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Ali v Nasinu Muslim College [2011] FJET 9; Employment Grievance 81 & 82.2010 (8 June 2011)

IN THE EMPLOYMENT TRIBUNAL AT SUVA
Employment Grievance Nos. 81 and 82 of 2010

BETWEEN:

SOFIA SAINAZ ALI AND JOSLINE VINITA PRASAD
GRIEVORS

AND:

NASINU MUSLIM COLLEGE/FIJI MUSLIM LEAGUE – NASINU BRANCH
EMPLOYER

Appearances:
Mr. D. Nair & Mr. I. Tarai for the Grievors
Mr. S. Ali for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Relationship Problem

1] It is the claim for unfair dismissal by the grievors given the manners in which the school management handled their termination.

References

2] In this proceeding –

- The grievor Sofia Sainaz Ali shall be referred to as ("Sainaz")

- The grievor Josline Vinita Prasad shall be referred to as ("Vinita")

- The employer Nasinu Muslim College shall be referred to as ("NMC")

Background and Evidence

3] Both Sainaz and Vinita accepted on 19/05/09 their employment contracts that were offered to them by NMC in letters dated 10/02/09. The letters written to each of them referred to the respective positions in this manner: Sainaz as Typist with effect from 01/01/09 to 31/12/09 and Vinita as Secretary also from 01/01/09 to 31/12/09.

4] On 05/01/10 both Vinita and Sainaz received identical letters dated 31/12/09 informing them that their services as Secretary and Typist respectively were not renewed for the year 2010.

5] NMC submits that Sainaz had worked for the past 4 years before termination and that she is familiar with the procedure that requires her to be interviewed at the end of the current year for employment in the following year as there is no clause in the contract of employment that says that there is no need to apply or to be interviewed or that the position will be automatically given to the substantive holder.

6] NMC further submits that Sainaz was interviewed for the same position in December 2009 for employment n 2010 but was unsuccessful as another person with better qualifications took her post. The rationale behind the action by NMC was to secure the best person who could deliver the services required and had an acceptable attitude to work so that the education of the children is best promoted.

7] NMC told the Tribunal that Vinita had worked for 11 years before termination as Secretary / Typist and she was interviewed for the position at the end of every year, she is familiar with the procedure and that there is no clause in the contract of employment that suggests that there is no need to apply, or be interviewed, or that position will be automatically granted to the existing employee.

8] According to NMC, Vinita did not attend the interview, she was contacted and given another chance for an interview but she did not turn up and thus another person was given the job. Both Vinita and Sainaz were informed of the decision of the management committee and all remuneration, leave and statutory deductions were paid to each of them.

Analysis and Conclusion

9] Both Sainaz and Vinita in their appointment letters dated 10/02/09 and accepted on 18/05/09 were engaged for a specific period; that was from 01/01/09 to 31/12/09. In the evidence for the employer that is the practice at NMC and the grievors are familiar with it as Sainaz had been an employee for four years and Vinita who was an employee for eleven years.

10] Ms. Fazia Dean an employee of Fiji Muslim League Nasinu Branch in her evidence told the Tribunal that NMC is owned and operated by the Fiji Muslim League under the Management Committee of Nasinu Branch. There are eight staff members at NMC on annual contracts ending on 31st December each year and the other staff members are civil servants recruited and remunerated by the Ministry of Education. The eight contracted staff members are fully aware of the duration of their contracts and the need to re-apply at the end of the year.

11] Ms. Fazia Dean further submits that all posts were advertised on 21/11/09 in the Fiji Times and that all staff applied for their respective posts including Sainaz and Vinita. Ms. Fazia Dean continued that all staff applied for their respective posts and that she verbally informed them that interview would be held on 19/12/09 at 10: am at the school. On the morning of the interview, Vinita did not turn up and she called her mobile but it was diverted and when she called at her home, the nephew answered that he would pass the message as Vinita was not home.

12] Mr. Subhan Ali the Secretary of the Fiji Muslim League Nasinu Branch confirmed the evidence given Ms. Fazia Dean and as to the result of the interview, he told the Tribunal that Vinita failed to turn up for the interview and was not considered whilst Sainaz was interviewed but was not selected as a better candidate for the post was found.

13] Counsel for the grievors argued that Vinita and Sainaz were not accorded procedural fairness before their termination which made it unjust and unfair and also they were not given the reasons for termination as required by section 114 of the Employment Relations Promulgation 2007 (ERP 2007).

14] Counsel for NMC replied that the grievors were not terminated under section 114 or section 33 of the ERP 2007 and as such there was no need for advice. What happened was that their contracts were not renewed and in the same vein Counsel for NMC submitted that there is no clause in the employment contract that suggests that the interview will be a mere formality and that the position goes to the current holder. In that regard the Tribunal applauds the rationale adopted by NMC which is to choose the ..."best person who could deliver the services required and had an acceptable attitude to work so that the education of the children will be best promoted."

15] The Tribunal believes the submission made by NMC that the two grievors at the material time knew that they would be interviewed for the following year's job and that there was no express promise or representations that they would get their jobs back. As such the argument of legitimate expectation cannot hold and the Tribunal will not direct any employer to employ any particular person in any position.

16] The grievors have been given all their dues under the law when their contracts ended and from the evidence, the Tribunal is not in a position to order reinstatement without any loss of wages and other benefits.

17] The Tribunal will however consider compensation for humiliation, loss of dignity and injury to the feelings of the grievors in view of the special status accorded to female workers in this country and the possibility that they were not properly advised when they made the decision to raise their grievances against NMC.

Decision

18] Reinstatement is denied and Josline Vinita Prasad and Sofia Sainaz Ali to be awarded four (4) weeks' wages each as compensation.

DATED at Suva this 8th day of June, 2011

Sainivalati Kuruduadua
Chief Tribunal