Sotia v Namale Resort and Spa [2012] FJET 52; ERTG 13.2009 (3 May 2012)

IN THE EMPLOYMENT RELATIONS
TRIBUNAL AT LABASA

ERTG Nos. 8, 9, 10, 11, 12 and 13 of 2009

BETWEEN:

ALANIETA SOTIA
INOKE WAINIBALAGI
INOKE MAROKOBAU
ARIETA VINAKA
ADREA NAWAQAVOU
JOTIVINI RATULELE
WORKERS

AND:

NAMALE RESORT AND SPA
EMPLOYER

Representatives:
Mr. D. Urai for the Workers
Mr. N. Prasad for the Employer

__________________________________________________________________________

DETERMINATION OF THE TRIBUNAL

The Employment Relations Problem

1] The 6 workers namely Jotivini Ratulele, Alanieta Sotia, Inoke Marokobau, Arieta Vinaka and Inoke Wainilagi all claimed that they were unfairly dismissed by the Namale Resort and Spa (employer). The reasons for the alleged dismissal were similar in that these workers signed a petition that they did not support the General Manager of the Resort Mr. Simon Hazleman and the management team and that was construed as insubordination by the employer and they were terminated except for Adrea Nawaqavou who claimed that he was forced to resign.

References

2] In this proceeding:

- Adrea Nawaqavou shall be referred to as ("AN")

- Arieta Vinaka shall be referred to as ("AV")

- Inoke Wainilagi shall be referred to as ("IN")

- Alanieta Sotia shall be referred to as ("AS")

- Inoke Marokobau shall be referred to as ("IM")

- Jotivini Ratulele ("JR")

- Simon Hazleman shall be referred to as ("SH")

Background and Evidence

3] For the purpose of this decision the Tribunal will be referring to the "workers" generally when making a point that covers all those that have been allegedly terminated and will identify individuals by names when describing situations or events that refer to a particular worker. JR did not give evidence during the hearing and in that regard she has not been considered in this determination.

4] The Tribunal did not visit the Namale Resort and Spa but from the evidence and the written submissions made by the parties, it envisages a close knit community of workers and managers which hold the owners of the Resort in high esteem and regard the husband and wife team as parents.

5] Ms. Asinate Bucknell is the first witness for the employer and she told the Tribunal that she commenced work at the Resort in February 2007 as a Personal Assistant to the Operations Manager and in 2008 worked as a Human Resources Administrator. As the Personal Assistant to the Operations Manager she outlined to the Tribunal the procedure for hiring new employees like sorting out applications with the Operations Manager and preparing the shortlist for appointment. On appointment, a worker is given the Namale Staff Handbook 2008 which on page 7 provides for the grievance procedure and on page 9 the staff disciplinary procedures. Ms. Bucknell in her evidence summed up the staff management relationship to be cordial as provided for on page 11 as follows:

"The management team is there to support you and to assist you in doing a good job for our guests. They will look to you for your cooperation and teamwork. Please make it your business to establish good working relationships with them all."

6] Continuing on her evidence, Ms. Bucknell said that on 31st July 2008 she prepared a General Staff Notice informing all the employees at the Resort to attend a meeting at Lasalasa Hall concerning the grievances against SH and the management team; the grievances were lodged by a group of employees to the owners of the Resort based in California, United States of America.

7] This prompted SH together with his management team comprising almost all heads of departments and the Tourism Police of Savusavu to hold the meeting with the workers on 1st August 2008. Almost all the workers attended and they were encouraged by senior workers and the Tourism Police to freely raise their views and elaborate on the issues contained in the e-mail. SH showed the e-mail containing the allegations and introduced all the allegations separately to the workers and gave them the opportunity to raise their views. Thereafter, SH invited comments and questions from the staff and this was when some of the workers became noisy and had to be calmed by Mabel and Liku. Somewhere towards the end of the meeting about half of the staff present stood and walked out. At the conclusion of the meeting, it became clear that the allegations levelled against SH and his management team were unfounded. Ms. Bucknell concluded her evidence on that meeting by stating that the majority of the workers accepted the explanations given by SH and the management team and agreed to support them.

