Pillay v Carpenters Fiji Ltd [2013] FJET 12; ERT Grievance 84.2011 (16 January 2013)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA ERT Grievance No. 84 of 2011

BETWEEN:

HARISHWAR PILLAY
GRIEVOR

AND:

CARPENTERS FIJI LIMITED T/A MORRIS HEDSTROM
EMPLOYER

Mr. Lesi (Labour Officer) for Grievor
Ms. D Prakash for the Employer

Date of Hearing: 1st February 2012
Date of Judgment: 16th January 2013

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 24th October 2011. Mediation was attempted on 8th April 2011, 15th April 2011 and again on 21st April 2011 but was not successful. The mediator referred the grievance to the ERT in accordance with s194 (5) of ERP outlining the nature of unsettled employment grievance with the following terms of reference:-

“Harishwar Pillay vs. MH HomeMaker over the alleged unfair termination of Mr Pillay who is seeking 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 28th June 2011 whereby the Employer, Carpenters Fiji Limited t/a Morris Hedstrom (or “MH”) filed their Preliminary Written Submissions on 5th September 2011 and the Grievor filed his Preliminary Written Submissions on 19th September 2011.

2.2 Hearing of the substantive matter was held on 1st February 2012. Parties were directed to file their respective written closing submissions simultaneously by 21st February 2012 and only the Employer filed their closing submissions on 21st February 2012.

2.4 The employer called two witnesses:-

• Mr Asish Singh, a Sales Assistant working at the Nasinu Branch of MH Homemaker where the grievor was his Manager; and
  
• Ms Elvina Pilla, a Human Resource Coordinator of MH gave evidence pertaining to the termination process.
  

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

3.0 Issue(s) before the ERT

3.1 In the grievor’s Preliminary Submissions dated 19th September 2011, the Labour Officer has provided the following issues to be redressed and remedied by this ERT:-

1. That the grievor was unfairly terminated;
   
2. That it is submitted that the employer failed to follow the disciplinary procedures in the spirit of good faith under the Employment Relations Promulgations 2007 before terminating the grievor’s employment;
   

100. That it is also submitted that the employer failed to give the worker the right to defend himself first before terminating his employment contract; and
     

4. That the worker is now seeking relief for payment of compensation for loss of earnings, loss of dignity, the embarrassment and distress that caused him and his family as a consequence of such unsympathetic action conducted by the employer.
   

3.2 The allegations pertaining to unfair dismissal of the Grievor by the Employer thus requires this Tribunal to determine both, whether or not the dismissal was substantially and procedurally unlawful and unfair. In other words, this ERT will determine whether or not the purported termination of the contract of service during the probationary period was unlawful (or wrong) and unfair as alleged by the Grievor.
3.3 In that respect, I accept that the Employer through the Respondent’s Closing Submissions dated 21st February 2012 has quite aptly pointed out the fundamental issues to be determined which are threefold in nature:-

1. Whether or not the Employer was entitled under the Grievor’s Employment Contract to terminate the Grievor by non-confirmation of employment;
   
2. Did the Employer have a valid reason in justifying the grievor’s dismissal; and
   

100. Was the Grievor treated with respect and dignity appropriate under the circumstance in the manner in which he was terminated?
     

3.4 This Tribunal in its determination of these the issues has to finally determine whether or not relief (or remedies) sought by the Grievor including compensation be awarded. If not, then the employer is seeking that the Tribunal must dismiss the claim and award cost in their favour.

4.0 Background Facts

4.1 A written contract of service was presented to the Tribunal marked as Exhibit “2”. Clearly the grievor’s service commenced with MH under the said employment contract, in the position of a Branch Manager based at the MH Valelevu Homemaker Store effective from 10th December 2010. The employer also accepted during the evidence that the grievor was a full time employee on probation at the time of his termination.

4.2 Mr Pillay was in fact dismissed for non-confirmation of his position under the probationary period clause or provision in his written contract of service. He was alleged to have been engaged in a certain inappropriate behavior with a customer. Exhibit “5”, the letter of termination dated 28th January 2011 stated that:

“We would like to inform you that the management has reviewed your work and wish to terminate it effective immediately, on grounds of non-confirmation of probationary period.

