Ram v Prasad [2013] FJET 38; ERT Grievance 18.2008 (29 July 2013)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERT Grievance No. 18 of 2008

BETWEEN:

NITIN NITESH RAM
GRIEVOR

AND:

MAHEN PRASAD t/a POWER ELECTRIC
EMPLOYER

Appearances:
Mr. N. Tofinga for the Grievor
Mr. S. Chandra for the Employer

DETERMINATION OF THE TRIBUNAL

1.0 The Employment Relations Problem

1.1 The grievor, Mr. Nitin Nitesh Ram was employed on the position of Electrical Supervisor with the employer, Power Electric when he was terminated on 15th October, 2008. Mr. Ram is claiming that the termination was unjustified and unfair.

1.2 By way of background. Mr. Ram in 2001 joined Power Electric on a casual basis as an electrical trainee attaché from the Fiji Institute of Technology. When the attachment was completed Mr. Ram in 2003 became a Senior Electrician; a permanent position where he was required to manage electrical contracting, which is the core business of Power Electric.

1.3 Mr. Ram was terminated on 15th October, 2008 whilst holding the position of Electrical Supervisor.

2.0 The Evidence

2.1 Mr. Tui Levunimatai (Mr. Tui) was called to give evidence for the employer and he stated that he had been working for some 8 years as an electrician and represented management on the in house OHS Committee. He knows Mr. Ram as he worked on the control side involving motor wiring and other related tasks whilst he is on the other side, although they did work together on most occasions.

2.2 On the OHS issues, Mr. Tui referred to the contentious practice by Mr. Ram to wear bangles and rings which are prohibited when working with electricity as metals are the best conductor of electricity. He added that Mr. Ram was warned twice but there was no change in behavior, style and attitude and that compelled Mr. Tui to write to the Director of the company on 24th April, 2008.

2.3 In the letter the Director was advised of the breaches of OHS standards and that when Mr. Ram was verbally warned he would reply with harsh, abusive and offensive words. In the letter Mr. Tui asked the Director to seriously consider the matter and to take immediate action. On 29th April, 2008 Mr. Ram was warned by the Director to improve his standard of work and to comply with rules and regulations.

2.4 It was apparent that Mr. Ram was not susceptible to the warnings from the OHS Committee and the Director of the company as he continued to defy the advice on not wearing rings and bangles at work in particular when dealing with Mobil Oil whose requirements are stricter. Mr. Ram also had a disagreement with Mrs. Sangeeta Prasad the wife of the Director and Manageress of the company and who is responsible for OHS issues. Mr. Tui told the Tribunal that Mrs. Prasad told him of these incidents including the misuse of company vehicle since he is the OHS representative from the management's side. Mr. Tui however, was personally aware of the incident when Mr. Ram went missing for 2 hours when he went to the University of the South Pacific to visit his girlfriend. As a worker Mr. Ram is a pleasant person, very knowledgeable but verbally aggressive to get his own way. He has knowledge but no discipline.

2.5 Under cross examination, Mr. Tui confirmed that he had worked with the company for 8 years as an electrician in the wiring section and that there are 2 supervisors in the workshop and they report directly to the Director. One of the supervisors is a member of the OHS Committee as a management representative and also Chairman. Selection was done by voting after nominations have been received from the floor. It is not true that the Director handpicked the members as the workers' representatives were also nominated by the workers and membership is for 3 years. He added that the OHS Committee meets twice a month.

2.6 Mr. Tui told the Tribunal that the normal working hours are 8 and a half hours daily and there could be around 2 days' overtime a month. There was no overtime rate and that was not his area of concern as an OHS representative as his area of responsibility is to deal with health and safety issues. For that reason, he did not write to the Director about the nonpayment of overtime rates but did write on the breach of OHS rules.

2.7 Mr. Mahen Prasad in his evidence stated that he is the sole owner of Power Electric and that he is a professionally qualified electrical graduate from the then Fiji Institute of Technology when in 1997 he started his business with 5 workers and has progressed to about 70 workers at the time Mr. Ram left employment. At the office, the respective managers report directly to him and his wife, who has certificates in typing and OHS, looks after the operation in his absence.

