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Fiji Employment Tribunal |
IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT No. 156 of 2011
BETWEEN:
RUSIATE ULUIBAU
GRIEVOR
AND:
FIJI PORTS CORPORATION LIMITED
EMPLOYER
Appearances:
Mr. N. Tofinga for the Grievor
Ms. B. Narayan for the Employer
Date of Hearing: 26th September 2012
Date of Judgment: 22nd October 2013
DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL
CATCHWORDS:
EMPLOYMENT LAW – CLAIM OF UNFAIR DISMISSAL BY THE GRIEVOR – ERT TO DETERMINE WHETHER DISMISSAL JUSTIFIED UNDER THE EXPRESS PROVISION OF THE CONTRACT OF SERVICE IN THAT IT WAS DEEMED TO BE A "DISMISSIBLE OFFENCE" – OR WHETHER THIS WAS A CASE OF SUMMARY DISMISSAL - WHETHER PROCEDURE FOR TERMINATION WAS JUSTIFIED BY THE EMPLOYER.
LEGISLATION:
THE EMPLOYMENT RELATIONS PROMULGATION 2007 ("ERP").
Employment Relations Grievance
[1] Background to the Grievance
This grievance was registered with Ministry of Labour but the date was not clear. In the original claims form, Form ER 1 it had stated that the grievor had worked for Fiji Ports Corporation Limited between the periods 11. 1. 2009 till 26. 2. 2010. I noted that the date of the claim registration being 11.03.2011 was crossed off and substituted with "4. 02. 2011". This showed that the claim was received after at least one year of the grievance arising.
[2] Because Form ER 1 provides the initial basis to file a proper employment grievance under the Employment Relations Promulgation 2007 (or "the ERP"), any details provided therein is pertinent to fair adjudication of the matter. This applies to any justification for delay in lodging a grievance, especially after one year of the grievance arising. Subsequently the time spent seeking redress, particularly when such claims reaches the stage that it has to be referred to the Tribunal after the mandatory but very private and confidential session of the mediation process, the entire process of grievance resolution in good faith plays a critical role when justifying remedies (if any) under the ERP. Here mediation was attempted on 26th June and 5th July 2011 but was not entirely successful. As per the employer's preliminary submissions filed on 15th November 2011, it seems that only the issue of outstanding dues pertaining to annual leave in amount of $306.00 was paid and settled with the grievor.
[3] Naturally, the issue of "unfair dismissal" claim vis a viz any claim for compensation was not addressed or settled at mediation. The mediator had then referred the grievance to the Employment Relations Tribunal (or "the ERT") on 5th July 2011 in accordance with s194 (5) of the ERP outlining the nature of unsettled employment grievance with a very limited terms of reference:- "unfair and wrongful dismissal"
Cause Before the Employment Relations Tribunal (or "the ERT")
[4] When the matter was called in the ERT, directions were given to the parties to file their respective Preliminary Submissions on 31st August 2011. I have to state that no interlocutory application was filed to object late filing of the grievance under s111(2) of the ERP. It seems that the employer had conceded to the late claim and in that sense that I have obligation to pursue this issue. When the employer did not file any submissions as directed by the Tribunal, the grievor took steps to file his Preliminary Submissions on 12th October 2011. The Employer, being given final directions filed their submissions on 15th November 2011. Hereafter, the parties requested time to file a statement of agreed facts. This was never done and the matter was set down for hearing on 6th September 2012. On that day, the employer called one witness, Mr. Waisake Vueti and the grievor gave evidence in person. The following documents were adduced by the employer at the hearing-proper:-'
| Exhibit 1 | Terms and Conditions of Employment for Registered Relieve Workers |
| Exhibit 2 | Memorandum dated 26th March 2010 |
| Exhibit 3 | Memorandum dated 29th March 2010 |
[5] After the conclusion of the hearing, on 10th September 2012, the grievor wrote a letter to the ERT which he had stated was his closing submissions where he had attached a copy of his letter of appeal to Mr Waisake Vueti dated 26th February 2010. During the hearing this was not admitted in evidence although the grievor had stated in his cross-examination that he had this letter with him which he had provided to the employer when he was summarily dismissed. The employer did not provide any written closing submissions to this Tribunal as directed.
