Home | Databases | WorldLII | Search | Feedback Fiji Employment Tribunal

Naidu v Shop N Save Supermaket [2006] FJET 1; ERT Grievance 27.2009 (26 October 2006)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERT Grievance No. 27 of 2009

BETWEEN:

MR. NILESH NAIDU
WORKER

AND:

SHOP N SAVE SUPERMARKET
EMPLOYER

Appearances:
Mr. S. Lesi for the Worker
Mr. Monish for the Employer

DETERMINATION OF THE TRIBUNAL

1.0 The Employment Relations Problem

1.1] The worker Mr. Nilesh Naidu claims that his dismissal by the employer Shop N Save Supermarket in April 2008 was unfair and in that regard wants compensation for loss suffered after the sudden loss of employment.

1. 2] Briefly, the background of this case is that Mr. Naidu is claiming that he was terminated when trying to report back for duty at his usual workplace but was stopped from doing so by the security guard on instruction from the Manager and the Financial Controller. On the other hand, the employer is claiming that Mr. Naidu walked off his job and that was the reason of the dismissal. The employer also alleges that Mr. Naidu had been paid all his dues and a replacement worker engaged in his place; the employer did not want to reinstate him to former position.
   

2.0 The Issues

2.1] The issues relevant to this case include the following:

- the employment contract, the grievance procedure, the mode of dismissal, the due process, the letter of dismissal, the reasons for dismissal and the remedies.

2.2] The Tribunal has raised these issues since the alleged grievance happened in April, 2008 a few days after the coming into force of the Employment Relations Promulgation 2007 (ERP). The issues highlighted are all new and the employers and the workers and unions are expected to be familiar with them after the awareness campaign by the Ministry of Labour. The novelty of the issues should not be an excuse by either party.

3.0 The Evidence

3.1] Mr. Avinesh Prasad gave evidence for the employer that he is the Branch Supervisor, Lami Branch and his role is general supervision of staff, looking after the changing of prices and the handling of stocks. Mr. Prasad told the Tribunal that on 11th April, 2008 he asked Mr. Naidu to restock the shelves but he refused and then walked out. He explained that he had asked Mr. Naidu to do the restocking of the shelves as he was the receiving clerk and that was one of his core functions. However, he came to the office the next day, 12th April, 2008 to collect his stuff and did not come back. As a result the employer had to employ another receiving clerk after training him for 3 weeks.

3.2] Under cross examination, Mr. Prasad explained that as receiving clerk Mr. Naidu was supposed to be responsible for packing and stocking and there was no reason for him to refuse. In anyway, he walked away at his own accord.

3.3] On re-examination, Mr. Prasad agreed that Mr. Naidu did not inform anyone that he was leaving and that he did not also sign the time sheet.

3.4] Mr. Kusitino Matanituilagi gave evidence for the employer that he is the dispatch clerk at Lami and assists both the Manager and Branch Supervisor. He told the Tribunal that Mr. Naidu walked out on 11th April, 2008 without signing the time sheet and did not come back to see him.

3.5] Under cross examination, Mr. Matanituilagi related to the Tribunal that Mr. Naidu should have come back to see him to enable him to adjust the time sheet.

3.6] Mr. Naidu in his evidence went back to when he commenced work on 15th August, 2006 as a receiving clerk but without a job description and that there was no written employment contract. He worked from 8am. to 5pm. Monday to Friday and there is stocktaking every Saturday. He was getting $180.00 a week.

3.7] On the day in question, Friday the 11th of April, 2008 and the new Manager had just came in from Valelevu and for that afternoon he wanted his own receiving clerk to come in from Valelevu. According to Mr. Naidu that was the reason why the Manger asked him to do the restocking of the shelves. He continued that he did not leave early as alleged, but worked till the end and that he had told the dispatch clerk. On 12th April, 2008 he went to see the Financial Controller who told him to resign. Mr. Naidu maintains that he still does not know the reasons for his dismissal as he was not taken through the grievance procedure.

3.8] Under cross examination, Mr. Naidu confirmed that the Financial Controller at Nabua told him to resign without any reasons. He was there at Nabua together with Mr. Ranjeev Kumar and they went to his home after that. On re examination, he confirmed that he did not resign but was terminated on 12th April 2008 by the Financial Controller at Nabua.

3.9] Mr. Ranjeev Kumar is a colleague of Mr. Naidu and they were working together at the Lami branch of the supermarket as receiving clerks, with Mr. Naidu holding the position of Head Receiving Clerk. On 11th April, 2008 the Branch Manager told them that from the next day they would be working as packers and also responsible for restocking shelves. The next day 12th April, 2008 Mr. Kumar and Mr. Naidu fronted the Financial Controller at Nabua where they were advised to resign. Mr. Kumar maintains that he still does not know the reasons for his dismissal as he was not taken through the grievance procedure.

