Avinesh v Samross Consultant Property Management [2013] FJET 18; ERT 86.2011 (29 July 2013)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA ERT No. 86 of 2011

BETWEEN:

AVINESH
GRIEVOR

AND:

SAMROSS CONSULTANT PROPERTY MANAGEMENT
EMPLOYER

Appearances:

Mr. Shah, Labour Officer for the Grievor
Mr. Samad for the Employer

Date of Hearing: 27th February 2012
Date of Judgment: 29th July 2013

DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL

Employment Relations Grievance

[1] This grievance was registered with Ministry of Labour on 21st January 2011. Mediation was attempted on 05th and 19th April 2011 but was not successful. The mediator referred the grievance to the Employment Relations Tribunal (or "the ERT") on 19th April 2011 in accordance with s194 (5) of the Employment Relations Promulgation 2007 (or "the ERP 2007") outlining the nature of unsettled employment grievance with the following terms of reference:-

"The worker Avinesh a Digger Operator with Samross Consultant & Property Management went on authorized leave and upon return was told to drive company vehicle Registration number FL300 that was not in roadworthy condition. The worker refused to drive and was forced to resign. The griever seeks compensation"

Cause Before the Employment Relations Tribunal (or "the ERT")

[2] When the matter was called before the Hon. Chief Tribunal, he had directed the parties to file their respective Preliminary Submissions on 5th July 2011. The Employer filed their Preliminary Submissions on 4th August 2011 and the grievor filed his Preliminary Submissions on 16th September 2011. The hearing of the matter was conducted on 27th February 2012.
On that day, the employer called one witness: the grievor also gave sworn testimony from his side. At the conclusion of the hearing, the parties were given directions to file their respective closing submissions. Only the employer filed their closing submissions on 9th March 2012.

Background to the Claim

[3] The grievor, Mr. Avinesh is claiming compensation for unfair termination. He has submitted that he was unfairly treated by his former employer where he alleges that he was forced to resign. The facts emanating from this claim were something of this nature (as per Preliminary Submissions of the grievor):-

1. The grievor had submitted that he had commenced work with the employer as a general worker sometime in 2006 (and not in 2008 as stated in the Employer's submission).
   
2. In the year 2010, he was not paid his two weeks wages due to him, where he was then informed by his boss that since the employer could not afford to pay his wages for the duration of the two weeks that he had worked, hence he was to take a break for two weeks only.
   

100. When the grievor returned to work, his boss then informed him that he may be able to afford to pay his wages and this is when he submitted, that the employer told him to repair a truck. The grievor then told the employer that if he wanted him to repair the said truck then he should pay him for the two weeks that he had worked.
     

4. He stated that the employer was not willing to pay him: instead he was told to resign after which he would be paid his two week's pay. The grievor claims that this is when he was forced to resign as he was under immense pressure to get his pay.
   
5. He further submitted that once the grievor wrote the letter and gave it to the employer, he was told by the employer that he would not be paid. The grievor alleges that he did not willfully resign but was forced to resign in order to receive his two weeks wages due to him. Thus the claim that the employer had not treated him in a fair and equitable manner.
   

[4] The employer admitted that the grveior was their staff where they had attached proof of the grievor's attendance and wages record to establish this fact. This was marked as "Exhibit 1" during the trial. However they denied the above claim of the grievor in that they had submitted that the grievor disregarded turning up at work on many occasions. He then resigned from the company due to personal reasons. The particular handwritten letter by the grievor was tendered in evidence and marked as "Exhibit 2".

[5] From the terms of reference before me the pivotal issue of "grievance" here centers on whether or not the grievor was forced to resign. During the hearing he had given evidence that the reason he was forced out of his job unfairly was when he had demanded his dues (wages) owing to him by the employer.

[6] In terms of the original claim and the mediator's referral, the grievor is claiming that he was forced to engage into an illegal activity (that is, driving a vehicle without valid road worthiness certificate), and when he had refused he was forced to resign. The employer has maintained that the grievor had voluntarily left his job when he had put in his resignation. Hence he was not forced into resigning for whatever reasons given by the grievor. In that sense, I am presented with a claim of unfair termination through what is normally classed as a constructive dismissal. This is normally regarded to be an unusual claim that it is not conventionally permitted under the ERP as per the "grievance" definition under section 4 therein. But here the grievor seems to have persuaded the Mediation Unit to accept his claim and subsequently that claim now has been referred to the ERT for adjudication. Because the terms of reference of the mediator is not enough to understand what sort of facts and evidence they were presented (this is deemed private and confidential process under s195 of the ERP), I believe then the basis of the claim here for unfair termination was viewed and accepted in the usual manner rather than a termination under duress. To me, it is nothing but a claim that is solely hinging in the way the employer had treated the grievor prior to him leaving his job that cannot be viewed differently or in isolation from the fact that the grievor had written and submitted a letter of resignation that was before the Tribunal in evidence.

[7] I also have to comment that the actual dues (wages owing or any other entitlement) or lack of worker's right to receive appropriate pay within a written contract of service was not properly pleaded neither the Labour Officer had submitted that this was the basis of unfair termination claim. The entire claim revolved around whether or not the grievor was forced to resign when he had demanded his pay owed to him.