8] Ms. Bucknell further advised the Tribunal that those who walked out of the meeting on 1st August 2008 were advised through their respective heads to attend another meeting with SH in his office in the presence of the heads of departments.[1] During the meeting SH asked each worker whether they supported him and the management and the reason for their walking out of the meeting held at Lasalasa Hall on 1st August 2008. Those who agreed to support were asked to continue with their duties and those who refused to support SH and management were terminated. That is the background of all the grievances and now the Tribunal will go through the individual cases:

Adrea Nawaqavou

9] The steward of the Methodist Church at Vivili Village in Savusavu was employed at the Resort as a Security Guard from 2004 and was paid on a weekly basis. In his evidence he highlighted that there used to be a suggestion box where workers who were not happy with the management could put in their submissions and the box would be taken to San Diego, California for the owner Tony Robbins to open and take action. According to AN, 4 Managers had been removed through the suggestion box until SH came in, removed the box and took over everything, causing dissatisfaction among the workers.

AN also told the Tribunal that when he was acting Assistant Manager he came across the incident where SH was calling for help when being chased around the house by a woman and that he had to call on one Isimeli Matanitobua to investigate. Subsequently, he told the Chief of Security Taniela Cokanasiga to report the incident to the owner of the Resort, Tony Robbins.[2] It was also at this point in time that the Head of Security was going around identifying bad employees to be relieved from work, starting with those over 55 years old.

AN and the Head of Security, Taniela Cokanasiga are from the same village of Vivili and AN in his evidence recalled being told to resign in front of Taniela Cokanasiga's father's house. He added that he agreed to resign and on 8th August 2008 wrote an e-mail to the Head of Security confirming his resignation. Later on when a grievance was raised, AN alleged that the Head of Security forced him to resign. He also confirmed that he did not complete the "Employee Grievance Form."

Arieta Vinaka

10] AV had been a receptionist at the Resort for 6 years when on 19th August 2008, SH wrote to her making her position at the Front Desk Department of Oneness University redundant forthwith. She stated that there was no prior consultation, was not given the due process and was told to take all belongings and leave.

AV agreed that the redundancy was due to re-organization and she was paid all her entitlements.

Inoke Wainilagi

11] IW was engaged under an Individual Employment Agreement with the Resort from 22nd January 2004 as a Grounds Supervisor. In his evidence he explained how he was called into the Manager's Office on 5th August 2008 and asked to resign for reasons unknown to him.[3] IW stated that he was not willing to resign, he refused to sign the form and he walked out and turned up for work again on the following day when he was told that he would be terminated; there was no letter.

IW agreed that he was at the meeting at Lasalasa Hall on 1st August 2008 and that he raised questions on the education fund but denied raising issues on the wastage of funds. He also agreed that he walked out of the meeting.

On the Individual Employment Contract, IW agreed that it was in writing and signed with SH on 22nd January 2004. The Contract provided for a fixed rate to be paid weekly and a 4 week termination notice to be given by either party, or in lieu thereof, 4 weeks' salary shall be paid or forfeited by the party not giving the requisite notice. IW confirmed that he received his termination letter on 22nd August 2008 and was also paid all his entitlements including the 4 weeks' pay in lieu of notice.

Alanieta Sotia

12] AS was employed at the Resort in the Housekeeping Department and was engaged on a contract paid weekly. In her evidence she recalled being called into the office of SH and in the presence of Taniela Cokanasiga the Chief Security, Liku Galala the Executive Housekeeper and Asinate the HR Personnel, she was asked whether or not she supported SH and the management team. AS told them that she did not support SH and went back to work before going home. When she turned up for work the following day, she was stopped at the gate. She received her termination letter dated 6th August 2008 on 22nd August 2008 also at the gate. AS agreed that she was paid all her entitlements and benefits.

Under cross examination AS raised an important issue when she was asked the reason why she did not raise any grievance against SH.[4] She told the Tribunal that it was a collective grievance and that was the reason why she did not want to get involved and that she would wait for the owners.

Inoke Marokobau

13] IM was employed by the Resort at the Spa Department on contract and paid on a weekly basis. IM told the Tribunal that on 4th August 2008 he was called up by SH to attend a meeting in his office. Present were Taniela Cokanasiga the Chief Security, Kaye Lepper the Spa Manager and Asinate the HR Personnel, when IM was asked the question whether or not he supported the General Manager and the management staff. IM answered in the negative and after that was told to go home and was escorted out to the gate during his working hours. He later received his termination letter also at the gate as he was not allowed inside.

