IN THE EMPLOYMENT TRIBUNAL
AT SUVA

ERT Grievance No. 01 of 2008

BETWEEN:

REGINA PRASAD
APPLICANT

AND:

FIJI FISH MARKETING GROUP LTD
 
RESPONDENT

S. Lesi for the Applicant
R. Dunham for the Respondent

DECISION

Background

This is an employment grievance raised by Regina Prasad the applicant employee against Fiji Fish Marketing Group Ltd the respondent employer alleging unfair and unjustified dismissal.

This grievance was referred from the Mediation Unit under section 194(5) of the Employment Relations Promulgation 2007 and it concerns the termination of employment by the employer for negligence, lack of awareness, irresponsibility and poor management which the employee claimed was unsubstantiated.

On the background of the case Regina Prasad had been an employee of Fiji Fish Marketing Ltd for over six years from 17th February 2002 to 15th April 2008 when her services were terminated. She started as a cashier and the role of the position was to manage stock and operate the cash register. The position reported direct to the Manager Sales.

The employee had worked in all the sale shops in the Central Division as per the monthly staff rotation policy for one and half years and was promoted to Sales Supervisor in 2005. The roles of the Sales Supervisor includes the responsibility of taking orders of the stock from every sales shop outlet and prepare orders of those stock, record the stock when brought in and also when dispatched the weight. As the Sales Supervisor the employee was based at the Lami Factory and continued to work there for three years and three months before going on leave for two weeks from 7th to 24th April 2008

The grievance was taken through the mediation services on 3rd October 2008 but was not resolved and on 9th October 2008 was referred to the Tribunal for adjudication. For remedies the employee is asking for compensation for loss of wages, loss of dignity and distress. 

The hearing commenced on 24th August 2009 and during the course of the hearing there were two witnesses for the applicant and none for the respondent. The parties presented closing oral submissions at the end of the evidence.

The employer's case is based on the allegations that Regina defrauded the company. The employer in its written submission stated that fellow workers had reported the fraud and also after an examination of sales dockets and receipts by the employer. This caused the employer to lodge a report to the Lami Police Station. 

On the raising of this grievance in mediation and at this Tribunal the employer opined that the employee has brought her case to the Tribunal after she discovered that the Sales Supervisor and the Manager Retail both who could have provided substantive evidence against her have migrated.

The employer in its oral submission said that it was with great reluctance and after careful consideration that it found it necessary to terminate the employee's services, as theft is a serious breach of the company's policy and warrant instant dismissal. The employer added that it followed established procedures in the employment contract when terminating her.

The employee's evidence was not challenged and as such was accepted by the Tribunal.
In her evidence she related to the Tribunal that she did not sign an employment contract when she joined Fiji Fish and that her terms and conditions were given to her verbally. 

Just a few weeks before going on leave, she told the Tribunal that her professional relationship with the Sales Manager turned sour after she had raised issues directly with the Auditor in regards to her working hours and overtime. Apparently, the Sales Manager did not like that but she had no option but to report to the Auditor as there was no grievance procedure in place to address such issues.

The employee in evidence stated that she was terminated whilst on leave and the termination letter was delivered to her in her home. The reasons for termination were for misappropriation of funds and falsification of stock records.

The employee vehemently denied defrauding the employer when employed in the Lami Office for three years and three months as the Sales Supervisor. This was because she was not handling any cash as this was done only by the cashiers in the respective company outlets. As to the stock records, the employee denied any fraudulent activity as the records were checked weekly by the Sales Supervisor during the three years she was engaged in that section and that no query whatsoever was raised on her performance.

In her evidence, the employee related how the Police were called in to interview the female workers who had made written allegations against her regarding the alleged fraud. That the ladies retracted their statements and reported that the Sales Manager, Mr. Mashuk Ali had forced them to sign the statements. That also created doubt on the Tribunal with respect to the accuracy and reliability of the undated letter allegedly written by Anita Devi who came in as the employee witness. 

The Issues

The Tribunal has narrowed down the issues to the following:-

(1)	Employee – Unfair and unjustified dismissal in that the allegations for negligence, lack of awareness, irresponsibility and poor management were not substantiated.
(2)	Employee – She was not given an opportunity to explain and answer to the allegations made against her.
(3)	Employer – Theft is a serious breach of company's policies and it warrants instant dismissal and that the company followed procedures laid out in her employment contract.
(4)	Employer – The allegations of fraud have been reported to the Lami Police.

The Law

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

"No employer may dismiss a worker without notice except in the following circumstances- 

(a) Where a worker is guilty of gross misconduct;

(b) For willful disobedience to lawful orders given by the employer;

(c) For lack of skill or qualification which the worker expressly or by implication warrants to possess;

(d) For habitual or substantial neglect of the worker's duties; or

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

The alleged offences of the employee would cover aspects of the whole circumstances listed above and the Employment Grievance provisions of the Employment Relations Promulgation 2007 are now used to challenge a dismissal action. The challenge is on whether the employer's action was justified substantially and procedurally. 

In her evidence the employee said that she did not sign any employment contract on engagement but that she signed one before her termination. That is an important issue here as the law in section 110 (1)(a) of the Employment Relations Promulgation 2007 makes it mandatory for each employee to be engaged on a written employment contract which must contain procedures for settling an employment grievance, including confidentiality and natural justice. Whether or not the written employment contract that the employee signed complied with the requirements of the law did not come out in evidence and the Tribunal assumed that the written contract was a valid one.

Having heard and considered the evidence and arguments, the Tribunal is satisfied that Regina Prasad was not heard, that she was not given an opportunity to be heard and that she was also not given a chance to refute allegations against her or to be represented in any 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 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 fishing industry in this part of the Pacific. For this employer to treat one of its employees in the way it did to Regina Prasad, like the way it delivered the termination letter to her during her leave 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)
•	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 employee was terminated whilst on leave and was not given any chance whatsoever to defend herself. 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 against Regina Prasad although it had reported to the Lami Police. She has not been charged or interviewed as yet by the Lami Police.

The employer 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 her own
•	That 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 her own information.
(iv)	After the meeting, the employer should properly consider all the information with an open mind and inform the employee of the decision.

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 and that is a grave omission under the new regime.

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 Regina Prasad and instead her evidence was not challenged and thus accepted by the Tribunal. 

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

The Decision

(1)	Dismissal was unjustified and procedurally unfair; 

(2)	The employer Fiji Fish to reimburse the employee Regina Prasad a sum equal to twelve (12) months' wages as a part of lost wages resulting from the grievance; and 

(3)	The employer Fiji Fish to pay the employee Regina Prasad a sum equal to four (4) months' wages as compensation for humiliation, loss of dignity and injury to her feelings.

DATED at Suva this 14th day of January 2010

Sainivalati Kuruduadua
Chief Tribunal