Soqonakalou v Shop N Save Supermarkets [2013] FJET 13; ERT Grievance 31.2011 (7 March 2013)

IN THE EMPLOYMENT RELATIONS TRIBUNAL

AT SUVA
ERT Grievance No. 31 of 2011

BETWEEN:

APIMELEKI URUCA SOQONAKALOU
Grievor

AND:

SHOP N SAVE SUPERMARKETS
Employer

Appearances:
Ms. A Raitivi, Labour Officer for the Grievor
Mr. D. Sharma & Ms C. Sanchez for the Employer

Date of Hearing: 20th July 2012
Date of Judgment: 7th March, 2013

DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL

1.0 Employment Relations Grievance

1.1 Background to the Grievance

This grievance was registered with the Ministry of Labour on 13th April 2011 where the grievor had given the following details for his dismissal in Form ER1 [pursuant to Schedule 1 of Employment Relations (Administration) Regulations 2008]:-

"REASON FOR TERMINATION

...I was in police custody for theft allegations (outside my workplace – not related to workplace but some other place). I was later released on bail (Statement is attached). The boss therefore said that he does not require any employee with the court issue. I was thus dismissed from my job. No termination letter was given. Unfair dismissal applies to me..."

1.2 Mediation Unit attempted to settle the matter on 7th and 15th June 2011 but was not successful. The mediator then referred the matter to the ERT in accordance with s194(5) of the Employment Relations Promulgation 2007 (or "the ERP 2007") with the following terms of reference:-

"...Unfair and wrongful dismissal...".

2.0 Cause before the ERT

2.1 In the Employment Relations Tribunal (or "the ERT"), the parties were directed to file preliminary submissions on 12th August 2011. The Employer after some delay finally filed their Preliminary Written Submissions on 7th November 2011 and the Grievor, subsequently filed his Preliminary Written Submissions on 1st December 2011. The Employer despite seeking additional time to file further submissions later informed the Tribunal that there was no need to file the same.

2.2 Hearing of the matter was fixed for 20th July, 2012 which commenced and completed on the same day. The employer called one witness, Mr Rohit Lal (the Inventory Manager at the Shop N Save Warehouse in Nabua) to give evidence on oath while the grievor took stand to give evidence on oath to explain his position. The parties were then directed by the Tribunal to file their respective closing written submissions whereby the Employer filed their submissions on 27th July 2012 and the grievor filed his submissions on 13th August 2012.

3.0 Evidence by both Parties

3.1 The Employer's only witness, Mr Rohit Lal testified and gave following evidence:-

1. He was giving evidence based on the files maintained at the employer's office. He was aware of the grievor's case stating that the grievor was a baker stationed at Shop N Save Nabua Bakery.
   
2. He told the Tribunal that the grievor performed shift works where he would work during the day for eight hours and during the night for eleven hours. The grievor was paid wages on an hourly rate of $2.75 per hour.
   
3. The grievor had commenced work on 17th October 2010 and was terminated as he was not coming to work for a number of days. He had worked for or about six months before he was terminated. Prior his termination, Mr Lal told the Tribunal that the grievor was given warning letters where he tendered in Exhibit "1" which was a suspension letter dated 28th November 2010. This letter was given to the grievor for his habitual absenteeism which he had acknowledged by signing the same when he had received it on 23rd December 2010.
   
4. Mr Lal told the Tribunal that the grievor was given further opportunity by the Management to improve work but despite the warning letter he had failed. In fact, Mr Lal said he was further reprimanded for another incident where a letter dated 4th March 2011 was tendered in evidence as Exhibit "2". Again the letter indicated that the grievor had received the same when he had signed at the bottom of the letter on 7th March 2011.
   
5. Mr Lal said he was aware of the policy of the Employer regarding attendance. If workers were unable to come to work they were then to advice their branch managers or fill in leave forms if they wanted to take leave. He further said that in this instance the grievor had not applied for leave.
   
6. He explained that the employer had entitled the grievor to take 10 days sick leave with sick sheet. He was entitled to annual leave of 10 days. However, he said it was also true that in his six months short stint with the employer, the grevior was absent for at least 21 days. He said that there was trend in his habitual absenteeism, in particular when the grievor failed to report to work on Fridays, Saturdays, Sundays or Mondays. He then tendered in evidence various sick sheet records maintained by the employer (Exhibit "3" to "8"). In total there were 6 sick sheets (for 8 days) submitted to the Tribunal. Mr Lal had stated that out of 21days of being absent, the grievor had only produced sick sheet for 8 days.
   
