IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA19 of 2012

BETWEEN:

SHOP N SAVE SUPERMARKET
APPELLANT

AND:

NILESH NAIDU
RESPONDENT

Appearances: Ms. B. Narayan for the Appellant.
Mr. N. Chand for the Respondent.

Date/Place of Judgment: Friday 8 January 2016 at Suva.

Coram: Hon. Madam Justice A. Wati.

JUDGMENT

Catchwords:
Employment Law – Appeal –Termination of Employment – Assessing evidence- Court entitled to accept evidence of a party where it is not contradicted - whether there was dismissal – summary dismissal procedure: assess cause and procedure- unfair dismissal: assess whether the employer acted in bad faith and the manner of treating the employee in carrying out the dismissal – remedies- should the employee be responsible for contribution to the situation that gave rise to the grievance – employee's duty to mitigate loss and find another employment. 

Legislation:
1.	The Employment Relations Promulgation 2007 ("ERP"): ss.23(2); 30(6); 33; 34.

 Cause and Background

1.	The appeal arises from the decision of the Employment Relations Tribunal ("ERT")of 26 October 2012 wherein it held that the employee was unlawfully and unfairly dismissed from employment on 12 April 2008.

2.	The worker's version on his claim for unlawful and unfair dismissal was that when he attempted to get to work, he was stopped by a security officer on the instructions of the Financial Controller. The employer's version was that the worker refused to carry out the work of restocking the shelves when assigned to. He therefore walked off his job on 11 April 2008 without signing off and did not report to duty after that.

3.	Four witnesses gave evidence during the trial. The employer's first witness was Mr. Avinesh Prasad. He testified that he is the Branch supervisor in Lami. According to him, on 11 April 2008, he asked the worker to restock the shelves but he refused and then walked out without informing anyone and without signing the time sheet. He stated that the worker was the receiving clerk and it was his core function to restock shelves. The worker came back to office on 12 April 2008 to collect his stuff after which he did not come back to work. The employer then employed another receiving clerk after training him for 3 weeks.

4.	The employer's second witness was Mr. KusitinoMatanituilagi. He testified that he is the dispatch clerk of the employer at Lami. He testified that the worker walked out on 11 April 2008 without signing the time sheet and did not come back to see him again. The worker should have come back to see him for him to adjust the time sheet.

5.	The worker testified that on April 2008, a new Manager had just come in from Valelevu and for that afternoon he wanted his own receiving clerk to come in from Valalevu. That is why he asked the worker to do the restocking of the shelves. He did the work until the end and did not leave early. However, another employee Rajeev Kumar and he went to see the Financial Controller at Nabua on 12 April 2008. The Financial Controller informed them to resign from employment.

6.	Mr. Rajeev Kumar also gave evidence. He stated that he was the worker's colleague and undertook the same work as the worker. He said that on 11 April 2008, the Manager told them at 4.30pm that from the next day they would be working as packers and also responsible for restocking shelves. They both worked until 7.30pm that day. The next day they both saw the Financial Controller and were asked to resign. They did not walk off the job but were dismissed from employment.

7.	In arriving at the conclusion that the employee was unlawfully dismissed, the ERT found that the worker's version that he was told by the Financial Controller to resign was not contradicted. The ERT found that the worker could not be reassigned new work without any contract of service allocating what his position description was. The worker ought to have received a certificate of service under s. 30(6) of the ERP and also written reasons for dismissal under s. 33(2) of the ERP, both of which were not done and so the procedure in terminating the worker was wrong in law.

8.	The ERT also found that the dismissal was unfair in that sending the worker home without telling him the reason is humiliating, unfair and void of any form of dignity.

9.	The ERT therefore awarded the following remedies to the employee:

(a)	One years' lost wages since it was 2 years 11 months from the date of dismissal until the date of hearing; and

(b)	6 months' wages as compensation for being humiliated and degraded.

10.	Before I attend to the grounds of appeal, I must very briefly discuss the matter where the other employee Rajeev Kumar, a witness in this case as well, was allegedly asked to resign by the Financial Controller of the employer.

11.	Mr. Rajeev Kumar had also filed a grievance. The decision in that matter was delivered on 3 July 2013, some 7 months after the decision in this case.

12.	In that case the ERT held that the employee Mr. Rajeev Kumar was not dismissed but that he worked out of his job.

13.	It was found in Rajeev's case that he was not able to establish a claim for unfair dismissal as he was in breach of s. 33 (a) –( e) of the ERP in that when he was asked to re-stock the shelves. Hewalked out and did not report to work after that. The ERT found inconsistency in the evidence of the worker and between his and the evidence of his witness. 