Background Facts & the Claim
[5] Let me briefly set out the background facts and the claim of the grievor. There was no dispute that the grievor was employed by Fiji Ports Corporation Limited [or "FPCL"] as a registered reliving plumber. According to the employer, he was recruited to that position on 12th June 2008 where his contract of service was subject to the "Terms and Conditions of Employment for Registered Relieve Workers" (Exhibit 1).
[6] According to the grievor, he is claiming that he was summarily dismissed on 26th February 2010 for allegedly committing larceny in relation to disappearance of some scrap metal materials at the work yard. He was allegedly summoned by the officer in charge, Mr Daniel Houng Lee on 26th February 2010 who had accused him for stealing these materials where he was asked to immediately submit his identification card (ID) and leave the FPCL premises. He was told not to return to the workplace. He was neither provided any written explanation in terms of his on-spot termination, nor was he given an opportunity to be heard under the employer's grievance procedures despite he attempted to appeal the employer's decision. The grievor is claiming that he is innocent until proven guilty of any offences or charges deemed by the employer be committed by him. In that regard, Mr Uluibau's grievance claim pertains to unfair and wrongful termination from his former employer. For remedy, he is claiming reinstatement; compensation of his wages since 26th February 2010; and personal damages for the trauma suffered by his family and himself since his summary dismissal. In sum total he has submitted a round figure of $25,000.00 in monetary relief.
[7] The employer, on the other hand, had different reasons for Mr Uluibau's dismissal. They had submitted that the grievor had stopped coming to work from 1st March 2010 whereby on 26th March 2010, the grievor's supervisor had issued a Memorandum (Exhibit 2) advising the Personnel Officer that the grievor had been absent from work and recommended for his dismissal. On 29th March 2010, the employer then issued a dismissal letter to Mr Uluibau (Exhibit 3) who had been apparently absent for 15 shifts. However, these letters were not served on the grievor as he was away in Taveuni at the time. The employer had further maintained that the greivor did not bother to contact the employer during his period of absenteeism from work. The employer conversely had attempted to contact him which was futile as he was not in Suva at the time. This period of absenteeism for a month was deemed by the employer as "a dismissible offence" under section 2.2(h) of the contract of service between the parties. Based on this, the employer submitted that they have justification for Mr Uluibau's dismissal in law and procedure.
Oral Evidence
[8] Employer's Evidence through Mr Waisake Vueti
He gave evidence that he has been employed by FPCL for nearly 30 years. He holds the position of Human Resource Manager. His duties include overlooking recruitment, staff remuneration and disciplinary procedures. He had personal knowledge of this grievance matter.
He had stated that the grievor was employed by FPCL as a registered relief plumber in June 2008 under his contract of service admitted in evidence as Exhibit 1. He was inducted and trained as to the terms and conditions therein which document he said was always available in the Supervisor's office. When asked to explain the claim of the grievor regarding his summary dismissal he testified that in February, on a Friday, he was informed by the grievor that he was sent home by Daniel Hong Lee. The grievor had complained to him that he was alleged for larceny in terms of some scrap metal materials being missing. He said that he had asked the grievor to see him on Monday at work but despite waiting for Mr Uluibau, he did not report to work. He then came to know that he was not reporting to work for at least one month through Mr Hong Lee. He said that he had personally attempted to see and visit the grievor but he was in Taveuni with his family. Since he was consecutively not reporting for 15 shifts, he testified that Mr Uluibau was deemed to have resigned. He then adduced Exhibits 2 and 3; both letters he stated could not be delivered or served on the grievor given that he was away in Taveuni. He clarified that under Article 2.2( h) of the contract of service, when the grievor was absent for 15 shifts in a month, his absenteeism was deemed his dismissal. According to the employer, the grievor was terminated on 29th March 2010. He also stated that he was not aware of Mr Uluibau's grievance claim until a year after the dismissal when he had received a letter from the Mediation Unit. The employer attended the mediation session and paid annual leave owing to the grievor in amount of $306.00.