2.8 Mr. Prasad did not have any employment agreement with Mr. Ram as he puts it, Mr. Ram graduated on transition from an industrial attaché to a permanent worker in 2004 and there is still no letter of appointment. Mr. Ram was paid at $8.00 an hour. As to Mr. Ram's termination, Mr. Prasad referred to the following incidents:

i] In 2007 Mr. Ram swore at his wife. Mr. Prasad had to call Mr. Ram to his office and warned him not to repeat such action as Mrs. Prasad looks after the office in his absence.

ii] Disobeying OHS Committee directions and on 29th April, 2008 written a letter of warning but he defied it as there was no change observed.

iii] Failed to do NZ Embassy maintenance job on 26th June, 2008 but went to USP instead to see girl friend as a consequence he was given a verbal warning.

iv] On 8th October, 2008 Mr. Ram swore at the Chairman of the OHS Committee while he was reminding Mr. Ram that wearing rings, bracelets and chains are not allowed under OHS Rules and Regulations.

v] On 9th October, 2008 Mr. Ram had an altercation with one Ms. Leena who had told him to go and have his lunch in the tea room. Mr. Ram refused, telling Ms. Leena that he is the Manager and that she could not do anything.

vi] On 14th October, 2008 Mr. Prasad told Mr. Ram to assemble the dough mixer which was urgently needed by their client, MH but he ignored the orders and went home.

vii] Mr. Ram was terminated on 15th October, 2008 and the letter from Mr. Prasad regarding the termination says the following:

We hereby consider that Mr. Nitin Nilesh Ram has been found bridging the rules of the POWER ELCTRIC OHS COMMITTEE.

We have noticed some orders were given by OHS Chairperson but he did not follow up to the situation.

Secondly, Mr. Nitin has been found not obeying orders given by the Managing Director. The directives were given today (15/10/2008) to Mr. Ram by the Director to assemble the dough mixer machine which is needed by the customer (Morris Hedstrom) today, in regard to this, Mr. Nitin knowing his duties he just ignored the orders from the Director. He was also found to be absent from the jobsite and misusing of company transport in working hours.

So according to the company rules and regulations we found Mr. Nitin not obeying the rules and the directives given to him.

And we hereby terminate Mr. Nitin Nilesh Ram from the company.

Director

(signed by Mr. Mahen Prasad)

2.9] Mr. Prasad told the Tribunal that the termination letter was hand delivered to Mr. Ram and that he did not ask him to resign. He left and did not ask for anything. That was the first time for Mr. Prasad to terminate anybody.

2.10 Under cross examination Mr. Prasad agreed that his wife became the Manageress after Mr. Ram was terminated which means that Mr. Ram was sort of second in command in the workplace. He also described generally that workers understood the position in the office to be as such as told to them by Mr. Prasad but there was nothing in writing.

2.11 Generally, the workers complied with OHS requirements but there were instances when rules were broken when visitors and relatives came in and started wandering in the workshop without safety boots and hard hats. On termination he was not paid as I told him that he would pay him later on.

2.12 On re-examination Mr. Prasad stated that Mr. Ram came to collect his tool box a few days after termination and that he offered him his wages and leave pay. On the OHS compliance issue, he confirmed that no charges were laid by the Ministry of Labour.

2.13 Mr. Ram in his evidence confirmed that he became Manager through hard work and competence and in October 2008 was trying to improve the conditions in the workshop like time sheets to be checked by individuals. He also attempted to form a union in the workplace and recalled the morning he distributed union pamphlets to workers about joining the union; it was on Thursday 15th October, 2008 and Mr. Prasad was informed. It was between 7.00 am and 9.00 am whilst doing his official work when he was delivered his termination letter.

2.14 Mr. Ram explained to the Tribunal that prior to his termination he was not made aware of the various letters of complaint dated 21st July 2008, 10th September 2008 and 15th October 2008 written to the Director, Mr. Prasad about his non compliance in respect of OHS issues and regulations. However, he agreed that he spoke with Mr. Tui regarding the wearing of rings and bangles in the workshop. He insisted that he is fully aware of OHS principles and the need to keep and maintain a healthy and safe work place like the wearing of boots, helmets and the guarding of dangerous machines.

2.15 On the issue of non compliance with OHS rules and regulations, Mr. Ram pointed out that even the Director's wife Mrs. Prasad was not wearing any shoes when walking around in the workshop. Mr. Ram agrees that safety glasses and boots were bought for everyone but not given to each individual worker. Anyway, he told the Tribunal that he refused to use the helmet and glasses and this matter was raised in the subsequent OHS meeting.

