Singh v Land Transport Authority [2016] FJHC 7; ERCA22.2012 (11 January 2016)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA22 of 2012

BETWEEN:

VIMAL SINGH
APPELLANT

AND:

LAND TRANSPORT AUTHORITY
RESPONDENT

Appearances: Mr. D. Nair for the Appellant.
Ms. May for the Respondent.
Date/Place of Judgment: Monday 11 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.

Legislation:

1. The Employment Relations Promulgation 2007 ("ERP"): s 33.
   

Cause and Background

1. The appeal arises from the decision of the Employment Relations Tribunal ("ERT")of 20 November 2012 wherein it held that the employee was lawfully and fairly dismissed from employment and thus he was not entitled to any remedies.
   
2. Vimal Singh was employed with the Land Transport Authority ("LTA") since March 2003. He initially was a traffic inspector and later was employed as a Public Service Vehicle Officer at Nadi Office.
   
3. He was summarily dismissed from employment 0n 10 November 2011 following an investigation conducted by the employer. The worker was suspended from duties on 14 September 2010.
   
4. The investigation undertaken by the employer concerned allegations of bribery and abuse of office leveled against the worker in or around August 2010.
   
5. On 12 August 2010, a prosecutions officer of the employer engaged at the Nadi Office received a telephone call from a member of the public who had applied for a Road Surface Licence. His name was Ronald Ritesh Narayan. The caller claimed that he was forced by the worker to provide him goats in exchange for having his licence approved.
   
6. The employer's representative who took that call recommended that the next act of bribery be captured in a photograph and be given to the employer. A photograph was thus taken on 12 August 2010 and the complainant also provided a statement.
   
7. On 17 August 2010, a brief incident of the report, with the complainant's statement and the photograph was forwarded to the General Manager Finance and Administration.
   
8. There were also complaints received against this employee from the Offices of the Prime Minister, and Minster for Works, Transport Energy and Public Utilities.
   
9. The Chairman of the LTA Board then instructed that a more comprehensive investigation be conducted.
   
10. On 14 September 2010, the worker was suspended on half salary to allow that investigation to be conducted.
    
11. On 2 November 2010, an investigation report was provided to the LTA Board. This resulted in the laying of five disciplinary charges against the worker on 30 November 2010. The worker formally contested those charges by correspondence of 21 December 2010 and his presentation and response to questions before an LTA Staff Board on 18 March 2011.
    
12. On 18 April 2011, Mr. Nair on behalf of the Fiji Public Service Association wrote to the Chief Executive Officer of LTA expressing concern over the delay as to the worker's fate.
    
13. On 22 June 2011, the worker referred the delay of the matter as a "grievance" to the Mediation Services Unit. The matter was not resolved and referred to the ERT on 30 August 2011. During that ensuing period, a further five disciplinary charges were laid against the worker on 13 July 2011.
    
14. On 27 October 2011, the ERT issued directions that the employer reach a decision in relation to the findings of the investigation report within 21 days.
    
15. Prior to the determination of the additional five charges, a staff board meeting was conducted on 8 November 2011. It was there determined that the six charges against the employer and the evidence as per the investigation report justified his termination.
    
16. By a letter of 10 November 2011, the employer then terminated the worker.
    
17. The worker then made a claim that his termination was unfair, in breach of natural justice and Chapter VIII, Clause 8.3 of the Collective Agreement ("CA") that governed the worker's employment at the relevant time.
    
18. In order to fully determine the claim of the worker, the ERT dealt with two issues.
    
19. The first was whether the worker had been denied natural justice. The ERT found the worker was not denied natural justice. It found that the employer did not undertake an independent disciplinary inquiry in accordance with clause 8.2.4 of the CA for the worker to be entitled to cross examine the witnesses who made adverse reports against him as claimed by the worker. The conduct of that type of an inquiry is discretionary and not mandatory. The employer chose to undertake its own investigation and it was free to do that.
    
20. In assessing whether the employer had justified the reasons for the termination, the ERT found that on the evidence the employer could only establish the following out of the 25 reasons set out in the termination letter:
    
    • (i) that the worker did obtain a goat for personal gain on 12 August 2010; and
      
    • (ii) that the worker made a telephone call for the purposes of demanding a further goat.
      
21. In respect of other reasons for termination, the ERT found that there was insufficient evidence to make any findings to establish the same for the termination.
    

Grounds of Appeal

22. Aggrieved at the findings of the ERT, the employee appealed. It raised that:
    
    1. The ERT erred in law and in fact when it failed to take into consideration the relevant factors when determining the employment grievance of unfair dismissal by the appellant.
       
    2. The ERT acted unreasonably and unfairly when it took into consideration the hearsay evidence which was neither corroborated nor established through independent and impartial witnesses.
       
