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Fiji Employment Tribunal |
IN THE EMPLOYMENT RELATIONS TRIBUNAL
ERT Grievance No. 211of 2010
BETWEEN:
MEHZABEEN KHAN
Grevior
AND:
CARPENTERS FIJI LIMITED T/A MORRIS HEDSTROM
Employer
Appearances:
Ms. Malani as Labour Officer for the Grevior
Ms. Deepika Prakash for the Employer
DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL
1.0 Employment Relations Grievance
1.1 Background to the Grievance
This grievance was registered with Ministry of Labour on 21st October 2010. Mediation was attempted on 17th November 2010 but was not successful. The mediator referred the grievance to the ERT in accordance with s194 (5) of ERP outlining the nature of unsettled employment grievance with the following terms of reference:-
"The decision by management to terminate the services of the grevior which she claimed was unfair and unjustified".
2.0 Cause before the ERT
2.1 In the Employment Relations Tribunal (or "the ERT"), the parties were directed to file preliminary submissions by the Hon. Chief Tribunal whereby the Employer filed its Preliminary Written Submissions on 19th April 2011 and Grevior filed her Preliminary Written Submissions on 27th April 2011.
2.2 Hearing was fixed for 28th September 2011 which commenced and completed on the same day. The parties also submitted their respective closing oral submissions and were given further 21 days as a liberty to file closing written submissions; however, only the employer filed their closing submissions.
3.0 Issue(s) before the ERT
3.1 The issues before this Tribunal arising out of the grievance are twofold. The Tribunal has to assess whether the summary dismissal was justified substantially and procedurally in accordance with the employment relationship that existed through a contract of service and/or statute/law, that is, whether the dismissal was in compliance with the Employment Relations Promulgation 2007 (or "the ERP").
3.2 In nutshell, the following main issues will be determined by this Tribunal:-
4.0 Brief Facts
4.1 Grevior was cited by the employer for stealing a sum of money totaling $500.40 from the cash register she was operating and handling when she was on duty as a cashier on Saturday, 25th September 2010 at the MH Plus, Vivras Plaza in Laucala Beach Estate.
4.2 The said incident occurred when there was a shortfall of a sum of $500.40 in the cash register that was solely and entirely handled by the grevior.
4.3 This automatically gave rise to the employer looking into the matter through an internal investigation process and declaring that the missing money or the shortfall was a direct result of the Grevior's action. Since the missing money was not located or accounted for through the employer's checks and balances in place that clearly conflicted with the employer's (computer) system records, this led to the employer believing that the missing money were a direct result of the Grevior stealing the same.
4.4 According to the Grevior when she came to knowledge that there was a shortfall of money that she had handled as a cashier, she denied the employer's allegations and maintained that she did not steal the alleged sum of money.
4.5 The Grevior further alleged that she was not given fundamental right to respond to the employer's allegations when she was handed her suspension letter, in essence then the employer treated her in an unfair and inequitable manner [as per Grevior's preliminary submission].
5.0 Evidence During the Substantive Hearing
5.1 During the course of the hearing, the Employer called two witnesses (investigating officer and security guard) while the grevior, herself gave evidence to present her side of the story.
5.2 The employer, being a merchant for various goods and services around Fiji, runs a chain of grocery shops which requires hiring of cashiers where the grevior worked as one, to handle financial transactions with their customers.
5.3 The grevior had signed a contract of service on 1 August 2008 and was confirmed to her position from 1st January 2009 (as per Exhibits marked as "A" and "B").
5.4 The employer's case purely hinged on their system and processes in place for controlling and handling of the cash register entrusted to each cashier, being on duty on the particular day. It was the employer's evidence that they completely relied on their computer system to verify transactions and reconcile the day's takings entered by each cashier.
5.5 Any discrepancies or shortfall in the monies detected through such system and processes in place then puts in motion an employee's responsibilities being questioned at the time they are discharging their duty as a "cashier".
5.6 In this case, the grevior was tasked with handling a cash register which evidence the grevior gave was her sole and full responsibility to guard and account for, whenever she assumed her duty.
