IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT Grievance No. 157 of 2012

BETWEEN:

SERA KOYAMAIBOLE
GRIEVOR

AND:

YOUNG WOMENS CHRISTIAN ASSOCIATION
EMPLOYER

Appearances:

Mr. R. Singh for the Employer or the Respondent
Ms. S. Kunatuba for the Grievor 

Date of Hearing: 6th May 2013
Date of Judgment: 19th June 2013

RULING ON INTERLOCUTORY APPLICATION

Interlocutory Application Before the Employment Relations Tribunal (or "the ERT")

[1] The Employer, Young Womens Christian Association (or "YWCA") or the Respondent has filed by way of a Notice of Motion and Affidavit in Support sworn by Lavinia Padarath ("the Application") and which application was filed on 25th March 2013, inter alia seeking for the following Orders from the ERT:-

i.	That this action be struck out; and
ii.	That the Costs of this application be costs in the cause.

[2] The Employer had filed this application pursuant to Order XXVI of the Magistrates Court Rules, Section 68 Magistrates' Court Act [Cap 14] Laws of Fiji and pursuant to the inherent jurisdiction of this Tribunal to have the matter struck out in its entirety.

[3] The Grievor had responded to the application on 10th April 2013 through an Affidavit sworn by Sera Koyamaibole, or the grievor. The Respondent further replied to the Grievor's Affidavit through another Affidavit sworn by Lavinia Padarath dated 12th April 2013.
Issues of Law Raised by the Employer

[4] The Employer has raised threefold issues of law in order to seek Orders from the ERT to strike out the entire substantive claim of unfair dismissal of the grievor: they are summarized as follows:-

i.	First Issue: Whether or not the grievor was actually dismissed from employment by the Respondent?

The Employer has submitted that the grievor was still employed by the YWCA at the time the grievance arose. Hence the claim of unfair dismissal as an employment grievance under section 4 of the Employment Relations Promulgation 2007 (or "the ERP 2007") is without merits. The employer is basing this on the fact that on 26th April 2011, the Grievor had accepted the terms of a voluntary engagement with the Respondent by signing a "Letter of Engagement" that apparently continued her contract of service with the employer. Prior to that, there was no dispute that she was appointed as an Administrative Assistant/Receptionist with the Respondent under a written contract of service through a "Letter of Appointment" dated 1st October 2009 and signed on 15th October 2009. 

At this point, it is prudent to mention that the grievor's counsel through her witness (who was the grievor herself), including what was also reflected in the Written Submissions of the grievor filed on 27th November 2012 (at Paragraph 4) had raised two other areas of "employment grievances" as defined under s4 of the ERP. First, it was in relation to disadvantage caused to the grievor when she had allegedly accepted and signed a new contract of service (on or about 26th April 201), which contract the grievor alleged was with much lesser pay and benefits. Second, the grievor submitted that she was under duress when the employer forced her emotionally to accept the subsequent volunteer engagement through the "Letter of Engagement". The grievor gave evidence that she was compelled to accept the voluntary engagement under duress in order to continue working for her family as she had five children to feed and an elderly mother to look after. Other than add that the grievor in her Legal Submissions filed on 2nd May 2013 alluded that she remained on the second contract of service for about four months (at paragraph 7.1), I will discuss these two grievances shortly in more detail as per the application before me.

Suffice to say that the grievor had maintained that her employment was terminated from her initial employment contract (dated 1st October 2009) and this was done prematurely by the employer on or about 27th January 2011 despite the duration stated therein for a three-year contract which would have expired on 1st October 2012. The grievor defended her claim by maintaining that this was the actual contract of service entitling her to bring the "unfair dismissal grievance" to the Tribunal. The employer continued to maintain that the grievor's contract of service carried on particularly when she had signed the voluntary engagement with YWCA. 

ii.	Second Issue: Whether or not established grievance procedures were followed as required under the ERP 2007?

