Prasad v Food For Less (Fiji) Ltd [2013] FJET 35; ERT Grievance 198.2010 (22 January 2013)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERT Grievance No. 198 of 2010

BETWEEN:

MR. AGEET PRASAD
GRIEVOR

AND:

FOOD FOR LESS (FIJI) LTD
EMPLOYER

Appearances:
Mr. S. Lesi for the Grievor
Mr. R. Prasad for the Employer

DETERMINATION OF THE TRIBUNAL

1.0 The Employment Relations Problem

1.1 Mr. Ageet Prasad is claiming that the employer terminated his employment on 22nd July, 2010 for refusing to work in the bulk store and is claiming compensation for loss of employment.

2.0 References

2.1 In this proceeding:

- Mr. Ageet Prasad shall be referred to as ("AP")

- Mr. Rudra Prasad shall be referred to as ("RP")

3.0 Background

3.1 AP worked for Food For Less from 12th April, 2002 to 22nd July, 2010. He started as a packer, then rose to become a security officer, receiver and finally as despatch clerk.

3.2 On 21st July, 2010 RP had a meeting with AP where he told AP that he needed a reliable person to work as receiver in the bulk store since he had received information that goods in the bulk store had been stolen. AP answered that he has a dislocated shoulder and could not lift heavy goods. RP advised AP that he would have 2 additional staffs with him and that he would not need or be required to lift any goods or cartons in the bulk store. Despite that AP insisted on the refusal to work in the bulk store and threatened RP that if forced to work in the bulk store he would quit the job.

3.3 On 22nd July, 2010 AP went to RP's office and asked him if he was required to work in the bulk store as a receiver. When RP told him that he was to work in the bulk store, AP told him that he was quitting on the spot and left the office.

4.0 The Evidence

4.1 Mr. Raven Chandra a senior staff member of Food for Less gave evidence for the employer: that he had worked for the last 6 years and that on the morning of 22nd July, 2010 AP showed him his resignation letter[1] and told him that he would quit if asked to work in the bulk store. Under cross examination Mr. Chandra told the Tribunal that AP showed him the envelope in his pocket that has the resignation letter. He believed that it has the resignation letter as earlier on AP had briefed him on the meeting he had with RP on 21st July, 2010.

4.2 AP in his evidence stated that he began employment with the company on 1991 and became permanent in 1993. He initially worked as a Packer, Security Guard, Receiver and then as Despatch Clerk until the end of his employment. He confirmed that never at any time did he intend to leave the company as he had been working there for some 20 years. AP also told the Tribunal that he injured his right shoulder whilst in the Receiving section before moving to the Despatch Section.[2]

4.3 Through this shoulder injury AP said that he could not lift heavy items[3] and as such requested to be retained in the Despatch Unit or to be given a supervisory position if he was to be sent back to the Receiving section. What AP is not telling the Tribunal is that RP gave 2 additional workers to help out in the bulk store in view of the condition of AP; as he could not lift heavy goods.

4.4 In his evidence, AP explained that he was serving customers when RP came down and asked him why he was not in the bulk store; he said that he was serving customers when RP got angry and told him to get out. Under cross examination, AP agreed that he came to work on 22nd July, 2010 with the resignation letter in his pocket and that he could not collect all his entitlements as he was chased out. AP also agreed that he met with RP at 10.am on the morning of 22nd July, 2010 where RP told him of the intention to transfer him to the bulk store as the Receiver and for him not to work in the Despatch Section. RP reported to the Tribunal that AP left at his own accord as he was not terminated.

4.5 AP concluded his evidence by stating that the relationship with RP was cordial and stable and out of respect he calls RP uncle. On the way, RP acted towards him on 22nd July, 2010, he said it was rather strange but he knows that on that day he was under a lot of stress.

4.6 Mr. Kamal Deo Sharma gave evidence for the grievor that he joined the employer in April, 2007 as Floor Manager and resigned on 26th July, 2010 when AP who was in charge of the Despatch Section got terminated. He further told the Tribunal that RP should, have at least the courtesy to discuss issues with him since AP and other on the floor level were directly under his responsibilities but unfortunately, that was not the case as RP continued to shout and get angry with the workers in front of the customers, so he made up his mind to tender his resignation.