IM confirmed that he was at the Lasalasa meeting which according to him was a staff meeting to discuss operations at the Resort and that he did not ask any questions. He stayed for the duration of the meeting and when questioned during cross examination, confirmed that he had grievances against SH and the management team; in particular he was not happy on some of the decisions made by SH. When pressed to give examples, IM mentioned excessive consumption of alcohol and extra marital relationships in the Resort.

When shown the "Notice of Corrective Action Form" IM denied ever seeing it before, although he attended the interview where his views were sought and where he also agreed to end his employment.[5] IM confirmed that he received his termination letter dated 6th August 2008 on 22nd August 2008 and he was paid all his entitlements.

Synopsis of Issues

14] The main issues to be considered are the following:

i] Whether these workers should be taken through the grievance procedure since the grievance is a collective one in nature and was not raised with the local management?

ii] Whether the workers were unjustifiably terminated?

iii] Whether the workers were unfairly terminated?

Whether the workers should be taken through the grievance procedure since the grievance is a collective one in nature and was not raised with the local management?

15] The Namale Staff Handbook does not provide for the situation where the workers have issues against management, like when they wanted to complain to the owners of the Resort about their actions and moral behaviour.[6] In evidence it came out that things started happening once SH removed the box and all these culminated in the petition. There was initially no grievance as such, like there was no dismissal, no disadvantaged by some unjustifiable action of the employer, no discrimination, no sexual harassment and no duress due to membership or non membership of a trade union. That was the reason why all the workers had to be taken through the "Notice of Corrective Action Form"[7] for walking out of the meeting held on Friday 1st August 2008 at Lasalasa Hall, as SH and management viewed the walkout as insubordination.

16] These workers were not organised which is another way of saying that they were not members on any trade union which means that they were not covered by a collective agreement; instead they had individual employment agreements with the Resort as the employer. Their other conditions of employment are contained in the "Namale Staff Handbook 2008."

17] The workers could not have filled the grievance form provided in the Hand Book until after the face to face meeting with SH and management, when they were terminated; that was the actual moment where the claim for a grievance was born. Of the 5 workers at the hearing IW and AS refused to resign, AN was forced to resign, IM terminated himself and AV was made redundant. Termination letters were given to IW, IM and AS and since AN resigned and AV was made redundant IW, IM and AS could not be taken through the grievance procedure since they were terminated and Schedule 4 of the ERP 2007 would apply.[8]

Whether the workers were unjustifiably terminated?

18] From the evidence the workers were paid all their dues and 3 were terminated in lieu of notice, and the notice period ranged from 4 weeks for IW to one week each for IM and AS. AN resigned whilst AV was paid all entitlements.

The reasons for the termination as indicated in the termination letters were all identical; the refusal to support SH, the General Manager and the management staff. As an example the Tribunal outlines IN termination letter as follows:

Wednesday, August 06, 2008

Inoke John Wainilagi,

Grounds Department.

Dear John,

I refer to our meeting of yesterday Tuesday 5th August 2008. You advised me in the presence of (Taniela Cokanasiga the Chief Security, Senikula the head Groundsman and Asinate the HR Personnel) that you did not support Namale Resort and Spas General Manager and the Management team.\

In the circumstances we consider this to be incompatible with the terms of your employment and the discharge of your duties and you leave us with no alternative but to terminate your employment.

We will pay you four weeks in lieu of notice together with your other benefits and entitlements.

Vinaka Vakalevu

....signed

Simon J. Hazlemamn

GENERAL MANAGER

19] All these workers received their termination letters well after the event and told to leave as soon as they confirmed that they did not support SH and the management team. In the case of IW, he was told that he was terminated when he turned up for work, IM was escorted to the gate whilst AS was stopped at the gate when reporting for work. The Tribunal is reviewing the Resort's action in terms of the language in Section 230(2) of the Employment Relations Promulgation 2007 where the Tribunal and the Court both have powers to remedy or resolve grievances that arise out of "unjustifiable or unfair dismissals."

20] There is no statutory or common law definitions of "unjustifiable or unfair dismissals" and in a recent decision the 2 terms were defined as follows:

"For a dismissal to be justified, it would need to be capable of demonstration that it was just, right or valid; capable of being defended with good reasoning. A decision would be unfair, if it was harsh, unjust or unreasonable." [9]

21] The test for justification which applies to claims of unjustifiable dismissal is the following:

...The question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

22] The dismissal was for a cause and this employer was entitled to dismiss under section 33(1) (a) & (b) of the ERP 2007. This employer did not do that but gave wages in lieu of notice. Whilst examining the action of the employer and applying the test, the Tribunal finds that the employer's action was justified in that it could not afford to be engaging workers who do not follow orders and who do not have trust in management.