7. Mr Lal intimated to the Tribunal that the grievor even had failed to notify anyone his reasons for being absent where given that he was required to work on roster basis, it was hard to find a replacement which created additional burden on the regular workers at work. Because of this, the Management had finally decided to terminate the grievor sometime in April. This is where he had tendered in evidence the termination letter dated 14 April 2011 (Exhibit "9") which he stated was served on the grievor.
   
8. The reason for termination therein was "frequent and continued absenteeism". He considered this to be a proper notice where he was summarily dismissed.
   
9. He also stated that the grievor was issued with a Certificate of Service dated 8th June 2011(Exhibit "10) which outlined the period of employment as 19th October 2010 - 9th April 2011 with "Cause for Cessation: Extinction" written therein.
   
10. Mr Lal had said that the grevior was paid all dues and reinstating him was not an option.
    
11. In his cross-examination he stated that he was not the immediate supervisor of the grievor as he was directly employed under another department. In fact the grievor reported to another branch manager (known as Pravin Chand in this instance) that looked after the bakery division at Nabua. Mr Lal admitted that he was the Inventory Manager at the Warehouse in Nabua beside the head office.
    
12. Mr Lal was further asked to explain the grievance procedure where he said that matters would directly go the branch manager and then taken to the HR Department. The employees could also go to the HR department directly.
    
13. He also confirmed that despite the suspension letter dated 28th November 2010 was signed by the grievor late (on 23rd December 2010), the letter was given on time. He said while the termination letter did not properly state which dates the grievor was absent a summary of 11 days was stated therein.
    
14. Finally, he stated that apart from absenteeism being a problem, there was no other allegation against the grievor as he performed his work alright.
    
15. Although he said the grievor was terminated on 14th April 2011, his period of employment was 19th October 2010 to 9th April 2011 and how this was so, could only be explained by the HR person, which he was not.
    
16. In his re-examination, the witness clarified that when workers were absent without giving proper notice, the company would give two warnings and thereafter terminate him/her on the third incident. He said the warnings were sufficient in this case as the grievor did not improve his absenteeism rate which caused prejudice to other workers.
    

3.2 The Grevior, a former baker of Shop N Save Supermarket in Nabua gave evidence that:

1. He worked with the employer between the period 19th October 2010 up-till 5th April 2011. He worked for six days a week and was paid on weekly basis.
   
2. He only received his termination letter on 15th June 2011 when his grievance matter was mediated by the Mediation Unit.
   
3. He said he was absent or away from work for one week preceding his termination as he was verbally told by Mr Chand to stay away from work. In other instances, the reason he said he failed to attend work and then produced sick sheet is because he was genuinely sick. He said Mr Chand, his immediate supervisor was notified in all the instances.
   
4. In cross-examination, he agreed he had signed both the warning letters. He said he did not write to the Management to challenge the matters raised therein. He said he wanted to meet with the Management personally but was not familiar with the procedures.
   
5. He also agreed he was away from work for 11 days in March and 7 days in January but he also said that he had given the sick sheet to Mr Chand.
   
6. He said that he had not made an effort to get another job. He was aggrieved that he was not given a proper reference which he had asked the employer's witness, Mr Rohit Lal who also was involved in the mediation. He said even if he was given a better reference by choice he now preferred to do farming.
   

4.0 Issues in this Matter

4.1 While I have duly noted that the employer had submitted through their closing submissions filed on 27th July 2012 that this is not an action brought by the Grievor for unlawful termination but the action here only pertains to unfair termination (as per paragraph 5 of the submission), this Tribunal derives its terms of reference for any grievance matter from Form ER1 (the original claim). This is confirmed by Regulations 3(1) of Employment Relations (Administration) Regulations 2008 which states that:-

3. - (1) A referral of an employment grievance to the Mediation Services must be made in Form 1 set out in Schedule 1 of these Regulations.

(2) A copy of the referral in sub-regulation (1) must be sent to the employer to which the employment grievance relates at the same time the employment grievance has been referred to the Mediation Services.

