Naqai v Sheraton Fiji Resort [2013] FJET 34; ER Grievance 87.2009 (16 January 2013)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ER Grievance No. 87 of 2009

BETWEEN:

ETUATE NAQAI
GRIEVOR

AND:

SHERATON FIJI RESORT
EMPLOYER

Appearances:
Mr. D. Urai for the Grievor
Mr. V. Deo for the Employer

DETERMINATION OF THE TRIBUNAL

1.0 The Employment Relations Problem

1.1 Mr. Etuate Naqai is alleging unfair dismissal on 25th June, 2009 in the way the employer treated him as he firmly believes that his immediate supervisor Mr. Rafaele Delai the acting Manager had given him approval to take leave on 17th and 18th July, 2009.

2.0 Background

2.1 By way of background Mr. Naqai had requested for 2 days leave on 15th and 16th June, 2009 to attend a funeral in Suva and that is an undisputed fact and the leave was approved. On the morning of Tuesday 16th June, Mr. Naqai called the Head of Department informing him that it was raining heavily in Suva and that the funeral had been postponed to Wednesday, 17th June, 2009. According to Mr. Naqai, the Head of Department gave him approval so he attended the funeral and left for Nadi in the afternoon. At the Lami Service Station while filing air into the tyres of the rental car he was driving, he alleged that a 4 wheel drive vehicle bumped into his car on reversing. Mr. Naqai confirmed that whilst the damage was minimal it rendered the alternator out of service and thus the vehicle could not start. The car was towed to a garage in Tacirua and at around 11 pm. On the evening of 17th July, Mr. Naqai alleged that he called the Head of Department and told him that the alternator could not be fixed that night and he would not be able to attend work the next day. Again, Mr. Naqai alleged that the Head of Department gave his approval. Mr. Naqai further alleged that he called the Head of Department on the morning of the next day, 18th June, 2009 at around 8.00 am. And informed him that the mechanic was fixing the alternator and that he would not be able to attend work that morning. He further alleged that the head of Department gave his approval.

3.0 The Evidence

3.1 Mr. Paul Hanfiro is the Human Resources Manager for the employer and in his evidence, he told the Tribunal that he had been in employment for about 4 years and 8 months and that he has full understanding of the Collective Agreement, the policies and procedures of the company and the Employment Relations Promulgation 2007 and he added that all workers are expected to familiarize themselves with those documents and policies. Mr. Hanfiro is well versed with the case of Mr. Naqai who was employed as an Activities Attendant and was terminated on 25th June, 2009 after a disciplinary hearing.

3.2 Mr. Hanfiro was asked to read out Sections 12.1 (d) (i) and (ii) as follows:

(i) Warnings for lateness, incompetence, absenteeism, malingering and other similar offences may be given by the Supervisor of the employee. Such warning, if they are to be held against the employee, shall be confirmed in writing to the employee by the Manager or, in his absence, his authorized deputy with copies to the Hotel House Committee and to the General Secretary of the Union and having been signed for as received by the employee concerned.

(ii) Two (2) such confirmed warnings may render an employee liable for dismissal for a third offence provided that the Manager may determine some lesser penalty as may be appropriate; provided also that no written warning shall be valid for a period of more than 12 months.

3.3 Mr. Hanfiro confirmed that Mr. Naqai had been given 7 written warnings within the 12 months period before he was finally terminated. He explained that the Union had pleaded with the employer to give Mr. Naqai another chance and that was the reason why he was not terminated instantly in accordance with the Collective Agreement. Mr. Hanfiro also explained that there was this "final agreement" concept based on good faith and designed for habitual offenders as a way of trying to get them to change and see reasons.

3.4 As to the approval to go on leave, Mr. Hanfiro confirmed that Mr. Naqaia applied for 2 days leave on 15th and 16th June, 2009 but was given 5 days as management was aware of his habit and attitude on turning up for work. Mr. Naqai maintained his leave for those 2 days and refused the 5 days offered.

3.5 Under cross examination, Mr. Hanfiro testified that approval for leave for the 17th of June, 2009 was given to Mr. Naqai reluctantly and he agreed that it was unreasonable for the Head of Department to direct Mr. Naqai to report to work at 10.00 am. After he (Mr. Naqai) had called him at 8.00 am of the same morning that he was unable to return to work as the car was still being repaired in Suva. He added that the direction was not unreasonable but in this case the car was the problem and not Mr. Naqai.

