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Fiji Employment Tribunal |
IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
Dispute No. 54 of 2008
BETWEEN:
NATIONAL UNION OF HOSPITALITY CATERING & TOURISM INDUSTRIES EMPLOYEES
Union
AND:
TRADEWINDS HOTEL & CONVENTION CENTRE
Employer
Appearances:
Mr. Noel Tofinga for the Union (also referred to as "NUHCTIE")
Mr. Jon Apted for the Employer
DETERMINATION OF THE TRIBUNAL
1.0 Employment Relations Dispute
1.1 Background to the Dispute
1.1.1 This matter was registered as a dispute with the Ministry of Labour on 13 August 2008. In the report (Form ER5) to the Permanent Secretary (or "PS"), pursuant to section 169 (2) of Employment Relations Promulgation 2007 (or "ERP") and Regulation 12(1), the part in the Form 5 that reads: "Details of the dispute (the problem) – Please explain what the dispute is about or list the matters in dispute", the claim by the Union is: "Termination of 9 employees".
1.1.2 As dispute was accepted by the PS, it was referred to the Mediation Unit under Form ER6 with a case number: MU/ED/72/2008 pursuant to section 170(4) (b) of ERP and Regulations 14(1). Mediation was attempted but was not successful as contained in the Form 4 forwarded to the Employment Relations Tribunal (or "ERT").
1.2 Cause Before the ERT
1.2.1 The mediator had referred the dispute to the ERT in accordance with s194 (5) of ERP outlining the nature of unsettled employment dispute with the following terms of reference:-
"National Union of Hospitality, Catering & Tourism Industries Employees and Tradewinds Hotel & Convention Centre
Regarding the termination of Alan Tokotokoca, Rusila Veiliutaki, Emele M. Seru, Ahmed Mutar, Lorima Biu, Solome Vateitei, Susana Racava, Ani Saukelo and Meli Koroitamana. The Union submits that all workers be reinstated to their respective positions and all remunerations paid".
1.2.2 The matter was first listed for Mention on 26th November 2008. Filing of preliminary submissions was directed by the Hon. Chief Tribunal, however, on 9 January 2009, Mr Apted wrote to the Tribunal to seek vacation of preliminary submissions time-table where he wrote, "...we have written to the Union for further and better particulars...Mr Urai of the Union has consented to this request...".
1.2.3 Following an adjournment on 16th January 2009, where Tribunal had given directions to Mr Urai to comply with Mr Apted's request, the case was again called for Mention on 9th February 2009 and by this time, Mr Apted has rightly pointed out in the employer's Closing Submission dated and filed on 4th October 2011, that the delay in hearing of the dispute arose out of a pending decision before the Employment Relations Court (or "ERC") in the Dispute No. 35 of 2008: Fiji Bank &Finance Sector Employees Union and ANZ Bank [2010] FJHC 450; ERCA of 01 of 2009 (12 October 2010) [ referred to as the "ANZ Case") which decision was handed down on 12 October 2010. Here, the ERC ruled that ERT has jurisdiction to hear and adjudicate on employment disputes brought before it.
1.2.4 This dispute was put back on the cause list and both parties proceeded to file their Preliminary Submissions. The employer filed their Preliminary submissions on 14th January 2011; the Union filed their Preliminary Submissions on 9th May 2011; and thereafter the Employer responded to Union's Preliminary Submissions on 7th June 2011.
1.2.5 Hearing of the substantive matter was set down and commenced on 5th and 6th September 2011. Here, I was requested to preside over the ERT by the counsel for the Employer on the basis that the Chief Tribunal, Hon. Sainivalati Kuruduadua had some involvement with the "Tradewinds matter" while he was an officer of the Ministry of Labour then.
2.0 Preliminary Issue
2.1 Mr Apted alluded the Tribunal on the day of hearing what I also regard to be a preliminary issue that has to be addressed first.
2.2 As contained in the employer's closing submissions dated 4th October 2011, this issue could very well hinge on whether this Tribunal has jurisdiction to hear the alleged dispute, that is, whether the Tribunal could still proceed to determine the substantive matter if the preliminary issue is determined in the favour of the employer.
2.3 The preliminary issue has to do with the lack of (better and further) particulars of the dispute including the remedies sought by the workers (or members) as the employer's counsel stated that this matter failed to be brought properly before the Tribunal pursuant to the definition of a "dispute" in the ERP 2007. If the employer is successful in proving this to the Tribunal, the employer is seeking to have the matter struck out as they are stating that the Tribunal does not have jurisdiction to proceed to determine the substantive matter although it is to be noted that the hearing of the substantive matter has been concluded.
2.4 At the start of the hearing-proper, Mr. Apted's contention was that the Union had failed to give proper details of the alleged dispute as there were no particulars or matters listed of the termination pertaining to the nine (9) members or for that matter the remedy(s) sought at the time this claim was lodged with the PS was also not laid out by the members. Mr. Apted in his opening statement stated that "the employer is at a disadvantage because we really do not know formally exactly what the grounds of attack or challenge are".
2.5 However, he stated that there was some discussion on this issue between him and the Union representative, Mr. Tofinga a few days prior to the commencement of the substantive hearing where he said that "...Mr Tofinga who is appearing for the Union has indicated to me off the record last week what he may argue; this is relatively new...".
2.6 Mr Apted went on to further state that:-
"...the reason I am bringing this up...is for two reasons as pointed out in our preliminary submissions and we reserve the right to make further submissions because we don't know exactly what the points are and second since we have no idea of exactly what the Union is going to say we reserve the right to bring any rebuttal evidence depending on what their witnesses surprise us with. We have done the best we can in bringing our evidence but there may be surprise and in accordance with usual principle we have the right to rebut any surprise evidence..." (Underling is my emphasis).
2.7 Mr Tofinga when asked by the ERT to give Union's side in regards to the statements made by Mr. Apted, he confirmed without giving any explanation or rebuttal. It leaves me to conclude that he was fully aware of Mr. Apted's difficult position to properly present their evidence on the day. For this very reason, he could have also consented to Mr Apted reserving the right to rebuttal if any new evidence was introduced given that in the ERT, the employer opens up the case with the burden of proof where the employer must show justification against the allegations pertaining to "Termination of 9 employees" as stated in the Form ER5.
2.8 Suffice to note that Mr Apted had agreed to proceed with the hearing after informing the Tribunal that if the ERT proceeded to hear the substantive matter to avoid any further delay, they will then leave this (preliminary) issue up-to the Tribunal to consider, and therefore it is my duty to determine this issue prior to determining the substantive matter. Indeed it does not surprise me that the employer in their closing submission has raised their first ground of defence along the same lines that there is no dispute before the ERT and accordingly, the dispute should be dismissed without consideration of the evidence (in the substantive matter).
2.9 Exercising my very broad jurisdiction generally pursuant to section 211 of the ERP [but more specifically under s211 (b), (i), (k), (n) and (r)], I allowed the hearing to commence as I had only become aware of the preliminary issue on the day hearing was scheduled. And this too after three years when the initial claim was lodged with the PS.
2.10 More importantly, both parties were ready to proceed with the substantive hearing with their respective witnesses present on the day, particularly with the employer's side arranging for their overseas witnesses to travel and be present before the ERT. Hence, the Tribunal regarded that it would be unfair to deny the members their unfettered right to be heard without further delay while the employer should also given a chance to present their defence albeit in essence they have raised their foremost defence that there is no "dispute" to qualify redress or remedy under the ERP 2007, consequently failing to invoke jurisdiction of the ERT.
2.11 Further I noted that Mr. Tofinga raised absolutely no objection to Mr. Apted reserving the right to rebuttal in case any "surprises" were introduced by him. I made full note of the fact that Mr. Apted had made an oral application before the start of the hearing to allow him to reserve the right to rebuttal and call further witnesses or evidence, if, in the course of the hearing, it became clear that they were "surprised with any (unknown or new) evidence", and this was consented by Mr Tofinga.
3.0 Law & Analysis: The Original Dispute in the Form ER5
3.1 As a general comment, ERT procedures are clearly outlined in section 216 (1) of the ERP and more importantly under sub-section (2) where it states that "...in all proceedings, the Tribunal must act fairly".
3.2 The Tribunal in keeping with the intention and spirit of the ERP to provide efficacious and speedy redress and remedy to the aggrieved party without being too concerned with the rules of evidence, it must also stay practical and fair to both parties. On case by case basis, the Tribunal has to maintain that innate balance to ensure the workers, being in the most vulnerable and economically weak position as opposed to the employer is not denied natural justice that ERP desired upon its establishment. In the same breath, it cannot deny the employer the fair and just platform to also voice their defence and seek appropriate remedy that ERP evidently gives both parties in terms of fair access to ERT process and cost of coming before the ERT.