4.2 For ease of reference, ERP 2007 is clear how any type of dismissal case must be registered. Section 7 of Schedule 4 (Section 110) stipulates: If-

(a) the worker is dismissed; or

(b) the worker is not satisfied with the employer's written response; or

(c) the employer fails to provide, within 7 days after the day on which the employer receives the worker's written statement, a written response; or

(d) the employer and worker have agreed to waive the requirements for an exchange of written statements and the worker is not satisfied with the employer's response to the grievance,

the worker may refer the employment grievance to the Mediation Services in the prescribed manner."

4.3 Further to that, the Tribunal is obligated to adjudicate "matters" referred to it by the Mediation Unit pursuant to section 211(1)(k) of the ERP 2007. This was the position taken by the Employment Relations Court in the case of Fiji Bank &Finance Sector Employees Union and ANZ Bank [2010] FJHC 450; ERCA of 01 of 2009 (12 October 2010). In this case, Wati J had considered the issue of what constitutes a "matter" (although in terms of a dispute matter) and at what point the ERT was obligated under the statute to deal with the same. She had stated and I quote (at pg 28-29):

"...The term 'matter' is not defined by the ERP 2007. The ordinary English meaning of the word matters would mean a subject or situation that one must consider or deal or the present situation or situation that one is talking about. So even if the ERT refuses to deal with the employment dispute under its determination that dispute over dismissals are not covered and hence there was no employment dispute before the ERT, it was at least obligated to deal with it under section 211(1)(k) as a matter to be adjudicated since it was referred to it by the Mediation Services. It was improper for the matter to have been left in abeyance without adjudication of the merits of the case especially when a livelihood of a worker is involved. ... (unquote/bold is my emphasis)

4.4 Bearing in mind the terms of reference forwarded by the Mediation Unit and to keep a sense of fairness to all parties based on the original claim before the Tribunal, I have to make it clear that an employer before being given an entitlement or right to invoke and exercise s33 of the ERP for summary dismissal, must adhere and comply with all the aspects of s33 of the ERP. This includes mandatory compliance with section 33(2) of the ERP which stipulates that:-

"The employer must, provide the worker with reasons, in writing, for the summary dismissal at the time he or she is dismissed."

4.5 This is also the requirement under s114 of the ERP for all types of dismissal cases brought as grievance or disputes which states that:-

"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."

4.6 After careful analysis of the evidence, it is a proven fact that the grievor's original claim where he had alleged not to have received a termination letter at the time he was terminated to be true. I suspect this is the rationale for the grievor penning out his own version of the facts or details in Form ER1 which he had believed (or perhaps, informed by the employer) at the relevant time to be the 'reason' or 'cause' for his termination. No doubt these are entirely different facts from the basis or grounds used by the employer to justify s33 of the ERP when the matter was properly registered under the systems and processes stipulated in the ERP, particularly when the preliminary submissions were directed by the Tribunal to be filed and thereafter the hearing-proper was conducted in the ERT.

4.7 The employer appears to have relied largely on s33(1)(e) of the ERP to justify summary dismissal on the grounds of the worker's "frequent and continued absenteeism" from work without reasonable excuse (as contained in the termination letter dated 14th April 2011 or Exhibit "9") vis a viz his inability to meet his duties and responsibilities as a baker. The Employer through various evidences tendered by Mr Rohit Lal further attempted to justify that such demeanor adversely impacted the employer's production in the bakery division, where it appears that the grievor's regular absenteeism had put considerable stress on other workers to perform his duties in his absence. The employer justified that after giving two warnings, subsequently summarily dismissed the worker.

4.8 Noting the employer's evidence in presenting this Tribunal their justification for invoking section 33 of the ERP for summary dismissal, as a preliminary remark, section 33(2) of the ERP being a mandatory requirement goes to 'good faith' discharge of the employment relationship where reasons must be given in writing to the worker by the employer "...at the time he or she is dismissed." Such reasons (or what is also deemed to be lawful cause as stipulated in s34 of the ERP, specifically for summary dismissal situations) allows the employee to understand exactly why he/she is being terminated and whether or not the reasons provided by the employer has lawful and fair basis to justify summary dismissal when it is implemented: that is, at the critical time of dismissal.

4.9 In this grievance, evidence was clear that the termination letter was only supplied to the worker when the Ministry of Labour through its systems and processes conducted their usual enquiry after the grievor had registered a claim of grievance pertaining to his dismissal. When the Mediation Unit in an attempt to find an amicable resolution within their powers under section 194 of the ERP called both parties to the table to attempt good faith settlement, the grievor gave evidence this is when he was actually provided the termination letter (in June 2011). This was essentially after almost two months of being dismissed.