3.10] Under cross examination, Mr. Kumar explained that the Branch Manager told him at around 4.30 pm on 11th April, 2008 that he would be doing restocking and packing and that he continued with what he was doing until 7.30 pm when he went home. The next day he went up to Nabua where the Financial Controller asked him to resign. He did not resign but was terminated.

4.0 Analysis and Decision

4.1] From the evidence Mr. Naidu was employed under a contract of service under section 22 (1) of the ERP and the contract was oral under section 23 (1) of the ERP. The parties were conclusively presumed to have entered into a contract for an indefinite duration under section 28 (1) of the ERP. The employment arrangement was perfect under the ERP until it came under section 37 (1) (a) where the requirement is that "a contract of service made for a duration in excess of one month.....must be in writing."

4.2] The employment contract was not in writing and consequently there was no grievance procedure so there was nowhere to go for Mr. Naidu to raise his grievance. This did not come out in evidence but the Tribunal is here giving the benefit of doubt to Mr. Naidu, as from the evidence he walked out.

4.3] The employer is alleging that Mr. Naidu was terminated under sections 33 (1) (b) & (e) of the ERP as follows –

33. – (1) No employer may dismiss a worker without notice except in the following circumstances –

(a) where a worker is guilty of gross misconduct..

(e) for continual or habitual absence from work without the permission of the employer and without other reasonable excuse.

4.4] The Tribunal cannot discuss the position of the employer in the absence of a written contract as Mr. Naidu should know his core functions or duties and other ancillary tasks. The employer cannot be allocating tasks at the whim of the supervisor or branch manager and the Tribunal understands how Mr. Naidu felt when he was told that he would be doing packing and restocking shelves.

4.5] From the evidence, both Mr. Naidu and Mr. Kumar fronted the Financial Controller at Nabua on 12th April, 2008 and their evidence is not challenged, that they were told to resign and look for work somewhere else. There was no termination letter, no reasons given, so rightly Mr. Naidu and Mr. Kumar considered themselves terminated and went home. The question before the Tribunal then is whether the dismissal was unjustified and unfair.

4.6] First of all, there are no statutory or common law definitions of "unjustifiable or unfair dismissals" and in a recent decision the 2 terms were defined as follows:

"For a dismissal to be justified, it would need to be capable of demonstration that it was just, right or valid; capable of being defended with good reasoning. A decision would be unfair, if it was harsh, unjust or unreasonable." [1]

4.7] The test for justification which applies to claims of unjustifiable dismissal is the following:

...The question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

4.8] The dismissal was for a cause and this employer was entitled to dismiss under section 33 (1) (a) & (e) of the ERP but the Tribunal cannot discuss that as there was no written employment contract which means that there was no grievance procedure. How can Mr. Naidu be punished if he honestly felt that he could not do the jobs allocated to him? There was no procedure, no system and no due process. In that regard the dismissal cannot be justified.

Whether the Mr. Naidu was unfairly terminated?

4.9] In Carpenters Fiji Limited v. Isoa Latianara [2011] FJET3; ERCA Wati J. explained what constitutes fairness to be the following:

"that it is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's action must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in the carrying out of the dismissal."

4.10] In Central Manufacturing v. Kant [2003] FJSC5 the Supreme Court held the following:

"there is an implied term in the modern contract of employment that requires an employer to deal fairly with an employee, even in the context of dismissal."

Specifically, the Court held that while the common law implication,

"...plainly does not extend to a requirement that reasons be given, or that a hearing be afforded at least where the employer has the right to dismiss without cause and to make a payment in lieu of notice. It does extend, however, to treating the employee fairly, and with appropriate respect and dignity, in carrying out the dismissal."

4.11] From the evidence, Mr. Naidu was paid all his wages due at the time of dismissal under section 34 of the ERP but he was not given a certificate of service under sub section 6 of section 30 of the ERP and neither was he given reasons for dismissal under sub section 2 of section 33 of the ERP. Under those circumstances the dismissal was unfair as Mr. Naidu went home without knowing the employer's version of the reasons for dismissing him. That was humiliating, not fair and was void of any form of dignity.

5.0 Determination

5.1] The Tribunal makes the determination that Mr. Naidu was dismissed on 12th April, 2008 and the dismissal was unjustified and unfair and in that connection Orders the following remedies:

a] Mr. Naidu was terminated on 12th April 2008 and this matter was heard on 10th March, 2010 some 2 years and 11 months after dismissal. In that regard, the employer must reimburse Mr. Naidu one year's wages under section 230 (1) (b) of the ERP; and

b] Mr. Naidu's dismissal was humiliating and degrading and towards that end, the employer must pay to Mr. Naidu a further 6 months wages as compensation under section 230 (1) (c) (i).

DATED at Suva this 26th day of October, 2012.

Sainivalati Kuruduadua
Chief Tribunal

^[1] Resident Magistrate Andrew J. See in Miliakere Nale vs. Carpenters Fiji Limited T/A Morris Hedstrom (ERG no. 173 0f 2011) and I agree entirely with these definitions; the practical and ordinary meanings of the words.