In cross-examination, he had said that when he had spoken to Mr Lee regarding the grievor's complaint, he was told that Mr Lee did not take Mr Uluibau's ID card nor told him not to enter the compound of FPCL. He also did not sack Mr Uluibau on-spot as this was not the policy of employer. When asked whether any investigation was conducted as to why an employee of FPCL was not coming to work, the witness replied that he had enquired with Mr Lee when the grievor had been missing for a month but it was not his job to go to the worker's house to look for him. When asked whether the document containing the terms and conditions of the grievor's employment (Exhibit 1) was given to him, the witness replied, "No".
[9] Grievor's Evidence
In examination-in-chief, Mr Uluibau testified that he started as a plumber with FPCL on January 2009 until his termination on 26th February 2010. He was receiving gross income of $202.00 per week. He told the Tribunal that on 26th February 2010, Mr Daniel Hong Lee at around 3pm had addressed him and told him to give his ID card as he was alleged to have been involved in a case of larceny involving scrap metal. He testified that he was told to leave the boundary same time, which he did. He said that he wrote a letter to Mr Vueti, the Personnel Officer who had told him to see him on the following Monday. He testified that since the ID card was taken off him, he had no way to identify himself in order go back inside the workplace. He said in March 2010, he was in Taveuni and he only came back in January 2011. He said his wife and children were there and he joined them to survive since he had no job. In cross-examination, when he was asked whether after the Friday incident, he went to see Mr Vueti, he had replied that he had delivered his letter of appeal and he had a copy of the letter with him. Mr Vueti had asked him to come and see him on following Monday but the grievor had explained to him that Mr Hong Lee had ceased his ID card. He said Mr Vueti was a relative and he had told him that no one could terminate him.
Final Determination
[10] While at all times the grievor is entitled to bring a claim to the Ministry of Labour through Form ER 1, the Tribunal has the jurisdiction and duty to ascertain the merits of that claim to be properly deemed as an employment grievance under s4 of the ERP. In any employment matter, it is the established practice that the onus of proof is the burden of the employer. 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". Keeping this in mind, the Tribunal is required to act fairly in all proceedings (s216 of the ERP).
[11] Incontestably the claim of the grievor had originated almost a lapse of a year of him being dismissed whether summarily or otherwise. The employer did not raise any serious issues with this, in fact or law. It is however, relevant to the extent of establishing the truth regarding the actual reason or cause behind Mr Uluibau's termination from his contract of service. In the ERP, a contract of service is defined at section 4 as: "...a written or oral contract, whether expressed or implied, to employ or to serve as a worker for fixed or indefinite period..." Indeed, the first point of reference for termination or dismissal on the premise of good faith relationship (see: the decision of the Supreme Court of Canada in Wallace v United Grain Growers Ltd., 1997 CanLII 332 (SCC); [1997] 3 S.C.R. 701) is always the contract of service between the parties. In the statute, this goes to the definition of an employment; employer; and worker (under s4 of the ERP) which all make reference to a 'contract of service' being a basis of an employment.
[12] In this case, there is no dispute that the grievor' employment was bound and subject to a written contract of service or Exhibit 1. The employer's only witness, Mr Vueti had however, testified that this document was never given to the grievor although he had maintained that Mr Uluibau was inducted and trained as to the terms and conditions therein, which document was always available in the Supervisor's office. The grievor did not testify that he was not aware of this document binding his employment conditions. Therefore, the most vital issue to be determined is that of the real cause for dismissal: was as the grievor had stated this was a case of summary dismissal or a termination under a contract of service for breach a term or condition.
[13] It was the grievor's stand that because of certain allegations by the employer pertaining to larceny he was addressed by Mr Lee who had then ordered that his ID card be handed over to him and he was subsequently asked to leave the employer's premises immediately. He perceived this to be his summary dismissal for a cause, but without justification in law and procedure. Hereafter he had attempted to appeal the decision of Mr Lee through a letter to the Personnel Officer, Mr Vueti as he was not permitted to enter the employer's premises for a face to face engagement due to no ID card allowing him entry into the workplace.