4.10 Needless to say, the Tribunal never gets divulged exactly what transpires at the mediation sessions [as per the requirement under s113 and s195(2) & (3) of the ERP] although at all times the employer is at privy to every information and facts discussed therein, being a guaranteed party. Indeed, the lawyers (and even the Labour Officers representing the grievor's in the ERT's jurisdiction) are not allowed into the mediation sessions which often create confusion when the matter lands before the ERT, particularly in terms of what were the genuine facts pertaining to the grievance at the material time when a dismissal takes place. This is vital component to establishing whether or not there was a fair dismissal or for that matter whether or not there was a lawful dismissal which any reasonable Tribunal must bear in mind in order to adjudicate the overall merits of the case especially when the livelihood of a worker is involved.

4.11 A reasonable Tribunal is thus always obligated to exercise caution when there is a summary dismissal case. Such drastic but permissible action of the employer under the statute no doubt places the worker in a dire situation where he/she is no longer in employment but has lost the only source of livelihood on-spot without notice or payment in lieu of notice.

4.12 It is then my duty to test the facts and evidence against the alleged (mis)conduct of the grievor that has cost him his job. That said, this alone cannot be the determinant factor or in essence entirely contingent on the conduct of the grievor where justification for dismissal is concerned. Equally important is the very institution of good faith relationship that must exist in any employment. This was tested in the 1997 decision of the Supreme Court of Canada in Wallace v United Grain Growers Ltd., 1997 CanLII 332 (SCC); [1997] 3 S.C.R. 701 where the Court had rejected judicial recognition of bad faith discharge either in contract or tort but injected into the employment relationship the requirement of "good faith conduct" at the time of termination, where in passing the Court spoke of "special relationship" which governs the parties to an employment relationship. Here, the Court had noted that:-

"..., at minimum, ... in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive..." (at page 46).

4.13 What this means is that as long as the employer at the time of dismissal is honest, upfront and makes the employee aware of the path they are taking in terms of an action or misconduct of the worker which may led to dismissal, for whatever reason (lawful cause or no cause) which they are able to communicate to the worker in a dignified and fair manner without inflicting humiliation or misleading in terms of giving any false information, the requirement of "good faith" should suffice. I am thus going to assess whether or not the parties here fulfilled the essential good faith requirement, which I must say goes both ways. To that end, I express my surprise and concern that the Labour Officer did not re-visit the original claims form (Form ER1) to explain why there were different facts or reasons given by the grievor at the material time where he clearly had stated that: "...the boss therefore said that he does not require any employee with the court issue. I was thus dismissed from my job. No termination letter was given...".

4.14 Whether or not this action of the employer had created a basis for unlawful dismissal due to non-compliance with the five permitted grounds for summary dismissal pursuant to s33(1)(a-e) and/or s33(2) of the ERP, was something the Labour Officer had not argued as an issue of law when the hearing-proper was conducted. It neither has a genesis in the Preliminary Submissions of the grievor nor there are any legal arguments raised in the grievor's favour on this pivotal issue in his closing submissions. However, just because the Labour Officer has not made this a legal basis to object the employer's justification for summary dismissal, in substance and procedure, the Tribunal cannot overlook the employer's action preceding to summary dismissal of the worker in this case. Clearly, the termination letter was dated and provided to the grievor after a grievance (claim) was lodged. The lack of signature of the grievor at the bottom part of the letter was clear. Further, the records submitted by the employer in evidence were in my opinion maintained in some disarray to fully comprehend the actual nexus or connection between the employer's real reason for termination and how summary dismissal was actually done.

4.15 For example, the Certificate of Service stated the employment period: as 19th October 2010 – 9th April 2011. The termination letter, on the other hand, was dated 14th April 2011 stating:"...termination effect from 14th April 2011..." The employer's only witness, Mr Lal admitted he could not explain this variation. The grievor told the Tribunal he was terminated on 5th April 2011 and he had come to the Ministry of Labour to lodge his grievance on 13th April 2011. There was no evidence before the Tribunal as to the last pay date of the grievor, and it seems the employer had not appreciated the mandatory requirement of s34 of the ERP to discharge the onus placed on them in such matters to prove that the worker was in actual fact "...paid on dismissal the wages due to him up to the time of the worker's dismissal..". Hence, the employer's failure to comply with s34 of the ERP as it was not adequate for Mr Lal to say that the grievor was paid without proof of payment.