    3. The ERT erred in law and in fact when it stated that it was not mandatory for the employer to conduct an enquiry whereby the worker is given the right to cross-examine witnesses who had made adverse reports against him.
       
    4. The ERT erred in law and in fact when he shifted the onus of proof relating to the unfair dismissal upon the appellant whereas the employer should have shown cause that the dismissal was fair and justified.
       
    5. The ERT erred in law and in fact when he executed the role of the employer by hearing the grievance afresh when he was required to determine whether the process followed by the employer was fair and justified.
       

Submissions

23. In respect of ground 1, Mr. Nair argued that the worker had tendered a police report dated 21 September 2010. This confirmed that the worker did not engage in any unlawful conduct as alleged by the complainant. This was further supported by the evidence of the carrier driver Mr. Charlie that the complainant offloaded the goat at another person's residence. It was never established that the worker had taken the goat in exchange to do certain favours to the complainant.
    
24. The employer had given manyreasons why the worker was summarily dismissed. The only reason that was found established was that the worker had obtained a goat from one Ronald Ritesh Narayan and that he made a call to obtain a further goat. Ronald Ritesh Narayan and his wife testified that the worker had taken the goat but this was not supported by the evidence of the carrier driver Charlie as well as the police report. There was no evidence shown that the worker called the complainant to ask for goat.
    
25. Mr. Nair argued that it took the employer 14 months to dismiss the employee when the employee could have been dismissed immediately without notice under. s. 33 of the ERP.
    
26. The investigation of the employer was flawed. It was only formulated to establish the grounds for dismissal without providing the worker with an opportunity to cross-examine the witnesses.
    
27. In respect of ground 2, it was argued that the employer's witnesses could not establish that the worker had demanded a goat in exchange of special favours being given to the complainant Mr. Ronald Ritesh Narayan. In fact it was also alleged that the worker had taken $200 from the complainant which was not established during the trial. The employer's witnesses were also contradicting each other's evidence. The ERT erred in accepting their evidence.
    
28. In respect of ground 3, Mr. Nair submitted that when the people made adverse reports against the worker, he was denied the right to cross-examine them. Some material evidence like the photograph was never given to the employee to prepare his defence. These photos should have been given to the worker at the time of the termination.
    
29. When the photographs were tendered in evidence, it was accepted by the ERT. The photograph did not show when it was taken. No reliance thus should have been placed on it.
    
30. During the hearing of the case, the employer initially produced two witnesses but when the evidence adduced was contradictory, it directed that additional witnesses be called to support the employer's case. At this juncture, the employer had already concluded its case and this was whilst the worker was giving evidence and had established that the evidence of the employer was insufficient to establish its allegations. The worker was then asked to stand down to allow the employer to re-open the case. Then 2 further witnesses Mr. and Mrs. Ronald took stand.
    
31. In respect of ground 4 it was submitted by Mr. Nair that in any dismissal case, the onus of proof is on the employer but in this case the ERT expected the worker to adduce material witnesses who were police officers and other independent witnesses.
    
32. In respect of ground 5, it was argued that the ERT should have examined what process was followed in dismissing the employee. Instead the ERT started hearing whether the offence as alleged was made out which was the role of the employer.
    
33. Ms. May argued that there was evidence given by the complainant and his wife that the worker took a goat from them and there is also a photograph to that extent. The worker's story was that the goat was given to the neighbour. If that was his defence why did he not call his crucial witness the neighbour. He could have put all the allegations to rest.
    
34. Ms. May also argued that a phone call was received regarding the bribery by the worker and that there were photographs too. Nothing else apart from the goat incident could be established.
    
35. If the employee wanted he could have refuted the evidence but he chose not to and the ERT was correct in drawing an adverse inference from the refusal to call the witnesses.
    

The Law and Analysis

36. I will repeat that the ERT found that the employer had established only two reasons for dismissing the employee. The first was that he obtained a goat from Ronald Ritesh Narayan and that he made a phone call to obtain a further goat.
    
37. Mr. Nair says that there was no reliable evidence to make the above finding. Let me analyse the evidence before the ERT which led it to conclude on the above.
    
38. Mr. Ronald Ritesh Narayan gave evidence that he was forced to pay bribes to the worker and provide goat. He said that on 12 August 2010 the worker came to his property and took a goat. His wife even took a picture which shows him taking a goat in a vehicle.
    
39. Ms. Deo who is Mr. Narayan's partner also gave evidence that she took the photographs on 12 August 2010. One photograph showed that the worker was talking to Mr. Narayan. The other showed him loading a goat into a utility truck and driving away.
    