We refer to our investigation report in relation to you indulging in an appropriate behavior with a customer. An investigation concluded you were found guilty of the same...”
(Underlining is my emphasis only).

4.3 The grevior wrote to the employer on 2nd February 2011 (as per Exhibit “6”) what appears to be an attempt to clarify his side of the story highlighting that he has led a career in the Management position for the past Fifteen (15) years and that he was not at fault for the allegations of mistreating a customer who he had counter-alleged “has been fooling around with our Company for his TV...” He did admit in the letter that he made a mistake to recognize the right customer (at paragraph 6 of the letter).

4.4 It appears that Mr Pillay was previously employed by MH in the Western Division and this was a new position in the Eastern Division with the same company under seemingly a new contract of service which had an indefinite period.

4.5 While, there was no fixed duration clause in the contract of service; however, the contract had clearly stipulated that there was an initial probationary period of three months before the appointment could be confirmed subject to “your services be found to be satisfactory during the probationary period” or “your employment maybe terminated without notice.” Additional three months could also apply at the discretion of the employer making the probationary period in sum total, for six months. As a matter of fact, the contract of service also very clearly detailed other provisions or clauses that impacted on different termination methods viz a vis disciplinary process. Although it was the employer’s decision to invoke the probationary clause as they had provided this to be the main reason for terminating Mr Pillay at the time of his dismissal, this Tribunal is laying out those pivotal parts of the contract of service for further reference and clarity. To begin with, “Probation” Clause states that:

“Probation: You will be employed on probation for three months. Should your services be found to be satisfactory, your appointment will be confirmed thereafter. Should your services be found to be unsatisfactory during your probationary period, your employment may be terminated without notice. Management at its sole discretion may extend this period to a further three months period. Confirmation of your appointment is subject to your satisfying our Company’s Security clearance procedures.”

(Bold is my emphasis)

4.6 The provision relating to termination enshrined in the contract of service states that:

Termination: Employment may be terminated at any time by either party giving not less than one month’s notice in writing or by payment of one month’s wages in lieu of notice. The employer reserves the right to pay out employee’s notice period instead of requiring the employee to work out his/her notice period. If the employee gives less than the proper notice, the employer is entitled to deduct the balance of unworked notice from any money owed to the employee or to otherwise recover the sum.

The employer is entitled to terminate this Contract if:-

(i) the employer is unable to fulfill the Agreement;

(ii) owing to any sickness or accident the employee is unable to fulfill the Agreement.

(iii) the employee is found to have repeated poor performance or misconduct.

Upon termination of employment, the employee must immediately return and must not copy all or any of the employer’s property, documents, information, keys and access or security cards which the employee has in his/her possession or use.

(Bold is my emphasis)

4.7 Other pertinent provisions or clauses in the contract of the service are:-

“Summary Dismissal The employer may summarily dismiss the employee without notice:-

• where the employee is guilty of gross misconduct;
• for willful disobedience to lawful orders given by the employer;
• for lack of skill or qualification which the employee expressly or by implication warranted to possess;
• for habitual or substantial neglect of the employee’s duties; or
• for continual or habitual absence from work without the permission of the employer and without other reasonable excuse.”
  

“Disciplinary Procedure The employer’s disciplinary procedure is contained in full in the Staff Handbook.

The employer’s disciplinary procedure is summarized as follows:-

(a) If an employee acts inappropriately or unacceptably;

• (i) the employee may be summarily dismissed and will not be entitled to payment in lieu of notice;
  
• (ii) the employee may:-
  
  1. be given a first written warning for a first offence
  2. be given a final written warning for a second offence
  100. may then have an explanation interview with his/her manager
  4. may have a further interview in which his/her employment is terminated.
     

(b) No warning will be held against an employee for more than 12...”