3.3 Section 4 of the ERP under the "Interpretation" section states that:- "In this Promulgation, unless the context otherwise requires-
'dispute' means a dispute or difference between and employer and a registered trade union connected with the employment or non employment, the terms of employment or the conditions of labour of a worker;"
3.4 Plain English meaning of "dispute" is "disagreement"; "difference of opinion"; etc. The task for this Tribunal is to determine whether "termination of 9 employees" as the terms of reference before the ERT meets satisfactorily the definition of "dispute" in the ERP 2007.
3.5 My determination begins with assessing Section 169 of the ERP which lays out how a dispute is to be reported where it states under the heading "Reporting of disputes":-
s169 - (1) A dispute may be reported to the Permanent Secretary by—
(a) an employer who is a party to the dispute; or
(b) a registered trade union that is a party to the dispute.
(2) A report of a dispute must be made in writing and in a prescribed manner.
(3) The party reporting a dispute must, within 3 days, provide a copy of the report of the dispute to each party to the dispute...." (my emphasis)
3.6 The Employment Relations (Administration) Regulations 2008 ("Regulations") stipulates or lays down the manner in which a dispute is to be reported in writing.
The Regulation 12(1) states under the heading - 'Reporting of a dispute to the Permanent Secretary' – "A report of a dispute required under section 169(2) of the Promulgation must be made in Form ER 5 set out in Schedule 1".
Earlier I have noted that the dispute in terms of Form ER5 states "termination of 9 employees". Without doubt, this is the only "detail" provided by the Union although clearly Form ER5 requires the party reporting a dispute to give - 'Details of the dispute (the problem)' and says "Please explain what the dispute is about or list matters in dispute" (my emphasis). ERT's terms of reference, is thus restricted to what is contained in Form ER5.
3.7 I thus agree with the employer's submission that there are no other particulars of the termination or matters listed down for the benefit of the Employer or the Tribunal to understand the true nature and the substance of the dispute until, of course, when the hearing commenced.
3.8 Indeed the mediator when referring the dispute added that: "The Union submits that all workers be reinstated to their respective positions and all remunerations paid". The mediator obviously added onto the original claim what appears to be the "remedies" sought by the members and not the reasonable facts or matters relating to the termination.
3.9 I can only comment that it would have made a remarked difference if the complaint (or alleged dispute) when lodged with the PS came from an individual or party who may have had very little or no knowledge as to how a proper or detailed dispute is to be lodged or registered with Ministry of Labour under the provisions of the ERP. Even then, the Ministry is obligated to assist and guide any such individual or party to ensure the alleged "dispute" or "grievance" is lodged properly within the realm of the ERP requirements.
3.10 In this instance, the Union had carriage of lodging this dispute and thus it would be safe to assert that they would be more equipped in skills and understanding of the ERP requirements to at least not be vague in their "listing" of matters relating to the dispute. Assuming that they would have already dealt with the alleged nature of the dispute before coming to the Ministry of Labour or the ERT, the facts of the alleged dispute should still have been fresh in their mind. Further, the Unions are constantly engaging in such task or duties in their daily course of work to appreciate the extent of particulars to be provided for purposes of lodging a "dispute". It is then unfair on their part to deprive the party, against whom they are apportioning such allegations, with the essential particulars or matters that would have made the dispute complete and comprehensible to allow the employer to adequately frame their response.
3.11 The requirement of providing "details" in the legislation is prescribed for a reason and serves a purpose to allow the parties to comprehend the exact nature of the dispute or grievances alleged by the Worker(s) or their representative, in this case, the Union or "NUHCTIE".
3.12 The most sensible reason for this requirement is to avoid unfair surprises to either side whilst keeping some control in the way the proceedings is carried out with a sense of direction and fairness to all.
3.13 Above all, it assists to maintain the position of the parties in the long run if there is a delay in the hearing of the substantive matter. For example, I have noted that the Union's initial position in terms of their legal basis to bring forward this dispute was pursuant to sections 107 & 108 of the ERP as contained in their preliminary submission, which later transformed into a much broader legal position extending to s24; s230; s234; and s235 respectively. While ERP allows under s112 of the ERP to cover another aspect of employment grievance during the determination of the original claim, it still requires that the employer is put on notice during the proceedings of such matters. Here, I find at the very least, s24 of the ERP is a new allegation when it was not the initial legal position of the Union, particularly at the hearing stage. Undoubtedly, it is very difficult to point out the actual grounds of the allegations under the ERP provisions in the absence of any supporting facts ensuing from the termination of 9 employees as initially reported.
3.14 Therefore providing details of the dispute is not a discretionary requirement; rather I agree with Mr Apted that the word "must" clearly point to a mandatory requirement under both, Section 169 of the ERP and Regulation 12(1).
3.15 This gives "equitable" rights to the defending party and makes sense when compared to certain termination provisions in the ERP, say, under section 33 of the ERP relating to "summary dismissal" where it is a mandatory requirement for the employer to lay down reasons in writing at the time the worker is dismissed. If employer must give proper reasons at the time a dismissal is carried out, then same will apply when allegations are lodged with Ministry of Labour by the workers where the employer also deserves the right to know the details or list of matters arising out of that dispute.
3.16 Let me now turn to some case-laws on this point to understand the requirement of better and further particulars in any proceedings before a court of law. In the case of The Estate of Harry Janson Ho [1993] FJHC 48; HBC0010d.89s, Byrne J looked at this issue in quite detail where he stated and I quote:-
"The general principle governing the delivery of further particulars of any pleading is that these will be ordered by the Court if it is considered desirable to elucidate the issues to be tried and prevent "surprise" at the trial. No hard and fast line can be laid down as to the degree of particularity which is required of a pleader and which an opponent may demand of him when formulating either a claim or defence. It is however essential that each party should give his opponent a fair outline of the case which will be raised against him at the hearing and for this purpose he must set out in the body of his pleading all particulars which are necessary to enable his opponent to properly prepare his case for trial" (my emphasis).
3.17 Further as noted in the case of Ratcliffe v Evans [1892] UKLawRpKQB 131; (1892) 2 Q.B. 524, at 532: "particulars need be given only of facts and not evidence but as much certainty or particularity will be directed in a particular case as is reasonable having regard to the circumstance and the nature of the acts alleged" (my emphasis).
3.18 In the above-mentioned ANZ case, Wati J commented (at page 7) that:
"...the basis to refuse the hearing of the case was the proper from of bringing the dispute. This actually jeopardizes the rights of the employee and is not what was intended by the ERP 2007".
It thus defies commonsense and logic not to present particulars of the dispute as very rightly it would suggest that there was no difference or dispute to be resolved at the time it was lodged. Therefore I fully agree with employer's closing submission when they state that:
4.9 "Details of the dispute are legally necessary not just to meet the definition of 'dispute', but they are also necessary to enable to be properly resolved under the ERP" (at page 4).
3.19 The ANZ case suggests that a hearing of the substantive matter could be refused on the basis that the dispute was not properly lodged. But here, the parties proceeded to substantive hearing and it has been concluded and now the employer is seeking to have the entire evidence struck out on the basis the dispute was not properly brought before the ERT. This seemingly improper dispute in the meantime has been through various processes: acceptance by PS; Mediation Unit; and now is before the ERT.
3.20 When it landed before the ERT, as I understand, no formal preliminary application for want of further and better particulars to be complied by the Union was not brought by the employer prior to setting the hearing date of the substantive matter.
3.21 All the same, I have noted that Mr Apted had written to the Tribunal on 9 January 2009 explaining his position that he could not prepare the preliminary submissions for the employer as the dispute to the PS dated 13 August 2008 does not specify "what the Union claims to have been wronged to each of the workers in terms of their termination" and "what remedies the Union is seeking for each Member".
3.22 It appears through the letter Mr Apted had sought consultation with the Union representative, Mr Urai who appeared to have consented to provide the required information. In addition, oral directions were given by the Chief Tribunal on 16th January 2009 for the Union to comply with the request of the employer for better and further particulars of the claim or dispute.
3.23 The Employment Appeal Tribunal in the case of Greene v London Borough of Hackney EAT/11182/98 and EAT/504/99 (Greene Case) held that strike out order should not have been made without first considering less punitive sanctions such as an "unless" order, is considered – that is, unless the particulars are provided by a certain date as so ordered by the Tribunal, the claim will be struck out.