The Employer's second issue of law rather ties the first issue of law. The employer maintaining that the grievor was still in employment, it was further submitted that she had failed to use and exhaust internal grievance procedures prior to reporting and raising a grievance claim with an external arbitrator such the Mediation Unit of the Ministry of Labour as per the systems and processes created under the ERP 2007. In particular, this is in relation to reporting of grievance generally under s110 (3) of the ERP. 

The employer had attempted to demonstrate this through what they regarded to be the "Personnel Policies and Procedures of the YWCA" in terms of an existing document adopted by the YWCA in or about March 1979 and which was revised by the National Council in or about March 1884, governing the "Tabling of Grievances and Disputes Procedures". There was no dispute as to the existence or validity of this document from the grievor's end which I understand was part of the grievor's initial contract of service dated 1st October 2009 (at Clause 4). 

Clearly the employer had maintained that the grievor remained in workforce with YWCA by virtue of accepting and signing a new contract regardless of the position description and nature of pay and entitlement. Even, if there were additional issues of disadvantage and duress, the employer argued that the grievor mandatorily ought to have utilized the grievance procedure as contained in the grievor's contract of service which was known to her. The Employer had further submitted that the grievor's immediate employer, being the National Executive Committee (or the NEC") who through Affidavit in Support sworn by Lavinia Padarath confirmed that they had not received any written complaints from the grievor within the six month period of the alleged grievance having arisen pursuant to section 111(2) of the ERP. Accordingly, it was justified by the employer that the grievor still being employed by the YWCA was thus bound by the "Personnel Policies and Procedures of the YWCA", who they alleged had acted illegally under the ERP by not following the requirements for reporting of a grievance, in whatever form. 

The grievor in counter-defence stated that because she was unfairly dismissed, she had a right to go the Mediation Services directly under the salient provisions of the ERP (as per Schedule 4, Sections 2 to 6 of the ERP). It appears to me that she had added on or included in her original claim of unfair dismissal the two extra issues of grievances which are disadvantage and duress (as per the Written Submissions filed on 27th November 2012 and another one, on 24th January 2013). In essence then, the grievor's claim of unfair dismissal hinges on all the three areas of grievances intertwined which was admitted by the grevior during her sworn testimony and also through various submissions. Again I will discuss the relevance of these additional "employment grievances" in relation to this application in due course. 

iii.	Third Issue: Whether or not the grievor is within time to bring this grievance to the Tribunal.

The third area of law contested by the Employer is purely based on the statutory implication (or application) of properly bringing "employment grievances" to the Tribunal within its jurisdiction under the ERP 2007. 

The grievor, having failed to comply and exhaust the requirements under s111(2) of the ERP for reporting the grievance within the six month period from which the action arose, it was submitted by the Employer that YWCA neither had agreed to extend the period for reporting of the grievance nor the grievor had made a formal application to the Tribunal for an extension for that period as required under Sections 111(2) and (3) of the ERP respectively. The employer has alleged that unfair dismissal claim was reported after lapse of some sixteen and half months of the grievance allegedly arising in this instance. Hence this grievance was out of time and thus statute-barred. The grievor has submitted that her claim of unfair dismissal is not subject to time-limit pursuant to Schedule 4, Sections 2 to 6 of the ERP.

Preliminary Remarks on Procedures and Rules of Evidence

[5] The dismissal alleged here has genesis to the employer's actions taken on or about January 2011. I will discuss these actions more specifically in my judgment as at this point I merely wish to highlight that it was not disputed that the grievor in actual fact had reported an employment grievance of "unfair dismissal" on 5th June 2012 as per the FORM ER 1, which claim was received by the Mediation Unit on 15th June 2012. Mediation took place on 21 August 2012, and it being unsuccessful, the mediator had then referred the matter to the ERT on 4th September 2012 as per FORM ER4. The terms of reference of the mediator for unsettled employment grievance were as follows:-

"The grievance is over the alleged unfair termination of Sera Koyamaibole by Young Women's Christian Association. The griever is claiming that she had been unfairly dismissed and is seeking compensation."