3.6 Mr. Naqai in his evidence testified that he called the Head of Department on 16th June, 2009 that due to bad weather conditions the funeral had been moved to 17th June and that he would request approval for leave on that day. According to him, the Head of Department gave his approval. At the end of the funeral on 17th June, 2009 Mr. Naqai drove down to Nadi and when they stopped at the Service Station in Lami for some pressure on the tyres, there was an accident involving another vehicle which damaged the alternator.

3.7 Since the accident at Lami, Mr. Naqai made 2 telephone calls; one at 11.00 pm on the evening of 17th June to the Head of Department informing him that the alternator could not be fixed that night and in that regard he could not be at work the next day. The next call was on the morning of the next day; 18th June, 2009 at 8.00 am informing the Head of Department that the mechanic was still fixing the car and that he would not be able to make it to work.

4.0 Analysis

4.1 The Tribunal was given the termination letter dated 26th June, 2009 written by Mr. Paul Hanfiro the Human Resources Manager as Exhibit 4 and on the first paragraph, it says:

You attended a Disciplinary Hearing on Thursday 25/06/09 with Joseva Vatunitu, Green Belt and the undersigned as Panel, regarding your absence from duty without proper authorization on 17th and 18th June, 2009.

This is rather ironical as Mr. Hanfiro in his evidence had said that leave on 17th June, 2009 was reluctantly agreed to. So when the approval was given for the 17th presumably based on the defective alternator, it follows that leave would be extended subject to the fitness of the rental car to hit the road. That was the understanding that the Tribunal would hold as it supports the general atmosphere of the working life at Sheraton where you have a "Final Agreement" besides the Collective Agreement.

4.2 The situation at Sheraton is rather unique and it is important that a balance is struck between the needs of the workers and that of the hotel/tourist industry. This is where the Union comes in as it has a very important role to play in educating workers that there are rules to follow and consequences to face if these rules are breached. Similarly, the employer has obligations towards its workers and the most fundamental is the display of good faith principles and that was not done by this employer in dealing with the appeal of Mr. Naqai. As Exhibit 6 will show other issues were considered when deciding on the appeal and not solely the issue of whether or not leave was approved by Mr. Delai

4.3 Tribunal Exhibit 6 is the letter dated 14th July, 2009 from the Director Human Resources advising Mr. Naqai of the outcome of the appeals hearing as follows:

At the appeals hearing today, your office (Nitin & Samu) represented Etuate Naqai whilst Mr. Simon Dornan (Director F&B) and Uraia R Rasake (Director HR) sat in as the appeals panel.

Prior to the hearing today (Tuesday 14/07), Uraia met Nitin on Thursday 09/07/08 to discuss the same and it was discussed that the lone issue in contention was whether or not leave was approved by Mr. Delai.

At the hearing, Mr. Rafele Delai (Activities Manager) presented his case and mentioned that he had approved leave for the two days requested by Etuate, however, prior to the approval he had suggested that Etuate take one(1) weeks leave which was declined by the associate and the associate assured his HOD (Mr Delai) that he would be back at work on Wednesday (17/06).

The panel heard that late Tuesday (16/06) night, Etuate called Mr Delai and stated that he would not make it to work and requested that he be given Wednesday (17/06) off, this was reluctantly approved by Mr Delai. Around midnight on Wednesday (17/06), again Mr Delai was contacted by Etuate, he claimed that he was in an accident and wanted another day off, this time the request was not approved by his HOD. He was told by his HOD to report to work at 10am, Thursday (18/06/09). At around 8am, Thursday (18/06), Etuate again contacted his HOD and mentioned that he was still stuck in his vehicle and was waiting for assistance. His HOD mentioned that he was frustrated with Etuate and said nothing else but put the phone down.

The appeal's panel then asked Etuate to confirm Mr Delai's story. He was adamant that his leave request for Thursday (18/06) was approved by his HOD. He also confirmed to the appeal's panel that he again called at around 8am, Thursday morning to confirm that he would not be at work.

The appeal's panel, after hearing stories from both parties concluded that;

• That there were contradictions to Etuate's story – He mentioned to the panel that his leave request for Thursday (18/06) was approved by his HOD when he contacted him around midnight, however, if the leave was approved why did he have to call at 8am, Thursday (18/06)?
  
• Etuate claimed that he had an accident-why wasn't any police report provided to his HOD or presented at the hearing to confirm his story.
  