5.0 The Law

5.1 In this grievance matter, the employment contract of the grievor is evidently a contract of indefinite period but it stipulates a six-month probationary period discretionary upon assessing the grievor’s conduct and performance in the way he would deliver his “service” to the employer. This opens up room to infer that the employer had made “cause” a basis to evaluate grievor’s service in that six month-period before he could be confirmed to the position permanently. Assessing the suitability of an employee for a permanent position is not an unknown phenomenon in the employment arena and there is nothing in the ERP that prevents or restricts an employer from providing a probationary period in an employee’s contract of service. In fact the ERP is silent on how a probationary period or related matters should be lawfully and fairly assessed. The ERP, however, does not outlaw probationary period in any regard on the basis it is unfair and prejudicial response or condition of the employer, considering that a contract should either be for a fixed or indefinite period, and consequently probationary period has no role to play.
5.2 While there was no apparent issue or contention on this (legal) point, I have to comment for clear understanding that I did not find any provision in the ERP that does not allow for termination on the grounds of probationary period without notice or that all dismissals should always be for a “cause”. So let me begin by saying that ERP does not define a termination (in any given situation) for ‘a cause’ or ‘without a cause’. The only provision I find in the ERP that makes a specific mention is under Section 34 where it 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”.

5.3 Section 114 of the ERP can also be read in line of this provision where it states:-

“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” (my emphasis).

5.4 Generally speaking, when an employee is ‘terminated for a cause’ they are terminated or dismissed from their job for specific reason(s). Reasons an employee could be terminated for cause include, but are not limited to, are: deliberating violating company policy or rules, poor or unsatisfactory performance of duties and responsibilities; and/or for serious misconduct related to specific employment requirements either expressly stipulated in a contract of service or implied. Some of these reasons or grounds for dismissal are listed in section 33 (1) (a) - (e) of the ERP that entitles an employer to exercise summary dismissal where an employee can be terminated for a cause without notice. In fact, the contract of service is in this instance also contains such a clause as stated above.

5.5 Therefore, to test the issue objectively as to whether or not the immediate or on-spot termination of the grievor within his probationary period was lawful and fair as justified by the employer, given that ERP 2007 gives very little or no clear direction whatsoever, the question to ask here is ‘did the employee know that his employment might end at the conclusion of the probationary period’ and ‘did he reasonably consider this a real risk’?

5.6 The answer to that question lies in assessing whether or not the employee ought to have had reasonable expectation that his contract within the probationary period could be effectively and lawfully ended for a cause.

5.7 Clearly Mr Pillay had agreed to bind himself within the terms and conditions of his contract of service which in essence is not any commercial agreement but an agreement of good faith compelled to be in writing when the drafters framed sections 36 and 37 of the ERP. Indeed, the first point of reference for termination on the premise of good faith relationship is always the contract of service between the parties. 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...”
5.8 Usually even if the contract appears to be improvident or a bad bargain, as long as it did not result from fraud, duress, or undue influence, once it is written, agreed and signed by the parties, it has to be regarded with significance and value, in terms of its lawfulness and fair standing. Albeit an employment contract, parties are still bound by the terms to which they have agreed to, when forming that very special and intricate relationship given the nature of work, industry demands keeping in mind productivity and economic benefit to the nation but above all, the professional growth of the worker to sustain a decent livelihood and work with dignity.

5.9 Therefore, an employment contract, once formed, does not contemplate a right of a party to reject it that was mutually entered into between the parties with the capacity to contract. The binding force of an employment contract is based on the fact that it evinces a meeting of minds of two parties in Good Faith. Both parties in that case carry binding obligations and may not easily claim unfairness or set aside terms and conditions due to the caprice of one party or the other unless a statute provides to the contrary. To that effect, Mr Pillay was put on adequate and reasonable notice as a six-month probationary period was explicitly stated in his contract of service. Accordingly, this Tribunal neither has the jurisdiction nor a fair standing to substitute its own views when there is a contract of service which is so obvious, clear and breaches no statutory provisions in the ERP 2007.

5.10 It would then be fair to say that the grievor had reasonable knowledge that the probability of his position being made permanent came with a waiting period of six months where the employer could exercise a right to evaluate his “service”. In that sense, there was no guarantee that his contract would be made permanent unless the employer failed to invoke a clear decision regarding that particular clause. For example, upon expiration of six months, say if the employer forgets or overlooks that the six month probationary period has lapsed or surpassed its time limit where the employer has also not advised the employee (in writing or otherwise) that he or she is now a permanent employee, but later tries to rely on this to terminate the employee on that basis, I do not see the employer succeeding in their claim as per their right to terminate under the probationary clause. In my opinion it would be deemed waived and the employer would be estopped from relying on their contractual right under this provision.