[6] While at all times the grievor is entitled to bring a claim to the Ministry of Labour through Form ER 1 where the claimant considers he or she has an employment grievance, the Tribunal is the only authority that has the jurisdiction and powers under s211 of the ERP to ascertain the merits of that claim to be properly deemed as an employment grievance under section 4 and Part 13 – sections 109-114 of the ERP respectively. This includes generally exercising powers to determine the legality, validity, propriety and relevance of the claim to the application presented to the Tribunal. This is even when the substantive matter is on foot following referrals from the Mediation Unit under s211(1)(k) of the ERP. Thereby, the employer being accorded a right to challenge the proper form of bringing an employment grievance claim to the Tribunal. I have discussed this aspect quite in detail in my judgment of Tomasi Tabanidalo –v- Hangton Pacific Company Limited ERT Grievance No. 95 of 2011 delivered on 18th July 2012, therefore I do not wish to repeat myself.

[7] That said, I have to comment that as in any employment matter, it is the established practice that the onus of proof is the burden of the employer. Keeping this in mind, the Tribunal is required to act fairly in all proceedings (s216 of the ERP), while it is also true under s231 of the ERP that the rules of evidence are not strictly applied and "…Tribunal may accept and admit evidence as it thinks fit". 

[8] There is a reason for this provision in the ERP 2007 where the ERT is not bound by mere technicalities or strict rules of evidence. Because the burden of proof is placed on the employer to provide justification for termination (in any given context; summary, with notice or payment in lieu of notice, or upon expiration of contract of service), when in normal claims that burden is conventionally placed on the claimants, the Tribunal is thus required to consider all different aspects of evidence placed before it in its entirety, not just in isolated parts. Certainly, rules and practice direction are not codified for the Tribunal. Where there is a gap or silence in the ERP 2007, Magistrates' Court Rules provide the much needed respite for clarity under section 238(2)(a) of the ERP. In addition, it would seem that the practice since the times of the sittings of the Arbitration Tribunal was well established in terms of all proceedings to ensue to hearing by way of preliminary submissions and thus not confined to pleadings (in a statement of claim) only. There is also no requirement under the ERP 2007 that evidence must be independently collaborated before it can be accepted by this Tribunal. In that regard, even at the interlocutory stage, evidence can be available in whatever form (preliminary submissions, oral or documentary evidence, witness statements, affidavits, written closing submissions, etc) that shall assist the Tribunal to make a fair decision. This is seen to be supplemented by section 112 of the ERP where even during the determination of the grievance there is another aspect of employment that the grievor wishes to add, he/she may do so by giving notice to the employer. 

[9] For this reason I had felt that it was necessary to hear the grievor's version of what she had construed as facts that led to her bringing in a claim of unfair dismissal some sixteen and half months of the grievance allegedly arising in this instance. I have the duty to ascertain why she felt her (labour) rights were infringed under the statute and the international standards, such as the core ILO Conventions Fiji has ratified. When someone is given the liberty to protect their rights particularly under a statutory protection, here, under the ERP 2007, it is no longer a simple civil matter. Because someone's right to livelihood is threatened, what is capable of being believed is not determined according to the claimant's subjective belief but rather focused on what is objectively or reasonably believable in the circumstances. Accordingly, it is fitting to remind the parties that even when interlocutory application of such nature is before the Tribunal, the Tribunal cannot overlook that the grievor has unfettered right to use the systems and processes created under the ERP for protection of what is clearly the universal right to fair labour practices. In any event, this must not cause the grievor any prejudice on technicality alone. This means while the grievor had found herself in the Tribunal due to the mediator's referral at no fault of hers, she is still entitled to be given a right to heard before the entire substantive claim of unfair dismissal can be considered for any striking out application; even at the interlocutory stage or when she/he has not fully complied with the statutory provisions. The imbalance of (economic) power between the two parties is a determinant factor.

