IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT Grievance No. 35 of 2012

BETWEEN:

KIRTESH KUMAR
GRIEVOR

AND:

CARPENTERS FIJI LIMITED t/a MORRIS HEDSTROM
EMPLOYER

Appearances:
Mr. D. Nair for Grievor
Ms. D Prakash for the Employer

Date of Judgment: 27th June 2013

______________________________________________________________________________
RULING ON PRELIMINARY ISSUE

Preliminary Application Before the Employment Relations Tribunal 

[1] The Employer has filed by way of a Notice of Motion and Affidavit in Support sworn by Pawan Praneet Sharma ("the Application") and which application was filed on 9th November 2012, inter alia seeking for the following Orders from the ERT:-

i.	That the employer is entitled to terminate the probationary employment of an employee based on the contractual provisions of the Employment Contract; 

ii.	That non-confirmation of probationary employment is not an employment grievance;

iii.	That the hearing of the substantive action be stayed till the determination of the preliminary issue of law; and

iv.	That the costs of and incidental to this application be costs in the cause.

[2] The Employer had not stated in the Motion under which provisions of the ERP 2007 (or the Magistrates Court Rules), this application was filed. In fact, the Tribunal had directed the employer to file a proper application on the preliminary issues raised on the day this matter was set down for the hearing of the substantive matter on 19th October 2012. 

[3] The Grievor had subsequently responded to the said application on 20th November 2012 through an Affidavit sworn by Kritesh Kumar, or the grievor. Both parties also filed written submissions: the employer filed on 16th January 2013 and the grievor filed his on the 4th February 2013. I was required to provide a ruling on notice. 

[4] That being the case, the employer's third ground for the Motion had been complied when this application was on foot; the substantive matter was directed by the Tribunal to be halted until the determination of this preliminary application which apparently affected other matters before this Tribunal. Hence the critical need to put to rest the ensuing issues of law.

Brief facts 

[5] Brief facts indicate that the grievor was appointed to the position of Receiving Clerk based at the employer's MH Naulu Supermarket on what was clearly an indefinite contract of service effective from 8th April 2011 (although dated 6th July, 2011), but which contract was subject to a probationary clause therein. The clause pertaining to "Probation" stated as follows:

Probation: You will be employed on probation for three months. Should your service 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.
(Underlining is my emphasis only)

[6] The employer asserts and maintains that they had issued a letter of warning to the grievor on 7th June 2011 which is apparently denied by the grievor in terms of being warned as to his unsatisfactory performance or for that matter being advised by the company that this probationary period was extended and accordingly what was his employment position at the relevant time. 

[7] On 18th October, 2011 the employer wrote to the grievor again with a subject matter: "Non-confirmation of probation" advising him that due to the first warning letter issued to him on the 7th June 2011, where his probationary appointment was extended for a further three months, and further stated that there being "no obvious improvement in your performance", the grievor's services was terminated with immediate effect on grounds of non-confirmation of probation. He was advised also that he shall be paid one week's wages in lieu of notice.

Tribunal's Determination

[8] Let me briefly look at the grievor's original claim. In the mediator's terms of reference it was stated that:

 "The worker Kritish Kumar was employed by Morris Hedstrom as Receiving Clerk when his probation was not confirmed for reasons of non performance with effect from 18th October 2011 after being in employment for about 6 months in breach of the Collective Agreement and ERP 2007. The griever demands reinstatement without loss of pay and other accrued benefits."

[9] During the filing of the preliminary submissions as directed by the Tribunal, it is the grievor's substantive grievance claim that on 6th July, 2011 the grievor's appointment was due for confirmation but the employer had failed to take any action. The grievor, thus continuing with his employment as usual, the employer was deemed to have waived the probationary period confirming his appointment under the contract of service. Accordingly, through a letter dated 18th October, 2011 when the employer had advised the grievor that due to a (purported) first warning letter issued to him on 7th June 2011, his services was terminated with immediate effect on grounds of non-confirmation of probation, this was an unfair and unreasonable response of the employer. The grievor is arguing that there was a "purported waning letter" relied upon by the employer to justify non-confirmation of probation although it is not clear whether or not the grievor had received this letter by the employer at the material time. This particular letter being of probative value to the original claim, and it being unclear whether or not the grievor had knowledge of this letter at all, the only way to find out the truth is through a substantive hearing. That said, the employer has argued through this interlocutory application that the non-confirmation of probationary employment is not an employment grievance (second ground of the Notice of Motion). 

