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Fiji Employment Tribunal |
IN THE EMPLOYMENT
TRIBUNAL AT SUVA
ER Grievance No. 78 of 2009
BETWEEN:
MS. SUNITA SUNDER
GRIEVOR
AND:
THE FIJI WOMEN'S CRISIS CENTRE
EMPLOYER
Appearances:
Mr. N. Tofin2ga for the Grievor
Mr. D. Sharma for the Employer
DETERMINATION OF THE TRIBUNAL
The Employment Relations Problem
1] The termination of Ms. Sunita Sunder as Counsellor and Community Educator by the Fiji Women's Crisis Center (FWCC) with effect from 17 June 2009. According to the grievor, her employment was terminated due to an alleged breach of confidentiality. She holds that the action of the employer was unjust and unfair and therefore demands reinstatement in terms of the Employment Relations Promulgation 2007 (ERP) and other relief as deemed appropriate.
Background
2] The employer is a Non Governmental Organization. It is a registered Charitable Trust which relies on donor funds to operate. Its core objective is to protect and enhance women's rights by advocating education, awareness and promotion of women's rights in Fiji and throughout the Pacific. It is a key advocate for fundamental human rights for everyone, the respect for the rule of law and the prevention of violence against women and children. It runs many programs to achieve these goals. As a registered Charitable Trust the Employer operates within a Constitution. Clause 4.5 of the Constitution allows a worker to resign by giving three weeks' notice and it also allows the Employer to terminate worker's contract by giving three weeks' notice or in the case of serious misconduct such as breach of confidentiality to terminate without any notice.
3] The grievor was employed by the FWCC from 15th February, 2008 as a Counselor/Community Educator and her duties included counseling, community education and translations from English to Hindi. On 19th June, 2009 the grievor was dismissed on allegations of gross misconduct and willful disobedience in failing to diligently carry out her duties as a counselor which the employer deemed to be a breach of confidentiality.
The Evidence
4] Ms. Edwina Kotoisuva is the Assistant Coordinator and gave evidence that she is in charge of research, strategic planning, counseling and the management of funds. At the FWCC, there are 18 staff members including a receptionist who is not a trained counselor. The grievor Ms. Sumita Sunder was recruited in February 2008 as a counselor and community educator and before that she was with the Consumer Council of Fiji and had also worked as a Hindi language radio announcer.
5] Ms. Kotoisuva told the Tribunal that there were certain issues with Ms. Sunder's performance like being overbearing and bullying of junior staff and that led to the extension of the probation period to 6 months. Definitely the employer felt these issues had been resolved when it increased her salary from $15,000 to $18,000 per annum.
6] Ms. Kotoisuva then went to 18th June, 2009 when the receptionist received a call from New Zealand, by a distraught client who wanted to get advice and counseling from a Counselor. Since the client wanted a Hindi speaking counselor, the receptionist put the call through to Miss Sunder who was in the tea room at that time. Ms. Kotoisuva further told the Tribunal that Miss Sunder transferred the call back to the receptionist to deal with the caller. The client wanted some advice about a divorce case her husband had filed against her in the Lautoka Family Court as her concern was that the divorce petition had been filed when the parties had not even separated let alone separated for 12 months. She wanted to know what to do and how to get in touch with the Lautoka Family Court. Ms. Kotoisuva added that Miss Sunder twice took the call and transferred both calls back to the receptionist and she considered that to be serious misconduct as that type of behavior is not condoned at the FWCC.
7] Under cross examination Ms. Kotoisuva confirmed that Ms. Sunder was given an appointment letter and not an employment contract and any breaches of policy will be raised directly with the Coordinator who was not available on 18th June, 2009 the date of the incident although she was around the premises. Ms. Kotoisuva futher stated that she does not have the authority to send any staff home. As to the taking of clients' personal details it is a practice that is not allowed, as what is permitted is to take down the details of the case so the phone calls from New Zealand should not have been referred back to the receptionist as she would not have a clue on what to do, in particular trying to interview a desperate client crying on the other side. As to the reasons for dismissal, Ms. Kotoisuva explained that it was based on the constitution and what is considered to be a serious gross misconduct on the operation of the centre.
8] Ms. Sunder in her evidence outlined that she joined FWCC through the Coordinator Ms. Shamima Ali. There was no formal contract and she knows that the employer is registered as a Charitable Trust with a constitution which she has not seen. She agrees that there were complaints against her and that her probation was extended to 6 months and after her salary was increased, she assumed that everything was alright. Ms. Sunder maintains that she has good relationships with the staff and also management.
