PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2016 >> [2016] FJHC 323

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Food for Less (Fiji) Ltd v Chand [2016] FJHC 323; ERCA10.2014 (26 April 2016)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION


CASE NUMBER: ERCA 10 of 2014


BETWEEN:


FOOD FOR LESS (FIJI) LIMITED
Appellant


AND:


ELIZABETH CHAND
Respondent


Appearances: Mr. Ritesh Naidu for the Applicant.
Ms. T. Sharma for the Respondent.
Date/Place of Judgment: Tuesday 26 April 2016 at Suva.
Coram: Hon. Madam Justice A. Wati.


JUDGMENT


Catchwords:
Employment Law –summary dismissal- unlawful and unfair dismissal- to establish the lawfulness of the termination, the employer had to establish that there was a valid cause to carry out the summary dismissal and that the procedure provided under the Statute was followed- to establish fairness of the dismissal, the employer has to establish that the manner of treatment provided to the employee whilst carrying out the dismissal was fair and dignified and that there was no bad faith on the part of the employer.


Legislation:
The Employment Relations Promulgation 2007 ("ERP"): ss. 33; 34.


Cause


  1. The employer appeals against the decision of the Employment Relations Tribunal ("ERT") of 14 July 2014 wherein it found that the termination of the employee was both unlawful and unfair and thus awarded the following remedies:
  2. The employer says that the ERT erred in law in:

Background: Employment and Termination


  1. Elizabeth Chand was working for the employer as a head cashier since May 2007. On 11 June 2010, she was terminated from her employment summarily on the grounds of incompetence when the employer's funds went missing.
  2. The letter of termination of 11 June 2010 reads:

Mrs. Elizabeth Chand


Your employment with Food 4 less is hereby terminated on grounds of incompetence, whereas funds were missing and your access card was used. Further, investigations are still pending".


  1. On 27 July 2010, the employee reported an employment grievance and claimed that she was wrongfully terminated. She claimed compensation for her loss.
  2. A mediation was held to resolve the grievance but was unsuccessful. The matter was then referred to the ERT for determination of the grievance. The terms of reference before the ERT was:

"The grievance is on unfair dismissal of the worker Elizabeth Chand from 1.6.10 by the employer Food for Less (Fiji) Limited. The worker is seeking compensation".