[10] To me if there is no employment grievance here as submitted by the employer, the jurisdiction of the Tribunal is put to test, not to mention the locus standi of the grievor to seek redress and remedies, where he is obviously seeking reinstatement without loss of pay and other accrued benefits as per the mediator's terms of reference, being questioned too. 

Indeed in the case of Dispute No. 35 of 2008: Fiji Bank &Finance Sector Employees Union and ANZ Bank [2010] FJHC 450; ERCA of 01 of 2009 (12 October 2010) [referred to as the "ANZ Case"], the Employment Relations Court in that instance had ruled that: "…Section 109, 111 and s169 are provisions on locus standi to bring proceedings…". In that regard, the foremost issue of law that must be determined is whether or not this matter is within the "employment grievance" definition of the ERP (under section 4) to justify invoking the Tribunal's jurisdiction generally under s211 of the ERP to hear and adjudicate such matters.

[11] An employment grievance is defined under section 4 as follows:-

"employment grievance" means a grievance that a worker, may have against the worker's employer or former employer because of the worker's claim that—

(a) the worker has been dismissed;

(b) the worker's employment, or one or more conditions of it, is or are affected to the worker's disadvantage by some unjustifiable action by the employer;

(c) the worker has been discriminated within the terms of Part 9;

(d) the worker has been sexually harassed in the worker's employment within the terms of section; or

(e) the worker has been subject to duress in the worker's employment in relation to membership or non-membership of a union. 
 (Bold and underlining is my emphasis only)

[12] The ERP 2007 with no ambiguity gives a clear indication in which circumstance an employment grievance is likely to arise and which are the only legally recognized circumstances it can be deemed as one. They are in circumstances of dismissal, disadvantage, discrimination, sexual harassment and duress only in relation to Union's membership or non-membership. Accordingly, a grievor may 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. This is because under section 4 of the ERP, "Dismissal" means "any termination of employment by an employer including those under section 33" (again bold and underlining is my emphasis).

[13] Further, Section 7 of Schedule 4 [as per Section 110(2)(b)] stipulates: If-

(a)	the worker is dismissed; or

(b)	– (c)

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

[14] This then gives a premise to Section 211(k) of the ERP that states that the Tribunal has the jurisdiction to adjudicate "matters" referred to it by the Mediation Services or any party to the mediation. Clearly a proper grievance matter will go through the process of claims being submitted with the Chief Mediator's Office by virtue of section 110(3) where it states that: 

 "… All employment grievances must first be referred for mediation services set out in Division 1 of Part 20". 

 Naturally this is a matter that has been through the systems and processes created under the ERP 2007 in terms of a grievance being submitted to the Tribunal via the Mediation Unit. For this reason, keeping in mind the dictum of the Employment Relations Court in the earlier case of Fiji Bank &Finance Sector Employees Union and ANZ Bank, in the interests of justice of the case I have the first duty to clear the air as to whether or not the Tribunal has the imperative jurisdiction to determine this matter in the form it had originated under Form ER1 and later through the terms of reference of the mediator. 

[15] Ladyship Wati in the above ANZ case had further pronounced that: 

"…If the Permanent Secretary submits a dispute for resolution to the ERT, the ERT then is under a statutory duty to consider the dispute. Such a reference by the Permanent Secretary gives rise to the Tribunal's jurisdiction".

