Supreme Quality Clothing v Nisha [2015] FJHC 961; ERCA20.2013 (7 December 2015)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA 20 of 2013

BETWEEN:

SUPREME QUALITY CLOTHING
APPELLANT

AND:

ASHMIN NISHA
RESPONDENT

Appearances: Mr. R. P. Singh for the Appellant.
Ms. T. Sharma and Ms. O. Solimailagi for the Respondent.
Date/Place of Judgment : Monday 7 December 2015 at Suva.
Coram: Hon. Madam Justice A. Wati.

JUDGMENT

Catchwords:
Employment Law – Appeal – unlawful and unfair dismissal – assessing remedies.

Legislation:

1. The Employment Relations Promulgation 2007 ("ERP"): ss. 33; 230.
   

Cause and Background

1. Ashmin Nisha was an employee of Supreme Quality Clothing since 1 August 2011 until 29 January 2012 when she was terminated by the employer summarily without any notice and reasons given to her for termination.
   
2. Following the termination, she filed a case in the Employment Relations Tribunal ("ERT") for unfair termination.
   
3. The employer chose not to defend the proceedings at the ERT and so the matter was heard undefended. Including the employee, two witnesses gave evidence.
   
4. The employee stated that that she started work as a salesgirl first and then became a cashier. Apart from her job as the cashier, she also managed the shop. She stated that when she reported to work on 29 January 2012, she found that the shop was open. She began to serve the customer when the boss's wife came and told her that she did not have the job anymore and that she should go home. She asked her for the reasons and she did not receive any.
   
5. The second witness was Ms. Zarina who stated that she was the customer that the employee was serving and the boss's wife told the employee to go home as there was no work for her. She did not give the employee any oral or written reasons why she was being terminated.
   
6. Having heard the evidence, the ERT found that the termination was both unlawful and unfair. It was found that neither the cause to terminate was established by the employer nor the procedure required under the law to send an employee home summarily was established and in particular that the employee was not given the written reasons for the dismissal.
   
7. In coming to the conclusion that the dismissal was unfair, the ERT found that to terminate an employee when she is serving a customer and before the customers is humiliating and derogatory.
   
8. The ERT proceeded to award remedies and it is the wordings of the ERT in granting the remedies that caused this appeal. I must outline the remedies paragraph in full:
   

"Thus, taking into account the severity of the employer's actions, the grievor is entitled to a round figure compensation of $1,500 for the service she gave to her former employer. The compensation must be paid to the grievor within 30 days of the decision".

Underlining is mine for reference.

Grounds of Appeal

9. The employer raised the appeal that the ERT gave compensation for services rendered by the employee when there was no claim made for services rendered and since the award for the compensation is wrongly made, the employee was not entitled to any costs.
   

Submissions

10. Mr. Singh argued that the ERT gave wages for the services that the employee had rendered because the ERT had also made comments about the employee being underpaid and not paid any overtime. The claim was definitely not for unpaid wages. If damages for unlawful and unfair dismissal were to be granted, then certainly the amount would be less.
    
11. Mr. Singh argued that the employee was entitled to be dismissed without cause and when that happens, she was entitled to one weeks' notice or pay in lieu so to be fair to the employer; the remedy ought to be nothing more than a week's wages.
    
12. Mr. Singh argued that there was no humiliation and so no compensation can be made for any humiliation.
    
13. Mr. Singh argued that the ERT even mentioned that the employee was not given the certificate of service as required under s. 30 (6) of the ERP. This and the analysis of the judgment holistically shows that the employer was being punished for paying the employee only $70.00 per week and that the amount of $1,500 does not represent the damages for unlawful and unfair dismissal.
    
14. It was also argued that there is no indication how the sum of $1,500 is made up of and the damages are not justified.
    
15. Ms. Sharma argued that the appellant has not shown that there is any error of law made by the ERT when it awarded compensation to the employee for the services rendered. The employee had always sought compensation for unfair termination and that is what she got. She was given compensation for $1,500 as an employee upon her being unlawfully and unfairly terminated.
    
16. She further argued that the law allows for part of full of the wages to be given to the employee. It also allows for compensation for humiliation to be given. The remedies that the ERT provided were consistent with s. 230 of the ERP.
    

Law and Analysis

17. The employee was dismissed instantly without notice. The ERT was therefore correct in finding that she was summarily terminated. When summary termination occurs, the law requires that there be a cause for termination and that the worker be provided written notice setting out the reasons for the termination: s. 33 of the ERP. No such cause was established by the employer at the trial or the correct procedure for termination which makes the termination unlawful.
    
18. The employee also gave evidence of the manner of termination. She stated in her evidence that all of a sudden the boss's wife who did not have a say in hiring or firing her or ever supervising her work, walks up to her, when she was serving a customer, and tells her that she need not work for them any longer as she had no work left. The employee even asked for the reasons and the boss's wife kept quiet.
    
19. In my findings the boss's wife's behavior was humiliating, embarrassing and one which would cause injury to the feelings of the worker. She treated the employee like a slave without any consideration or regard for her rights as an employee. The treatment that she provided to her employee was unfair and that makes the termination unfair.
    
20. For unlawful and unfair termination the employee is entitled to remedies under s. 230 of the ERP. S. 230 (1) (b) and (c) (i) of the ERP amongst others, permit the following remedies:
    

(i). reimbursement to the worker of a sum equal to the whole or any part of the wages or other money lost by the worker as a result of the grievance; and

(ii). compensation for humiliation, loss of dignity, and injury to the feelings of the worker.

21. Although, the ERT does not state how the $1,500 is made up of and what portion represents the remedy under which head, that is, unlawful and unfair dismissal, the sum awarded collectively is justified under the above provisions.
    
22. If I were to work out what the above sum represents, it is almost 22 weeks of wages which is about 5 to 6 months of wages. I do not know when this employee found another work but 5 to 6 months of wages at the rate of $70 per week is permissible and consistent under s. 230.
    
23. The employer does not appeal that the above amount is exorbitant if it represented damages for unlawful or unfair dismissal. It is only during the submissions that it was argued that only a week's wags ought to have been given.
    
24. It was the duty of the employer to appear at the ERT and give evidence and make submissions accordingly on the aspect of proper remedies. If it chose not to do so, it has to show at appeal the error in law and fact that occurred when the ERT granted the following remedies and none has been pointed out.
    
25. The ERT stated that the remedies are for services rendered and to my understanding it means that that is the compensation to the employee who had been rendering services to the employer but no longer can due to the unlawful and unfair termination. It is in no way an amount that represents unpaid wages.
    
26. The ERT did make comments that the employee was underpaid but that did not affect her finding that the termination was unlawful and unfair and on my assessment independently, the findings are correct in law and fact.
    
27. Mr. Singh argued that the employee is entitled to only a week's notice in lieu of pay. This is payment before dismissal without notice for no cause. When there is unlawful and unfair dismissal, the proper remedies are provided for under s. 230 of the ERP. This is not equivalent to the period of notice but certainly more than that as prescribed by s. 230. If it was so simple to assess the remedies then there was no need for s. 230. The provision would have just said that an employee's remedy for dismissal is the same as the period of notice he or she is entitled to under the contract or the Statute.
    

Final Orders

28. In the final analysis, I find that the appeal has no merits and I dismiss the same.
    
29. I order costs against the appellant in the sum of $500, summarily assessed, to be paid to the Ministry of Labour within 21 days.
    

Anjala Wati
Judge
07.12.2015
____________________

To:

1. Mr. R. P. Singh for the Appellant.
2. Ministry of Labour for the Respondent.
3. File: Suva ERCA 20 of 2013.