  1. The matter was heard before the ERT a year after the termination, that is, on 5 and 6 July 2011.

Evidence and Findings of the ERT


  1. Four witnesses gave evidence in the trial. The employer produced only one witness and the employee produced 3 witnesses.
  2. The first witness of the employer was one Ms. Roshni Nand. She is a cashier at the employ of the same employer. It is her cash register from which the monies were alleged to have been systematically missing.
  3. This witness Roshni Nand initially testified that it was only the worker Elizabeth Chand who had access to her register and usually counted her day's takings. She stated that the alleged fraud occurred when the Ms. Elizabeth Chand had her days off.
  4. The witness said that although Ms. Chand was on her day off, she was usually in the Supermarket and this gave her the opportunity to commit the fraud. She did not say what the grievor would do at the supermarket on her days off.
  5. Ms. Roshni Nand later changed her evidence and stated that apart from the grievor, the Branch Manager Mr. Lawrence Mani also had access to her cash register.
  6. The grievor's Ms. Elizabeth Chand's evidence was that whenever she was on day off, she only came once to the shop to do shopping for her family.
  7. The grievor testified that after the fraud was discovered, one Mr. Rudra Prasad interviewed her alone with no other female present and had coaxed her into agreeing to have committed the alleged offence. She stated that she was under duress and feared for her life.
  8. The grievor also testified that although the auditor would give her the access card, she was not responsible for refunding of the returned goods although she could do it.
  9. The grievor also saw the computer printed records and agreed that a fraud had been committed. She agreed that the matter was reported to the police and that she was interviewed but not charged because of insufficient evidence.
  10. The second witness for the grievor was one Mr. Kamal Deo Sharma. He stated in his evidence that he was a former Manager of the same employer. He testified that the grievor was not the only person that had been delegated to have access to all the cash registers as there were two or three other person who had access to all the cash registers and thus the opportunities to commit the alleged offence.
  11. The witness testified that although other staff members were interviewed, only the grievor was blamed for the allegations. However 4 four other cashiers including the grievor was using the same card.
  12. The witness stated that when the grievor was on days off, she would be gossiping with Roshni Nand and after that incident was demoted to the Milk Bar Cashier. She did not resign but was terminated from her employment. He informed the ERT that the grievor had discovered many fraudulent activities and had reported the same to the Manager and Financial Controller. He stated that the grievor had uncovered fraudulent activities by Roshni Nand on two occasions and that was the reason why she concocted the involvement of the grievor in the whole episode.
  13. Mr. Kamal Deo Sharma also stated that he resigned from employment because a fabricated story had been made up about him.
  14. The employee's final witness was one Mr. Kemueli Vakatalai. He was the former Head of Security with the employer when the grievor worked there. Mr. Vakatalai stated that the grievor did come to the shop once during her days off and that she never went to the office upstairs where the database server is installed. The staff who are on days off are not supposed to go upstairs to the office.
  15. Having heard the evidence of the witnesses, the ERT found that the employer's witness was an incredible witness. The basis of this was that she was inconsistent in her evidence when she first said that only the grievor had access to her cash register. She later changed her evidence to include that the Branch Manager also had access to her cash register.
  16. The ERT also found that there was no explanation by Roshni Nand why only her cash register would have problems and not others when the grievor could do the same misconduct in other cash registers as well.
  17. It was further found that the monies were missing on the days the grievor was not on duty. According to Roshni Nand, the grievor would be in the shop but Roshni Nand could not identify what the grievor did at the shop.
  18. The ERT stated that it was for the employer to establish that the termination was lawful and to do that it had to establish that the cause and the procedure to terminate was justified. The employer could not establish that the employee was responsible for the fraudulent activities and the cause for the termination was not justified.
  19. The ERT found that fair procedures would be that which was outlined in the case of NZ Food Processing IUOW v. Unilever [1990] 1 NZILR 35:
  20. The ERT stated that in this case the employer should have been accorded the following procedures which was missing, making the termination unlawful for want of proper procedures:

(i). about all the information that was uncovered in the investigation;

(ii). to bring information of her own;

(iii). that she can bring a representative or a support person;

(iv). that the outcome of the disciplinary process may be dismissal.


  1. In arriving at the conclusion that the termination was unfair, the ERT found that the employee should have been treated with respect and dignity when the dismissal was being carried out. The ERT found that it was humiliating to the employee when she was first demoted from the position of the Head Cashier to being a Milk Bar Cashier. The employer also reported the matter to the police thus relinquishing the good faith element.