23] All the circumstances at the time the dismissal occurred would include the type, resource and size of the employer. This employer has invested in the tourism industry and through marketing has promoted the Resort in the United States and Europe and in that regard needs workers who will co'operate and promote tourism in this country and not workers who are bent on taking on management outside established procedures. In that connection the terminations made were justifiable.

Whether the workers were unfairly terminated?

24] In Carpenters Fiji Limited v. Isoa Latianara [2011] FJET3; ERCA Wati J. explained what constitutes fairness to be the following:

"that it is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's action must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in the carrying out of the dismissal."

25] In Central Manufacturing v. Kant [2003] FJSC5 the Supreme Court held the following:

"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."

Specifically, the Court held that while the common law implication,

"...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."

Determination

26] From the evidence IW turned up for work as normal and was told that he had been terminated, IM was told that he was terminated and escorted to the gate during working hours and AS was stopped at the gate and told that she was terminated. Where is the respect and dignity when one is called into the office, asked whether he/she supported like in this case SH and the management team, and when he/she answered in the negative was told that he/she was terminated and would later receive his/her termination letter and wages in lieu of notice?

All these termination actions occurred without the termination letters that were given later with the reasons for termination. Accordingly, the Tribunal finds that the Resort Handbook did not cover the situation of a petition like in this case or a situation of mass protest by all the workers.

27] What SH and management did was reasonable in the circumstances although the procedures were unfair and poor as the meeting at the Lasalasa Hall was geared towards soliciting support for SH and management rather than hearing the grievances of the concerned workers. In that regard the verdict will have to be that the grievors were unfairly terminated

28] A dismissal following poor or unfair procedures will not necessarily result in the Tribunal finding that the dismissal was unjustified if the conduct was bad enough but may result in compensation. The Tribunal will rule that way as it cannot envisage these terminated grievors ever resuming work with this employer as the result will be not only disruptive but destructive.

29] The Tribunal will also consider the case of AV who was given the letter on 19th August 2008 and told that her services were no longer required due to re-organization. From the evidence she has worked for 6 years with this employer and her last period of employment was as Front Desk Personnel at Oneness University. As the reason for termination was reorganization, the Tribunal rules that she was disadvantaged by an unjustifiable action of the employer. She should have been made redundant and compensated accordingly.

Remedies

30] Alanieta Sotia, Inoke Marokobau Inoke Wainilagi and Arieta Vinaka are all known to the people from the nearby villages and the staff at Resort who would be quite familiar with the manner they were treated when made to exit from their employment.

a] In that regard the Tribunal under section 230(1)(c)(i), Orders the payment of 3 months' wages each as compensation by the employer for humiliation, loss of dignity and injury to their feelings;

b] For Arieta Vinaka, the Tribunal under section 230 (1)(b), Orders the reimbursement of 3 months' wages lost by the worker as the result of being disadvantaged;

c] Reinstatement is denied; and

d] Each party to bear its own costs.

DATED at Labasa this 3rd day of May 2012

Chief Tribunal

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^[1] These meetings were over three days from 3^rd to 5^th August 2008.
^[2] This to the Tribunal did not go down well with the Head of Security.
^[3] The Tribunal does not believe that evidence as IW advised SH in the presence of Head Security, Head Groundsman and Asinate a HR personnel that he did not support him and the management team.
^[4] This was referring to the meeting at Lasalasa Hall when SH was explaining the contents of the e-mail to the owners of the Resort, and the opportunity for AS to address any issue.
^[5] This was a total lie as IM signed the Form on 4^th August 2008.
^[6] That could be the reasons for the “box” where workers put in their complaints and suggestions to be opened by the owners in California.
^[7] To document the employee incident that requires corrective action.
^[8] In dismissal cases the worker may refer grievance direct to Mediation without going through the process.
^[9] Resident Magistrate Andrew J. See in Miliakere Nale vs. Carpenters Fiji Limited T/A Morris Hedstrom (ERG no. 173 0f 2011) and I agree entirely with these definitions; the practical and ordinary meanings of the words.