IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERT Grievance No. 01 of 2009

BETWEEN:

NIRMAL CHANDRA
APPLICANT

AND:

NATIONAL UNION OF FACTORY AND COMMERCIAL WORKERS

 RESPONDENT
J. Subramani for the Applicant
V.Maharaj for the Respondent

DECISION

This is an employment grievance raised by Nirmal Chand (the employee) against the National Union of Factory and Commercial Workers (the employer) alleging unlawful termination.

On the background of the case Nirmal Chand was employed as an office boy and caretaker with effect from 2nd August 1991 and as part of this employment agreement was given the employer's flat at 82 Robertson Road to occupy with water and electricity bills paid by the employer. His employment was terminated on 2nd May 2008.

The grievance was taken through the mediation services on 20th January 2009 but was not resolved and on 10th February was referred to the Tribunal for adjudication. For remedies the employee is asking for reinstatement or alternatively compensation for loss of wages.

The hearing commenced on 16th September 2009 and during the course of the hearing the employer called three witnesses and the employee one witness to give evidence. The parties presented closing oral submissions at the end of the evidence.

The employer's case is based on a number of incidents involving this employee Nirmal Chandra and documented back to 30th October 2007 where in Colo-i- Suva it was alleged that he tried to provoke a split in the union, and an incident on 15th December 2007 where he was allegedly drunk and was a nuisance and threatened some executive sub-committee members of the union. This resulted in the issuance of a suspension letter effective from 4th March to 14th March 2008 and a final warning for dismissal.

According to the employer, the above course of action was taken after considering the employee's length of service as the offences committed warranted termination of employment. 

After just one day the employer withdrew the letter of suspension after the employee showed remorse and promised to support the union in a letter dated 5th March 2008. In the letter to Nirmal Chandra, the employer pointed out that the record of final warning would be kept on file for record purposes.

Then came the incident of Saturday 19th April 2008, the morning of the union annual general meeting. The acting General Secretary instructed the employee to stay in and look after the union's property as everyone would be attending the meeting at the Suva Civic Centre. The employer submitted that Nirmal Chandra refused to follow instructions and insisted that he be allowed to be at the meeting.

In evidence, the acting General Secretary of the union said that this employee went to the meeting venue and created a commotion by trying to force his way in. He argued with the security officers and executive committee members and made negative comments regarding the union.

The following Monday 21st April 2008, he submitted a sick sheet for two days and he refused to follow instructions by not handing over the keys to the hall. The keys were later handed in to the union President in the evening of the same day.

These incidents prompted the letter dated 25th April 2008 pointing out the case for insubordination in the presence of a final warning and the giving of seven days to Nirmal Chandra to explain why he should not be terminated. The seven days ended on 1st May 2008 and he was terminated by letter dated 2nd May 2008.

In evidence the employer's closing submission was that Nirmal Chandra was guilty of grave misconduct and as such was dismissed summarily under section 33(b) of the Employment Relations Promulgation 2007 which allows employers to dismiss a worker without notice "for willful disobedience to lawful orders given by the employer."

The employee's case is based around allegations of continuous victimization, acts of bad faith by the employer in the conduct of investigations, the laying of unreasonable charges and the denial of natural justice when the employer failed to institute a disciplinary hearing process. 

In evidence the employee's closing submission was that things became difficult in the union office with the change in leadership, there was not enough time to respond to allegations and that termination was unfair, that Nirmal Chandra be reinstated and that entitlements and benefits be maintained.

Both parties agree on one issue however, and that is Nirmal Chandra has served this union for more than seventeen years and he could have served under more than two General Secretaries and a number of executive members. He would be right if he assumed that he is very familiar with union matters. 

This case is on the application of section 33(b) of the Employment Relations Promulgation 2007 which provides for the following:

"No employer may dismiss a worker without notice except in the following circumstances ...for willful disobedience to lawful orders given by the employer."

As a general rule, employees are required to follow any lawful instruction given by a person in authority such as their supervisor or manager if not the employer. Instructions will be considered lawful if they:

-	do not require an employee to perform any illegal acts;
-	fall within the scope of the employee's obligation or duties as set out in their employment agreement; and
-	do not require the performance of any tasks that are impossible or dangerous. 

An employee who fails or refuses to follow any lawful instructions or orders may be disciplined or even dismissed. The justification of any such disciplinary action will depend on the reasonableness of the instruction. This in turn will be determined against the background of the particular circumstances that exist at the time the instruction was issued.