[8] To me, it was clear that there was an oral contract of service between the parties and the employer admitted that the grievor was paid wages between the period 23/08/08 to 31/12/09. However, the actual employment contract period was not clear and since this fact was disputed by the grievor, the Labour Officer had the duty to bring this issue to the Tribunal in clear terms, particularly through the oral evidence of the grievor and further, which issue could have been resolved easily by way of checking and submitting for any inspection reports by the Ministry of Labour (as per their statutory duties). In that regard whether or not the grievor had raised any issues of compliance by the employer in terms of payment of wages (if there were any) that gave rise to any form of dismissal claim (constructive or otherwise) was very vague and a weak claim in this instance. This then pointed to the obvious that before any reasonable Tribunal could put probative value and weight to the grievor's claim, it had to consider the employer's justification that the grievor had in fact resigned from the company as the onus of proof lays with the employer.

[9] In my opinion, the terms of reference for the claim was narrow in this case. Simply put, the grievor was not aggrieved that he was not paid his wages when due or demanded that originated this claim of unfair termination: the claim has its genesis in a very narrow sense when the grievor had resigned from the company (regardless of whether or not he was forced to resign), he then came to the Ministry of Labour and registered a claim that he was under pressure to resign in order seek wages owed to him. Why he never lodged a claim with the Compliance Unit before resigning is unknown.

[10] Again any grievance built on 'duress' claim is treated with utter caution and must be with such compelling merits that it gives the Tribunal a reasonable basis to adjudicate under the strict definition of "grievance". The definition is clear that duress in employment matters in relation to dismissal, disadvantage, discrimination and sexual harassment is not a defence. Very rarely such claims make its way to the Tribunal in the manner in which this claim has. But because the referral is made by the Mediation Unit I am under an obligation to consider whether or not to adjudicate but again, only on the merits of the matter (as per the case of Fiji Bank &Finance Sector Employees Union and ANZ Bank [2010] FJHC 450; ERCA of 01 of 2009 (12 October 2010).

Evidence of the Employer

[11] The Employer called one witness, who was the Director Operations. He was not very helpful in the sense he did not know the actual terms and conditions of the employment under which the grievor was employed. He however, personally knew the grievor and presented his job description by stating that he was a general operator, driving trucks, operating on machines and also possessing mechanical skills. As to the incident relating to the claim directly, he told the Tribunal that the grievor was driving one of their trucks carting sand and gravel to Nausori when it broke down. The grievor reported back to Company and parked the truck in their yard. Since night was approaching, the grievor had informed that he would come and repair the truck the next day. However, he did not turn up to work for at least two weeks. The witness said that no specific reason was given by the grievor for his absence from the company despite several attempts by the employer to seek his services to fix the vehicle which was normal work entrusted to the grievor. When asked about the resignation letter, although he recognized the handwriting which he said was that of the grievors' he had no knowledge how this came about. He also clarified that in the company all employees were paid weekly and he had knowledge that the grievor was not paid wages for one week that related to the week he drove the truck that had broken down. He was not aware of any other dues owed to him.

Evidence of the Grievor

[12] The Grievor, being the only witness from his side give sworn testimony that there was no contract of service between him and the employer. He said he was forced to resign and this happened when the employer had asked him to repair a truck which he said had expired. He said that he had merely asked for his wages before he could repair the truck. He was not very sure what the exact amount was and finally he said it was about $200.00. Further he intimated that he was asked to write a resignation letter by his boss which he then threw in the rubbish bin. In cross examination he confirmed and admitted that he was not under any threat to resign nor he was forced.

Final Determination

[13] When an employee resigns from his/her employment but later files a claim of unfair termination on the basis that he was forced to resign, a reasonable Tribunal is immediately put on caution that such claim has no prima facie basis to begin with.

[14] Here, the case was simple; there was no coercion, pressure or threat put on the grievor to resign. This was his own evidence. In fact he volunteered and wrote a letter on his own accord. He could have refused, if for argument sake someone had indeed forced him, where he could have easily claimed that the employer frustrated him to abandon or walk out of his job when he had demanded his dues to be paid to him. After all he did seek advice and lodged a claim with the Ministry of Labour subsequently. Therefore where the claim of being forced to resign is concerned, I find that there was no legal basis to justify this. Without this claim to back up the grievor's claim for unfair termination, there is really no case for the employer to answer given that the employer is relived of onus of proof when the employee resigns willingly.

[15] This then only leaves the issue of the grievor exiting his job in the manner in which he did; again two different stories are presented although one issue that was common was that the employer's own witness testified that he had knowledge that the grievor was owed some wages when he had left his employment, regardless of the circumstance. Based on this evidence, it was apparent that the grievor was paid on weekly basis and he was receiving wages in terms of something between $150.00 to $200.00 per week. The employer's wages record showed similar payment pattern although it was difficult to say what the normal rate was given that different figures appeared every week. Notice period was not observed by either party but if invoked in normal circumstance, a week's notice is required from both sides where wages is paid weekly [as per s29(1)(b) of the ERP]. Although these issues could have been easily resolved with the Compliance Unit taking an initiative to compel the employer to show evidence of all the dues paid to the grievor since the inception and vacation of his employment, and thus seeking evidence of payment, I am no doubt left to also deal with this issue.

Decision and Orders

[16] In accordance with the aforesaid, the Tribunal declares and orders that:-

1. There was no coercion or duress placed on the grievor to resign. He had in fact resigned willingly and on his own accord. Accordingly, the grievor's claim for unfair termination is dismissed forthwith.
   
2. He is, however, awarded two weeks wages inclusive of the employer's failure to pay the worker all his dues and entitlements at the time he left his employment, for whatever reasons. Here I have given the employer benefit of doubt that the employee had resigned and so all his wages should have been paid to him at the time of his resignation. The employer will pay $400.00 to the grievor within 30 days of this decision.
   
3. The parties will bear their own cost in this matter.
   

DATED at Suva this 29th day of July 2013.

LEGAL TRIBUNAL