5.7 In between her duty, the grevior had full discretion to ascertain if the cash register had exceeded its cash limit, it could then be transferred to the employer's safe under her guidance with the security guard being present during such transition.
5.8 At all times the procedure indicated that the cashier was entrusted to remain responsible for the day's takings that she deposited into the register including when she removed such money whether to transact with the customers or to deposit into the employer's safe.
5.9 At all times the grevior was to remove the cash by her hands only and the only time the security guard was assisting her was when she was transferring the cash to the safe. The grevior confirmed through her testimony that no third party was allowed to handle or use her cash register while she was on duty as a cashier.
5.10 There was no contention that the monies did go missing or was stolen as alleged by the employer.
5.11 The only contention that the grevior had was that she was unaware of the missing money on the day it was supposed to have occurred.
5.12 It was the grevior's evidence that she did not come to knowledge of the missing monies from the employer directly until she made attempts herself to find out on or about 27th September 2010 when one of the grevior's workmate informed her of the shortfall. Upon checking the "shortage book" or what is also called by the employer as the "cash discrepancy checklist", she saw her name in the list or book. This is confirmed through the "caution statement" (or Exhibit "E"), where she had told the investigating officer that she became aware of the missing money on 27th September 2010 although as per the Preliminary Submissions, I have noted that the grevior had stated it was 28th September 2010 when she came to knowledge of the missing funds.
5.13 The employer through the evidence of First Witness: Jale Ganivatu explained that there was a system in place to reconcile or verify all monies handled by the respective cashier's on duty through a computer generated print-out that would verify takings of each cashier on duty and also indicated if there was a shortfall that would appear in the cash discrepancy checklist. This was tendered in as evidence through Exhibit marked as "E".
5.14 According Mr Ganivatu, because it was a weekend, the "verification process" was not complete until Monday, 28th September 2010, the following week. Once a "shortfall" was detected, he was summoned by the employer to attend to an investigation to ascertain how the shortfall came about and question the grevior as to its whereabout.
5.15 The reason for the delay in ascertaining the shortfall at a later date due to the weekend did not seem improper or abnormal as there was no evidence that immediate reconciliation and verification process was essential. It appears that the entire verification process was dependent on the computer system in place which was also dependent on the summary clerk who would then reconcile and complete his/her summary as per Employer's Standard Procedure for Cashier Cash handling and Register Tape Control tendered in evidence marked as Exhibit "G".
5.16 It was the grevior's evidence that she was aware of the "MH Standard Procedure" (that is, Exhibit "G") which laid down the procedure of counting cash and handling of cash register tapes. This Procedure provided a system of checks and control which employer gave evidence through the second witness that it entered minimum error in the counting of daily cashier intake.
5.17 When the grevior's takings were taken for an Interim Cash Count at 3.35pm, the head cashier in the presence of the grevior counted the takings which totaled $990.00. At 7.30pm, another Cash Count was conducted in presence of the grevior by the Manager, where a total of $2,176.85 was recorded. The Cash Total registered for both these counts was $3,667.25. However, when the grevior tendered in her final takings, there was only $3,166.85 which was $500.40 short. At both counts the grevior was present and it was employer's evidence that she had signed the Interim Summary Certificate, the Final Summary Certificate and the Counter Declaration Form.
5.18 The transferring of surplus money from the grevior's register to the safe was also established to be a normal procedure and one that the grevior confirmed that she carried out under the supervision of the security guard and the manager on duty.
5.19 While the "verification process" continued that later confirmed that the money allegedly went missing on 25th September 2010, the Grevior continued her normal duties until she was suspended on 1st October 2010.
5.20 Mr Ganivatu was summoned to carry out investigations into the allegation of discrepancies found through the gevior's cash register report, which he attended on 1st October 2010. He attempted to provide reasons why it took him five days to attend to the investigation where he stated that he was handling similar cases for the employer who is a large-based operator with various stores around Fiji, and therefore, when he was free, he attended to the grevior's case forwarded to him for investigation five days after the alleged incident occurred.
5.21 The ERT found no apparent prejudice in the delay of the investigation process used by the employer as they used documentary evidence generated through their computer system outlining the discrepancy in question to initiate the investigation. Also up-til the day of investigation, the grevior continued her shift.