5.11 I have noted that the grievor did not present me with any written legal submissions for reasons best known to his representative and himself. Accordingly I have considered the submissions presented by the Employer where they have alluded this ERT to the Australian case of MR R v The Agency [201] FWA 3446 and other case-laws including Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002). These case authorities have immensely assisted this Tribunal to understand the employer’s position. Whilst the grievor has failed to provide any case-laws or legal submissions to defend his position, I am keeping in mind that in employments matters the Tribunal is obligated to balance the evidence presented by the employer without observing the strict rules of evidence.

5.12 After assessing evidence that was adduced to the Tribunal, I declare that in the contract of service, the probationary period was recognized by both parties. Discretion was to be exercised by the employer to assess on their own within the first six months, as to the suitability and adaptability of the employee to his position. The essential criterion for assessment, notice period or the grounds (reasons) for termination was laid down in the contract of service to give some clarity to the probationary clause. To this ERT, this leaves no room to re-construct the contract outside its literal and natural meaning, which in essence means that the employer could lawfully terminate the employment under the “Probationary” Clause, with a reason or cause.

5.13 This then leaves the critical question to determine whether or not “cause” or reason for dismissal without notice was justified, in that, it can be declared lawful and fair based on the evidence presented by the employer in order to discharge the burden of proof placed on them on the standard of “balance of probabilities.”

5.14 Simply put, to permit employers and employees to enter into probationary periods, I do not believe that the law relating to unjustifiable dismissal is affected where the employer dismisses an employee during (or at the end of) the probationary period in reliance on it. In my view, for fair termination to persist, natural justice and good faith principles demand that the employer has to provide all necessary avenues to the employee to mitigate his/her grievance, have the right to be heard before any type of termination is effected (that is, before casting the guilt) and thereafter be given an unequivocal decision (as reasons) in writing whether or not the employee has any scope to carry on in that special employment relationship even when any irreparable breach of the contract of service is found.

5.15 To better understand this aspect, let me look towards other jurisdiction for guidance as clearly ERP provides no direction on this issue. Under the New Zealand employment law and agreements there is requirement that before reliance is made on the probationary period as a way of justifying dismissal, as held in the case of NZ (with exceptions) Food Processing etc IOW v Unilever [1990] 1 NZLR 35 there must be:

1. Notice of specific allegation and its likely consequences;
2. A real opportunity for explanation; and

100. An unbiased consideration of such explanation.
     

5.16 Fiji’s employment law has been modeled on the New Zealand laws when the ERP 2007 was drafted and legislated although I must say, any mention of probationary period and how it shall apply being totally absent in the ERP is perhaps done with a reason that I cannot explain. Even so, if it is considered under the definition of “dismissal” in the interpretation section (s4) of the ERP there is no doubt in my mind that “any termination of employment” is broad enough to encompass probationary period that is used as basis for termination. The above Unilever case thus makes sense when it comes to ensuring that natural justice and fairness is not denied to an employee regardless of the nature of termination.

5.17 Unilever’s case makes even more sense when read more in line with another important judgment in the case of Slater v Smith [1994] NZEmpC 92; [1994] 1 ERNZ 869 at 827 where it was noted by the NZ Court that:-

“...What did the parties intend by their agreement to a trial period? They meant that Mr. Smith and his work would be assessed during and at the conclusion of that period.

They intended that if it was regarded as unsatisfactory at the end of the time or it was otherwise open to be terminated for cause during the period, this would be the employer’s decision and might occur at that time.

But it cannot be implied into the employment contract that such a decision might be made by the employer by exercise of a completely unfettered discretion or arbitrarily in abrogation of even the most basic entitlements of fairness, objectivity, and reasonableness. The parties had an employment contract.

Decided cases are all clearly to the effect that implied terms of fair process, now well established, apply as much to the trial or probationary periods of such contracts as they do after their expiry.