4.16 Further, I do not dispute that the two warning letters which also the grievor agreed to have received albeit late were a reflection of the grievor's absenteeism behaviour that evidently the employer justified, was not condoning. For any reasonable employer if an employee absents himself twenty-one days out of the six months he has worked, then it would be fair to say it showed disinterest on the part of the worker to stay in his job which was created by the employer. More so, when there appears to be no reasonable excuse to justify absence from work. Any worker then places himself in a challenging position to defend his claim or grievance. However, it would have helped the employer's case to present proper attendance records to the Tribunal to verify the same, in particular to show what was the grievor's leave entitlements and what he had used up in terms of sick leave or annual leave given to him.

4.17 In addition, I have perused both the letters which referred to "stringent measures... followed by further disciplinary action". What these measures or disciplinary action alluded to, were not made known to the grievor in terms of the company rules and policies that Mr Lal testified existed. There were no written policies before the Tribunal for scrutiny which would have spelt out the grievance procedures Mr Lal was referring to. Nor there was a written contract of service between the parties. The employer here had obviously fallen foul of s37 of the ERP where it is clear that certain contracts must be in writing where the worker has worked for duration in excess of one month. That said, I agree that an oral contract existed between the parties under the definition of contract of service (s4 of the ERP), where the definition of an employment; employer; and worker in the ERP all make reference to "contract of service" being a basis for an employment. Section 4 of the ERP is clear that:

"contract of service" means a written or oral contract, whether expressed or implied, to employ or to serve as a worker whether for a fixed or indefinite period, and includes a task, piecework or contract for service determined by the Tribunal as a contract of service".

4.18 When comparing these facts against the most important evidence of Mr Lal as to whether or not the grievor was in fact served with the termination letter when he was facing dismissal, Mr Lal admitted that he could not verify the same as he was not the HR personnel involved in such matters. Here, I have to believe the grievor when he said that he was only served at the mediation level.

4.19 Very clearly then, this is when he had come to know that the two warning letters had contributed to his final dismissal. Prior to that, he had obviously believed something else was responsible for his dismissal which is evidently reflected in the original claim, Form ER1. The grievor had also testified that he was asked by his immediate supervisor Mr Chand to stay away from work until further notice. I am concerned that the employer who bears the onus of proof did not bring Mr Chand to the Tribunal to clarify these matters when the grievor worked directly under his supervision. Mr Lal no doubt used the company records to give evidence but he could not tell the Tribunal accurately the actual conduct of the grievor in terms of his daily attendance in the department he where was directly supervised; or that the grievor had no real or genuine reasons for being absent even when he was producing sick sheets. Minor ailments or not, it is my opinion that sick sheets presented by the grievor indicated that the doctor issuing the same believed in his professional opinion that the grievor needed time off from work to get well [complies with s68(3) of the ERP]. If Mr Chand had given evidence instead of Mr Lal, these matters would have been clarified, especially whether or not Mr Chand had asked the grievor to stay away from work or that the sick sheets presented did not justify the absence of the grievor from work.

4.20 It is then for such case scenarios, in terms of creating a level playing field given that the worker often has imbalance of economic power through limited skills, education and knowledge as was the case here and where he/she is facing loss of livelihood due to seemingly harsh punitive action of summary dismissal, that worker has unfettered right to be informed in writing why he or she is being actually dismissed. This unfettered right of the worker then places the onus on the employer to frame their justification and prove that allegations made by the dismissed employee is either lawful and/or fair or both. And in the proceedings before the Tribunal the standard of proof to which the employer must establish its case is something approaching the lesser standard as the "balance of probabilities".

4.21 Obviously, when mediation is not successful and the mediator refers the matter to the ERT as the law mandates them, where the terms of reference is provided as "unfair and wrongful dismissal", a prudent Tribunal must re-visit the original claim and consider the mediator's matters in totality. For this reason, I am of the opinion that the employer cannot simply absolve or minimize their onus of proof by stating that the grievor has not claimed for unlawful termination and therefore, this is merely a case of "unfair dismissal" when they had clearly not complied with the mandatory requirements of sections 33(2) or 34 of the ERP to entitle them to lawfully exercise summary dismissal in the first place.