Submissions


  1. In respect of the first ground of appeal it was argued by Mr. Naidu that the ERT erred in law in awarding the worker compensation in terms of reimbursement of one year's wages. The award is manifestly excessive.
  2. Mr. Naidu argued that although s. 230 (1) (b) of the ERP provides that reimbursement of part or whole of the wages can be given as compensation, this will only be awarded if the dismissal is unfair. In this case it was not established on the facts of the case that the dismissal was unfair and so the award is improper.
  3. It was contended that there was no justification given why one year wages was being awarded. There was no evidence given to justify the award. The ERT heard the matter one year after the termination and the employer was punished when no such blame for the delay could be put to the employer.
  4. The ERT also failed to consider whether the worker had mitigated her loss and why she did not. The mere fact that she was dismissed does not mean that she could not find another job. What the employee had to establish is that the appellant's conduct deprived her of any job in the market.
  5. It is the duty of the employee to have mitigated her loss and thus prudent that she sought another employment and not wait in the hope that she would be compensated by the employer for all the period she is out of employment for.
  6. The second ground of appeal states that the ERT erred in law in awarding the employee 6 months wages as compensation for humiliation, loss of dignity and injury to the feelings of the worker when there was no claim to this effect. Be that as it may, the award is manifestly excessive.
  7. Mr. Naidu argued that although s. 230(1) ( c ) (i) of the ERP empowers the ERT to make an award for humiliation, loss of dignity and injury to the feelings of the worker, in this case the employee had failed to adduce any evidence to support that the manner of dismissal was humiliating or undignified. The employee failed to give evidence to this effect.
  8. Mr. Naidu further argued that even the employee had not pleaded that she was humiliated or that there was loss of dignity or injury to her feelings. There is therefore no basis for such award and must be set aside.
  9. In respect of ground 3, Mr. Naidu argued that the Court was incorrect in applying the case of Nz Food Processing IUOW v. Unilever [1990] 1 NZILR 35 in relation to summary dismissal of an employee. The procedure provided in this case is different from that provided under s. 33(2) and s.34 of the ERP. The proper procedure that ought to be followed under the law is that worker must be provided with written reasons for the summary dismissal at the time he or she is dismissed and that he or she must be paid all the wages due up to the time of the worker's dismissal.
  10. In a summary dismissal case, the employer does not have to provide the employee with an opportunity to be heard.
  11. The fourth ground of appeal is that the ERT erred in law in holding that the worker was unfairly dismissed having regard to the evidence as a whole. The employee was terminated on the grounds of incompetency when the employer found that its funds were missing. She was provided with a letter stating the reasons for the dismissal. The procedure was correctly followed as well. The court should look at the conduct complained of and decide whether the employer's belief that it amounted to gross misconduct fell within the range of reasonable responses.
  12. In respect of grounds 1 and 4, Ms. Sharma argued that the employee was terminated for incompetency. She had worked for the company for 3 years and for someone to be terminated on this ground is unreasonable. The Director of the Company had called her in the office and threatened and accused her of theft. The employee was not given a fair opportunity to explain herself. This makes the procedure leading to termination improper and thus the termination unfair.
  13. Grounds 2 and 3 were conceded to by Ms. Sharma.