[14] The employer had maintained that the grievor's consecutive absenteeism from work for a month or 15 shifts attracted a "dismissible offence" under s2.2(h) of the contract of service. The employer argued that this had reasonably and lawfully entitled them to declare either that the grievor had resigned or dismissed for breaching his employment conditions by being absent without explanation or notification.
[15] Let me begin by stating that there seems to be truth in what the grievor had stated to be the cause of his termination. This had to do with the certain allegation of larceny apportioned against him that was neither investigated nor properly justified by FPCL by finding the grievor guilty of that offence. This is the requirement under s33 of the ERP when ascertaining for example, someone's guilt for gross misconduct [s33(1)(a)]. If established, it would then entitle an employer to summarily dismiss an employee. Notice of termination in the usual manner is not required under the law but notice of lawful cause in writing is certainly a statutory requirement [see: s33(2), s114 and s34 of the ERP].
[16] To prove this was the case, I have tested it against the employer's own witness testimony. Mr Vueti had testified that in February, on a Friday, he was informed by the grievor that he was sent home by Mr Daniel Hong Lee. Mr Vueti had further testified that the grievor had complained to him that he was alleged for larceny in terms of some scrap metal materials being missing from the FPCL yard or workplace. Mr Vueti then had asked the grievor to see him on the following Monday at work but despite waiting for Mr Uluibau, he told the Tribunal that the grievor did not report to work. He then came to know that he was not reporting to work for at least one month through Mr Hong Lee. He said that he had personally attempted to see and visit the grievor but he was in Taveuni with his family. In cross-examination he had asserted that he had spoken to Mr Lee, who had denied sacking Mr Uluibau or sending him home on-spot without an explanation other than the accusation of larceny. Mr Lee had also denied taking Mr Uluibau's ID card from him.
[17] Mr Lee was the most important link in this grievance between both, Mr Uluibau and Mr Veuti. Since the burden of proof rests on the employer, they had the responsibility to ensure that the Tribunal was properly clarified through Mr Lee's own account of the incident as to what had transpired on 26th February 2010 between him and the grievor. No oral or written statement or employer's report on the incident was provided to this Tribunal. While I accept that Mr Vueti was providing his testimony through his personal knowledge of the grievance, he still was the third party who came in when the actual dismissal process was invoked and complete. This is because, when he had been told by the grievor as to his complaint regarding what Mr Lee had done to him, particularly when he had expressed that his ID card was taken away from him, he failed to act immediately. This was very critical component to the grievor's access to his workplace, which is not open to any outsiders or public members. This is a common knowledge. He neither acted to secure back his ID card so that he could report to work properly the following week nor he took any steps to speak to Mr Lee in front of the grievor to clarify whether or not the grievor was telling the truth. If there was truth in the way Mr Lee had handled the dismissal process, Mr Vueti had failed to appreciate the gravity of the circumstance that someone's livelihood was threatened and that too on-spot, without notice. All he had to do was ensure that the grievor was given assurance that he was still employed by FPCL, and if not, considering that there were issues relating to larceny, Mr Vueti should have attempted to explain the stand of the employer if they were considering any penalty such as dismissal. The fact that there was limited communication between Mr Vueti and the grievor despite he had raised a genuinely serious grievance, it is possible the grievor had interpreted Mr Veuti's lack of empathy and consideration of his plight to mean that the decision taken Mr. Lee was still intact and valid.
[18] Further, the letter of appeal while not admitted in evidence shows that the grievor had attempted to put forward his case to the employer. It was the grievor's testimony that he was unable to see Mr Veuti as he was not allowed to enter into the FPCL premises, which was disabled through the ID card being taken away from him. Therefore he had attempted to seek relief by writing to the employer. While I agree that no employer should go out and look for their workers who fail to report in the usual manner, this was a different situation. Here, Mr Veuti should have understood that without an ID card it would have been difficult for the grievor to access him. He could have called the grievor and made arrangement for him to come and see him. This is if we are to disregard that the letter of appeal had indeed existed. More significantly, I am of the view that the employer failed to value that the grievor had been an employee of FPCL since June 2008. He had worked there for a little over two years until his terminations sometime around end of February or March 2010. No employment history of the employee was presented to demonstrate any past record of misconduct or the act of sudden disappearance from work. He was not a habitual absentee from work either. At least no evidence was presented to this Tribunal of any such trend.