• Etuate was requested by his HOD to take one weeks leave which he declined and made assurance that he would commence work on Wednesday (17/06) – WHICH HE FAILED TO
  
• Etuate failed to report to work on Thursday (18/06), 10am despite the directive from his HOD.
  

The appeal's panel also took into consideration Etuate's records as per his personal file;

• Despite the many chances to reform, Etuate chose not to. This was evident from the final agreement (MOA) on 29th Dec 08 – signed by Etuate, In house Union rep (Joe B) and HR.
  

NB: This is a "gentlemen's agreement with All parties agreeing that should there be any other breach, the associate would be terminated.

• 23rd May 08 – Etuate issued a 1st written warning for not reporting to work & not directly informing his HOD of his absence.
  
• 27th May 08 – 2nd & Final Written warning for not reporting to work & not informing HOD of absence.
  
• 15th & 18th Dec 08 – File notes for abandoning duty without informing HOD, continued punctuality issues, falsifying timesheets, absent from work without prior approval, etc.
  
• 19th June 2009 – Mr. Delai reports "absence" issue and breach of MOA thus resulting to disciplinary process being activated.
  

CONCLUSION

In conclusion, the overwhelming documentary evidence regarding Etuate's attendance, punctuality and the habit of not informing his HOD of his absence is quite alarming and with the evidence provided at today's hearing do confirm that there is no genuine effort to change despite the many opportunities given.

We also note and know that Etuate was aware that he was on a Final Agreement, yet at the hearing and the appeals process, he failed to provide evidence or witnesses to substantiate his claims. His story was also contradictory leaving the appeals panel to question him more which further confirmed the many discrepancies.

We will also make recommendations that as of today, we will no longer entertain " Final Agreements" as this is a test case to such agreements which we see at time wasting and no genuine input from the parties concerned to up hold the spirit of "good faith."

We therefore agree to the decision made on the 25th June 2009 and do reconfirm that Etuate Naqai is TERMINATED with effect from Thursday 25th June 2009.

5.0 Whether Mr. Naqai was Unfairly Terminated?

5.1 In Carpenters Fiji Limited v. Isoa Latianara [2011] FJET3; ERCA Wati J. explained what constitutes fairness to be the following:

"that it is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's action must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in the carrying out of the dismissal."

5.2 In Central Manufacturing v. Kant [2003] FJSC5 the Supreme Court held the following:

"there is an implied term in the modern contract of employment that requires an employer to deal fairly with an employee, even in the context of dismissal."

Specifically, the Court held that while the common law implication,

"...plainly does not extend to a requirement that reasons be given, or that a hearing be afforded at least where the employer has the right to dismiss without cause and to make a payment in lieu of notice. It does extend, however, to treating the employee fairly, and with appropriate respect and dignity, in carrying out the dismissal."

5.3 The Tribunal according to its terms of reference is required to make a determination whether Mr. Naqai's termination was unfair. The Tribunal ascertained the evidence of the employer through Mr. Paul Hanfiro and found that it is inconsistent with the general belief and line of argument of the employer that leave was never approved. From the evidence, leave was approved for 17th June although reluctantly and for 18th June the Head of Department was frustrated and put the telephone down when Mr. Naqai called him at 8.00 am.

5.4 The Tribunal feels that it is rather unwise for a Head of Department to be frustrated and put the telephone down on a fellow worker who is on the other side of the island and having difficulties with his car. What the Head of Department should have done was to listen to Mr. Naqai's plight and advise him to be careful and only take the road when the car was certified fit. Instead, the Head of Department's reasoning was clouded by prejudices based on Mr. Naqai's past performances and this showed in the letter of termination which referred to the Final Agreement. Since Mr. Naqai was on Final Agreement, the onus was on the Head of Department to ensure that he did not commit any further breach of company policy or instructions; and that would be good faith in action as Mr. Naqai was helpless and immobile on the other side of Viti Levu. That did not happen as the Head of Department out of frustration put the telephone down.

6.0 Decision

6.1 In view of the foregoing reasons, the Tribunal makes the determination that Mr. Naqai was unfairly terminated and in that regard Orders the following remedies:

i] Reimbursement of one year's wages lost by the worker as the result of the grievance as Mr. Naqai was terminated on 25th June, 2009 and the hearing was held on 28th July, 2010 and

ii] Reinstatement is denied in view of past records.

DATED at Suva this 16th day of January, 2013

Sainivalati Kuruduadua
Chief Tribunal