfair action of the employer in reaching the decision to terminate the grievor and compensation for the humiliation, loss of dignity and injury to the feelings of the grievor.

References

2] In this proceeding:

- the grievor Maulana Abdul Rahid Siddiqui shall be referred to as (MAS)

- the employer Macuata Muslim League Vunimoli (Jame Masjid) Branch shall be referred to as (MVB)

Background and Evidence

3] MAS is a Pakistani national and a scholar of the Jamat Mohammedia Gasia Islamia Institute of Pakistan when he was selected to come and assist Fiji Muslim followers in religious teaching and guidance through the Holy Koran. On 21st May 2008 he entered Fiji upon the approval of his work permit for 3 years. On 17th August 2008 he signed a 3 year employment contract with MVB operating under the Macuata Muslim League to be the Chief Priest of the Mosque to teach the love of the Mighty Allah in the Holy Koran and the prophesy of Prophet Mohammed Rassulallah Salam.

4] The Tribunal will not attempt to indulge in the religious differences between MAS and MVB, it will steer clear and will only look at the employment issues. Mr. Basir Khan the President and Chairman of the Vanua Levu Muslim League was told by members of the public not restricted to members of the Vunimoli community that MAS was taking money for healing purposes, that he took a goat from one Shafira Nisha worth $200, that he committed adultery and that he was practicing witchcraft.

5] Under cross examination Mr. Basir Khan agreed that the allegations against MAS were reported to Police and that he was charged and brought to Court but was acquitted on 2nd November 2010.

6] Mr. Mohammed Nazim is the President of the Committee of MVB and in his evidence he gave the background on how MAS was recruited through an application made to Islamabad in Pakistan and that after one year serving as the Chief Priest, MAS was assessed to be doing well and his monthly salary was increased to $600 a month. After a further 6 months the Committee of MVB started receiving complaints that 8 to 10 goats were kept in the Mosque and not distributed to the poor, that MAS took a goat valued at $200 from one Shafira Nisha and that he was practicing witchcraft. These allegations were raised at the Executive Meeting held on 7th February 2010 and MAS was counseled and given a warning.

7] Mr. Mohammed Nazim in his evidence related to the Tribunal that a letter dated 23rd April 2010 was received from the Ministry of Defence outlining to the President of the MVB complaints against MAS raised during the Ministerial trip to Labasa on Prophet Mohammed's Birthday that year. The letter in fact covered the issues discussed during the Executive Committee meeting held on 7th February that year and that eventually led to the termination of MAS and the reasons given were breach of agreement and failing to comply with rules and regulations of the Committee.

8] On cross examination, Mr. Mohammed Nazim confirmed that the employment contract for MAS was drawn up by the Secretary and it was in English not in Urdu even though MAS could read but could not understand English. Mr. Mohammed Nazim also confirmed that he does not know anything about the new law, the Employment Relations Promulgation 2007. There is no grievance procedure in the employment contract and MAS was not accorded natural justice although he was given a warning. As to the investigation on MAS, Mr. Mohammed Nazim agreed that there was none and that the Committee members personally interviewed all the complainants.

9] Mr. Abdul Shakur is a Committee member of the MVB and in his evidence he confirmed that he made a written complaint against MAS for failing to attend the prayer meeting for his deceased son. On cross examination he confirmed that nobody came to interview him after he had written his complaint to the Committee.

10] MAS in his evidence told the Tribunal that he was appointed to be the Chief Priest at the Mosque to propagate all religious and spiritual services, train people to take over duties in future and to observe 5 prayers a day for 7 days a week. These were stipulated in his employment contract the English version of which he signed in Labasa whilst the Urdu version was signed in Pakistan. MAS stated to the Tribunal that he could read but could not understand issues written in English. As to the provisions of the employment contract he complained that there was no leave given, that there was no warning letter and that when called before the Committee, the President only gave verbal warnings and the rest of the Committee members used to threaten him to leave or be deported. Whilst on that subject MAS told the Tribunal of the concerted efforts made by the President of the Macuata Muslim League to remove him and how a complaint was made to Police even though he had paid back the amount claimed.

11] MAS further told the Tribunal that he was the Chief priest and not a member of the Committee and that he was not given any rules or regulations of the Committee. Under cross examination, MAS stated that in his position as Chief priest, the Committee should listen to him and he gave an example when he called the Vice president to convene a meeting and that only 4 turned up.

Analysis and Decision

12] From the evidence, it is very clear that MAS had made powerful members of the MVB upset and that led to the unrest culminating in the termination of MAS employment contract and the resulting Court appearance. The termination letter was dated 19th July 2010 and the relevant parts read as follows:

"The Executive Committee of Vunimoli Jame Mosque in its meeting on 18th July 2010 has decided to terminate you from employment as Chief priest of our Mosque due to breach of the contract of agreement and failing to comply with the rules and regulations of the Committee upon several reminders and being given the final warning. The Executive Committee hereby gives you 21 days notice with effect from 19th July, 2010 to vacate the premises of Vunimoli Jame Mosque."