[19] The question that begs the answer from the employer is why would Mr Vueti in his right mind lodge a complaint with Mr Veuti that Mr Lee had fired him on-spot and the following weeks, he disappears completely. He had his stable employment, a steady source of livelihood since June 2008 and he had spent two years in that job with no adverse employment record. Therefore, why would the grievor suddenly raise a grievance with Mr Veuiti (who admitted this) that he was fired unfairly and unlawfully, where Mr Veuti takes no immediate action to redress the situation and thereafter, Mr Vueti is no longer reporting to work. Naturally, these whole events would have left the grievor no viable option, particularly by not permitting his entry back into the workplace, he had no other way to look at this whole incident. His family was away in Taveuni at the time and when he found no redress from the employer he had to join them to survive hereon.
[20] For the employer to assert that the grievor had abandoned his job which was in fact created through a series of events beyond the grievor's control, is nothing short of frustrating a worker and then covering up the employer's unreasonable conduct under the terms and conditions of a contract of service. Indeed to me, Mr Uluibau was unfairly and unlawfully dismissed. This was done unilaterally and arbitrarily without giving him a fair chance to defend his dismissal before the employer decided on the penalty. Once through a series of fair process it was established that Mr Uluibau had an involvement in the allegations made by the employer, be it larceny or any other act or misconduct, the employer is not obligated to hear an employee if they had chosen to summarily terminate him/her under s33 of the ERP (see: Carpenters Fiji Limited v Isoa Latianara ERCA No. 7 of 2011and Automart Limited v Waqa Rokotuinasau ERCA No. 9 of 2012). In the later case, the Employment Relations Court had overruled the ERT's findings and stated that when lawful cause was established then procedural fairness does not require right to hearing, rejecting thus the employee's right to be heard and defend on the reasons. The Court had however, noted that the procedure mandated by the statute had to be followed otherwise the dismissal became procedurally unjustified. I will explain this when I shall address the claim of unfair dismissal below. Clearly when the Tribunal makes a finding that the lawful cause to terminate was not established, as I have found in this grievance matter, the termination thus becomes wrong and unlawful
[21] Furthermore, to turn to the written contract of service to justify termination, substantially and procedurally, this is not how an employment relationship on good faith works. It was clear that the employer was to be blamed for the grievor's frustration and subsequent abandonment of his job when he was sent home by Mr Lee without any explanation in writing or given final dues when he was dismissed. The payment of annual leave at the mediation session spoke volumes of the employer's unreasonable conduct in this respect. Anyone's dignity and self-respect would be injured if the employer treats them unfairly in such manner, especially where they have worked for more than 24 months and where the employer had no record to show that he was poor performer, lacked skills and competency and was a habitual offender of the employer's rules and policies regardless of what they maybe. No record was in fact presented to show his poor attendance to work.
[22] He had never disappeared for a month in the past either. There was no iota of evidence to demonstrate that he had missed his shifts in the past in this manner. Why did Mr Uluibau do this suddenly when he had complained to Mr Veuti the source of his problem? Mr Veuti took no immediate action but asked him to see him the following week. The grievor could not do this as he did not have his ID card. He waited out for justice where he stated that he had even resorted to writing to the Personnel Officer. When no one provided him any relief, he left for Taveuni and stayed there for a year. Clearly he had no other option as he had no job to survive in Suva. Accordingly, this is a meritorious late grievance claim for summary dismissal: both on the basis of unfair and unlawful dismissal.