The detail or stringency of such implied requirements may differ in cases of trial periods but I reject the notion that an employer may, without more, summarily and unilaterally terminate the contract either during the trial period, as here, or at its end”

(Underlining is my emphasis).

5.18 The above case is clearly one that did not overlook an employee’s unfettered right to be dealt with fairness, objectivity and reasonableness (principles of natural justice) so that employer did not unilaterally or arbitrarily decide to terminate a contract even within the probationary period. This would then require establishing justifiable cause(s) before any kind of termination could be implemented. The criterion in this instance that employer has admitted that they had kept in mind to assess unsatisfactory service related to performance and conduct of the grievor in the way he delivered his “service” under his employment contract. If the employer has implied performance or conduct as a basis to assess the grievor’s service viz a viz entitlement to confirmation of a permanent position after his probationary period would have ended, then they have opened themselves up to explaining and proving that it was the relatively poor or unsatisfactory performance (or misconduct) of the employee that has led to his termination within the probationary period and which was indeed very serious and not a minor offence.

5.19 Further in terms of compliance with s114 of the ERP, I understand it does not refer to ‘reasons’ in the context that the employer has to provide reasons after evaluating the probationary period and thus penning out their findings in a detailed manner to inform the grievor how they lawfully and/or reasonably concluded their decision to terminate the employee. If there is no cause under the Probationary Clause, what would an employer be required to explain or write to the employee?

5.20 If there is justifiable or lawful cause or reasons, it would make sense to pen out the lawful cause or reasons within the ambit of say, s33(1) (a) – (e) for summary dismissal that provides some benchmark for assessing justifiable causes which shall certainly vary in different employment contexts.

5.21 Here the employer stated in the letter of termination that “...We refer to our investigation report in relation to you indulging in an appropriate behavior with a customer. An investigation concluded you were found guilty of the same...” Therefore, the ‘reasons’ under s114 of the ERP 2007 simply mean that the employee at the time he was dismissed from his position had to be given adequate information which he would then be is able to comprehend and understand within the confines of his written contract of service.

6.0 Final Determination

6.1 Evidence of the employer demonstrated through their two witnesses in the course of the hearing that there was justifiable cause for invoking probationary clause to end the contract of service of Mr Pillay without notice. I summarize the evidence as follows:-

Witness One

• Mr. Ashish Singh, employed as a Sales Assistant at the Nasinu Branch of MH Homemaker stated that on Saturday 19th January 2011 he was in the shop when a customer came in for a replacement television set. The Grievor called the person whom he assumed was Mr Toma Fred by his first name and gave instruction to Ashish to take out the replacement TV set for the customer.
  
• The witness stated that he was only doing what he was instructed to do by the Grievor who was in fact his manager. The witness had not seen the customer before and it was the Grievor who identified the customer as Fred Toma. The Employer then tendered the Security and Investigation Report as Exhibit “1”.
  
• On Monday, 21st January 2012, the witness was at the display area when another person who identified himself as Mr Toma Fred entered into the shop and went to see the Grievor in his office. It appears when the customer asked about his replacement TV set, the Grievor then informed him that it had already been given to him two days ago on Saturday. The customer then had asked Mr Pillay to produce documentation to prove that the transaction took place, to which there was none available.
  
• The Grievor then called Mr Ashish Singh into his office and asked him if he recognized the customer to which the witness replied that the relevant person was a different customer or person and that he did not recognize him.
  
• According to Mr. Singh, the Grievor then became angry and irritated, thereby he began to yell at the customer, Mr Toma Fred to get out of the office or else he would call the police. Despite this, the witness told the Tribunal that Mr Toma Fred continued to persist in his efforts to convince the Grievor of his identity in order to explain himself but the Grievor left the office and called the police to come to the premises.
  
• Mr Singh told the Tribunal that normally in such circumstance, the customer is served and his side of the story is investigated, but here the Grievor neither listened nor attempted to settle the matter by properly checking on the customer’s pleas that he was the right person. Even after the arrival of the police, the Grievor could not show the customer any documentation indicating that the TV set was indeed taken by him, who correctly identified himself to be Mr Toma Fred. As it appears, the person who purportedly took the relieving TV set on Saturday was in fact a different customer.
  