40. The employee did not deny going to Mr. Ronald Ritesh Narayan's place on 12 August 2010. He said he was looking for a black goat and when he was showed one he was not interested as the goat had both cheeks white and a damaged ear. He wanted the goat for religious purpose. He also testified that the goat was taken to one of the friends of Ronald Ritesh Narayan. He said he was asked by the police officer to show the house where the goat was taken.
    
41. The ERT gave the employee time to bring the police officer who allegedly conducted the investigation and the resident at whose house the goat was dropped. None of them were called. The ERT then stated that it is right in making adverse inferences from the reluctance of the employee to call these two witnesses.
    
42. There was a hand written letter from a station officer from Nadi Police Station. He was not the investigating officer in the case. He wrote to the effect that:
    

"This is to certify that Vimal Singh of Nadi Back Road did lodge a report at Nadi Police Station on the 16th day of August, 2010 that one Donald of Malamala is spreading false rumours about him receiving a goat as bribery from him.

Investigation completed and suspect was warned as requested as dispute of purchase of goat and complainant advice to take own lawful action.

Nadi Police Station report number 6625/10 refers"

43. The ERT rejected the police report on the basis that it refers to one Donald and not the complainant and that it did not state anywhere that the worker did not take the goat. It was also noted by the ERT that the writer was not the investigating officer in this case whom the worker claims was shown the house where the goat was dropped.
    
44. The ERT further found on that letter that it did not clear the worker in relation to the allegation. It made no reference to whether any person was interviewed.
    
45. The evidence, it was noted was not even properly tendered in that the author of the document did not tender the document.
    
46. The ERT found that the evidence of the complainant, his wife, the photographs and the failure by the worker to produce the investigating officer and the resident who received the goat instead of him all concludes that the worker engaged in the conduct of taking a goat from the complainant for personal gain on 12 August 2010.
    
47. Given the evidence of the employer's witness and given the fact that the employee did not satisfactorily negate that evidence, it was open to the ERT to accept the evidence of the employer's witnesses. Even if I were faced with the evidence of that quality I would have accepted the evidence of the employer.
    
48. The employee could have easily refuted the claims of the employer and brought the person who he alleges received the goat. He did not establish his defence or negate the employer's evidence.
    
49. Mr. Nair says that the worker was asked to justify that the dismissal was wrong. I have read the entire judgment of the ERT. There was clear burden on the employer to establish and justify that the dismissal was lawful and fair. The employer was asked to start the case to establish its reasons for dismissal.
    
50. What the ERT did was to assist the worker in adjourning the case so that it could call witnesses to negate the evidence of the employer. The employee wrongly equates this to shifting the onus of proof to the employee.
    
51. Mr. Nair also argued that the ERT should not have gone to the extent of hearing the matter to find whether the causes for the dismissal were established. It was only required to see what process was followed in dismissing the worker and whether the process was justified.
    
52. Mr. Nair's submission is made in ignorance of the law. When an employee claims that the summary dismissal is unlawful and unfair, the duty of the ERT becomes to examine the cause and procedure to assess whether the termination was lawful. To assess whether the dismissal was fair, the conduct of the employer in carrying out the dismissal is examined. If the employer acted in bad faith or the manner of treating the employee was not fair, the dismissal becomes unfair.
    
53. The ERT was thus correct in analyzing the reasons for the dismissal and making a finding whether that was established by the employer.
    
54. Mr. Nair further argued that the employee had a right to be heard and to cross-examine the witnesses. This was a case of summary dismissal. The employer does not need to accord the employee any right to respond to allegations or hearing. If on the facts available before the employer, one of the causes for summary dismissal is established, the employer has the right to carry out the dismissal. The onus will be on it to establish the causes if it is faced with court proceedings.
    
55. Mr. Nair said that the employee should have been dismissed immediately and not made to wait for 14 months. On one hand Mr. Nair submitted that the worker had a right to cross-examine the people who made adverse reports against him and on the other hand he is asserting that the employee should have been immediately dismissed and the 14 months delay is not justified.
    
56. The employer did take enormous time to carry out the investigation but that does not mean that the summary dismissal was not available to it when it was asked by the ERT to arrive at a decision on the initial investigation report.
    
57. I finally find that on the evidence before the ERT, it came to a correct finding that the employer had at least justified a cause which warranted summary dismissal. The procedure to dismiss the employee was also correct.
    
58. There was also no evidence of any unfair treatment or bad conduct on the part of the employer making the dismissal unfair. I therefore find that the dismissal was fair as well.
    
59. The worker is thus not entitled to any remedy.
    

Final Orders

60. The appeal is dismissed. The order of the ERT is upheld.
    
61. Each party is to bear their own cost of the appeal proceeding,
    

Anjala Wati
Judge

11.01.2016
____________________
To:

1. Mr. D. Nair for the Appellant.
2. Ms. May for the Respondent.
3. File: Suva ERCA22 of 2012.