In the same breath, I am of the opinion that an "employment grievance" as a matter referred by the Mediation Unit will have the equal effect although a mere reference of the mediator does not automatically or technically under the law put in motion a claim deemed to be a grievance matter to be adjudicated unless upon the merits of the case. Again in the above ANZ case, the Court had further declared that:- 

"…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. …Indeed a dispute was reported but to turn away an employee from the ERT without adjudicating on the same on a mere technicality of use of words, I think is prejudicial to the employee and not in consonant with the terms and spirit of the ERP 2007. The issue or dispute could simply have been accepted as a matter to be determined and adjudicated upon on merits. I do not see any flouting or bending of the provisions on jurisdiction if this course of action was taken by the Tribunal…" 

(Bold and underlining is my emphasis)

[16] While I concur with employer's submission that there is nothing in the ERP 2007 in terms of what is the employment position when the parties are bound by a probationary provision in their contract of service, it is my view that the Act being silent does not purport to exclude its relevance or propriety to a workplace in terms of meeting the definition of an employment grievance under s4 of the ERP (regardless what is the situation: a claim of disadvantage, discrimination, sexual harassment, and so forth) nor it creates a basis to disregard a situation where a termination of an employment (or dismissal) is on reliance of such a clause in the contract of service. Therefore I agree with His Worship, Andrew See's decision in the case of Krishnee Krishna Naidu v Carpenters Fiji Limited (T/A) MORRIS HEDSTROM ERT Grievance No.5 of 2012 (Judgment delivered on 3 January 2013) at Clause 41, page 9 that:

"…there is nothing within the Promulgation that alters the inquiry that needs to take place in the case of a worker on probation. A worker who is terminated within a probationary period, may still be the subject of a termination that is unjustified and or unfair…"

[17] Since a "dismissal" is defined or classed as "any termination of employment" under s4 of the ERP, clearly this claim for unfair dismissal pertaining to the probationary period is an employment grievance in every sense of the word, whether within the literal and natural meaning of the legislation or within the common law positions explained by His Worship, Andrew See in his judgment (supra, at pages 9- 11). For reasons explained aforesaid, this Tribunal will then not add anything else as I concede to the legal position explained by His Worship, Andrew See.

[18] In my mind this issue of law as to whether in this particular grievance matter meets the criterion or condition precedent to invoke adjudication under the ERP 2007 is now quite settled on the basis of both, His Worship, Andrew See's decision and my further exploration of the statute. This only leaves the first ground of the employer as per the Motion to be dealt with, that is, whether or not the employer is entitled to terminate the probationary employment of an employee based on the contractual provisions of the Employment Contract. Here, no doubt the issue of adjudication on the overall merits of the case comes into play (as per ANZ case).
[19] In absolute fairness to both sides, there is no simple answer such as a "yes" or "no" to resolve this issue that easily. For me, to test this issue objectively will be unfair and difficult at this juncture. This is simply because it will be nothing short of trying to understand and determine the substantive claim of the grievor. Since this is a dismissal matter for purposes of sufficing the definition of "employment grievance" invoking the jurisdiction of the Tribunal under s211(1)(a) and (k) of the ERP to hear and adjudicate grievance matters, to fairly answer the employer's question whether or not the employer has the right within the probationary clause in the contract of service to terminate an employee's service should be rightly heard and determined on the strength of the evidence within a trial-proper. This is solely on the basis that the employer had sought to justify the termination of the grievor for a "cause" (in terms of non-performance or unsatisfactory performance of the grievor) when determining the eligibility of the grievor to a permanent or confirmed position as per the employment contract. This is the crux of the grievance matter before the Tribunal. That is, the Tribunal is tasked to test this process (in terms of lawful and fair termination process) against the employer's rules and policies including any binding obligations in a contract of service. ERP 2007 merely paves the direction to set down the legal parameters although it is silent on probations imposed on employees.

[20] Consequently, without venturing into the substantive allegations at this stage or really pre-determining this matter, and further without prejudging the employer in providing the Tribunal's position on their application, all I can say now (where the law is concerned), that the ERP does not define a termination 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".