Having heard and considered the evidence and arguments, the Tribunal is satisfied that Nirmal Chandra, was not heard although he was given an opportunity to be heard and he was also not given a chance to refute allegations against him or to be represented in the disciplinary process.

These are not minor procedural inadequacies and as such the action of the employer is to be subjected to the test of justification as found in section 103A of the New Zealand Employment Relations Act 2004. The Tribunal is using this test due to the genesis of our current law in New Zealand and it is also because of the fact that the New Zealand law has been refined over the years to address changing circumstances.

The test for justification which applies to claims of unjustifiable dismissal or disadvantaged 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.

The employer must show that a dismissal was justified substantially and procedurally and this was where the employer union fell short.

All the circumstances at the time the dismissal occurred would include the type, resource and size of the organization.

This employer is a trade union which traditionally looks after the welfare and security of its workers. It knows all about grievances and the available remedies together with the associated rights to be accorded to workers.

From the evidence the Tribunal is satisfied that the employer has made attempts to accord the employee all the fair procedures as stipulated in the leading case of NZ Food Processing, IUOW v Unilever 1NZILR 35;[1990]. It says that the employee must be given:

•	Notice of the specific allegation and its gravity and possible outcome
•	An opportunity to refute the allegations (with an opportunity to have a representative, not simply a witness, present)
•	Unbiased consideration of the employee's explanation.

A dismissal following poor or unfair procedures will not necessarily result in the Tribunal finding that the dismissal was unjustified if the conduct was bad enough but may result in compensation.

However, the Courts in New Zealand have recognized that most employers will not be able to provide perfectly fair procedures for dismissing employees. In BP Oil v NDU [1992] 3 ERNZ 483 (CA): the Court of Appeal said - "The question is essentially whether it was open to a reasonable and fair employer to do so in the circumstances."….

In the earlier Unilever's case the Court also said that.. "the employer's conduct of the disciplinary processes is not to be put under a microscope and subjected to pedantic scrutiny."

This means that minor procedural inadequacies should not render a disciplinary action unjustified.

The Tribunal in analyzing the evidence and arguments has come to the conclusion that there were more than four occasions of willful disobedience to lawful orders involving Nirmal Chandra and all of them had been dealt with differently by the employer. The climax was on the morning of Saturday 19th April 2008 and this led to the letter dated 25th April 2008 specifying another suspension and giving seven days for a written explanation as to why his employment should not be terminated.

In none of these instances, was Nirmal Chandra asked to appear in person with his representative to refute the allegations against him as required in any employment relationship governed by good faith. A letter seeking written explanations within seven days why an employee's employment should not be terminated is both a mediaeval and draconian way of handling employment relationships.

The employer union should have done the following:

(i)	Conduct a proper investigation into the alleged wrongdoing.

(ii)	Invite the employee to a disciplinary meeting. The employee should be told – 

•	All the information that was uncovered in the investigation

•	To bring information of their own

•	That he or she can bring a representative or a support person

•	That the outcome of the disciplinary process may be dismissal.

(iii)	At the meeting, the employer should properly explain their information and give the employee a chance to respond to it and present their own information.

(iv)	After the meeting, the employer should properly consider all the information with an open mind and inform the worker of the decision.

The right to be heard in person is very important as it gives an opportunity to reply. For example in this instant, Nirmal Chandra replies to the key issue would be that his instructions were not to hand the keys to anybody else and on the incident at the Suva Civic Center it was not his intention to embarrass the acting General Secretary.

As indicated earlier on in this decision a dismissal following poor or unfair procedure will not necessarily result in the finding that the dismissal was unjustified if the conduct was bad enough, but may result in the employee being awarded monetary compensation.

The Employment Relations Promulgation 2007 in sections 230(2)(a) & (b) provide for the following - ..in deciding the nature and extent of the remedies to be provided in respect of the employment grievance, consider the extent to which the actions of the worker contributed towards the situation that gave rise to the employment grievance; and if those actions so require, reduce the remedies that would otherwise have been decided accordingly.

The evidence has shown how the extent of the Nirmal Chandra's actions contributed to the grievance and in that regard the Tribunal reduces compensation for loss of benefit to a period of three months

Having heard and considered the evidence and arguments the Tribunal makes the following decision:

(1)	Reinstatement is denied;
(2)	Dismissal was justified but procedurally unfair; and 
(3)	The employer union to pay three months wages in compensation for loss of benefits within fourteen days of this decision.

DATED at Suva this 11th day of November 2009

Sainivalati Kuruduadua
CHIEF TRIBUNAL

These cases demonstrated quite clearly that the reasonableness of an instruction will be judged against the particular circumstances that exist in each case.