4.7 As to the reason why RP was moody and erratic in dealing with the staff Mr. Sharma mentioned that during that week there was an incident regarding a cash register where the cashier did not follow the rules and that made RP very upset and led to the sacking of senior staff.[4]

4.8 In cross examination, RP asked Mr. Sharma whether he gave ample notice about his resignation or not to which Mr. Sharma answered that there was no written contract to show how to terminate contract when he joined the employer[5]. Mr. Sharma continued that when RP was terminated on the spot, he too thought that it was the correct thing to resign[6]. He also added that he could not accept unsatisfactory actions carried out by RP against the staff by harassing them without consultations with line supervisors and managers. Similarly, the recent changes in departmental organizations had made him unable to continue working.

4.9 One issue that has come out of the evidence of Mr. Sharma is the absence of an employment contract which means that there was no disciplinary and grievance procedure although there was no evidence that the parties or one of the parties attempted to use Schedule 4 of the Employment Relations Promulgation 2007 (ERP).

5.0 Analysis

5.1 The issues that have come out in the evidence are the following:

(a) Termination – whether it was justified and fair

(b) Constructive Dismissal – whether the employer created conditions intolerable to AP making him resign or leave employment at his own accord.

6.0 Whether AP was unjustifiably terminated?

6.1 There is no statutory or common law definitions of "unjustifiable or unfair dismissals" and in a recent decision the 2 terms were defined as follows:

"For a dismissal to be justified, it would need to be capable of demonstration that it was just, right or valid; capable of being defended with good reasoning. A decision would be unfair, if it was harsh, unjust or unreasonable." [7]

6.2 The test for justification which applies to claims of unjustifiable dismissal is the following:

...The question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

6.3 In this case there was no termination as such, like without cause or with cause under section 33 of the ERP as AP walked out of the job without tendering his resignation. The Tribunal believes the evidence of RP as there was no evidence that he terminated AP. That being the case, there is no ground to consider the question of unfairness of any termination.

7.0 Whether AP was constructively dismissed?

7.1 AP has to show that RP created intolerable conditions in the workplace that left AP no other alternative but to consider that the contract has ended and for him to exit. There was no such situation, nothing happened that way. What happened was that AP disobeyed lawful orders when he refused to do the receiving at the bulk store. He raised the issue about his injury to RP and he took care of that by giving AP 2 additional workers to do the lifting and moving of heavy goods.

7.2 The Tribunal finds that AP had planned his moves for 22nd July, 2010 as shown by his going into RP's office and asking him whether he would be working in the bulk store starting that morning. On the balance of probabilities the Tribunal also finds that AP had the resignation letter in his shirt pocket. In that connection the Tribunal rules that AP was not constructively dismissed as he left employment at his own accord.

7.3 AP did not raise any grievance with the Labour Department until 17th August, 2010 when he completed Form ER1 referring his claim to the mediation services for compensation on his loss.

8.0 Decision

8.1 There is no compensation payable to Mr. Ageet Prasad as he walked out of his employment without being terminated and that there is no order as to costs.

DATED at Suva this 22nd day of January, 2013

Sainivalati Kuruduadua
Chief Tribunal

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^[1] Whether the letter was opened for Raven Chandra to read did not come out in evidence but it seems that AP volunteered the information and spoke of his intentions.
^[2] There was no evidence tendered as to the alleged injury sustained by AP.
^[3] The employer through RP was aware of this and made relevant provisions.
^[4] This did not happen to AP as in his evidence (Mr. Sharma) stated that he was at his desk some distance away and was not in a position to comment on what transpired between RP and AP.
^[5] This is an oral contract for an indefinite period and the minimum notice is 7days.
^[6] I do not think that Mr. Sharma is confused about equating termination with resignation.
^[7] Resident Magistrate Andrew J. See in Miliakere Nale vs. Carpenters Fiji Limited T/A Morris Hedstrom (ERG no. 173 0f 2011) and I agree entirely with these definitions; the practical and ordinary meanings of the words.