4.22 Save to say, the mediator had stated that there was allegation of "wrongful termination" which gives this Tribunal adequate basis to test whether or not there was "lawful cause" under section s34 of the ERP in order for s33 of the ERP, being summary dismissal provision to be entirely complied with. This is because section 34 of the ERP makes only a reference but does not elaborate what really constitutes a "lawful cause". However, one would assume section 33(1) of ERP gives the prerequisite premise upon which any summary dismissal can be effected, as long as it is based on one or any of the lawful grounds [s33(1)(a-e)] stated therein.

4.23 Indeed, the grievor's main contention was that the employer failed to accord him procedural fairness which then requires this Tribunal to assess whether or not the grevior was discharged with dignity at the time of his dismissal without any humiliation, in that he was treated fairly and with appropriate respect and dignity [as per the dictum in the case of Central Manufacturing Company Limited v Yashni Kant [Unreported Fiji Supreme Court Case Number CBV 0010 of 2002], followed by the Employment Relations Court in the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011. To that end, to test whether or not the employer had a lawful cause under s34 of the ERP as opposed to just any cause to invoke summary dismissal on the grounds of "frequent and continued absenteeism" (pursuant to s 33(1)(e) of the ERP) has to be assessed in the way the dismissal was carried out, substantially and procedurally.

5.0 Law: Summary Dismissal under s33 of the ERP

5.1 The important matter to note is that the law on summary dismissal has been now codified in the ERP 2007, which was confirmed by the Court of Appeal in the case of Shell Fiji Ltd v Johnson [2010] FJCA 54; ABU0012/2009 (23 September 2010) at paragraph 30 and 31 (and which was also upheld by the Supreme Court[1] at paragraphs 26 and 27). His Lordships, Byrne and Callanchini J have stated that:-

"The right of an employer to summarily dismiss an employee at common law has been modified in Fiji by statute. At the relevant time, section 28 of the Employment Act Cap 92 (now repealed) stated:

"28 An employer shall not dismiss an employee summarily except in the following circumstances:

(a) where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of service;

(b) for willful disobedience to lawful orders given by the employer;

(c) – (e)...."

5.2 In the same Court of Appeal case, his Lordships went further and stated that:

"In the absence of a more generous term in an employee's contract of service, the summary dismissal of an employee will be wrong if it is inconsistent with the provisions of section 28."

5.3 Here, the Lordships considered the case of Fiji Public Service Association and Satish Kumar –v- the Arbitration Tribunal and Another (unreported Civil Appeal No. 13 of 1999 delivered on 19 February 2002) where the Fiji Court of Appeal had said (approving the comments made by the judge at the first instance) at page 10:

"Section 28 provided that an employer should not dismiss an employee summarily except in the circumstances specified therein. .... His Lordship said that the section did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (e) applied. He added that if any of the paragraphs applied, the common law right continued and there was not statutory or other objection to that right being fettered by an agreement between the employer and its employees...."

[Bold and underlining is my emphasis]

5.4 Section 33 (1) of the ERP 2007 repealing section 28 of the Employment Act is no doubt similar in various ways. It does not also confer an unfettered right to the employer to dismiss an employee except under those matters specified under s33(1)(a)-(e) where it clearly stipulates that:

"No employer may dismiss a worker without notice except in the following circumstances –

(a) where a worker is guilty of gross misconduct;

(b) for willful disobedience to lawful orders given by employer;

(c) for lack of skill or qualification which the worker expressly or by implication warrants to possess;

(d) for habitual or substantial neglect of the worker's duties; or

(e) for continual or habitual absence from work without the permission of the employer and without other reasonable excuse."

5.4 In a normal cause, the grievor has a right to come before the ERT for redress and remedies for 'employment grievance' under sections 109, 110 and 111 of the ERP for any type of "dismissal" pursuant to section 7 of the Schedule 4. Under section 4 of the ERP:

"Dismissal" means "any termination of employment by an employer including those under section 33" (my emphasis).

5.5 Undoubtedly, the drafters of ERP have generally intended Section 33 of the ERP as a presumption in favour of the employers where the requirements for a "lawful summary dismissal", must be adhered to. This is confirmed by both, section 34 and more importantly, section 30(4) of the ERP where it is clearly stated that:- "Nothing in this Promulgation precludes either party from summarily terminating a contract of service for lawful cause".