3.24 This case considered that "the ultimate test is whether a fair trial can go ahead without the other side having the particulars that have been ordered". The Tribunal in the Greene case asserted that: "memories fade and people cease to be available and that insufficient and a general statement is of no value unless backed up with evidence and findings on the question and an analysis of the importance of the factor in whether unacceptable prejudice was caused".
3.25 I am not sure at what juncture the compliance with the Chief Tribunal's oral directions was taken seriously by the Union, however, when the Union proceeded to file their Preliminary Submissions one would have anticipated that they would have addressed this issue therein, at least.
3.26 The Preliminary Submissions by the Union dated and filed on 9th May 2011 indicates that the Union provided the following as the background facts and basis of grevior's case:-
2.0 Background Facts
2.1 On or about 28th May 2008, the Employer notified the Union purportedly under s.107 of the ERP "...of the prospective termination for redundancy attaching a list of positions".
2.2 The basis of the notice was refurbishment and that the employer could not afford to retain the position holders' whilst the said refurbishment was taking place.
2.3 Numerous consultations took place but to no avail and on 13th June 2008 the said Union members were terminated
2.4 The Grevior's contract of service is the Collective Agreement.
3.0 GREVIOR'S CASE
31. The Union will submit to the Tribunal that the Employer terminated the Union's members for unjust and unfair cause, and that the said termination was wrongful."
3.27 The question is: were these background facts supplied in the preliminary submissions adequate for purposes of responding to the claim of "termination of 9 employees", being the original claim or dispute in the Form ER5.
3.28 And the more critical question to ask is: did the employer indicate this to the other party once they received the Preliminary Submissions? My guess is that they did not.
3.29 If the employer was still dissatisfied with the preliminary submission lacking proper facts/details they should have either proceeded to file a proper preliminary application before the ERT to compel the Union to supply the same and/or objected to setting of any substantive hearing date until it was so ordered by the Tribunal where any non-compliance would have easily paved their way to seeking any striking out application thereafter.
3.30 Further, I cannot ignore but comment that there were other ways the employer could have compelled proper and further particulars to be furnished by the Union to allow them to proceed to substantive hearing without any unfair surprises or disadvantage. This requires a close scrutiny of the parties conduct to each other from the very start.
4.0 Requirement of "Good Faith" Conduct
4.1 The way this matter has evolved from the time the dispute was lodged with the PS until the time it was set down for substantive hearing before the ERT, and prior to that before it actually became a statutory "dispute", it hinges purely on the actions of the parties in terms of their unique and intricate employment relationship, and not so what the law expects from the parties as an appropriate conduct.
4.2 This case is a good example for testing "good faith relationship" between the parties irrespective when the Collective Agreement was signed and executed between the parties. There was no contention from the evidence that the employer ("Pandey") was willingly engaging in consultation with the Union to put in place a new Collective Agreement recognizing its existence and legal standing when they took ownership of the hotel from the previous owner.
4.3 Mr Tofinga has kindly provided this ERT various legal authorities in regards to "good faith principles" to examine whether 'bad faith discharge" was prevalent at the time termination of nine members took place which also appears to be the Union's legal position in terms of their substantive allegations pertaining to the dispute.
4.4 I have noted the 1997 decision of the Supreme Court of Canada in Wallace v United Grain Growers Ltd., 1997 CanLII 332 (SCC); [1997] 3 S.C.R. 701 where the Court rejected judicial recognition of bad faith discharge either in contract or tort but injected into the employment relationship the requirement of "good faith conduct" at the time of termination, where in passing the Court spoke of "special relationship" which governs the parties to an employment relationship. Albeit that this case has entirely different facts from the present case, in terms of assessing reasonable notice period at the time of the termination (which is something to be ascertained in the substantive determination), it does provide the ERT a certain level of obligation to consider "good faith and fair dealing" where the Court noted that:-
"..., at minimum, ... in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive..." (at page 46).
4.5 Principles of good faith are also central pillars of ERP 2007 pursuant to sections 149 – 152 of the ERP. Further, in the Preamble Section of the ERP it states that ERP shall:
"...Provide a statutory framework which promotes the welfare and prosperity of all Fiji's people by—
(C) Providing a structure of rights and responsibilities for parties engaged in employment relations to regulate the relationship and encourage bargaining in good faith and close observance of Agreement as well as effective prevention and efficient settlement of employment related disputes..."
4.6 While Wallace case signify that the employers need to be honest and sensitive to the needs of the employees particularly at the time they are facing termination, this does not mean good faith is only contingent on the employer's conduct. Before this claim was reported as a statutory dispute under the ERP, good faith would have demanded that the Union should have put the employer on notice that there was a potential difference prior to seeking external or Ministry of Labour's assistance in resolving the dispute.
4.7 After indentifying the difference or dispute (here in terms of breach of s107 & 108 of the ERP), it is expected that the Union should have also attempted to settle the dispute under any employment contract or agreement (express or implied) or any relevant laws [as per the requirement of s168(1) & (2) of the ERP]. After all, on or about 28th May 2008, the Employer had notified the Union purportedly under s.107 of the ERP of the prospective termination for redundancy attaching a list of positions as stated in the Union's preliminary submission.
4.8 However, if there were no agreed procedures for settling disputes since the Collective Agreement was not finalized and signed between the parties, the procedures in Schedule 6 of the ERP 2007 would have guided this "good faith" process. Clearly Union could have invoked the procedures (as per Schedule 6 of the ERP 2007) where the following would have been provided:-
- (a) The existence of the dispute;
- (b) The basis of the dispute; and
- (c) The solution sought in respect of the dispute.
A meeting between the parties is then a must to discuss the dispute (under clause 4 of the Schedule 6).
4.9 I have not overlooked the fact that the Union had opposed to any further reduction of hours or multi-tasking as a proposal by the employer to avoid terminations in the initial stages but rather I am here concerned with the time the proposal for redundancy was made by the employer which is the crux of Union's substantive dispute before the ERT.
4.10 The question is did the Union instantly and urgently register their objection (that is highlight their dispute or difference) when it was apparent that their members were on the verge of losing their employment through a potential redundancy process as an alternative measure to be invoked by the employer?
4.11 The answer lies in assessing any action or indeed reaction by the Union in opposing the employer's proposal which only came forward by the Union via a formal objection after the redundancy process was invoked and complete, that is, after almost a week when the termination letters were distributed. Thus, I have found no "good faith" attempt on the part of the Union to clearly identify and address the issues facing the Union members prior to any prospective termination when I heard the substantive matter. It was after the termination was effected, that they reacted, particularly after a certain media publicity regarding the termination of the 9 members.
4.12 The essential "good faith" attempt by the Union and employer to resolve the dispute prior to any termination or soon after the termination is a reasonable expectation, and a beginning to what I would anticipate later to transform into a statutory "dispute" or "difference" for the purposes of the ERP requirements.
4.13 Such dispute would be brought before the ERT for adjudication after it becomes clear to the Union that there was no way the alleged dispute or difference was heading to any resolution and/or settlement between the parties. And this is when we can reasonably expect a dispute to be registered under the redress provisions of the ERP, where the ERT's jurisdiction can be invoked under section 211(1)(b) of the ERP as the most common way of seeking redress against "disputes".
4.14 But, when the Union comes forward and seeks the Ministry of Labour's intervention, the Union cannot just assume that the registration of the claim or dispute is a mere formality. ERP requirements are laid down on principles of good faith and natural justice where it is imperative that the aggrieved party lays out their dispute in a detailed manner so that the employer is given adequate and fair opportunity to defend themselves with either the assistance of a mediator or the ERT since their one-to-one discussion for settlement would have failed.
4.15 After all the general function of the ERT under section 210(1) dictates that the Tribunal "...assist employers and their representative and workers and their representative of trade unions to achieve and maintain effective employment relationship...". The ERT can only perform this function if it is able to understand the facts of the dispute before it can proceed to facilitate and adjudicate on the matter.
4.16 Let me also refer to Section 4 of the ERP which defines 'employment dispute' as – "A dispute accepted by the Permanent Secretary under Section 170".
4.17 Without adequate details of the dispute I cannot imagine how the Permanent Secretary can manage to reasonably comply with the Section 170(4) and allow the ERT or Mediation Unit to resolve the alleged dispute where it states that:
"The Permanent Secretary must —
(a) refer the employment dispute to the Tribunal if the dispute relates to interpretation, application or operation of an employment contract; or
(b) in any other case, refer the employment dispute to Mediation Services.