[21] 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).

[22] 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: serious misconduct where stealing, lying, falsifying records, embezzlement, insubordination, and deliberating violating company policy or rules are prohibited and/or for performance issues in terms of being an unsuitable employee lacking serious capabilities to meet the job requirement which is tested against the minimum qualification requirements and other competencies and attributes (such as the ability to meet deadline, targets and KPIs set down by the employer, etc). Some of these reasons or "lawful cause" 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 a notice. I am of the view that s33 of the ERP applies in any situation, even during probationary period as long as the employer can prove they had reasonable, just and lawful cause(s) as per the five specific grounds therein.

[23] In this grievance matter, the employment contract of the grievor is evidently a contract of indefinite period but one that contains an unambiguous provision where two sets of probationary periods was to apply: first, initial period of three months was allowed and second, a further three-month extension could apply at the discretion of the employer. A total of six months probationary period was designed into the employment contract but with clear obligations on both sides. One of the most pivotal obligations was vested with the employer to ensure that employee was carefully scrutinized during the first three months of his employment and thereafter advised how his performance was faring against the employer's measures implemented to test this. If needed to extend the period for further three months, the employer was at liberty to do this. 

[24] Again I reiterate that the probationary period, no matter how temporary and precarious it may look where the position of the employee is concerned, it is still the usual employment situation in very right, where same work conditions and entitlements for leave, pay and benefits are secured. Further, one may think and assume that because ERP 2007 is silent on the probation issue, after a month's duration spent in any employment environment under s37(1)(a) of the ERP, a (written) contract of service is entitled automatically. Hence, there is really no place for probations in a contract of service (written or implied) at all. That said, I also concede to the idea of good faith bargaining process to secure a contract of service mutually agreeable to both parties, particularly in an employment relationship as opposed to the conventional contracts within a private or commercial relationship. Therefore, no matter how unconscionable such a clause may sound, it does not negate the fact that both the parties wanted to bind themselves to this special, and rather unique arrangement. 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…"

[25] Needless to say the Contract of Service in this instance had no clear mention therein as to how the probationary period would be gauged, monitored or evaluated in terms of its significance for granting an employee's contract on a permanent basis. It was also silent as to what would be the required procedures that both parties must adhere to in arriving at a decision at the expiry of the probationary period (either within the first, three-month period or if extended for another three months, then within the six-month period). Further, on the face of the document, I found no clear grounds contained in the contract entitling the employer to terminate an employee if that employee fails to meet the expectation of the employment satisfactorily, particularly in terms of performance. To generalize "performance" as a cause is not enough when in fact the employer should have put in place indicators to measure this against the job description and deliverables expected of the employee. Again to test the fairness or lawfulness of this, is only possible after hearing both parties.

[26] Finally to further objectively test the employer's first issue of law given that ERP 2007 gives no 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'? 

[27] The answer to that question lies in assessing whether the employee ought to have had reasonable expectation that his contract within the probationary period could be effectively and lawfully ended. This case makes sense when read in line with an important judgment in the case of Slater v Smith [1994] 1 ERNZ 869 at 827 where it was held 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" (my emphasis).

[28] Accordingly it is my final conclusion that 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 at the end of the probationary period in reliance on it. If, the employer had believed and indeed relied or made 'performance' as a basis to assess the grievor's termination here, this allows the ERT to explore the allegations of unfair termination as a basis to bring this dismissal claim where the employer has to justify the process they invoked to carry the assessment of the probationary period. And this will be better determined through hearing of the evidence from both parties.

Decision and Orders
[29] In accordance with the aforesaid, the Tribunal declares and orders that:-

1.	There is an employment grievance for the employer to answer.

2.	Parties shall proceed to the substantive hearing on the issue of employer's justification for termination on the basis of "performance" criterion within the probationary period.

3.	Cost shall be assessed in cause of this action.

DATED at Suva this 27th day of March 2013.

LEGAL TRIBUNAL