• Mr Singh further told the Tribunal that the grievor who should have known the company rule did not do his part when the customer who took the TV set on Saturday did not sign any documentation and the Grievor was well aware of this. It was suggested by the Labour Officer during cross examination that Mr Singh (the witness) as part of his job or duty description should have assured or be responsible to see that proper documentation was raised and records were properly kept. This issue was put to the witness in re-examination which revealed that the witness had in fact only worked at MH Homemaker for two weeks. Hence he was not well versed with the documentation procedures; however, it was also revealed that the Grievor’s overall duties as the Manager extended to him ensuring that customers in such context who leave their purchased items for repairs are correctly identified and an invoice should be raised regarding the replacement item as per the company policy.
  

Witness Two

• Ms Elvina Pillay testified in her capacity as the Human Resources Coordinator working for MH. She stated that her evidence was entirely given on the basis of business records of the company. The Employer first tendered through Ms Pillay the Employment Contract dated 9th December 2010 of the Grievor marked as Exhibit “2”.
  
• The witness stated that the responsibilities of the Grievor included the operational supervision of the store he was managing that included looking after sales. Part of the Grievor’s responsibility was to familiarize himself with the Company Policies. Ms Elvina Pillay tendered the Grievor’s Induction Checklist as Exhibit “3” which was signed on 10th December 2010. The document indicated that the Grievor was made aware of Company policies and expectations. This included the job procedure, departmental working structure and also customer service, behaviour and work attitude.
  
• The witness was asked to read out the Probation Clause of the Grievor’s Employment Contract which stated that the Grievor would be on initial probationary employment for three months during which the Employer could terminate the Grievor if his services were found to be unsatisfactory. The witness then read for the Tribunal record the transcript of the Security and Investigation Report marked as Exhibit “1”. According to the interview transcripts, the Grievor was extremely rude to Mr Fred Toma. He then had acted irrationally to call the police immediately when the Employer submitted that the attention of the Security Guard would have sufficed, considering there was any potential misgiving or danger to the grievor from the customer. The witness stated that there were company procedures regarding “difficult” customers which the Grievor was aware of. The first line of action is to calm the customer in an attempt to resolve the matter amicably. Failing this, the staff responsible was to call for the assistance of the Security.
  
• The witness stated that during the incident of Monday, 21st January 2012, the fact that the Grievor called the police at the first chance was of concern to the Employer as it meant that the Grievor could not handle the situation himself in his capacity as the Manager of one of the MH outlets. Where checking and proving the identity of the customer was concerned, this witness stated that the transcript of the interview indicated that the Grievor had met with Mr Fred Toma on at least five or six occasions prior to the incident on Saturday 19th January 2011. This should have been enough to avoid the identity crisis and if it had genuinely occurred, then the customer should have been treated properly.
  
• The Investigation Report had concluded that the customer identity blunder was a very serious matter. It also stated that the documentation not being properly raised and that the grievor had mistreated a genuine customer, this was something that was gravely avoidable and indeed serious. The witness stated that all the relevant persons were interviewed to ascertain the truth of the incident. The Grievor was also interviewed and his statement was obtained after advising him of his rights where he had agreed that he understood the reason why he was being investigated and interviewed. The witness further indicated that the Grievor, during investigations had remained working in his normal duties and once the Employer’s investigations was complete, the decision was made to terminate the Grievor. The witness also stated that the Grievor was paid all monies due to him and this included all overtime payments.
  
• During Cross examination, the Labour Officer asked the witness to clarify the probation issue on what is deemed “satisfactory” or “unsatisfactory” performance. This was objected to by the representative of the Employer on the basis that this issue should be left for the Tribunal to decide as to whether or not the Grievor’s actions constituted satisfactory or unsatisfactory performance. The Tribunal had overruled Mr Lesi and agreed that the witness could not answer the question in the form it was being asked. For this reason both parties were invited to provide their legal submissions with case-authorities if necessary.
  