4.18 Further I am also persuaded with the employer's submission that the PS has no power to add any claim of reinstatement and remuneration to any dispute that is reported to him. He only has the power to accept or reject a dispute reported to him on the merits of the claim brought to him.
4.19 However, once the referral has been made by the PS to either Mediation Unit or ERT, it becomes compulsory for both the mechanisms in place to resolve the dispute by either attempting mediation or adjudication respectively. In the ANZ case, Wati J stated that:
"If the Permanent Secretary submits a dispute for resolution to the ERT, the ERT then is under a statutory duty to consider the dispute. Such a reference by the Permanent Secretary gives rise to the Tribunal's jurisdiction".
4.20 Here the PS had referred the Union's report to the Mediation Unit and not the ERT. The Union's report did not state that the dispute was in regards to the terms of an employment contract, otherwise section 170(4) of the ERP 2007 would have been invoked by the PS requiring the dispute to be referred straight to the ERT without going through the mediation unit.
4.21 The dispute was in fact referred to the ERT by the Mediation Services. Section 211(j) and section 211(k) of the ERP states that the Tribunal has jurisdiction to adjudicate "matters" referred to it by the PS or the Mediation Services or any party to the mediation.
4.22 Once again, applying the ANZ case, clearly the Tribunal has jurisdiction to determine the present case although a "dispute" was reported and not a "matter" but ERT must try to at least regard the same as a "matter" before it and attempt adjudication as per its broad jurisdiction under s211 of the ERP 2007.
4.23 The question is whether "Termination of 9 employees" in addition to Mediator's terms of reference as:
"National Union of Hospitality, Catering & Tourism Industries Employees and Tradewinds Hotel & Convention Centre - Regarding the termination of Alan Tokotokoca, Rusila Veiliutaki, Emele M. Seru, Ahmed Mutar, Lorima Biu, Solome Vateitei, Susana Racava, Ani Saukelo and Meli Koroitamana. The Union submits that all workers be reinstated to their respective positions and all remunerations paid"
before the ERT suffices as a "matter" and/or "dispute" as per section 221 of the ERP.
4.24 Wati J has looked at the issue as to what constitutes a "matter" and at what point the ERT was obligated under the statute to deal with the same. In the ANZ case she said and I quote (at pg 28-29):
"...The term 'matter' is not defined by the ERP 2007. The ordinary English meaning of the word matters would mean a subject or situation that one must consider or deal or the present situation or situation that one is talking about. So even if the ERT refuses to deal with the employment dispute under its determination that dispute over dismissals are not covered and hence there was no employment dispute before the ERT, it was at least obligated to deal with it under section 211(1)(k) as a matter to be adjudicated since it was referred to it by the Mediation Services. It was improper for the matter to have been left in abeyance without adjudication of the merits of the case especially when a livelihood of a worker is involved. ...Indeed a dispute was reported but to turn away an employee from the ERT without adjudicating on the same on a mere technicality of use of words, I think is prejudicial to the employee and not in consonant with the terms and spirit of the ERP 2007. The issue or dispute could simply have been accepted as a matter to be determined and adjudicated upon on merits. I do not see any fluting or bending of the provisions on jurisdiction if this course of action was taken by the Tribunal..." (my emphasis)
4.25 For the ERT, the initial complaint or "dispute" registered with the Ministry which stated as "Termination of 9 employees" only indicates that termination has taken place but fails to outline the problem or difference in opinion between the parties to qualify as a "dispute". Remedies sought were also missing from the claim. In my view this is not enough to qualify determination and adjudication upon merits.
4.26 Simply put, termination does not necessarily mean it is not a justified termination and this is the very reason the alleging party must clearly point out the details or facts pertaining to the termination that is not only illegal (that is, not in accordance with the employment contract or law) but also unjust, wrong and/or unfair. The Tribunal is not limited in its jurisdiction to determine the legality of the termination of employment but can also consider whether termination was just (ANZ case at page 8).
4.27 Here, even the allegation of unfair/unjust termination was initially missing in the Form ER5 including the remedies sought to rectify the alleged wrongdoing on the part of the employer. If the employer is to assume that the alleged termination is unfair or unjust as clearly perceived but not stated by the Union or their members, the employer then has a right to understand in what form or context this may have come about as clearly termination could have been an agreed outcome between the parties but later retracted.
4.28 I thus concur that without proper facts of the allegations the employer has been put in an unfair position to properly conduct the hearing, and therefore I must thank their ability to still proceed with the hearing keeping in mind that unnecessary delay did not cloud this matter any further. Three years has been long enough to bring some finality to this matter, preliminary and substantive.
5.0 ERT's final Decision on the Preliminary Issue
5.1 Be it a dispute or grievance, in the ERT the onus lies on the employer to disprove allegations made by the aggrieved or terminated worker(s).
5.2 This is both, issues of substantive and procedural justification for termination, meaning that, first, the employer has the onus to prove that there were valid reasons for termination (substantive reasons) that would justify the Employer regarding the employment relationship or any existing contract or Collective Agreement as being discharged with or without notice; and second, demonstrate to the Tribunal, whether the termination was just and fair in the way it was accorded to the member. That is, whether due process was accorded and whether it was a fair and mutually accepted process as per any agreement between the parties.
5.3 Here at all times, "good faith" and principles of "natural justice" governs the both end of the employment relationship – for the employer and worker alike. Clearly from Wallace case, good faith is a special thread that binds and holds both parties, workers (and their representatives) and employers into a very unique relationship that requires on-going negotiation, consultation and mediation if someone's livelihood is under threat. And this relationship cuts both ways.
5.4 Because ERP places the burden of proof on the employer to justify the alleged termination it does not mean the Union can fulfill its obligations by merely lodging a complaint pursuant to section 211(1)(b) of the ERP in such an ambiguous manner and still demand employer's response or actions to the alleged "employment dispute" through their guaranteed right to seek redress under the ERT.
5.5 Natural justice demands that the employer must be given proper details of the dispute for the simple reason to allow them to properly frame their defence.
5.6 I have to further comment that this preliminary issue is no light matter as it has huge implication on the determination of the substantive matter. If, this Tribunal proceeds to determine the substantive matter it will have a challenging task to put in perspective those facts that would be credible and that can be reasonably relied upon to arrive at any decision.
5.7 This is because I agree with the employer's submission that there was a danger of all sorts of evidence to be put before the Tribunal and as expected, the way the hearing commenced and later the closing submissions provided by both parties proved that both parties were on entirely different page or understanding as to what was the real facts (and applicable laws) pertaining to this dispute. Mr. Apted suggesting that the Union submitted their closing written submissions on the basis of "misrepresentation of the facts and a misreading of the law" has not come as a surprise to this ERT.
5.8 For now, in the interest of justice and fairness, in the absence of any agreed facts, since it is the employer who opens up the case, it is natural for the Tribunal would be guided as to facts and evidence which the employer would have perceived in terms of the Union's allegations to be the "wrong" done to their members in terms assessing the legality and propriety of the termination.
5.9 I must reiterate that the Union have put themselves in a tight spot where this Tribunal cannot ignore that the employer was somewhat denied a chance to defend themselves in a fair manner which means that if I should proceed to determine the substantive matter, I will not be able to ignore all the facts the employer has been able to put forward in terms of what they think is the justification of the termination while carefully weighing the Union's evidence in negating those facts.
5.10 Therefore, the employer's justification for the termination of the nine employees in terms of Union's allegations will set the scene for determining if it was treated fairly, procedurally and substantially in accordance with the law.
5.11 Whether this matter or dispute should be struck out or not without consideration given to substantive matter, I have to admit that I am presented with a difficult task to balance the rights of worker's to be heard against the employer's right to defend; and not just any dispute but to defend a dispute in accordance with the definition of "dispute" under the ERP.
5.12 Judge Wati's recent decision in the case of Fiji Public Service Association –v- Fiji Institute of Technology ERCC No. 6 of 2009 gives some guidance where she made an interesting observation that:
"...these rules are not fanciful. There is a purpose for the legislature to enact such rule and the major purpose is to comply with the rules of natural justice..." (at page 11-12).
5.13 If the ERP requirement is to provide details of the dispute when it is lodged with the Ministry of Labour under the statutory provisions then this requirement cannot be compromised or treated with light meaning especially if it imposes an mandatory obligation. Hence, for purposes of ERP requirement, this dispute under the Form ER5 is incomplete and improper under the definition of "dispute" in the ERP 2007.