5.6 This was further clarified by your Ladyship, Wati J in her judgment of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011, where the Court had looked at how contract of service can be interpreted in view of termination methods. Here, the Court noted that there were two mutually exclusive dismissal regimes (in the worker's employment contract) where dismissal could occur either by a week's notice or payment in lieu, or summary dismissal for serious misconduct without notice or payment in lieu. Additionally, the Court noted in Isoa's case that the employer was entitled to dismiss summarily (for gross misconduct) pursuant to s33 of the ERP. The Court went onto say and I quote:-

"...Indisputably the termination clause permits termination without cause....and also for summary dismissal, without notice for serious misconduct. Once the employer made (serious misconduct) the basis of termination, it is then correct for the Tribunal to make a finding as to whether the cause for termination was established by the employer as the onus to establish the ground is always on the employer. When the Tribunal made a finding that the lawful cause to terminate was not established, the termination became wrong and unlawful..." (unquote)

5.7 Lawful cause is thus that vital element when determining whether or not it sufficed for purposes section 33(2) of the ERP on basis of good faith that must exist between the parties at all times, more so at the time of 'without notice' terminations. The formal notification via writing to the worker in terms of the circumstance and the exact nature of the alleged offences (that is the substantive allegations) that gave rise to instant termination without complying with the usual notice period must be able to justify lawful cause.

5.8 But here, to assess 'lawful cause', I cannot substitute my views for that of the employer in determining whether the employer acted reasonably; rather the Tribunal has a task to test objectively whether the employer acted reasonably: (see: Michael Strouthos v London Underground Limited, England and Wales Court of Appeal (Civil) Decisions, [2004] (18 March 2004). And, where good faith requirement is concerned in this grievance matter, there was a sense of misunderstanding by the grievor in not knowing or appreciating that the employer had chosen to exercise a statutory right under s33 of the ERP to invoke summary dismissal against him. A letter of termination being the most fundamental step in satisfying the requirements under sections 33(2), 30(4), 34 and 114 of the ERP was not provided at the critical time of dismissal. Clearly, this breach of law in itself makes the termination unlawful.

5.9 Further, natural justice and fairness at the forefront of good faith relationship places an obligation on the employer to allow the employee enough information and access to knowledge to be able to comprehend the actual breach of the law or contract of service (express or implied) to mitigate and correct any wrongdoing using the grievance procedures put in place by the employer. It was a fact in this matter that the grievance procedures were not clearly made known or accessible to the grievor. Neither he was not properly counseled nor advised how severe his absenteeism had become to attract summary dismissal. Everything was vague; even the warning letters.

5.10 More significantly to prove lawful cause was a basis to invoke s33, compliance with s33(2) of the ERP in all circumstance is crucial and compulsory. Since the employer did not advice verbally or in writing the real reasons for terminating the grievor's employment, it becomes irrelevant to view the past track record of the grievor in terms of his absenteeism trend and conduct. Clearly, the actual reason was provided as justification for summary dismissal, weeks after the termination was executed; and not at the time of dismissal. In fact the grievor was clearly taken aback and thought something else was the reason for his termination when he came to Ministry of Labour to lodge a claim for unfair dismissal.

5.11 This Tribunal thus finds that the employer has fallen foul of s33(2) of the ERP (in terms of not providing lawful cause or reasons in writing) for termination at the time of dismissal.
5.12 Further, while the employer may have had valid reasons for considering summary dismissal under s33 (1)(e) of the ERP, say for 'frequent and continued absenteeism", lack of proper attendance records for Tribunal's perusal demonstrated that the employer did not take reasonable steps to investigate the matter properly and allowing the employee some indication that he was in breach of his (implied) contract of service that had a potential to result in summary dismissal. As I have said earlier, warning letters did not aid the employer's justification as it failed to provide any indication as to the grievance procedures and/or disciplinary action of the company. It did not help either not to have a contract of service in writing despite the grievor had been employed for more than one month.