2.16 Mr. Ram disagreed that he is the only one terminated by this employer as there are others like Vinish Maharaj, Sivneel Chand and a few others. He is the only worker that reported to the Ministry of Labour and his reasons were quite different from that given by the employer in the letter dated 15th October, 2008. The employer's version is the following:

RE: LETTER OF TERMINATION

We hereby consider that MR. NTIN NILESH RAM has been found bridging the rules of the POWER ELECTRIC O.H.S. Committee.

We have noticed some orders were given by O.H.S. CHAIRPERSON he did not follow up the situation.

Secondly, MR. NITIN has been found not obeying the orders given by the Managing Director. The directives were given today (15/10/2008) to MR. RAM by the Director to assemble the dough mixer machine which is needed by the customer (MORRIS HEDSTROM) today, in regard to this, MR. NITIN knowing his duties he just ignored the orders from the Director. He was also found to be absent from the jobsite and misusing of company transport in working hours.

So, according to the company rules and regulations we found MR. NITIN not obeying the rules and the directives given to him.

And we hereby terminate MR.NITIN NILESH RAM from the company.

Yours faithfully,

DIRECTOR

(signed Mahen Prasad

2.17 Mr. Ram agreed that the employer terminated him for breaching the OHS Committee rules and allegations of disobedience to lawful orders. These reasons could not be right as the orders to assemble the dough mixer given on 15th August 2008 was carried out but could not be completed as the machine got damaged in the process. He took the pumps to the University of the South Pacific for repairs and that was when he met and spoke to his fiancé. He concluded his evidence in chief by explaining that the real reason for his termination was his attempt to organize workers to be become union members by issuing membership forms.

2.18 Under cross examination Mr. Ram told the Tribunal that his role was to inspect the motors when they were brought in by the use of multimeters to check on the current and the voltage. That was the reason why he did not see any risk in his wearing of necklaces and rings and as Mr. Ram explained it, he worked on the switch and did not touch the motors.

2.19 Mr. Ram agreed that before he was terminated, there was no warning letter although there were some verbal. There was also no letter from the OHS committee or from the Director regarding non compliance on OHS issues.

3.0 Analysis

3.1 For the evidence the main reason for the termination as set out in the letter dated 15th August, 2008 was the breaking of rules set by the OHS Committee and the second one was in regards to not following lawful orders.

3.2 The Health and Safety at Work Act 1996 (the Act) sets out in Section 13 the Duties of Workers to be as follows:

13.-(1) Every worker shall at all times while at work, take all reasonable care –

(a) not to take any action, or make any omission, that creates a risk, or increases an existing risk, to the health or safety of any worker including himself or herself or of other persons (whether workers or not) at his or her workplace; and

(b) in respect of any duty or obligation imposed on the worker's employer, or any other person by or under this Act, to cooperate with the employer or that other person, to the extent necessary to enable the employer or other person to fulfil that duty or obligation; and

(c) to use equipment, in accordance with any instructions given by the worker's employer consistent with its safe and proper use, that is –

(i) supplied to the worker by the employer and;

(ii) necessary to protect the health and safety of the worker, or other persons (whether workers or not) at the worker's workplace.

(2) Any worker who contravenes or fails to comply with any provision of subsection (1) of this Section shall be guilty of an offence and shall be liable to a fine of not more than $1,000.

3.3 Under Section 13 of the Act, the offence is punished with a fine; there is no termination and the reason for that is, that this Act is a progressive legislation promoting employment with health and safety and not with the termination of workers. The Tribunal cannot also gather from the evidence tendered, that Mr. Ram was given written warnings by the OHS Committee.

3.4 Secondly, Mr. Ram has been found to be disobeying the orders given by the Managing Director. An example cited was when the Mr. Parasad the Director gave directives on 15th October 2008 to Mr. Ram to assemble the dough mixer machine which was needed by the customer (Morris Hedstrom) that day. The Tribunal believes Mr. Ram's account that the machine suffered damage and had to be repaired rather than the employer's version that he refused to do the job.

3.5 The allegation of missing from job sites and misusing of transport is undocumented and there was no evidence to support those claims. More particularly, the written evidence of the employer based on the different letters against Mr. Ram except for the letter by Mr. Tui did damage to the employers' case as the authors of these letters were not called to give evidence and to be cross examined by Mr. Ram in order for the Tribunal to assess their probative value.

3.6 Counsels for the parties elected to make oral closing submissions and Mr. Chandra for the employer said that the issue was narrowed down to unfair dismissal. He also stated that his case was rather unique in that the employer is a sole proprietorship with no basic corporate structure and with the absence of written contract. That being the case Counsel sated that there was no provision for unfair dismissal.