5.14 In that regard, a proper preliminary application should have been made formally to the ERT prior to setting down of any substantive hearing.
5.15 This would have allowed both parties the opportunity to present their arguments whether the dispute was properly brought before the ERT in terms of satisfying the definition under the ERP.
5.16 Or alternatively, if the parties in good faith were able to establish agreed facts and sought compliance order from the ERT, this case would not have proceeded to substantive hearing on the basis of "surprise or new evidence" on either side.
5.17 Indeed any non-compliance of Tribunal Orders thereafter to provide essential particulars would have resulted in striking out of the matter to sustain fairness and justice to all.
5.18 Therefore, if this was a preliminary hearing, rightly the ERT would have refused the hearing of the substantive matter on the basis that Union failed to properly bring a "dispute" before the ERT (as per ANZ case) unless they attempted to comply with the directions of the Tribunal to provide the required information to the employer (as per Greene case).
5.19 In this particular case, I have decided that it would not be prudent to dismiss or struck out at the juncture when it was set down for substantive hearing, which is now also complete.
6.0 Other Reasons For Not Sticking Out The Matter
6.1 I have other reasons for not striking out the entire evidence. Before the matter came to ERT as an alleged "dispute", mediation
was clearly attempted on 13th November 2008 but it failed.
6.2 Tribunal never gets divulged what transpired within the closed doors in a mediation session and indeed the lawyers representing
the employer is also barred. However, the ERT can only hope that the employer on its own would have found out in essence what were
the Union's allegations or dispute at the time. Because this fact is also unknown to this Tribunal whether the nature of Union's
allegations or dispute was properly disclosed to the employer at the mediation session, I cannot assume anything.
6.3 However, briefly applying the case of Fiji Public Service Association –v- Fiji Institute of Technology ERCC No. 6 of 2009, where the Court had discussed the issue whether the PS has rightfully registered the employment dispute including following the procedures for registration, and whether the employer or Respondent can have the matter dismissed where the PS had failed to properly carry out its statutory duties, one thing that is clear is that when the employer became aware or was informed in whatever manner that PS had accepted the dispute and mediation was to take place, this is when the employer should have acted and raised their objection, perhaps through a judicial review of the PS's decision.
6.4 This was also discussed in the case of Fiji Bank &Finance Sector Employees Union and ANZ Bank (at page 6) where Wati J stated and I quote:-
"If the PS submits a dispute for a resolution to the ERT, the ERT then is under a statutory duty to consider the dispute. Such reference by the PS gives rise to the Tribunal's jurisdiction. If the employer did not challenge the acceptance of the dispute by the PS then it was not entitled to challenge the Tribunal's jurisdiction once the dispute was referred to by the PS by virtue of the fact that the Tribunal is empowered to adjudicate on all matters referred by the PS"
6.5 She further stated at page 15 of the same decision that:
"The PS accepted what he viewed was a dispute. If employer was unhappy with the PS's decision, then it should have pursued a public law remedy by way of judicial review within 3 months of the PS's decision. There is no right to appeal under the ERP where the PS accepts a dispute. Once the PS accepts the dispute it is deemed under the ERP to be an employment dispute".
6.6 If it was felt by the employer that the PS calling the parties to the table via mediation process when in employer's opinion there was insufficient details or particulars to allow them to respond to the allegations in the real sense of a "dispute" under the ERP 2007, I cannot understand why the employer did not register an objection or filed for a judicial review of the decision of the PS when clearly ANZ case indicates that "a matter would only be a dispute if it first meets the definition of 'dispute' and was accepted by the PS. Acceptance by the PS merely does not make it a 'dispute' (at page 9).
6.7 Here I am in no doubt that the employer is prejudiced as the definition of 'dispute' is not satisfied under the ERP but the employer is now estopped from challenging the PS's decision to accept a defective or incomplete nature of the dispute as they have not exhausted this avenue for redress. Clearly judicial review of PS's decision is the only and most sensible way of preventing any defective or incomplete allegation pertaining to a "dispute" that does not suffice under the definition of the ERP to be brought before the ERT for adjudication.
6.8 Again I can only comment that if the employer did not seek a judicial review against the PS's decision to accept the dispute in whatever form it was lodged, it is possible the employer would have either accepted the mediation in good faith under section 201 of the ERP 2007 or overlooked their right to seek judicial review of the PS's decision.
6.9 In either circumstance, I cannot judge whether the decision taken by the parties to attempt mediation shall impact on the matter before the ERT as the Tribunal is a separate jurisdiction from the Mediation Unit where no evidence is admissible from mediation sessions [as per sections 195(3) & 197 of the ERP 2007]. Needless to say that the employer had still other avenues open to them if they missed judicial review of the PS's decision to accept a dispute where they could have easily compelled the Union to furnish the required details.
6.10 There is discretion with the Mediators to seek further particulars as per section 5(1) of the Employment Relations (Administration) Regulations 2008 which would assist in better understanding the dispute with a view to amicable settlement but again I cannot comment whether the following was obtained as naturally the original complaint was inadequate to proceed to any decent mediation between the parties.
Section 5(1) of the Employment Relations (Administration) Regulations 2008 states that:-Mediator may request that each party submit a confidential statement prior to the mediation that sets out any matters that the Mediator considers relevant to the mediation, including:-
(a) The issues in employment grievance or employment dispute;
(b) The claims and defences;
(c) Relevant factual matters; and
(d) The remedy sought.
6.11 One can reasonably assume that the employer could have sought such information at the mediation level and/or compelled the mediator to request the same from the Union to be supplied to the employer.
6.12 When the mediator refers the unresolved dispute to the ERT, he/she has to set out details of the dispute in Form 4 as initially reported to the mediation as per section 11 of Employment Relations (Administration) Regulations 2008 (my emphasis).
6.13 The Regulation is clear that the initial dispute that was reported in Form ER5 and which was referred by the PS is what the mediator shall send to the ERT for adjudication.
6.14 However, the mediator when referring the alleged dispute gave the following terms of reference:
"...The Union submits that all workers be reinstated to their respective positions and all remunerations paid".
6.15 It is highly likely that the purpose of s5(1) of the Employment Relations (Administration) Regulations 2008 is for internal use only when the mediation commences and the information obtained therein is to be kept private and confidential and this is confirmed by section 195 of the ERP.
6.16 The intention of Section 11 of the Employment Relations (Administration) Regulations 2008 is to preserve the original dispute for the reason so as to not prejudice the parties from accessing the ERT for redress and remedies under the ERP as a last resort based on a separate jurisdiction from mediation unit where "dispute" shall be dealt with in a judicial proceedings.
6.17 Also there is powers vested in PS to refer disputes directly to ERT and preserving the original dispute as reported in the Form ER5 makes sense under Section 170(4)(a) of the ERP.
6.18 I must say that it would be a difficult task for the mediator to furnish or refer the unresolved portion of the mediation session in the original sense of a complaint (whether in form of dispute or grievance) to the ERT. This is because the general trend is that mediation can be unsuccessful in part or whole and therefore the "mutated" dispute or grievance is likely to be referred to the ERT.
6.19 However, I concur with the employer's submission that neither PS nor the mediators have powers to add remedies to the claim sought that were not pleaded in the original Form ER5. This offends Section 11 of the Employment Relations (Administration) Regulations 2008. Remedies are for the ERT to determine within its discretion under section 230 of the ERP. This was also confirmed by Wati J in the case of Carpenters Fiji Limited –v- Isoa Latianara ERCA No. 7 of 2011.
6.20 Clearly in my mind, section 11 of Employment Relations (Administration) Regulations 2008 does not prevent a mediator from ensuring that ERT is given proper details of the unresolved dispute in a concise manner without compromising the defence of either side or the essence of the original complaint. I suspect no mediation would be successful if either party did not open up in good faith and discuss the issues or allegations with a view to settlement.
6.21 In addition, assuming that the mediator compels under Section 5(1) of the Employment Relations (Administration) Regulations 2008 for any further information, this is where the employer would have first come to some knowledge of the details of the alleged dispute.
6.22 For the reasons stated above, I shall now proceed to determine the substantive matter.
7.0 Determination of Substantive Matter
7.1 As much as this matter appears to be a clear-cut termination dispute as per the claim of the Union as contained in their closing submissions dated 12th October 2011 (see clauses 2.2 and 2.3 below), I have found that both parties had their own version of facts and application of law. As I had reiterated above, I will only concern my determination based on the facts that was introduced in the hearing within the confines of the original allegation in Form ER5. Although I have accepted that this is somewhat vague, preliminary submissions have assisted this ERT to keep a sense of fairness in ensuring that unnecessary facts and new evidence is kept at bay.