• The witness was also asked about whether the Grievor had tried to apologize to the customer but she was not aware of this. In re-examination, the employer was able to establish that while an apology would have been acceptable, the damage was already done and that given the customer oriented nature of the employer’s business such actions were simply unacceptable. Also, the witness stated that a proper investigation was conducted by the employer during which the Grievor was interviewed and given an opportunity to respond to the allegations leveled against him.
  

6.2 Evidence of the grievor clearly demonstrated that:

• He was employed at MH Homemaker in Suva for two months after being transferred from MH Lautoka branch where he had been employed for six to eight months in 2009. He had resigned and rejoined the company in December 2010 as Manager for MH Homemaker in Nasinu, a position he occupied at the time of his non-confirmation of probationary period.
  
• The Grievor stated that before Saturday 19th January, he knew the customer as Toma Fred after having met him previously on five or six occasions.
  
• The Grievor acknowledged that he had made a mistake in identifying the customer on Saturday 19th January. On Saturday, he had asked the customer whether he was Toma Fred to which the customer answered in the affirmative. He also admitted that without checking for any identification, the replacement TV was demonstrated to the customer and the Grievor instructed his staff to pack the TV set into a carton box and sent to security for checking.
  
• After about two or three days, the Grievor testified that Mr Toma Fred came to see the Grievor and asked about his replacement TV set. The Grievor sent for the Sales Assistant Ashish to clarify the matter.
  
• Mr Pillay testified that after the customer began to shout at the Grievor, he admitted to yelling back at the customer in presence of other customers and staff. As the matter was not resolved, his only option was to call the police which he finally resorted to in his attempt to resolve the issue. However, upon police intervention, Mr Pillay came to realization that the Grievor had in fact made a mistake in correctly identifying the customer, in which event he then arranged to go the customer’s residence with a replacement TV. The Grievor testified that he had written apology for the customer and had offered a DVD player in his attempt to correct the mistake.
  
• Nevertheless, the Grievor had admitted that he had failed to ensure that the right item was released to the right person.
  

6.3 After careful scrutiny of the evidence, the employer had no doubt implied within the confines of the contract of service that the unsatisfactory service provided by the grievor within his probationary period was the main ground for his dismissal when he could not perform his key responsibility as a Manager to provide competent and professional customer service.

6.4 According to the employer, Mr Pillay had committed a grave mistake by not correctly identifying the customer on Saturday or thereafter checking the customer’s identity when the real Mr Toma Fred appeared on following Monday, thereby causing distress and frustration to a customer . To the employer, the evidence they had gathered though staff interviews showed that Mr Pillay’s disorderly conduct in the way he dealt with the related transaction with the customer was unbecoming of an employee in the Manager position. The employer asserted that he should have shown more professionalism and courtesy given his leadership position. That too, in front of other staff and customers in the shop on the day. Mr Pillay obviously aggravated his position by yelling back at the customer although the employer’s first witness said that it was the grievor who was rude the customer by yelling at him first.

6.5 Clearly Mr Pillay admitted he was at fault for not checking the customer’s identity properly before dispatching a replacement item which was given to a wrong customer. But he blamed Mr Singh (witness one) and the security for not double checking the identity or raising proper documentation when in fact, the security and Mr Singh would have been his subordinate staff working under Mr Pillay’s supervision and instructions. If a manager is unable to maintain effective control to ensure such mistakes are avoided, then to apportion blame on staff at the lower rank is really no saving grace for Mr Pillay.

6.6 An apology to the customer is no doubt a reasonable response of Mr Pillay but the nature of the industry or core business of MH, demonstrates that the employer cannot allow or tolerate such lame and inefficient service when customers determine the employer’s economic well-being and without whom the employer cannot survive in the market. In the case of McIntyre v Hockin 16 O.A.R. 498 (1889), Justice Jill Parrish of the Supreme Court of Utah declared that:

"The term just cause connotes a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. Additionally, a just cause reason for termination is not "trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual."