[10] The findings then made by the Tribunal on the credibility of the evidence are based on relevant and material facts, where often, as also seen in this case, parties will have two different versions in the understanding of the substantive grievance or simply, the reason(s) [or cause] why the grievor's employment was ended. The ERT will consequently assess evidence by weighing up its probative value and relevance to the grievor original claim(s) including the terms of reference of the mediator.
Laws

[11] The Employer is entitled to bring this interlocutory application. When grievances are reported this late, there is always potential to doubt that the good faith relationship that must exist between the parties at all times had broken a long time ago. This was tested in the 1997 decision of the Supreme Court of Canada in Wallace v United Grain Growers Ltd., [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).

[12] It is of no surprise that the ERP 2007 is also premised on this fundamental principle of 'good faith" as presented in the Preamble and other provisions such as s149 of the ERP. Hence, the requirement of s111 of the ERP to be complied generally when a grievance (in whatever nature) arises. Suffice to say, to make a proper assessment of the application on the issues of law put forward by the Respondent, I have to probe the ERP in more detail. Under Part 13- "EMPLOYMENT GRIEVANCE" provisions of the ERP clearly the starting point of any good faith relationship is the contract of service. 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…" 

[13] Let me begin by first looking at the grievor's position in terms of the contract of service through a "Letter of Appointment" dated 1st October 2009 and signed on 15th October 2009. The grievor alleged that this employment contract was terminated by the employer on or about 27th (or towards the end) of January 2011 despite the duration stated therein for a three-year contract which would have expired on the 1st October 2012. The employer gave reasons in their preliminary written submissions filed on 14th January 2013 that since September 2010, the General Secretary had begun informing the grevior in writing of their financial constraints where they had accumulated debt together with penalties which they had justified had read reached an unsustainable level. Due this reason, the grievor was further informed that all salary staff such as herself could only be paid $100 per week. No objection or grievance was raised to the employer (or to the Mediation Unit) to report any disadvantage to be potentially caused to the grievor if her existing contract of service was to be varied by the employer (the employer however, maintained that the grievor was subsequently re-hired which then did not break her existing contract of service with the employer). In February 2011, the grievor was informed again in writing that the financial situation of the employer had not improved and she would receive her last salary to be paid up-til 31st January 2011. 

[14] Hereafter the employer directed that the grievor could opt to take on a volunteer engagement at $20.00 a day as the worker was being made redundant. Once again it seems that no grievance was raised in terms of disadvantage or being forced to enter into a redundant position, if for argument sake, there was non-compliance with the ERP provisions pertaining to redundancies implemented by the employer (see: sections 107 and 108 of the ERP). It could have been that the grievor was not aware of her rights or that she was merely afraid to speak in case she lost her job. This is based on her oral testimony that she had accepted everything in order to maintain her only source of livelihood, no matter what the circumstance. The employer, on the other hand, attempted to justify that she was aware of the employer's financial situation, being involved in the accounting and updating of the ledgers. Hence the reason she did not say anythig.

[15] For purposes of this interlocutory application, it cannot denied that the grievor had available the grievance procedure in her contract of service, at least until the end of January 2011 where she could have informed the employer how she felt. In particular, considering that she was not satisfied with the reasons given for redundancy of staff members including herself sometime in September 2010 (having some idea of the employer's financial standing then) and the options for alternatives measures proposed by the employer, she could have done something about it. But she failed to raise her concerns at all.

[16] Sections 109 and 110 of the ERP clearly states that workers must be provided with the grievance procedures in their employment contract and where there is none available then the procedures set out in Schedule 4 shall apply. 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)

[17] The ERP 2007 with no ambiguity at all, 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. In this instance at least three was pleaded to the Tribunal: dismissal, disadvantage and duress albeit the last two were included in this action when the preliminary submissions were filed. The grievor's counsel had strongly attempted to reinforce these two additional grounds for employment grievance as part of her unfair dismissal claim. Through the grievor's testimony it was suggested that she was forced to sign the second, voluntary engagement on less pay and benefits due to her family obligations.

[18] Further, it was alleged that she was disadvantaged in accepting whatever the employer could offer as she had no choice to reject or object. 