14.	The ERT pointed out that the worker Rajeev Kumar initially stated that he was told by the Financial Controller on 11 April 2008 to resign and then he said he went to see the Financial Controller on 12 April 2008 when he was asked not to come to work. The ERT also stated that Nilesh Naidu, the worker in this case had testified in that case that on 11 April 2008, the Financial Controller told them to resign.

15.	Rajeev's case is important to highlight as Ms. Narayan has largely cited the inconsistency in the verdicts between the two employees who suffered the same fate on the same day for the same reasons to enhance her argument on appeal. Mr. N. Chand has vehemently objected to relying on that judgment to determine the appeal. His argument is that that case is not on appeal for determination and that the grounds of appeal in the current matter do not to any extent mention the verdict in Rajeev's case and the inconsistency between the two cases. Any reliance on that case would be prejudicial to the worker as it would be allowing the respondent to be ambushed without having prepared to argue that point.

16.	Mr. Chand said that Ms. Narayan could have amended her grounds of appeal to include the issue of inconsistency between the two cases but she chose not to. He argued that the judgment in Rajeev Kumar's case came afterwards and any argument that the same should be applied to Nilesh Naidu's case is inconceivable.

Grounds of Appeal/Submissions

17.	Against that backdrop is the employers concern that the ERT had erred in law and in fact in:

1.	finding that the employer was unfairly and unjustifiably dismissed without giving consideration to the employer's reasons and in holding that the ERT could not discuss s. 33 of the ERP because there was no written contract of employment without first making a determination if a contract of service within the ambit of the ERP existed between the parties.

2.	Holding that there was an unfair dismissal despite no evidence being adduced from the worker to show that he was terminated and when there was clear evidence and finding of fact that the worker simply walked off his job and did not return to his place of employment.

3.	Holding that there was an unfair dismissal since the employer did not provide a certificate of service when there has to be a contract of service in order for the employer to provide a certificate. The ERT had stated that no employment contract existed between the parties so the ERT contradicted its own decision.

4.	Assessing the compensation awarded and failing to take into consideration that any compensation entitlement in any waywas mitigated by him securing a job shortly after abandoning his employment. The ERT also failed to consider whether the worker contributed to the alleged termination in assessing the compensation.

5.	Awarding and assessing compensation for humiliation and degradation when there was no evidence in this regard from the employee.

18.	Ms. Narayan argued that this worker and Rajeev Kumar were employed together. They both were asked to restock the shelves and they both walked off the job. The incident happened at the same time on the same day. There was no written contract in respect of both the employees. The ERT held in Rajeev's case that the worker breached s. 33 of the ERP but held in this worker's case that s. 33 cannot be relied upon as there was no written contract. This reasoning of the ERT is legally inconsistent.

19.	It was further contended that s. 23(1) of the ERP states that a contract of service can be oral as well. S. 23(2)states that s. 33 applies to oral and written contracts both. On that basis the ERT had the authority to consider the appellant's submission that the employer was entitled to dismiss the employee under s. 33 (1) (b) & (e) of the ERP. These sections state that the employer may dismiss a worker without notice except for willful disobedience of lawful orders given by the employer and for continual or habitual absence from work without the permission of the employer and without other reasonable excuse.

20.	This worker, it was argued, failed to restock the shelves when it was part of his duty to do so. He then went off walk and never returned to work after 11 April 2008. He only came to work on 12 April 2008 to collect his personal belongings. This evidence from the employer established that the employee had disobeyed lawful orders and also absented himself from work without the permission of the employer and without other reasonable excuse.

21.	The ERT should have assessed the employer's case under s. 33 of the ERP which it did not based only on an erroneous conclusion that it cannot do so as there was no written contract. If s. 33 was analysed then the employer had established the cause based on which the termination had occurred. The termination was therefore lawful.

22.	Ms. Narayan also argued that in Rajeev's case the ERT held that the employee had breached s. 31 (a) – (d) of the ERP. In fact the reasoning in that case ought to have been followed in this case as well.

23.	On ground 2, it was submitted that there was no evidence adduced by the employee to show that he was terminated. The evidence was that he simply walked off his job and never returned. 

24.	Ms. Narayan added that the ERT held that the employee had no grievance procedure when he was asked to perform a different set of duties. The employee could have attempted to address the employer on his reasons for refusing to adhere to work instructions and for leaving the work premises unauthorized but he did not do so. He chose to walk off.