13] Now, the question to ask is what the basis of this termination was, and that will bring into play the employment contract dated 17th August 2008 signed in this country, as MAS in his evidence had pointed out that he also signed one at home before leaving Pakistan.

14] The Tribunal read through the employment contract and found that there is no grievance procedure and the only clause coming close to resembling a termination clause is in clause 10 which provides for the following:

"If you fail to perform in accordance with the rules laid down above you will be given one (1) month prior notice to vacate."

15] There was nothing in evidence by the employer's witnesses to suggest that MAS was given one month's salary in lieu of notice, although Tribunal Exhibit 18 showed a letter dated 13th March 2011 from Mr. Mustafa Khan the Secretary of the Committee for the MVB to the Registrar Mediation Unit stating amongst other things that MAS at his termination was given one month's salary in lieu of notice. That being the case the Tribunal will take it that the 21 days notice to vacate the Mosque was subsequent to the payment of one month's salary.

16] The termination of MAS was for a cause (due to the breach of the contract of agreement and failing to comply with the rules and regulations of the Committee) and the task of the Tribunal is to determine whether the cause for termination was established by the employer as the onus to establish the ground is always with the employer.

17] From the evidence the Tribunal finds that there were differences in the way of doing things rather than actual breaches of the employment contract and whilst on this contract, the Tribunal makes the declaration that it is incomplete and not in accordance with the requirements of the Employment Relations Promulgation 2007.

18] The Tribunal was not presented with the rules and regulations of the Committee and that being the case, it would not be in a position to establish whether or not MAS complied and that is fatal to the employer's case. The Tribunal has noted however, that all or some of these breaches and failures to comply with the rules and regulations of the Committee manifested themselves in a Court action where MAS was totally acquitted, notwithstanding the fact that the acquittal came well after the termination.

19] From the evidence the Tribunal makes the finding that the lawful cause to terminate was not established and thus the termination was wrong and unlawful.

20] MAS is an expatriate employee and it is important that the Tribunal examine the manner in which the termination was carried out. Prior to the actual termination he was arrested, kept in custody for 2 days and later charged for "Obtaining Goods by False Pretences." MAS was without a friend, he only had the employer and his request for help when in Police custody was ignored. When released, MAS apparently went back to his job as the Chief Priest. Tribunal Exhibit No. 14 is the minutes of the Committee Meeting held on 18th July 2010 and this was where the decision to terminate was made. MAS was not present and the Committee decided that the Secretary should write the letter of termination and to also advise the Department of Immigration. This was not done by the Secretary as the President Kasim Ali did both letters.

21] How MAS received the termination letter did not come out in evidence but apparently he received it as he had to move out of his quarters within 21 days. It is not clear what happened next but from the evidence MAS was called by someone in New Zealand to go to Ba and he did return to Labasa on 2nd November 2010 for his Court hearing where the charge was dismissed and he was acquitted.

22] The case of Central Manufacturing Company 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.

The relevant excerpt reads as follows:-

"In our view, the Court of Appeal correctly held that there is an implied term in the modern contract of employment that requires an employer to deal fairly with an employee, even in the context of dismissal. The content of that duty plainly does not extend to a requirement that reasons be given, or that a hearing be afforded at least where the employer has the right to dismiss without cause, and to make a payment in lieu of notice. It does extend, however, to treating the employee fairly, and with appropriate respect and dignity, in carrying out the dismissal. Each case must of course, depend upon its own particular facts. However, where, as in the present case, the dismissal is carried out in a manner that is unnecessarily humiliating and distressing, there is no reason in principle why a breach of this implied term should not be found to have occurred."

23] MAS was not told that the Committee would be making a decision on his future employment on that 18th July 2010 and for him to be served the termination letter thousand miles away from home, whilst there is a pending Court action and 21 days in which to vacate the Mosque premises speak volume of the high handedness in which the termination was executed. In that regard the Tribunal finds that MAS was unfairly dismissed.

Decision

24] The Tribunal makes the determination that MAS was wrongfully and unfairly terminated and in that regard Order the following remedies:

i] Under section 230 (1) (b) – reimburse to MAS twelve (12) months' wages lost by him as a result of the grievance, the 12 months made up from the balance of his contract

ii] Under section 230 (1) (c) – payment of compensation to MAS for humiliation, loss of dignity and injury to feelings in particular that he is an expatriate worker employed in a position of respect and responsibility and in that connection order the payment of a further twenty four (24) months' wages.

DATED at Suva this 1st day of February, 2012.

Sainivalati Kuruduadua
Chief Tribunal