[19] After a careful scrutiny of whatever was presented to the Tribunal, at no point in time, the grievor appears to have raised any issues of discontentment with the way the employer was proposing to undertake all these changes. In my opinion, there was still nothing to stop the grievor from utilizing her grievance procedures, even if she feared victimization of any sort. The end result would have been same, termination of her contract of service dated 1st October 2009. This was blatantly clear from all the letters the employer wrote to the grievor before and after 31st January 2011. It seems to me that between 22nd September 2010 and again in February 2011 and 10th March 20011, the grievor had ample opportunity to raise her grievance on both disadvantage and duress aspect with the employer when they continued to write to her to consider alternative measures as opposed to being redundant. Neither she came to the Mediation Unit for help and advice on her position as clearly by end of January 2011, her contract of service dated 1st October 2009 was in effect, terminated. 

[20] In my opinion, the grievor could have easily written or sought audience with the appropriate management team to express how she was being forced to acquiesce to the employer's variation or changes to her existing employment contract. Instead she remained with the YWCA on what appears to be an implied contract of service from February 2011 until on 26th April 2011 when she signed, yet another letter of engagement. Here, she accepted the terms regardless of the nature of pay and entitlements. Neither at the material time nor within the six months period, she took steps to raise any of grievance all.

[21] To be clear, I regard the voluntary engagement to be neither an extension or variation nor continuation of the first contract of service. The employment contract of 1st October 2009 was in effect terminated when the grievor had signed and entered into the second employment contract, no matter what the terms and conditions. The question is: can the grievor now come to the Tribunal some sixteen months later after that contract was terminated (again irrespective of the reasons) to seek redress and remedy for what she claims is unfair dismissal. Where does this leave the voluntary engagement she had accepted thereafter?

[22] To answer this question, I have to go back to her claim. As far as I can interpret the law, she has no leg to stand in terms of disadvantage and duress claims in any context. There are three-fold reasons here. First, she cannot use duress as a ground to substantiate her claim of employment grievance under the definition section (4) of the ERP. The law is clear duress is only permissible in one defined area which is in relation to the worker's membership or non-membership of Unions. However, when such matters are intertwined or made a basis to allege unfair dismissal, especially when such claims originate so late, a reasonable Tribunal must at all times exercise caution and consider these matters on case by case basis given that the ERP is specific in what constitutes duress in relation to an employment grievance. That said, if the grievor had felt that she had a claim of duress in being forced to sign the second contract of service on issues relating to redundancy, she cannot come to the Tribunal in the form she has. 

[23] In fact any issues relating to constructive dismissal that forces someone to enter into a further or new contract of service under say, redundancy measures, has to be justified when the action occurs. Both duress and disadvantage claims had to be raised within six months of the grievance having arisen and not some sixteen months down the line. Hence, the second reason why duress claim will not hold ground in that the grievor will be completely in foul of section 110 and 112 of the ERP in not observing the fundamental tenets of good faith grievance resolution process as per the established grievance procedure. The employer had explicitly made this available in the terms and conditions of her contract of service. 

[24] The employer's counsel had then quite aptly appraised the Tribunal to its own judgment in the grievance matter of Tomasi Tabanidalo –v- Hangton Pacific Company Limited ERT Grievance No. 95 of 2011 (judgment dated 18th July 2012). Here, I had declared that the grievor in his capacity as an Operations Supervisor as an employee (and not as a shareholder of the company) was entitled to seek justification from the employer for any ensuing unlawful and/or unfair termination, where he had six months to do that. Here, I understood the grievance largely had to do with the grievor's loan obligation with the company and not so much with the justification or reasons for dismissal. I had further stated that if the grievor in the six month period on his freewill had met with the employer and both parties attempted to resolve the grievance in ways mutually agreeable to both parties within a good faith settlement talk, then clearly there was no need for any external arbitration or intervention of the Mediation Unit as per the grievance process of the ERP 2007. In this case, I had ruled that:

"…the above provision invoked by the employer to make this application has merits in my view. ERP 2007 has set out legal parameters how and when grievances can be "submitted" or lodged with the Ministry of Labour and what are the statutory redress and remedies provided accordingly. For example, the whole essence of s111(2) of the ERP is to merely give the employer and employee a good faith opportunity to resolve and settle any matters relating to a grievance by way of an agreed, internal grievance procedure. Hence, raising the grievance first with the employer within the six month period from the date it arises. This is reflected in section 110 and Schedule 4 of the ERP where he could have come directly to the Mediation Unit if the grievance pertained to a dismissal..."