25.	The evidence of the employer's witness Mr. Avinesh Prasad and Mr. Matanituilgai was not given due consideration and the ERT erred when it stated that the worker would have felt bad when he was asked to do packing and restocking the shelves. Mr. Avinesh Prasad gave evidence that the worker was responsible for that work as well. The work was within the ambit of the work for which the worker was employed.

26.	On ground 3, it was argued that the ERT stated that a certificate of service ought to have been provided. How could that finding be made when the ERT held that there was no contract of service?

27.	In respect of ground 4, Ms. Narayan argued that no compensation is payable and if any is, it has to be minimal as the worker shortly after leaving the work found a job. He also contributed to the situation so the remedy must be reduced. The employer had in any event given the worker pay which was up –to - date.

28.	In respect of the final ground, Ms. Narayan argued that the remedy awarded for humiliation and degradation in wrong in law as there was no evidence that the worker was humiliated by the employer in dismissing him. The worker simply left the work place. He never returned.

29.	Mr. Chand argued that there is no dispute that there was an oral contract of service between the parties. Even the ERT recognized that in its judgment. 

30.	In respect of ground 2. Mr. Chand submitted that there was evidence from the worker and his witness Mr. Rajeev Kumar that they were told to resign on 12 April 2008. For Ms. Narayan to say that there was no evidence of unlawful dismissal is wrong. The employer did not ever give the employee written reasons for dismissal under s. 33(2) of the ERP which is a statutory requirement. This ought to have been done as a matter of procedure.

31.	Under ground 3, it was argued that there was no inconsistency by the ERT when it stated that it could not discuss s. 33 as there was no written contract of service between the parties. What was said was that the ERT could not discuss the position of the employer in the absence of a written contract on the issue of dismissing the worker for neglect of duties and not following lawful orders.

32.	On the fourth ground, it was submitted that the evidence of both the employee and his witness indicates that the employee was asked by the employer to resign. This evidence was not challenged by the employer. If that is accepted as unchallenged evidence than there is no contribution by the employee of any situation of unemployment suffered by the worker. The employer is solely responsible for the situation.

33.	On the final ground, it was submitted that under s. 230 (1) (c) (i), the ERT has powers to pay the worker compensation for humiliation, loss of dignity and injury to feelings of the worker. This remedy is justified and available to the worker.

Law and Analysis

34.	It is not in dispute that the parties had an oral contract in service between them and that s. 33 of the ERP would also apply to oral contracts of service: s. 23 (2) of the ERP. In that regard the ERT was not correct in holding that it cannot discuss the employer's position that the worker was dismissed summarily under s. 33(1) (b) and (e) of the ERP in that the worker disobeyed the lawful orders of the employer to carry out restocking of the shelves and that he was continuously absent from work without the permission of the employer and without reasonable excuse.

35.	The ERT was bound to consider the employer's position on whether the employer had made out a case of lawful cause under s. 33(1) (b) & (e) of the ERP.

36.	However, if the employer maintains that in its submission at the ERT and at the appeal that the employee was dismissed under the above provisions of the ERT, then its argument and assertion that there was no dismissal but that the worker walked off his job is contradictory. The employer then is contradicting its position at the appeal that the ERT did not consider its case from the point of view of s. 33.

37.	The employer is confused on its case theory. It has adapted two inconsistent arguments which cannot co-exist.

38.	Be that as it may, I will examine both the positions relied on by the employer. The first is that the employee was not dismissed but that he walked off the job.In support of that the employer says that the reasoning in Rajeev Kumar's case ought to have been followed. 

39.	The decision of Rajeev Kumar came after the decision given in the worker's case so there is no way in which the reasoning in that case could have been followed.

40.	Further, if the employer wanted the appeal court to deal with this matter in reference to Rajeev's case, there ought to have been a ground of appeal making reference to Rajeev's case. The Court would have then in the interest of justice called for the record in Rajeev's case and allowed the respondent's counsel at least a chance to comment on the matter.

41.	It is improper for counsel to, without having raised in the appeal a ground, ask the court to examine the verdict of the other case.

42.	On the face of the two decisions, there are inconsistencies in the finding of the facts but that does not mean that the finding in this case is wrong automatically. It could be that the findings in Rajeev's case ought to have followed the reasoning in this case.

43.	I will therefore determine the appeal in reference to the facts and evidence in this case.

44.	It is correct that there are two different versions of what happened on 11 April 2008. The employer says that the employee was asked to restock the shelves. He refused and left work without signing out. He never returned. The employee says that upon being asked to restock the shelves, he did so until 7.30pm that day.