3.7 Counsel for the employer further argued that if the allegations against the worker is serious than the worker cannot demand for reasons of dismissal from the employer. Definitely Counsel is forgetting that section 33 (2) of the Employment Relations Promulgation 2007 stipulates that the employer must provide reasons, in writing, for the summary dismissal at the time of dismissal. That in itself makes the dismissal unjustified.

3.8 In this case the employer has chosen to dismiss Mr. Ram with a cause; that being gross misconduct that warrants summary dismissal. What are the particulars of this gross misconduct? It cannot be in relation to OHS issues as it has already being established that the penalty there is a fine and not summary dismissal. In the same vein Counsel for the employer in closing his case confirmed that the reason for dismissal as stipulated in the letter dated 15th October, 2008 arose out of a combination of 3 charges namely:

- OHS issues;

- disobedience to lawful orders; and

- unlawful use of transport.

3.9 Since the OHS issue has been eliminated, the other 2 issues do not have any relevance and nevertheless the Tribunal will discuss them to show the employment relationship between Mr. Ram and the employer. Mr. Ram was held out to be the third person in the hierarchy below the husband and wife team. This top management team worked well as a combination until towards 2008 when relationships began to turn sour; through Mr. Ram continuous battle of words with the in house OHS Committee and the alleged lack of fidelities when asked to do outside contracted works.

3.10 These issues came to the knowledge of Mr. Parasad and he did warn Mr. Ram through the letter dated 29th April, 2008 as follows:

Dear Sir,

Upon receiving various letters from the OHS members regarding your behavior. Since we have already done various verbal conversations with you regarding your behavior and following of OHS rules. We also promoted you as our manager and expected you to improve and follow all the OHS rules and regulations and also the company's rules and regulations.

Since you have not improved a bit. There won't be any last chance give to you. If there is any other complain against you, you will be directly terminated from the company and no last warning will be given to you as the company has already given warning to you.

(signed)

Mr. Mahen Prasad

(Director)

3.11 The letter was written after a complaint was made by Mr. Tui and Mr. Ram claimed that there was no such letter and he did not receive it. There was also no evidence that the letter was served on Mr. Ram. There was also nothing in evidence to suggest that Mr. Ram suddenly turned from being a Manager to a bad and disobedient worker in 2008.

3.12 Counsel for the grievor Mr. Tofinga submitted that dismissal was wrong in that all outstanding wages and accrued leave were not paid. That there was also discrimination in the way Mr. Ram was treated like not being paid for working long hours. On the abusing of company vehicle Mr. Ram agreed that there was one occasion on the course of work when he ended up at USP to see his fiancé.

3.13 It is common in a workplace for the manager to sometimes act outside the laws or policies of the company, for he is supposed to be granted immunity from the breaches of those laws and policies. Mr. Ram was in that position and the Tribunal believes his version that he was not given copies of the letters of complaint except the one written by Mr. Tui. The Tribunal also believes Mr. Ram, when in evidence he said that he was trying to improve the lot of the workers by recruiting them to be union members and that was the reason for termination.

3.14 From the evidence the employer's counsel valiantly attempted to persuade the Tribunal that the conduct of the employer was justifiable and involved no breach of the employer's duty not to damage or destroy the essential relationship of trust and confidence. In light of the evidence adduced, that attempt could not succeed.

3.15 Similarly, the method of reviewing Mr. Ram's peformance was plainly deceptive as the employer had already made up its mind when Mr. Ram was found to be distributing union membership forms and the dismissal which followed bore no resemblance to any sort of acceptable review process.

3.16 The termination was also unfair in that it involved breach of OHS Committee rules by Mr. Ram who was manager at that time. In addition to that this OHS Committee membership was made up of people more junior to Mr. Ram and it is really humiliating to feel that one has been terminated at the instigation of his juniors.

4.0 Decision

4.1 In light of the above the Tribunal makes the determination that there is a grievance in that Mr. Ram's termination was unjustified and unfair.

4.2 The Tribunal does not agree that reinstatement is good remedy in view of the long period of termination and that the employer must be allowed to move on without Mr. Ram.

4.3 The employer to reimburse Mr. Ram with 6 months' wages lost as a result of the grievance.

4.4 The employer to pay Mr. Ram a further 6 months' wages as compensation for humiliation, loss of dignity and injury to his feelings.

4.5 There are no orders as to costs.

DATED at Suva this 29th day of July, 2013

Sainivalati Kuruduadua
Chief Tribunal