[25] Undoubtedly Tomasi's case is disguisable to this case as I was clear that there was nothing stopping the grievor to come to the Mediation Unit straight after he/she was dismissed. Instead Mr Tomasi Tabanidalo had opt to meet with the employer, entered into good faith negotiation and subsequently signed and executed a deed of settlement. He received a hefty monetary payout for this but after a long lapse of about two years he sought mediation on his alleged unfair dismissal claim on the basis of "economic duress, undue influence and fraud". I had dismissed this matter in its entirety, but not before giving the grievor a chance to substantiate his claim with merits which he had failed to do so. 

[26] Here, in this instance, where duress allegation is concerned, I found no evidence of the employer forcing the grievor to sign the voluntary engagement contract when they had terminated her initial contract in January 2011. 

[27] In fact she had several opportunities to pen out her objection, but she did not do so. Even so, the only way the duress issue could have been brought in as an employment grievance, not so much under the strict definition of duress (as per s4), but rather as an unfair termination of contract of service pursuant to s107 and s108 of the ERP. Yet again, this was to be done within six months of the grievance arising to prove the redundancy process was illegal and unfair. Therefore, I see no way the grievor can tie the issue of duress (or disadvantage) with the prevailing dismissal claim. If she is attempting, clearly this application has merits on the face of non-compliance with section 2 of the Schedule 4. This is because the third reason for duress being of no probative relevance to the grievor's original claim in that she fails to justify bringing a late claim on basis of (unfair) dismissal claim under section 2 of the Schedule 4. Both duress and disadvantage claims have no basis to justify late claims. Only dismissal is allowed. Even then, a reasonable Tribunal has to weigh the overall merits of the case to determine that the grevior had good reasons for delay and I had simply pointed out how to do this in Tomasi's case. 

[28] While ERP allows under section 2 of the Schedule 4 what would seem to be a right to lodge late dismissal claims, I am not convinced a claim for dismissal (unfair or unlawful) can be brought that easily at any time, whether after sixteen months, two years or some ten years after the alleged dismissal took place. This will fall foul of s111 of the ERP on basis of good faith alone to resolve matters when grievances actually arise, not to mention being completely prejudicial to employer who bears the onus of proof. 

[29] In Tomasi's case, I had attempted to draw analogy with the position of the New Zealand labour laws (and case-laws) as Fiji has used the same model encapsulating similar provisions. For clarify and to avoid legal ambiguity, the New Zealand Employment Relations Act 2000 defines the circumstances that would justify "good reasons for delay" in submission of late dismissal claims. This must go through the Authority (similar, if not same, as the Employment Relations Tribunal in Fiji) by way of an application seeking leave for extension of time to allow adjudication of any late dismissal grievance. The Authority is then required to ascertain that the delay was occasioned by "exceptional circumstances"; and second that the justice of the case requires an extension of time (see: Mark Raymond Creedy vs. Commissioner of Police (2008) 3 NZLR 7 and Melville v Air New Zealand Ltd (2010) NZEmpC 87). 

[30] ERP 2007 only makes a reference to submitting late claims when it relates to a dismissal without attaching the perquisite principles of natural justice to be observed by both parties. In fact, under s110 (1)(a)of the ERP, natural justice is the most essential component for grievance procedure within a contract of service. This then leaves the Tribunal to carefully weigh and consider all the circumstances pleaded by the grievor to justify "good reasons for delay" where such claim originates from the mediation services, instead of a direct application to the Tribunal. Therefore, if the grievor is able to explain why she is so late in reporting her dismissal grievance claim, then she may persuade the Tribunal to hear her substantive claim although she did not come to the ERT directly. This is because in either instance, no reasonable Tribunal can be swayed by mere reference in the Act to allow any type of late dismissal claim or grievance to flout s111 of the ERP; rather the Tribunal has the duty to test each employment relationship in a contract of service, written or not, on the footing of natural justice. 