45.	It was for the employer to prove that the employee left the work without permission and did not attend so for a week as alleged. For that the employer could have produced the attendance register and the time sheet to indicate that the employee's time of leaving work was not recorded. That would have given indication that he left without telling anyone. No such evidence was given when the employee who records the time came to give evidence without any supporting documents when there existed one.

46.	The employee's evidence that he attended Nabua on 12 April 2008 and was told by the Financial Controller to resign was not refuted. In fact neither of the employee's witnesses could refute that as they were not there when the alleged incident happened. The employer ought to have rebutted that evidence with the help of the Financial Controller who is alleged to have asked the employee to resign. None of the employer's witness could contradict what allegedly happened on 12 April 2008 at Nabua. The only evidence in that regard was that of the employee and it was therefore open to the ERT to accept the evidence of the employee that he went to Nabua to raise his concern with the Financial Controller when he was asked to resigned.

47.	The worker therefore cannot be said to be have walked off his job. He was dismissed. Ms. Narayan argued that the dismissal was under s. 33 of the ERP. The first cause is that he disobeyed the lawful orders and left work. The employee testified that he undertook the task until 7.30pm. Once again it was open for the ERT to accept the version of the employee that he undertook the task as there was no attendance register to indicate that he went home early. This weakens the employer's argument that no work was done and the worker walked away. The second was that the employee was away from work without informing the employer. That cannot be correct in light of the finding that the worker was asked to resign and not allowed to work beyond 11 April 2008.

48.	Even if the cause was lawful as alleged by the employer, the employer ought to have followed the correct procedure that was due to the worker. S. 33(2) and 34 of the ERP requires that the worker be given written reasons of the dismissal and up to date pay. There is no evidence that there was compliance of the requirement of written reasons. To add to that, the employer also failed to give the certificate of service upon termination as required under s. 30(6) of the ERP. This all makes the termination procedurally incorrect thus making the termination unlawful.

49.	The worker was therefore entitled to remedies for unlawful dismissal. It is alleged at the appeal that the 12 months wages is exorbitant in light of the fact that the worker started work shortly afterwards and that he contributed to the situation. For his contribution to the situation that gave rise to the grievance, the remedy ought to be reduced.

50.	I could not find any evidence in the record that the worker was employed shortly afterwards but there ought to have been mitigation of loss by the employee. He ought to have at least testified that he attempted to find a job and he could not and the reasons why he could not find a job. 

51.	There are so many supermarkets in the country which could have employed the worker with his experience in the field. On that basis I find that at least in the six months' time frame, he could have found a job. 

52.	I also find that the issue between the parties arose because the employer was not prepared to listen to the employee's query as to why he was assigned different work. That was the only way the employee thought prudent to raise his concern. There is nothing wrong in raising issues with an employer. In fact that is a positive way for a productive employment relationship but the employer chose to penalize the employees for raising their grievances. The employer acted in bad faith by punishing the employees. That makes the dismissal unfair.

53.	The bad faith on the part of the employer and treating the employee as a person who was not needed at work is humiliating and degrading. For that the employee is entitled to compensation for humiliation and degradation. The ERT awarded 6 months wages under the head of unfair dismissal. That equates to almost $4000. I do not find that this sum is unjustified. This sum is more like exemplary damages and also compensatory in nature. Compensatory because of the payment and the punishment for such bad faith attitude and treatment to the worker.

Final Orders

54.	I find that the ERT was correct in assessing that the worker was unlawfully and unfairly dismissed. He is therefore entitled to remedies which I find for unlawful dismissal was on a higher side especially in light of the fact that the employee was expected to mitigate his loss. I therefore substitute the remedies with 6 months wages in lieu of 12 months' wages. 

55.	Further to that I find that the employee was unfairly dismissed for which he is entitled to compensation for humiliation, injury to feelings and loss of dignity in the sum equivalent to 6 months' wages.

56.	The appeal is only allowed on the issue of quantum of compensation for unlawful dismissal. The employee is finally entitled to the following remedies which I so order:

(a)	6 months' wages for unlawful dismissal; and
(b)	6 months' wages for unfair dismissal.

57.	Each party shall bear their own cost of the appeal proceeding.

AnjalaWati
Judge

08.01.2016
____________________
To:
1.	Ms. B. Narayan for the Appellant.
2.	Mr. N. Chand for the Respondent.
3.	File: Suva ERCA19 of 2012.