IN THE EMPLOYMENT RELATION TRIBUNAL
AT SUVA Grievance No. 13 of 2008

BETWEEN:

MITIELI TUQIRI
APPLICANT

AND:

PACIFIC BUILDING SYSTEMS
REPONDENT

Kini Maraiwai for the Applicant
Paul McDonnell for the Respondent

Decision

Background

This matter was part heard before my predecessor Mr. William Calincini on 29th January 2009 and was adjourned to enable Mr. Tuqiri the applicant to quantify his claim. That has been done and the respondent has made the submissions in reply.

The task of the Tribunal is to examine the claims and make an appropriate award based on the submissions made.

Written Contract

First and foremost the Tribunal looked at the two periods of employment in relation to the Employment Relations Promulgation 2007. Mr. Tuqiri started work and signed a written contract before the effective date of the new law which was 2nd April 2008.

It is an agreed fact that he commenced work on 18th February 2008 without a written contract and that he signed a written contract on 13th March 2008. The respondent employer in its submission stated that in anticipation of the coming into force of the Employment Relations Promulgation it prepared written contracts for its employees and Mr. Tuqiri signed such a contract on 19th March 2008. The contract was dated 11th December 2007.

The Employment Relations Promulgation 2007 came in to force on 2nd April 2008 and from that date it became mandatory for all employers and workers to comply with the provisions of the new law. In this case there is no evidence that Mr. Tuqiri signed a new contract that complies with the Employment Relations Promulgation in regards to disciplinary and grievance procedure and other requirements as in Schedule 2 of the Promulgation.

Termination Letter

In the termination letter, Mr. Tuqiri was advised that he was terminated because his services were no longer required, that he was made redundant. The letter was dated 16th June 2008, and he was told to leave the island immediately.

Redundancy

The Employment Relations Promulgation 2007 in Part 12 – Redundancy for Economic, Technological or Structural Reasons stipulates in section 106 that the object of this part is to provide workers facing redundancy with some degree of certainty about the problems faced by the employer and the assurance of compensation.

In this case the employer was not facing any problem as it was the other way round in that the painting job in which Mr. Tuqiri was engaged was nearing completion.

Mr. Tuqiri did not qualify for any redundancy pay as he had worked for less than one year, but that is not the issue here. The issue here are the rights of an employee facing redundancy as found in section 107 which includes a 30 day notice to give Mr. Tuqiri enough time to take measures to mitigate the adverse effects of termination and to find alternative employment. It should also be borne in mind that the notice should also be given to the Permanent Secretary for Labor and that did not happen in this case.

Unfair Dismissal

The employee Mr. Tuqiri maintains that his termination was instantaneous and that he was told to immediately leave the island. He was not allowed to ask questions and in fact was escorted to the jetty. 

In his submission he related that on that day of termination he was approached by a security officer by the name of Jese a former Inspector of Police and a landowner who ordered him to pack his bag and follow him to the island 's jetty. On reaching the jetty, he was given his termination letter and was told that he was being deported and to leave immediately on a speed boat to transport him to Taveuni then to the airport for the return to Suva. These circumstances were the reasons why Mr. Tuqiri avers and claims that he was unfairly dismissed.

The employer's position that Mr. Tuqiri was terminated due to redundancy cannot stand under Part 12 of the Employment Relations Promulgation 2007 as the required procedures were not adhered to.

That raises the issue whether the employer followed a fair procedure when terminating this employee.

One should be asking the question, what serious bad behavior has compelled the employer to act as it did. That to the Tribunal is the crucial question here. The termination must be procedurally fair and a procedure that does not follow the principles of natural justice is unlikely to be held to be fair.

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 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 big employer, one of the biggest engaged in the building industry in this part of the Pacific. For this employer to treat one of its employees in the way it did to Mr. Tuqiri, like the way it moved him to the jetty and issued him the termination letter is both unethical and inhumane.

From the evidence the Tribunal is satisfied that the employer did not make any attempt 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) and
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 but in this case the worker was told pack his bag and accompany a security guard to the jetty given his termination letter and told to leave immediately. That would not qualify as a minor procedural inadequacy.

The Tribunal in analyzing the evidence and arguments has come to the conclusion that the employer has not made out a case for redundancy against Mr. Tuqiri. He was unjustifiably terminated in that the employer did not follow fair procedures especially the right to be heard.

The right to be heard in person is very important as it gives an opportunity to reply especially when a person's livelihood is under threat of being adversely affected. 

The Fiji Court of Appeal in the matter of PSC v Lepani Matea (CA16/98) stated – "the requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely is so fundamental to any civilized legal system that it is presumed that the legislative body intended that a failure to observe it would render the decision null and void."

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. This case is about the absence of procedure resulting in unjustified dismissal.

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 did not show any contribution made by Mr. Tuqiri but there must be an event or something that was not put to the Tribunal that made the employer to terminate the services of this employee.

Decision

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

(1)Dismissal was unjustified and procedurally unfair; 

(2)The employer Pacific Building Systems to reimburse the worker Mr. Tuqiri a sum equal to four (4) months' wages as a part of lost wages resulting from the grievance; and 

(3)The employer Pacific Building Systems to pay the worker Mr. Tuqiri a sum equal to four (4) months' wages as compensation for humiliation, loss of dignity and injury to his feelings.

DATED at Suva this 23rd day of December, 2009

Sainivalati Kuruduadua
Chief Tribunal