Kotoduadua v Bargain Box (Fiji) Ltd [2013] FJET 23; ERT Grievance 08.2012 (11 March 2013)

IN THE EMPLOYMENT RELATIONS TRIBUNAL

AT SUVA

ERT Grievance No. 08 of 2012

BETWEEN:

MERE TINAI KOTODUADUA
Grievor

AND:

BARGAIN BOX (FIJI) LTD
Employer

Appearance:
Labour Officer on behalf of the Grevior
No appearance on behalf of the Employer

Date of Hearing: 7th September 2012
Date of Judgment: 11th March, 2013

JUDGMENT IN DEFAULT BY THE EMPLOYMENT RELATIONS TRIBUNAL
(ON FORMAL PROOF HEARING)

1.0 Employment Relations Grievance

1.1 Background to the Grievance

This grievance was registered with Ministry of Labour on 4th July 2011. Mediation was attempted on 11th August 2011 but was not successful. The mediator referred the grievance to the ERT in accordance with s194 (5) of Employment Relations Promulgation 2007 (or "the ERP 2007") outlining the nature of unsettled employment grievance with the following terms of reference:-

"The grievance is over the alleged unfair dismissal from 30/06/11 of Mere T Kotoduadua from employment by Bargain Box (Fiji) Ltd. The grievor is seeking compensation for unfair dismissal and for payment of unpaid leave for the years 2006, 2007, 2008, 2009 and 2011 and for refund of deductions of $100 which she claims was made from her weekly wages at $20 a week without her full knowledge and consent."

2.0 Cause before the ERT

2.1 In the Employment Relations Tribunal (or "the ERT"), the employer was not represented despite being issued NOAH on several occasions by the ERT Registrar until such time, the Labour Officer representing the grievor requested that the Tribunal proceed to hearing of the substantive matter by way of a formal proof proceedings.

2.2 The Tribunal then directed the grievor to file her preliminary submissions and on 27th March 2012, the Labour Officer filed preliminary submissions for and on behalf of the grievor.

2.3 On 29th March 2012, this matter was called for Mention again to set down a Formal Proof hearing date; however the Employer's representative for the first time made an appearance and proposed that they could enter into settlement if given one month's time. Granting time, the Tribunal fixed another Mention date for 2nd May 2012 but on this day, it was clear that the Employer was not interested in settling the claim neither they appeared before the Tribunal nor attempted to explain their position through any written submissions. Subsequently, Formal Proof date was set down for 7th September 2012 whereby the Tribunal again issued NOAH to the Employer informing of the hearing date.

3.0 Formal Proof Hearing

3.1 The law that entitles a grievor to proceed to have his/her case heard in the absence of the employer who fails to comply with various notices for appearance derives from section 233 of the ERP, where it states that:

"Power to proceed if parties fail to attend

233. If, without good cause shown, a party to proceedings before the Tribunal or the Court fails to attend in person or by representation, the Tribunal or the Court may act as fully in the matter before it as if that party had duly attended or been represented."

3.2 This is further supplemented by s238 (1) and (2) (a) of the ERP: that is, if further practice directions are sought pursuant to the Magistrates Court Rules. To that end, here, Order 30, Rule 3 will apply where it states that:-

"ORDER XXX – NON-ATTENDANCE OF PARTIES AT HEARING

Of defendant

3. If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant".

3.3 The Tribunal had provided ample opportunity to the Employer to make proper representation but their disinterest meant that the Labour Officer was allowed by the Tribunal to have the matter adjudicated and determined on the merits of the claim by way of a formal proof claim.

3.4 The Labour Officer did this by calling the grievor as the only witness to the case. In nutshell this the evidence of the grievor:- she testified that:-

• She was employed with Bargain Box for almost five years starting her employment sometime at the end of Dec 2006. She had signed a contract of service with the employer that had explained which branch she was to work in (i.e., the Waimanu Road –Second-hand Shop); her Job Description as a Salesgirl; start time to be from 8.00am to 6.00pm; and to be paid $113.00 per week, working every Monday to Saturday.
  
• On the day of incident, 30th June 2011 proceeding to her termination, she told the Tribunal that she was in the Nina Street branch when she had received a phone-call from her boss/Manager, Rahul Roy to go to the Waimanu Road Branch where she was not given a reason as to why.
  
