Ratuvulaca v Fiji Ports Corporation Ltd [2012] FJET 64; ERT Grievance 11.2012 (26 November 2012)

IN THE EMPLOYMENT RELATIONS
TRIBUNAL AT LAUTOKA

ERT Grievance No. 11 of 2012

BETWEEN:

APENISA RATUVULACA
GRIEVOR

AND:

FIJI PORTS CORPORATION LIMITED
EMPLOYER

Appearance:
Mr. S. Yalayala for the Grievor

FORMAL PROOF

1.0 The Employment Relationship Problem

1.1 The grievor Apenisa Ratuvulaca claims that he was unfairly dismissed by the employer Fiji Ports Corporation Limited and therefore seeks compensation from the date of dismissal.

1.2 This claim was referred to the Mediation Unit on 1st February, 2011 and mediation sessions were conducted on 17th February, 2011 and 25th August, 2011 but the grievance was not resolved and therefore referred to the Employment Tribunal on 29th November, 2011.

2.0 Employment Relations Tribunal Proceedings

2.1 This matter was called for mention 4 times in Lautoka before it was set down for formal proof. Out of the 4 times where notices were sent to both sides only the grievor appeared on 4th June 2012 (the fourth time the matter was called before the Tribunal). On the 4th June, the Tribunal decided that another chance be given to the employer to appear and towards that end the matter was set down for 6th July, 2012 for further mention failing which a formal proof date would be set. The employer did not appear and the formal proof was set for 16th July, 2012.

3.0 The Evidence

3.1 The evidence adduced by the grievor centered on the relationships between casual workers on the wharf who are now known as Registered Relief Workers (RRW) and management. For this grievance Ratuvulaca took the Tribunal back to the time when he walked into the Suva Wharf on 12th January 2011 and was met by Mr. Rigamoto at about 8.30 am and he (Rigamoto) was telling him and the other work mates to sign on the attendance book for 15 times every morning or be terminated.

3.2 Ratuvulaca refused to sign and as he puts it, he did not agree withn the signing as he thought of the other workers coming in from Tailevu, Rewa and Nabukavesi. He continued that when he told Rigamoto that he was not signing, he was reported to Mr. David Lockington the Manager Transport. That afternoon on his way to the gate Lockington called him and asked why he refused to sign and he responded that it was not in conformity with the existing work agreement and that he also felt for those who lived far away from Suva.

3.3 Ratuvulaca came to work on 13th, 14th and 15th January before he returned to Lautoka where he stayed on Saturday, Sunday and Monday as he came back to Suva to work on Tuesday. Ratuvulaca walked into the drivers' office that Tuesday and saw his name on the big blackboard with the words –

"Apenisa Ratuvulaca not to be recruited."

3.4 Ratuvulaca then went to see the General Manager Mr. Eminoni Kurusiga who advised him to go and apologize to Lockington. That did not happen as Lockington refused to give Ratuvulaca an audience. Ratuvulaca insisted that as Manger of Transport, Lockington should resolve the differences as he had worked for 13 years as a RRW; Lockington should have initiated a meeting to discuss and inform the workers of the new changes in procedures but that did not happen.

3.5 Ratuvulaca then went back to Lautoka and came back to Suva on 21st January, 2011 to lodge his complain to the Union and to the management main office at Walu Bay. He saw and spoke to a Mrs. Daunivalu who did not speak on his behalf to Lockington and there being no other response from management, he went and complained to the Labour Department.

3.6 His complaint to the Labour Department through a Form 1 was dated 1st February 2011 and the preliminary hearing at mediation was held on 17th February, 2011. Ratuvulaca was dismissed on 22nd February, 2011.

4.0 Analysis and Decision

4.1 In the absence of the employer the grievor must prove his case of unfair dismissal before he can have any claim to the remedy of compensation as required by the rules. The only evidence on file is the FPCL Interoffice Memorandum to the grievor dated 22nd February, 2011. It is unclear how it came to be on file but it sets out the following –

Your case with the Ministry of Labour has been found that: -

- there was no documentary proof of unfair dismissal

- that you had falsely declared reason of your dismissal to the ministry.

- The company internal grievance has not been auctioned as there is no grievance.

- That you had brought disrepute to the company through this declaration of unfair dismissal.

The company cannot accept this behavior as it instigates unhealthy relationship in the workforce.

You had deliberately drag the company into unnecessary time and cost of which you have breached your terms and condition of employment with Fiji Ports.

In view of the above your employment with the company is terminated effective forthwith.

You are also barred from entering the wharf premises.

Signed

Waisake Vueti

Personnel Officer

4.2 Apparently, that memorandum was issued after the first preliminary session at mediation and that shows that the grievance procedure was not activated. The grievor Ratuvulaca should have activated the grievance procedure instead of directly going to the Labour Department and to Mediation.

4.3 Ratuvulaca apparently, walked out of his job. There is no evidence that he committed an offence, there is no evidence that he was warned and there is no evidence that he was terminated before going to Labour Department. The termination came after the first session of preliminary mediation.

Whether the Ratuvulaca was unfairly terminated?

4.4 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."

4.5 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."

4.6 From the evidence, Ratuvulaca was given his termination letter after the first preliminary mediation session and the Tribunal views that as creating a lot of confusion with the grievor. He did not have the benefit of proper advice and that put him at a great disadvantage in his claim for unfair dismissal. In that connection, the Tribunal feels that the human resources section of this employer should be advising workers like Ratuvulaca of their rights as in this case the Union seems like a disinterested party.

4.7 The Tribunal after going through the evidence and taking into consideration the situation surrounding Ratuvulaca, makes the determination that he was unfairly dismissed in the way the termination was accorded to him; as he went to mediation hoping for the resolution of his grievance but was instead issued the termination letter 5 days after the first preliminary session.

5.0 Decision

5.1 Apenisa Ratuvulaca to be paid 3 months' wages as compensation for humiliation, loss of dignity and injury to his feelings during termination under section 230 (1) (c) (i) of the Employment Relations Promulgation 2007. The payment will settle the grievance.

DATED at Suva this 26th day of November, 2012

Sainivalati Kuruduadua
Chief Tribunal