6.7 Customer service is obviously a vital component to the employer’s core business and Mr Pillay was long enough with MH to appreciate the consequence of such misconduct towards a customer. This can amount to unsatisfactory service or performance if the employer deemed it went against the company rules and policy that adversely impacted their business and its goals and objectives. These goals, rules and policies were known to Mr Pillay. Therefore this Tribunal cannot doubt the employer that they did not suffice the meaning of “unsatisfactory service” to warrant punitive action to be taken against the grievor after an investigation was conducted and conclusion was made to find Mr Pillay guilty. The ERT can however, explore the evidence objectively which must establish that there was a serious cause to justify non-confirmation of probationary period. And here that cause is justified on the evidence I had the opportunity to examine and contextualize based on the business needs and goals.

6.8 Where procedures are concerned, I have to apply the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011], where the Employment Relations Court in Fiji made the following observation, and where I also am bound to follow the same path outlined therein: Wati J noted and I quote for quote:-

“...It is my duty to comment more on the procedure to terminate “for a cause” and “without a cause”. In any given situation, the employer is not obligated under the termination clause to give any opportunity of hearing, as found by the Tribunal. When the termination is without cause, what is there to hear the employee on?

“...if there is serious misconduct, then it is the prerogative of the employer to terminate the employment immediately. If all these procedures of hearing and explanations are accorded the employee, then the purpose of summary dismissal is lost...” (at page 8).

6.9 Justice Wati is clear that where there is no cause for termination then the employer can proceed to terminate without necessarily according the procedure for hearing. Isoa’s case is perhaps not so clear whether or not any procedures are required to ascertain the guilt of the grievor (and what sort of procedures should be used) prior to declaring the alleged conduct “serious”, but it is quite clear that once a serious (or gross) misconduct is established in substance, then procedural fairness is not required for purposes of a summary dismissal. To that end, the employer could immediately proceed to terminate the grievor.

6.10 Here, while summary dismissal clause (in relation to s33 of the ERP) was not invoked by the employer as contained in the contract of service, the cause was justified on the basis of being a serious misconduct. In that sense, I do not find the situation is any different as to what is held in Isoa’s case on the position of the procedure for hearing. Further, Wati J said and I quote:

“...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).

6.11 Mr Pillay had continued in his normal duties whilst an investigation was carried out. He was subsequently interviewed and he had all the opportunity to defend himself, regardless of the outcome or decision of the employer at the end of the investigation process. This means that the employer had an obligation and right to find out the truth and assess the evidence objectively to decide whether or not it violated the company rules and procedures. If the griuevor was found guilty, then under the termination clause, the contract of service stipulated that “The employer is entitled to terminate this Contract if:-...the employer is unable to fulfill the Agreement...”

6.12 This means that the probationary clause could be invoked and the employer rightly did so. In addition, I am mindful of the principle followed in the case of Dunning (A.J.) & Sons (Shoplifters) Ltd v Jacomb (1973) IRLR 206 where the Court said:-

“...the approach developed that a procedural defect would only make the dismissal unfair if the decision might have been different at the end of the day. The trend is to see procedural matters as issues of substance to be weighted in the scales of the overall merits of the case”.

6.13 Clearly at the end of the day, the special good faith relationship is contingent on both, the worker and employee in their understanding of their respective obligations towards each other and this was expressly contained in a contract o service. Here the employer did not arbitrary terminate the griveor. There was a justifiable cause. Justice Laing in Caudle v. Louisville Sales & Service Inc., 1999 SKQB 276 had adopted these words that should also help this case:-

"Just cause is conduct on the part of the employee incompatible with his or her duties, conduct which goes to the root of the contract with the result that the employment relationship is too fractured to expect the employer to provide a second chance."

6.14 I find that employer was reasonable and fair in terminating the grievor after a proper investigation was conducted. In fact he was interviewed and given an opportunity to respond therein. Right to hearing and mitigation was justified before he was found guilty and this process was accorded (according to Isoa's decision of the Employment Relations Court). After he was found guilty of something considered serious by the employer or there is lawful cause established by the employer, the employee cannot seek a right to hearing in a case of an instant or immediate termination without notice as decided in Isoa's case.

7.0 Decision

1. I find the termination within the probationary period was reasonable, lawful and fair within the ambit of the contract of service on the basis the employer proved that they had lawful and justifiable cause.
   
2. Accordingly this grievance claim is dismissed with no cost awarded to either party.
   

DATED at Suva this 16th day of January 2013.

LEGAL TRIBUNAL