7.2 Union's case
7.2.1 In the Preliminary Submission dated 9th May 2011, the Union stated the following:
On or about 28th May 2008 the Employer notified the Union purportedly under s107 of the ERP "...of the prospective termination for redundancy attaching a list of positions."
7.2.2 The Union submitted in their Closing Submission that:-
4.29 The only facts that should be considered by the Tribunal are those facts pertaining to the reasons for the aggrieved employee's termination and the circumstance in which the reason for termination was established.
4.30 The reason for terminating the nine employees on ground purportedly pursuant to s107 of the ERP (my emphasis).
7.3 Employer's case
The Employer submitted in their Closing Submission dated 4th October 2011 that:-
6.1 Should the Tribunal not accept the first submission and decide that the dispute is properly before her, then Pandey submits that as shown by the facts...the termination were in accordance with relevant legal requirements and were genuine, justified and fair. Furthermore, the Union is estopped from raising any objection in this dispute because it consented and indeed participated directly in the terminations (my emphasis).
7.4 I have thus narrowed down the following main substantive issues to be determined:
7.5 In nutshell, this ERT has to consider whether the termination of the nine members was justified in law and procedure if evidence proves that the Union consented to the termination on behalf of their members as maintained or alleged by the employer.
7.6 If so, can the members still come before the Tribunal and seek redress and remedies to state they are still aggrieved with the outcome negotiated by their Union. The Union is maintaining that the termination is unfair and unjustified in terms of substantive and procedural wrong done to the members at the time the termination was undertaken, while the employer is maintaining that they are estopped from using this argument since they consented to the termination on behalf of their members as they (the Union) took direct steps to implement the termination at the time it was effected on the members.
7.7 Again, I will make this clear that if the members are given a right to have this matter determined without substantive evidence being struck out, it is because I have carefully assessed and balanced the right to be heard against the right to defend.
7.8 Notwithstanding that, I am still mindful of the limited and indeed the original claim under Form ER5 which is how the ERT's jurisdiction is invoked to adjudicate on this particular "dispute". I have accepted that this dispute has failed to be brought properly before this Tribunal but I have also given reasons how this could have been remedied before the substantive hearing was set down. Therefore, the facts that I am limited to consider are those provided in the preliminary submissions of the parties to determine the main reasons or cause for "termination of 9 members", which largely centers around the allegation of the breach of s107 of the ERP 2007. I will not consider further allegations under s24 of the ERP or indeed any other provisions that was later added on to this claim.
7.9 The employer has stated in their closing submission that:-
5.2 Pandey's evidence of the process before and after termination was given principally by the then General Manager of the Tradewinds Hotel and Convention Center, Mr Brian Townsend, and supplemented by evidence of Mr. Graeme Ham, the Accor Group's Regional Human Resource Director. This evidence was not seriously challenged nor contradicted in any relevant way by the Union's evidence.
7.10 Because the Union did not substantially refute facts relating to this dispute presented through the evidence of Mr. Brian Townsend as also reflected in the Union's closing submissions dated 5th October 2011 as "established and relevant facts", I shall lay out what can be regarded as the background details to the alleged dispute:-
8.0 Reason for Termination
8.1 The main reason for termination, being redundancy is not disputed by anyone. The Union in its closing submission in response to the employer's submission dated 12th October 2011 in fact alleged that the reason for terminating the nine employees was on redundancy grounds purportedly pursuant to s107 of the ERP (at clause 2.3).
8.2 Termination of nine members a result of redundancy process occurred when the new employer, Pandey took over the ownership rights and management of the hotel on or about 14 August 2007. It seems that when Pandey proposed for further reduction in hours and multi-tasking before the actual refurbishment works was to start, which they argue would have allowed the employer to maintain employment of the Union members, the Union and its members refused. Redundancy as an alternative measure was then proposed by Pandey.
8.3 I also note that prior to this, the old employer, Mr Raffe offered redundancy to these employees who willing accepted to allow them to move onto the new employer, Pandey. This would suggest that these members already had some idea as to the process of redundancy at some point in time in their employment, in fact, not long before, they were facing another one from Pandey.
8.4 Pandey obviously had plans to align the hotel business to a fresh and new brand in standardization with "Novotel" 4 star hotel which Raffles Tradewinds was not.
8.5 The Union did not refute through the evidence of Mr. Daniel Urai, the General Secretary of NUHCTIE that they were not aware that Pandey had plans to undertake refurbishment works once they took ownership of the hotel. This fact was duly established by Mr Urai's evidence when he told the ERT that:-
"...soon after this take over, the hotel was told to take some refurbishments and some workers were identified to be made redundant because of these refurbishments..." (at p111-112 of transcripts)
8.6 The Union did not demonstrate to the ERT that the anticipated refurbishment of at least 10 to 12 months would mean closure of the business although temporary, but, they still did not agree with Pandey's plans on the basis that it was likely to adversely affect its members in whatever form. Instead I find that the Union had agreed to some reduced hours when Pandey took over which means that they were already part and parcel of the consultation process in terms of the plans the new employer was contemplating and executing. Pandey had visibly wanted more reduced hours to sustain their business operation to allow them to effectively keep the members in their respective employment when they were due to begin refurbishment works.
8.7 Mr Urai's evidence made it abundantly clear that they did not properly put their counter proposal to Pandey in terms of their objection against employer's proposal and how they expected to resolve this impasse to allow its members to keep their jobs while Pandey could carry out the necessary refurbishment. Both were evidently critical. The Union's position in this regard is completely missing from the evidence given by Mr Urai. In fact this Tribunal noted Mr Urai barely remembered the consultation process (which I shall come to later in terms of the written codependence tendered in evidence, which is very crucial given that the Union failed to give proper details of the dispute and then, Mr. Urai failed to remember most of the "consultation process").
8.9 Further, it was not clear from Mr Urai's evidence whether the Union took any reasonable steps to enter into proactive talks or consultation from the very beginning when they became aware the new owner proposed restructuring or refurbishment plans to minimize loss, particularly avoiding termination of the existing staff. Mr Urai's evidence provided no insight into what forms of alternative plans they could have implemented (as opposed to redundancy/termination). Again this was a test of good faith that the Union failed from their end.
8.10 Pandey, on the other hand offered their explanation (or reasons) through Mr. Townsend's evidence that while the staff were already on reduced hours they could not sustain the members on the hours they were working due to local and global economic situation at the time; reduction in business by 61%; and most significantly the closure of the Hotel's bar area and the reduction in the services of its restaurant, which would have meant that the staff working there would be required to take reduced hours or undertake multi-tasking which they refused. No practical solution was found it seems by the Union and the employer that led to the employer proposing redundancy as both parties could not come to any form of agreement.
8.11 Further, I note that a new Collective Agreement was in the process of negotiation. This has to mean something. Without a doubt, the Union already had a voice on behalf of the 9 members and clearly any refurbishment process would have practically seen closure of the business for a short to medium-term. Therefore, I had no evidence, oral or written, that Union from the very start were trying their level best to avoid any inconvenience or loss to their members other than declining for further reduction in hours.
8.12 I also had no evidence that the Union immediately declined employer's redundancy proposal when they were sent a Notice or when they became aware that redundancy was contemplated if further reduced hours was not accepted by the Union or its members.
8.13 As noted earlier, any negotiation or consultation between the parties or any impending termination is bound by the principles of "good faith". Here, the employer, to the satisfaction of the ERT has proved its end of good faith bargaining and this ERT is mindful that they kept the Union in the loop from the start, to the extent of also simultaneously trying to secure a Collective Agreement between the parties.
8.14 Further I heard no evidence whether the Union requested the new employer to submit their financial records to truly prove their difficult financial standing. No documentary evidence was tendered before the Tribunal in terms of Pandey's financial position at the material time. I suspect this is because the Union took no steps to ensure that the new owner, Pandey adequately proved their financial position before any redundancy could be considered or implemented if this was one ground to proceed to redundancy.
8.15 The Union might argue that the onus was on employer to prove their financial standing but in a normal scenario it would be the case if the Union strongly objected to any redundancy plans of the employer on the basis they believed that Pandey had all the required financial standing to refurbish without the need to reduce hours or indeed terminate anyone.
8.16 The employees were already on reduced pay due to reduced hours. We can then assume that the Union had some indication as to the employer's financial standing in terms of how the hotel was operating at the material time and/or any reserved income put aside to meet the demands of the refurbishment including payment of salary/wages to the staff during that period.