5.13 If the attendance records existed and this was produced to the Tribunal to justify the dismissal and the employer argued that the grievor was duly notified via the warning letters, then the employer stood a chance to reasonably qualify and justify invoking s33(1)(e). This, even when the letter of termination did not specifically state that the employer had relied on s33 of the ERP as a ground to exercise summary dismissal, which was the case here. There are two aspects of s33(2) often not valued by the employers: first, goes to stating the reasons to be deemed "lawful cause" and second, the same reasons are used to justify invoking a ground for summary dismissal under s33 of the ERP or pursuant to provisions of a contract of service signed by both parties. The fact that the letter of termination here was penned out only after the mediation session was held that also had different date from what was provided on the Certificate of Service, shows that the reasons (to be treated as lawful cause) was a after-thought to simply justify s33 in order to make it a lawful dismissal.

5.14 Quite apart from the fact that the employer had further infringed law when, a Certificate of Service also being a mandatory requirement of the ERP under s30 (6) was not provided to the grievor when he was facing termination. The grievor had testified that he had asked for a reference before mediation took place which I understood to mean that he had asked this from the employer when he was being terminated. However, it was only provided sometime during the mediation session or thereafter. This perhaps explains the confusing dates that were not explained to the Tribunal.

5.15 I further believe the grievor was unfairly placed under stress to explain during cross-examination that even if he was given a reference, he would still opt to farm. This, from a man who was summarily dismissed in April 2011 and waited this long to receive redress to what is clearly in my opinion an unlawful termination. Thus, to ask him if he wants to work again or be reinstated is unfair and unjustified. This is something for the Tribunal to assess and not for the worker to decide in terms of what is the appropriate remedy (as per s230 of the ERP) although the grievor's wish must be duly respected where if he/she feels that the relationship is damaged beyond repair to return to a workplace, then alternative must be considered by the Tribunal such as monetary compensation where the employer is found to be at fault.

5.16 In my final determination, I declare that the employer had not reasonably drawn conclusion that the grievor had placed himself in a situation to attract summary dismissal under any permissible grounds stated in s33 of the ERP. This is despite the company may have maintained their records on the grievor's absenteeism habits or trend, kept sick leave records and warning letters to tie the reason that they had eventually provided the grievor after he had taken steps to loge a claim against the employer. Clear breach of mandatory provision of s33(2) of the ERP proves that the employer only came up with their justification for "lawful cause" as a after-thought, almost two months of the grievor's termination. Compliance with the law is for a reason that does not only declare the process of dismissal lawful but also a fair one. I then find that the employer's main reason for dismissing the grievor was not for a lawful cause.

5.17 Where issue of unfair dismissal is concerned, the case of Central Manufacturing Compnay 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. This was followed by Ladyship Wati in Isoa Latianara's case: here Wati J considered that where the allegation of unfair dismissal is concerned:-

"...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" (underlining is my emphasis).

5.18 In this case, because the grievor appeared to be in a state of confusion as he did not know exactly why he was terminated as was reflected in his claim Form ER1, I find that the employer has fallen short of discharging the grievor from his employment with respect and dignity at the time the company allegedly carried out summary dismissal against him. For fair termination to persist, the grievor in any circumstance is entitled to know why his important means of livelihood is being snatched away without notice: here, not just through his statutory right to know under the ERP [in writing] but for simple transition from one moment having a job and losing it the next, meaning the manner in which he receives this information at the time he was sent home. Two months wait after he takes steps to lodge a claim and thus been given answers so late surely adds to his agony. Any reasonable person would be stressed and angry and hence I understood his decision not to return and work for the same employer.

5.19 Further he was also denied a written contract of service which would have made his dues and entitlement easier to calculate by this Tribunal. No evidence of last pay or how his summary dismissal was discharged under s34 of the ERP was before the Tribunal. In that regard, the employer has failed to lawfully and fairly invoke summary dismissal under the salient provisions of the ERP mentioned herein.

6.0 Decision and Orders:-

1. The Employer has failed to carry out summary dismissal, in procedure and law by failing to comply with s33(2) and s34 of the ERP. The Employer in that regard has had no lawful cause to invoke and exercise summary dismissal against the grievor.
   
2. The dismissal was also unfair in the manner it was carried out.
   
3. The ERT is thus allowing what would be in a normal discharge of contract of service in terms of payment of wages in lieu of notice: here, being two week's pay plus two extra week's wages for unfairly carrying out summary dismissal, entitling the grievor to be compensated for loss of dignity and injury to his feelings in sum total of four week's wages.
   
4. Each party will bear their own costs.
   

Dated at Suva this 7th day of March 2013

LEGAL TRIBUNAL

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^[1] Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011).