[23] That being the case, for fair adjudication, the question that perhaps the employer may have, is whether the reporting of a late grievance here diminishes the employer's culpability since it was not reported within the ambit of s111 of the ERP per se. The legal debate on this issue has been addressed by this Tribunal in other cases (see: Tomasi Tabanidalo v Hangton Pacific Company Limited ERT Grievance No. 95 of 2011; Colati Draniatu v Young Womens Christian Association ERT Grievance No. 171 of 2012; and Sera Koyamaibole v Young Womens Christian Association ERT Grievance No. 157 of 2012). I am not going to repeat myself on the law. All I can say is that if the grievor had come directly to the ERT and sought leave to apply from the Tribunal for his grievance to be heard under s111(3) of the ERP, the test for "good reasons for delay" would be with merits and be fully justified here.
[24] In the grievance matter before me, the issue of unfair dismissal largely centers on the grievor's denial to his right to due process from the start – he was not accorded a proper fact finding process as per any grievance procedures, followed by his statutory right to be heard when he had raised a grievance with the employer under s111(1) and (2) of the ERP. Instead of acting immediately to find out if Mr Lee had indeed taken a decision on his own to terminate the grievor, Mr Veuti mandated to protect human resource of FPCL not to be treated in any unfair manner, merely asked him to come and see him the following week. He was told by Mr Uluibau that he no longer had his ID card and this was his biggest impediment to access the employer in any respect. Mr Vueti did not initiate any investigation to establish the truth as to what had transpired on 26th February 2010 and whether the grievor had a legitimate concern regarding the loss of his employment.
[25] This cannot be a fair or a justifiable action when Mr Vueti did not act promptly to assist the grievor to clear the air regarding his status of employment with FPCL. Mr Vueti had testified that he had asked Mr Lee who denied everything but I was not presented with any investigation report on this other than the letters the employer had admitted could not be served on the grievor. Exhibit 2 is a letter written after a month of this alleged incident. Clearly by this time Mr Uluibau had left for Taveuni. According to the grievor, Mr Veuti, was a relative and he also testified that he had visited Mr Uluibau subsequent to the incident of 26th February 2010. He had discovered though that the grievor had left for Taveuni. It was not clear when exactly he had attempted to see the grievor but obviously not on the Monday when the grievor was not able to see him or as per his testimony, when he did not report to work. His lack of concern when Mr Uluibau did not appear on the Monday or thereafter, say for a week showed that the employer was completely disinterested whether Mr Uluibau had a job or not.
[26] For this reason, I find that probative value of the grievor's evidence is higher than what the employer had brought to these proceedings. They failed to establish that they had justification to invoke s2.2(h) of the contract of service (Exhibit 1) and that too for a lawful cause to dismiss Mr Uluibau. To me, he was so badly treated that the one year's silence by the grievor to speak against this injustice did not dampen his willingness to win back his self-respect and dignity that ought to be injured in the process. Mr Uluibau is allowed closure so that he can in a new frame of mind look for another job and continue is life normally.
Remedies
[27] The appropriate remedy under s230 of ERP for summary dismissal cannot be the power of the ERT to order written reasons to be subsequently given to the employee for any procedural non-compliance of the statute. In the Automart Limited case, the ERC had outlined certain factors (not exhaustive list) that can be considered such as:-
"(a) the cause for termination;
(b) the conduct of the parties in bringing and dealing with the proceeding;
(c) whether the employee mitigated his loss; and
(d) what was the employer's conduct which assisted or hindered the employee in mitigating his loss."
I have found that the lawful and fair cause(s) were not established for summary dismissal or indeed for any justification for breach of the grievor's terms and conditions of his employment. The grievor had brought this case in 2011 and it is now three years since he had suffered the injustice to himself after he was terminated in 2010. The employer only paid his annual leave pay at the mediation session. Apart from the proper procedure of termination (summary or otherwise) missing from this grievance entirely, the employer also did not provide a certificate of employment [see: section 30(6) of the ERP] or reasons in writing as per s114 of the ERP. Keeping all this issues in mind I make orders below accordingly.
[27] Decision and Orders
DATED at Suva this 22nd day of October 2013
..............................
LEGAL TRIBUAL
MS JOSHIKA SAMUJH
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