9] On the incident that led to her dismissal, Ms. Sunder recalled that it was on 18th June, 2009 and she was having her tea break in the kitchen downstairs, when the receptionist passed her a call from New Zealand, a repeat client which she counseled and since she had no pen and paper with her, she called the receptionist to take down the client's case file number, to enable her to later follow up the case with the Lautoka Family Court. The receptionist agreed and she transferred the call to her. When she came up she noticed that the receptionist was still on the phone talking to the client prompting Ms. Sunder to direct her to just take down the case file number, she then went to her office. After 5 minutes Ms. Kotoisuva entered her office, accused her of breaching the confidentiality policy by transferring the call back to the receptionist and told her to go home straightaway. Ms. Sunder protested that she did not know that she was not allowed to transfer calls back to the receptionist who is also part of the staff but Ms. Kotoisuva insisted that she go home.
10] Ms. Sunder explained that the Coordinator, Ms. Shamima Ali wrote and served her the termination letter on 19th June, 2009 without hearing her explanation of the alleged breach of confidentiality. There was no due process accorded to her and she was treated the same way as when she was accused for bullying.
Analysis and Conclusion
11] This claim for a grievance was referred from the Mediation Unit of the Ministry of Labour via Form ER 4 with the following outline of unsettled claims:
The grievance is over the termination of service of Ms. Sunita Sunder, Counselor and Community Educator with effect from 17th June 2009 by the Fiji Women's Crisis Centre. According to the grievor her employment was terminated due to alleged breach of confidentiality. The grievor views that the action taken by the Fiji Women's Crisis Centre is unjust and unfair and therefore demands reinstatement in terms of the Employment Relations Promulgation 2007 and/or such other relief as deemed appropriate.
12] There are 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." [1]
13] 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.
14] The dismissal of Ms. Sunder was for a cause and this employer was entitled to dismiss under section 33 (1) (a) of the ERP but the Tribunal cannot discuss that as there was no written employment contract which means that there was no grievance procedure. This is notwithstanding the fact that Ms. Sunder was given an appointment letter and there is the FWCC Policy Manual which provides for the following:
4.1.4 Discipline
15] The Tribunal in view of the existence of the Appointment Letter and the Discipline Tribunal in the Policy Manual has to make a finding whether they can be used as an employment contract and grievance procedure respectively. The Tribunal has looked at the evidence and the submission made by the parties and is satisfied that the appointment letter cannot be used as an employment contract in this case and on the grievance procedure it finds that the Policy Manual lacks the fundamentals of the grievance procedure as stipulated in the leading case of NZ Food Processing, IUOW v Unilever 1NZILR 35;[1990]. It says that the employee must be given:
16] The FWCC must show that a dismissal was justified substantially and procedurally and this was where it fell short as there were no clearly defined procedures. All the circumstances at the time the dismissal occurred would include the type, resource and size of the organization. The employer is a Non Governmental Organization. It is a registered Charitable Trust which relies on donor funds to operate. Its core objective is to protect and enhance women's rights by advocating education, awareness and promotion of women's rights in Fiji and throughout the Pacific. It is a key advocate for fundamental human rights for everyone, respect for the rule of law and the prevention of violence against women and children. It runs many programs to achieve these goals. It knows all about grievances and the available remedies together with the associated rights to be accorded to workers.
17] 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 as the Courts in New Zealand have recognized that most employers will not be able to provide perfectly fair procedures for dismissing employees. In BP Oil v NDU [1992] 3 ERNZ 483 (CA): the Court of Appeal said - "The question is essentially whether it was open to a reasonable and fair employer to do so in the circumstances."
In this case the Tribunal finds that a reasonable and fair employer would not treat an employee like the way FWCC did to Ms. Sunder.
Whether the Ms. Sunder was unfairly terminated?
18] 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."
19] 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."
20] From the evidence, Ms. Sunder was paid all her wages due at the time of dismissal under section 34 of the ERP and the maximum notice period pay together with the reasons for dismissal under sub section 2 of section 33 of the ERP. Under those circumstances the dismissal was not unfair as Ms. Sunder went home with her dignity intact.
Determination
20] The Tribunal makes the determination that Ms. Sunder's dismissal on 19th June, 2009 was unjustified and in that connection Orders the following remedy:
a] Under section 230 (1)(c ) the employer, the Women's Crisis Center to pay Ms. Sunder 6 months' wages as compensation for her monetary loss as the result of the grievance.
DATED at Suva this 5th day of November, 2012
(Sainivalati Kuruduadua)
Chief Tribunal
[1] 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.
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