8.17 Mr Tofinga tried to bring this evidence out from Mr Townsend during his cross-examination, but I found that the burden was on the Union to prove that the redundancy was not required in this instance vis- viz there being no justification for termination of the nine members as the employer was in a financial position to sustain the workers. This is Union's case before me as per their closing submission.
8.18 Under section 107(1) of the ERP, if the Union had taken steps to request information from Pandey as to the financial statements at the time the new employer was considering redundancy as an alternative proposal, this would have given them a good standing to show that they took all necessary steps to stop the redundancy from taking place if the financial records did not favour the employer.
8.19 Indeed one has to ask why the Union did not act at that point in time to stop the employer from further reduction of hours and that too without a good cause or reason and sought relief under the ERP 2007 or through any other avenue. Pandey clearly wanted further reduction of hours. Or multi-tasking of employees. Union rejected and Pandey responded with a proposal for redundancy as an alternative. But, what did the Union do? It failed to voice their objection if they had any with the proposed redundancy.
8.20 The Union also did not take any formal (or legal) action to stop the employer from going ahead with the terminations through redundancy measures.
8.21 They only acted after the nine members had received their termination letters who finished from their respective positions on or about 13 June 2008. Protests were raised by the Union after almost a week of the members receiving their termination letters. And in this instance, Union representative played a major role in distributing those termination letters, a fact that was disputed by Mr. Urai on the basis that he did not authorize his then and current Union representative or "agent", Mr Nitin Goundar. I have discussed this at the later part of the determination.
8.22 For now, to this ERT, evidence clearly points outs that redundancy was an agreed measure between the parties. This is because the Union failed to present any evidence that it was rejected or that Union put pre-conditions that was to be met by the employer before any redundancy could be considered or implemented until, of course when the Union wrote to the employer on 20 June 2008 – and this is after the termination had occurred.
8.23 To that end, I am swayed by Mr Apted's reasoning and concur that this Tribunal cannot second-guess and substitute its own decision as long as the employer's reasons for redundancy are genuine (as per Cooke J's statement in GN Hale v Wellington etc, Caretakers, etc IUW [1991] 1 NZLR 15). Here I find that the reasons were genuine enough if Pandey needed to refurbish and upgrade which would have required staff members to revolve around these conditions and perhaps, further reduced hours or multi-tasking was a better solution in comparison to any redundancy plans.
8.24 As such I also do not see a necessity to make in-depth analysis of the legal application of section 107 or 108 of the ERP 2007 other than examining whether the process of redundancy was complied with. This section provides a presumption in favour of the employer to invoke termination by way of redundancy on three possible grounds:-
Technological8.25 Section 107 of the ERP is to be treated with caution and restrain as it does not give blanket access to any employer to invoke this provision to merely terminate a contract of service (implied or express). It, however, allows an employer to take a "last resort" approach after it must fulfill requirements under s107 (1) (a) and (b). This means they must give adequate notice to the workers, their representatives and PS; an opportunity for consultation to avert or minimize termination; and mitigate adverse impact of termination through alternative employment or re-training.
8.26 This provision does not state that where there is a temporary shut-down of business, this provision cannot be invoked as this will completely negate subsection (2) on the basis that the business is affected due to economic reasons, where profit is likely to be impacted no matter what type of shut-down is expected or anticipated. I do not have any evidence from the Union that the employer had failed to justify their reasons in invoking this provision. On the contrary, the employer provided "economic" reason that they were in difficult financial position and there was no evidence to prove this otherwise.
8.27 As for the necessary refurbishment that was crucial aspect for re-branding the hotel, certainly definition of "structural" suffices in terms of re-organizing the whole image and business approach which the Union was aware of.
8.28 Since the Union did not object to the redundancy that it was unwarranted and unjustified at the material time it occurred, it is to be deemed that the Union, representing its 9 members with full mandate, consented to the redundancy which was necessitated when both parties could not agree to further reduction in hours or multi-tasking as alternative proposals put forward by the employer. If the Union did object, then I have no evidence before me to prove how the Union had put the employer on notice that the planned redundancy must be stopped forthwith until the employer was able to show genuine and good reasons to invoke such measure or for that matter the employer considers their counter proposal instead of pushing for redundancy.
8.29 Accordingly, I accept on the strength of evidence that redundancy in substance was agreed between Pandey and the Union as an alternative measure.
9.0 Redundancy and the Process
9.1 The next question to consider is whether the process of redundancy was wrong and unjustified in procedure under the relevant provisions of the ERP 2007 given that the Collective Agreement at the time redundancy was invoked was not signed between the parties; hence, section 107 and 108 of the ERP 2007 will apply here in its entirety.
9.2 The employer's actions /conduct
9.2.1 Employer first identified potential positions affected on the basis of "Last in First Out" in terms of years of service.
9.2.2 Employer then formally informed and gave 30 days notice to Union via a letter dated 28th May 2008 that they will invoke redundancy under s107 of the ERP.
9.2.3 Letter gave full reasons for the contemplated terminations being:-
9.2.4 The PS was also sent a letter advising him of the contemplated redundancies.
9.2.5 The Union responded on 29 May 2008 with a suggestion that parties must meet on 5 June 2008 for consultation which was accepted by the employer. However, the meeting did not take place as Union officials were not available until 7th June 2008.
9.3 Consultation Process
9.3.1 Meeting of 7 June 2008 was attended by Mr Urai and Mr Nitin Goundar (my emphasis) for the Union while three representatives for the employer attended on behalf of Pandey including Mr Townsend.
9.3.2 According to Mr Townsend's evidence, the Union showed no apparent disregard or objection to their redundancy proposal when they presented and discussed the positions identified by the employer. The employer, in fact agreed to special consideration as negotiated for Mr Alan Tikotikoca and Ratu Meli Koroitamana (the email dated 10 June 2008 sent at 7.38pm confirms this fact).
9.3.3 The Union it seems had asked to deal directly with its members where they had agreed to come to Suva and advise the members on Tuesday, 10 June 2008 of their terminations. Email of 8th June 2008 to Mr. Urai directly reflected this evidence and confirmed the contents of the meeting between the parties which was neither amended nor rejected by Mr Urai or the Union.
9.3.3 Email of 9th June 2008 made a further substitution to the discussion of 7th June 2008 which was in fact emailed and acknowledged by Mr Urai as "noting". This can only mean that the previous content of the email dated 8th June 2008 in terms of the first meeting and this further proposal by the employer was accepted by Mr Urai.
9.3.3 On 10 June 2008, Mr Goundar with another Union official travelled to Tradewinds to meet the affected workers and appeared to have handed out some termination letters. The meeting is clearly admitted through an email dated 10 June 2008 sent at 5.53pm by Mr Goundar to Mr Townsend. This email was also copied to Mr Urai although he did not recall the same.
9.4 I have to point out that the Union did not present to ERT as to what they perceived in the whole redundancy process to be substantially and procedurally wrong. I understand this was also Mr. Apted's contention that the employer was unable to understand as to what the Union's complain was in terms of the termination of the nine members.
9.5 Simply put, I was not guided by Mr Tofinga which aspect of s107 of the ERP in terms of the consultation process or negotiation to avert or minimize repercussion (such as an inevitable termination) was flawed or not adhered to, by the employer as per the agreement between the parties. The Union failed to also put forward evidence for their alternative proposal to employer's redundancy plans before the terminations could take place, if there was any such "pre-condition" such as that there should be a signed agreement before termination could be effected.
9.6 Any "good faith" negotiation requires that whatever was agreed between the parties at the time the foreseeable termination was to place, this was to be carried out with honesty, utmost care not to cause the affected workers distress or humiliation; and most significantly retain a level of good faith relationship for future negotiations. Therefore, in my view Union failed to prove to the ERT that had any special conditions attached to redundancy process before any termination could take place. I am here more concerned with the gist of agreement at the time the termination took place and whether any conditions between the parties was adhered by the employer or not. When a Notice was received by the Union, there was a series of email and other correspondence including two meetings that took place between the parties that was tendered in evidence before the Tribunal. Most of these correspondences sent to Mr. Urai directly or by copy was hardly remembered by him. On the hindsight, if these written (emails) were not available, then my task would have been even more difficult to comprehend what truly transpired at the material time that saw nine people out of job.