[31] In that regard, the true essence of sections 111 is self-explanatory, which states as follows:

Right to use procedures

"111.—(1) A worker who believes that he or she has an employment grievance may pursue the grievance procedure in person, and may be assisted by a representative.

(2) A worker who wishes to submit an employment grievance to that worker's employer in accordance with the applicable employment grievance must, subject to subsections (3) and (4), submit the grievance to that worker's employer within the period of 6 months from the date on which the action alleged occurred unless the employer consents to extend that period.

(3) If consent is not given under subsection (2), the Tribunal may, upon application extend the period, if it is satisfied that there are good reasons for the delay.

(4) Upon granting an application under subsection (3), the Tribunal may hear the grievance or refer the grievance to the Mediation Services." (Bold and underlining is my emphasis).

[32] In my opinion, if any grievor has issues relating to disadvantage, discrimination, sexual harassment or duress in relation to his/her membership or non-membership with the Union, she/he must raise a grievance with the employer within six months in terms of the grievance procedures mutually agreed by parties in a contract of service. Or alternatively where there is no recourse either with the employer addressing the grievance or having in place grievance procedures, it could be referred to mediation services by mutual consent. Where it relates to dismissal (unfair or unlawful dismissal claims) in a normal cause, the grievor has a right to come to the Mediation Service immediately although there is nothing to stop the grievor to pursue this with the employer directly if good faith relationship has a potential to be maintained. 

[33] 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. Under section 4 of the ERP, "Dismissal" means "any termination of employment by an employer including those under section 33". 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."

[34] 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".

[35] Section 211(k) of the ERP states that the Tribunal has 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:-

"s110 (3) All employment grievances must first be referred for mediation services set out in Division 1 of Part 20".

[36] Section 114 provides:

"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." 
 
[37] This is also the requirement of Form ER1 when filling the part "details of employment grievance (the problem)". The grievor is required to make a declaration that "all internal grievance procedures as applicable have been exhausted in accordance with Section 110 and 11 including Schedule 4 of the ERP 2007". This would be essentially before reference is made to the Mediation Unit. 

[38] Given that this is a late claim and the way it eventually found its way into the systems and processes created by the ERP through mediation based on what was perceived as unfair dismissal claim, obviously the employer has not given a termination letter other than various letters they had written to the grievor leading up to the actual termination of contract of service in January 2011. It is also true that the employer had not broken the contract of service hereafter by retaining the grievor on an implied contract of service and later the grevior agreed to sign another contract of service through a voluntary engagement. Therefore to answer the question whether the contract of service was broken entirely when initial contract of service was terminated in January 2011, my guess is, No. 

[39] This is because if we separate the claim of duress and disadvantage which has no place whatsoever under section 2 of the Schedule 4 to justify late "dismissal" claim, and thus just consider on the strength of the evidence before this Tribunal, in particular on the basis of the grievor agreeing to enter into a completely new contract of service (voluntary engagement), regardless of the terms and conditions being entirely different from what she was initially hired for, gives the grievor no reasonable window of opportunity to show good reasons for delay in coming to the ERT. In fact it was stated in the submissions that the grievor had survived this new arrangement for four months, at least. She neither objected since September 2010 when she was first put on notice as to what the employer had intended to do nor whilst she was still employed. Subsequently the grievor allowed herself to be transferred to the voluntary engagement. She then waited some sixteen and half months before she came to the Mediation Unit on the basis she has unfair dismissal claim. She has no good reasons other than claims of duress and disadvantage for basis of late claim. What she was doing all this time is not known. She also failed to explain the Tribunal why she did not come soon after she had also terminated the voluntary engagement. 