• When she arrived there, she found out that some staff were being questioned about hiding clothes in the ceiling whereby the Manager, Mr Roy informed the grievor the reason she was summoned to the Waimanu branch and this is when she said Mr Roy had accused her of stealing the clothes. The Manager had asked her why she was keeping the clothes in the ceiling as no one was allowed to keep any clothes there. The grievor had told the Manager that she was the staff responsible for keeping some of the clothes in the ceiling. This is when she said that the Manager had asked her to sign a paper and told her to go.
  
• According to the grievor, all the staff was allowed to keep the clothes in the ceiling after it was sorted out by the staff for personal purchase and this was to be paid for, in the weekend when they would have received their salary. She said the Manager knew of this norm or practice.
  
• She then told the Tribunal that she had waited for the next day and this is when she had received her termination letter although she said that she did not steal the clothes.
  
• In the same breath she contradicted her statement saying that the Management was not aware of this practice by the staff and she admitted that she put the clothes in the ceiling although she intended to pay for them on the Saturday when she would get her pay. She further stated that other staff was terminated as they too had put the clothes in the ceiling and she knew it was a wrong thing to do.
  

3.5 The onus in any employment grievance matter lies on the employer to disprove the claim of unfair dismissal as alleged by the grievor in this instance. Here, the employer had waived that right by not appearing on the day of hearing to defend the claim.

3.6 However, at the formal proof hearing there was compelling evidence to establish that the grievor knew that her conduct of intentionally concealing items (clothes) belonging to the employer in the ceiling without the employer's knowledge was a wrongful act amounting to gross misconduct. She had contradicted her evidence in so many ways that any reasonable Tribunal cannot overlook that the grevior had appreciated and regarded her conduct to be something "wrong" and/or unacceptable by the standards set down by the employer. This is particularly true in the face of the core business of the employer, that is, dealing in second hand clothing. The letter of termination given to the grievor at the time of her summary dismissal also pertained to these facts.

3.7 To that end, despite no representation at the Tribunal, I am compelled to give benefit of doubt to the employer when clearly the claim appears to be an abuse of process and nothing short of being classed as vexatious. This is even more glaring truth in the face of an admission the grievor presented through her evidence which seems to positively substantiate the facts contained in the termination letter. When there is no reasonable and just claim, why would an employer waste time or be bothered to respond although the law mandates them to appear before the Tribunal with the burden of proof placed on them. Here, the grevior had admitted before the Tribunal that she knew it was a wrong thing to do to keep clothes hidden from the employer's knowledge, regardless of the purpose she needed them for or that she would have paid for these items in due course when she would have received her wages. Thus the grevior's allegations at paragraphs 3.2 and 3.3 of her Preliminary Submissions in any event would not stand up to justify that the employer was unlawful and/or unfair in the process of summary dismissal.

3.8 That said, the main substantive claim of the grievor of that of her right to hearing in summary dismissal case, as is the situation in this grievance matter, is no doubt waived and regarded to be prerogative of the employer (see: Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011]. In this instance when the grievor had admitted her part in the theft allegations (no longer a contested fact), the employer was free to exercise summary dismissal under s33of the ERP as reflected in their letter of termination. In my final determination, there is then no case of unfair dismissal as far as the evidence is concerned. This is supported by the case of Central Manufacturing Compnay Limited v Yashni Kant [Unreported Fiji Supreme Court Case Number CBV 0010 of 2002] and followed by Ladyship Wati in Isoa Latianara's case where the ERC had held that when considering allegation of unfair dismissal:-

"...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).

3.9 I am thus satisfied that the employer had provided the grievor through the letter of termination comprehensible reasons why she was considered for summary dismissal under s33 of the ERP 2007 despite her five years of service. They had proceeded to terminate her service immediately without due delay or causing any humiliation or grief of any sort. This is adequate to satisfy s33(2) of the ERP.

4.0 Decision and Orders

Taking into consideration evidence adduced in the Tribunal, this ERT gives the following decision and orders:-

1. The allegation of unfair dismissal has no merits and is found to be fair.
   
2. No cost is awarded in this instance although abuse of process to be minimized and curbed, the Tribunal must sound a warning to claimants and Labour Officer's considering such claims for adjudication at the Tribunal level to be cautious so as to not waste time and cost of Tribunal sitting to hear such unmeritorious claims.
   

Dated at Suva this 11th day of March, 2013.

LEGAL TRIBUNAL