9.7 I cannot disregard but comment that in the Union's Closing Submission in response dated 12th October 2011, I note that Mr Tofinga is arguing that "...the Management had in reality purposefully "entrapped" the Union on discussions in what we now know as termination on redundancy grounds..."
9.8 From the very start, this dispute has reached the ERT in an ambiguous and incomplete nature as per the definition of a "dispute" under the ERP 2007 where the ERT is restricted to Form ER5 as to the terms of reference for purpose of adjudication.
9.9 To add to this, Union's allegation pertaining to entrapment into allowing termination on the grounds of redundancy is not only a preposterous defence, but one that offends the member's trust into their own Union to act in a diligent and responsible manner. As far as I can see, the employer had sent a written notice pursuant to the ERP requirement to the Union that they were invoking s107 of the ERP which is the redundancy provision.
9.10 What aggravates more the Union's position in terms of their "good faith standing" in the whole process, is that they have behaved in the most reckless and negligent manner by not raising any constructive objection at the material time the redundancy proposal was made. Simply, no objection translates to acceptance or acquiescence of the employer's proposal.
9.11 Then you have the Union's General Secretary, Mr Daniel Urai who barely remembered or recalled the consultation process invoked by the employer at the time they decided to go ahead with redundancy, quite apart from the fact that Mr Urai attempted to give evidence where the most glaring contradiction was the documentary evidence before the ERT.
9.12 As if this was not enough, a current and past Union employee Mr Goundar who had a major role to play in the entire consultation process (from the initial meeting of 7th June 2008) and indeed actively and directly participating in subsequent meeting of 10 June 2008 (as agreed at the meeting of 7th June 2008) and who also according to Mr Townsend's evidence distributed termination letters to some members neither came forward to clarify to the ERT what was the circumstance that gave rise to "entrapment" by the employer or why he acted outside the Union's mandate or instructions if he had no authority to do so. I had further evidence before me that Mr. Goundar did meet with the staff members at Tradewinds which was confirmed through Mr Alan Tikotikoca's evidence (one of the affected worker/member) although he denied being handed out his termination letter by Mr Goundar.
9.13 Mr Urai's evidence that he barely recalled the events between the employer's notice for redundancy until such time the members were in fact terminated, is not only a feeble attempt in concealing the truth, but one that this ERT finds most appalling in the face of the requirement for "good faith conduct" on the part of the Union.
9.14 How is it possible that when nine peoples' livelihood was under threat, Mr. Goundar working for the Union at the time and is still with the Union proceeded to negotiate and yet, there was suggestion during the evidence of Mr Urai that he was not authorized by the Union? I found this to be a lame excuse for Mr Urai not being able to directly involve himself with the negotiation process while it proved that his sudden memory lapse of such an important process that could have made a difference in nine people' lives who lost their jobs most unbecoming of a substantial position holder as the Union President.
9.15 The members relied on Mr Urai and Mr Goundar and they both failed them in their respective way if both did not participate in the consultation process with good faith intention as the evidence of Mr Urai appears to suggest.
9.16 Indeed I found the line of questioning by Mr Tofinga to the employer's witness, Mr Townsend, that it was not usual for the employer to have the Union give out the termination letters, to which Mr Townsend clarified that "we were instructed by the Union not to deal with the members directly", to be a clear indication that Union was actively involved in the redundancy process as they had accepted the proposal of the employer and they took steps to facilitate termination as per their negotiation. This fact was proved through the evidence in terms of the emails and letters that transpired from 8 June 2008 and onwards (see: Exhibits marked as 4, 5, 15, & 16).
9.17 Therefore, the Notice of 28th May 2008, subsequent meetings, emails, faxes and letters that transpired between the parties set in motion a "consultation process" to allow both parties to discuss a way forward which easily could have included counter proposal or options from the Union if they did not agree or objected to the redundancy plans. Not one piece of evidence before the ERT prior to any termination being invoked or implemented showed any kind of objection from the Union's side until the Union first raised its complaint in their letter dated 20th June 2008 (Exhibit 26). This was after the termination was done and in fact after almost a lapse of a week.
10.0 Due Process & Termination
10.1 The Union's prime complaint was that there was no signed agreement where redundancy proposal was concerned. I cannot and do not accept this.
10.2 The Union who itself participated in distributing the letters through their officer bearer, Mr Goundar here is not saying that they there was no agreement at all, except that it was not signed.
10.3 Good faith discharge in such circumstances demanded that where a worker's livelihood is at stake, the stakeholder's negotiation must be such that it was honest and transparent. None of the evidence in terms of the exchange of emails, letters or meetings suggested that the Union had notified or indicated the employer that there should be a written and signed agreement. This is also not a requirement of the ERP 2007 but one that centers largely on the conduct of the parties.
10.4 If that was the case, the Union has not explained what Mr Goundar's role was in distributing the termination letters which he never came forward to deny or explain the ERT. It is not a good reason to say he was not authorized by Mr Urai. Even if I was to discount for this, then the Union has not explained to this ERT why it took so long to take action and not immediately after the termination letters were handed to the members, either by their own Union official or by Pandey.
10.4 In terms of Union's allegation that members were humiliated at the time of their discharge from service, I found no evidence of this either.
10.5 The employer attempted their best to comply with the negotiated terms agreed as per the 7th June 2008 meeting. Union at no point requested further meeting to sign an agreement before termination could be implemented as there is no evidence of this. As agreed between the parties, Mr Goundar visited Tradewinds on 10 June 2008 to facilitate termination on behalf of the Union and there is strong evidence to prove this. As per Mr. Townsend's evidence, the employer handed the members' letters to Mr. Goundar and he was left to meet and distribute the letters at his discretion – Mr Alan Tikotikoca confirmed that he met with Mr. Goundar.
10.6 The termination letters that Mr Goundar did not hand over for whatever reason was then handed by the employer to the remaining workers who were to finish their service on or about Friday, 13June 2008 with immediate effect but were paid out the remainder of the 30 days' notice period under the ERP.
10.7 Option to finish earlier was also given to the members, which some members took.
10.8 As these employees worked for less than one year service, no redundancy pay was obviously negotiated under s108(2) of the ERP.
10.9 It was Mr Tokotikoca's evidence that his letter was posted on a notice board although it begs the question why he did not receive his letter from Mr Goundar when he admitted meeting with Mr Goundar on 10 June. In fact, there was no contention through the evidence of Mr. Townsend that all the nine workers had received their termination letters and there was no evidence that the letter addressed to Mr Tokotikoca pasted on the notice board was enveloped or not. The employer maintained that the Union was to deal with the workers directly and this could be a reason that the workers received an array of treatment in receiving their termination letters which they are complaining about. However, I cannot apportion the blame on the employer as there is evidence before me that they handed over the letters to Mr. Goundar and it was confirmed by Mr. Tokotikoca that he met with Mr Goundar.
10.10 I reiterate again, the Union by not bringing Mr Goundar forward to clarify all these issues and questions, has denied their own members a right to know why some were given their letters, while others not, in a proper sense of discharging their service with dignity. I cannot apportion blame for humiliation on the employer when the Union showed very little good faith in this regard, especially when they were mandated to protect the interests of their workers at all cost. Union's conduct in this matter is short of a reasonable employer failing to provide due process which they had agreed to facilitate as per an agreement between the parties. Here, I found that the employer went ahead and discharged the workers with dignity by allowing them to meet with their Union representative although a collective agreement was not secured with Pandey. They prepared the termination letters as agreed and handed to the Union representative and where the Union failed they attempted to give the workers their termination letters. The notice period was reasonable as it was agreed between the parties to cover the notice period of redundancy given formally to the Union. I had no evidence that this aspect was also breached by the employer.
10.11 As such, I find the defence of "entrapment" blatantly misguided by the Union where they cannot blame the employer for carrying out the termination in the way they did as it was a negotiated outcome between the Union and the employer. While the ERT sympathizes with the nine workers who were without a job which impacted their families' livelihood after they were terminated, none of the six workers who gave evidence was humiliated at the time they were terminated as due process as negotiated with Union was followed by the employer.
11.0 Remedies
11.1 I have found no evidence of unfair or unlawful termination under the ERP 2007, as such remedies in relation to Union's claims for reinstatement or 24 months pay of the 9 workers is not applicable. I am of the view that the employer had valid justification for termination, substantially and procedurally. In both regard, Union failed to demonstrate to this ERT that there was no good reason or cause for termination and that due process was denied to its members.
12.0 Decision
DATED at Suva this 9th day of January 2012.
LEGAL TRIBUNAL
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URL: http://www.paclii.org/fj/cases/FJET/2012/26.html