[40] Needless to say, mediation services are entirely confidential and I am not at privy to know what sort of information was divulged there. For them to accept this claim in its original form is purely their prerogative under separate powers vested in the ERP. While the law creates the legal basis for them to undertake grievance resolution, it does not override or supersede the jurisdiction of the Tribunal who is vested with the judicial powers to adjudicate matters in its own right. Indeed any improper claim can occasion a striking out of the entire dismissal claim. For the ERT, while mediator's referral puts in motion "matters" to be adjudicated, I am not convinced that the grevior here is a legitimate claimant eligible to have her late claim heard on the merits of unfair dismissal claim under section 2 of the Schedule 4. Clearly, it is not known why the delay was caused and I have before me the grievor's bare claims of duress and disadvantage. Both claims of duress and disadvantage have no basis to invoke section 2 of the Schedule 4. Without these components, to attempt to justify unfair dismissal claim in its entirety, clearly is nothing short of a vague, baseless and without merits claim by the grievor. 

[41] Therefore, even if I were to give some leeway to the grievor for not obtaining leave of the Tribunal to allow her late claim to be heard pursuant to s111(3) of the ERP (and this applies to both duress and disadvantage claims leading up to her final dismissal), I am not convinced that first, the delay was occasioned by "exceptional circumstances"; and second that the justice of the case requires an extension of time. 

[42] Let me briefly look at the issue of unfair dismissal claims generally. Madam Justice Wati had relied on the case of Central Manufacturing Company Limited v Yashni Kant [Unreported Fiji Supreme Court Case Number CBV 0010 of 2002] to clarify the issue of unfair dismissal in the case of Carpenters Fiji Limited v Isoa Latianara ERCA No. 7 of 2011: she had stated that:-

"…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).

[43] In another case of Shell Fiji Limited and Fereti Filipe -v- Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011), the Full Supreme Court also echoed this by adding that:-

"…For a claim of this category to survive, there has to be a cause of action, evidence and causation shown. Simply, the employee has to plead that the manner of dismissal was unfair, evidence must be tendered on what constituted unfair treatment, together with the evidence that the said treatment caused the employee distress or humiliation or physical and psychological harm. That is the legal parameter on which such a claim operates and survives…"

[44] In fairness to the grievor, when the substantive grievance matter is considered on the issue of unfair dismissal claim as contained in the submissions, these are largely centered on the grievor's issues of unfair disadvantage and duress claims. Again I have explained in detail how these two have no basis in this late claim. 

[45] Further, by virtue of the grievor being absolutely in agreement with whatever actions were taken by the employer at the material time gives her no basis to prove any distress or humiliation caused to her when she was dismissed in January 2011. In fact she stayed in the same employment environment and took up another form of engagement where she had sustained herself for at least four more months. Any other person who would have been distressed emotionally or psychologically would have taken some steps to seek redress. But she waited almost a year to do so. For this reason, I cannot allow the grievor to use and exercise section 2 of the Schedule 4 to bring just any, dismissal claim. Claims without merits, especially one that is this late is obviously statute-barred and prevented from causing prejudice to the defending party, being the employer under s111 of the ERP.

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

1.	The entire grievance of unfair dismissal submitted by the grievor fails to comply with the definition section of "employment grievance" under section 4 of the ERP to allow and qualify a late claim pursuant to section 2 of the Schedule 4 to be heard. I find that issues of duress or disadvantage are not a proper basis to justify invoking section 2 of the Schedule 4, which then leaves no merits in the late unfair dismissal claim. 

2.	In that regard, the grievor's claim is substantially out of time prescribed in the ERP 2007 which is clearly failing to fulfill the requirements for "good reasons for delay" that would properly submit a "grievance" matter pursuant to s111 of the ERP and/or section 2 of the Schedule 4 to the Tribunal. 

3.	Subsequently, the interlocutory application of the employer is successful and the grievor's claim is declared time-barred, therefore dismissed forthwith.

4.	The parties will bear their own cost in this matter.

DATED at Suva this 19th day of June 2013.

LEGAL TRIBUNAL