Law and Analysis


  1. Ms. Sharma has conceded to grounds 2 and 3 of the appeal. In my finding, her concession is appropriate so far as ground 3 is concerned in that this was a case of summary dismissal and in such cases, s. 33(2) and s. 34 of the ERP sets out the procedure for carrying out the dismissal.
  2. S. 33 (2) and s. 34 of the ERP does not require that the employer enters into a hearing process and get engaged in protracted findings of facts before the termination. If that were to be the procedure, there is no purpose of providing the employer with the right of summary dismissal.
  3. Summary dismissals are carried out when it becomes necessary and expedient that the worker be removed from employment to avoid further damage, loss, or harm to the employer. In such cases, if the employee were to be kept at work for investigations to continue or even suspended for such investigations, the likelihood of the damage, loss or harm that s. 33 seeks to minimize would continue to the detriment of the employer.
  4. What is prudent for the employer is that on the information available to it, through its own investigations, if it appears to it that the cause has been made out, the employer can proceed to invoke the provisions of s. 33 of the ERP.
  5. If the employee is not satisfied that the cause existed for s. 33 powers to be exercised, the employee is then at liberty to bring a grievance or a dispute to determine the lawfulness of the termination. The onus will be on the employer to establish that it had a lawful cause to terminate and that it followed the correct procedure in terminating the employee.
  6. Ground 2 is also conceded to by Ms. Sharma, however, for reasons that will appear in the judgment later, I find that on the facts of the case, the employee was unfairly dismissed and so is entitled to compensation under that head.
  7. Having discussed the procedure in summary dismissal cases, it is now for this Court to find whether the summary dismissal was available to the employer in this case. There is no dispute that proper procedure under s. 33(2) and s. 34 was followed in that the employee was given written reasons in writing for dismissal. There is no complaint that the employer owed her any money up till the point of dismissal. What the Court therefore has to examine was whether the employer had established the cause to justify the dismissal.
  8. This employee had complained of unfair termination. What constitutes unfair termination? Unfair termination is when the employer acts in bad faith in carrying out the termination or when the manner of treating the employees whilst carrying out the termination is without respect and dignity.
  9. Even though the terms of reference before the ERT was "unfair termination", the parties had been given an opportunity to present their case on whether the termination was lawful and fair. The term "unfair termination" is normally used loosely in all terms of references before the ERT. It is used even when the employees are challenging the lawfulness of the termination and not only the fairness of the same.
  10. When the Court is asked to assess the lawfulness of the termination, it will analyse whether the reasons for the termination and the procedure leading to termination is justified. To assess the fairness of the termination, the Court will analyse whether the manner of treating the employee was fair and whether the employer acted in good faith.
  11. In this case, the employer had to establish that it had a valid cause to terminate the employee under s. 33 of the ERP. The letter of termination stated that the employee was incompetent because funds were missing and her access card was used. I do not find that the ERT erred in arriving at the conclusion that the employer could not establish the cause on the balance of probability.
  12. The employer's only witness Ms. Roshni Nand gave evidence that the grievor had access to her tilt and that the funds were missing on the days she was off. She stated that the grievor used to come to the shop when she had days off but could not state what she did during the time she was in the shop. She did not even mention that the grievor accessed her till and even if she did, Roshni Nand would always be available at the time. Any discrepancy could or should have been reported by her.
  13. Furthermore, Roshni Nand's evidence was unreliable in that she was only accusing the grievor when there was evidence from her and the other witnesses that the grievor was not the only person who has access to the card. If there were other people in the shop, blaming the grievor only on the basis that she came to the shop on her days off does not satisfy me on the balance of probability that she committed the fraud.
  14. I find that it was open to the ERT to make a finding that the grievor did not use her access cards on the days she was off and that the fraudulent activities were not committed by her. When the employer could not establish that, the cause was not established and the termination not justified.
  15. Since the cause for incompetence was not justified, the employee could not be summarily dismissed. The employee was therefore unlawfully dismissed. She is entitled to be paid the compensation for whole or part of the wages lost as a result of the grievance.
  16. In this case the ERT had awarded one years' wages lost as a result of the grievance. The one year was justified from the day the employee was terminated to the time the matter was heard. There was no evidence from the employee that she could not find any job for that one year. She did not give any evidence that she tried to find another job or that the employer precluded her from obtaining any job.
  17. I find that the employee would have at least found some job in the first 8 months period. She is not a skilled worker that work would be readily available for her. She would need to go and find a similar job and if she tried, 8 months would have been sufficient time for her to find work for herself.
  18. On the question of whether the employee was unfairly terminated, the court has to assess the manner of treatment provided to the worker when the dismissal was carried out. It was undisputed evidence that Mr. Rudra Prasad had called the employee into the office in absence of anyone else and threatened the grievor and made her admit that she stole the money. I do not find that this is proper treatment to an employee. If the employer believes that an employee has committed an offence, the proper procedure is to either summarily dismiss the employee, carry out a dignified investigation or report the matter to the police. It is not for the employer to exercise an upper hand and threaten the employee. Employees are not slaves to be suppressed in the manner the employer wishes. They must be treated with dignity and respect even if it is found that they have wronged the employer.
  19. Whilst I do not find that the demotion or reporting the matter to the police cause the employee any humiliation, the manner of treating the employee by threatening her makes the termination unfair. The employee deserves to be paid compensation for undignified treatment. I find that the award in the sum of 6 months is excessive. An award for a sum of 3 months is justified.

Final Orders


  1. I find that the employee was unlawfully and unfairly terminated and ought to be compensated.
  2. The appeal is only allowed to the extent that the remedy for unlawful dismissal is reduced to 8 months and the remedy for unfair termination is reduced to 3 months.
  3. The employer ought to pay the employee a sum of 11 months wages within 21 days.
  4. Each party must bear their own costs of the appeal proceedings.

Anjala Wati
Judge
26.04.2016


____________________


To:

  1. Naidu Law for the Appellant.
  2. AG's Chambers for the Respondent.
  3. File: Suva ERCA 10 of 2014.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2016/323.html