5.22 Mr Ganivatu's investigation of 1st October 2010 had resemblance or similarity to what police officers would normally conduct, naturally because this witness has been a former police officer. He conducted an interview with the grevior which he called a "caution interview". It was his evidence that he made known to the grevior the purpose of the interview, that she was not forced into anything and that she could sign her statement if she wished. The grevior after giving her statement signed the statement voluntarily as her evidence indicated and this "caution interview statement" of the grevior was tendered in evidence marked as Exhibit "E".
5.23 During the said caution interview, Mr Ganivatu showed the grevior the documentary evidence the employer had which apparently pointed out that the grevior's 25th September 2010 takings showed a shortfall of $500.40 which she denied having any knowledge or pocketing the same.
5.24 Clearly from the evidence, the grevior did not work her shift as scheduled for 1st October 2010.
5.25 The evidence before this ERT allows me to draw reasonable inference that the grevior was already suspended when the caution interview was taken as per Mr Ganivatu's report to the employer through the Manager Security where he indicated that he conducted an interview with the grevior and found that: "... the denial does not deter the facts provided by accompanying documents...they leave no other openings for anyone else to take the missing $500- other than the (B-1) [or the grevior]...". He also added in that report that the grevior has been suspended with immediate effect.
5.26 The letter dated 1st October 2010 written to the grevior by the employer is evidence that the grevior was suspended with immediate effect on the even date. Through the letter, the grevior was indicated that:-
"...the ...matter will be investigated and you will be notified of the status of your employment with the company once investigations finalize..."
5.27 It was employer's second witness, Mr Meli Radrekusa's evidence that on 5th October 2010, he submitted a report to the Acting General Manager regarding the missing money through a report tendered in as evidence through Exhibit "H". This report gave a full detail of the incident starting from the time the grevior began her shift and to the time the system records indicated when the money went missing. Through the computer generated graph of the incident as to different times the grevior had handled various transactions, the only conclusion the employer drew out of the report was that the money was physically removed whilst it was in the custody of the grveior as the employer had attempted to carry out a detailed investigation to ascertain all other possibilities.
5.28 On 14th October 2010, the grevior admitted that she was handed her letter of "summary dismissal".
5.29 It was grevior's evidence that she received this letter after she went down to the head office and enquired about her employment status as alluded in her suspension letter dated 1st October 2010, instead of the employer writing or informing her of the same.
5.30 It appears since the grevior did not hear or receive anything from the employer as to the status of her employment she was compelled to go down herself and this is when she found out from the employer that she was being summarily dismissed. She was handed her letter of termination by one Ms Archana who attended to her and thereafter she went home.
6.0 Is Summary Dismissal Justified in Substance?
6.1 The first issue to determine is whether the employer had valid and good reasons (or cause) to invoke summary dismissal on the grounds of "gross misconduct".
6.2 Although the employer's defence is that they invoked section 33(1) of the ERP 2007 to carry out summary dismissal of the grevior (as per the closing submissions), this ERT cannot overlook that the first point of reference is the contract of service between the parties, which is in essence provides almost identical provision to that of section 33(1) of the ERP. The employment contract (Exhibit "A") is clear that:
" ...the employer may summarily dismiss the employee without notice where the employee is guilty of gross misconduct...".
6.3 The employment contract does not specify what constitutes "gross misconduct", and whether loss of money which maybe misplaced, miscalculated or possibly stolen by an employee falls within that category.
6.4 However, to this ERT there was overwhelming evidence that the money that was entrusted to the grevior to handle and account for showed a shortfall as per the computer records presented in evidence.
6.5 Clearly to this ERT, the grevior could not explain in terms of how such monies may have gone missing under her custody while she had sole operation and responsibility of the cash register. She could not also explain if indeed it was miscalculated as she asserted that there was an error with the system in place, how this could have come about in terms of alleged "error" in the computer and manual reconciliation.
6.6 The grevior admitted before the Tribunal that she was responsible for the day's takings and if there was a shortfall, she would also assume the responsibility and risk as she was aware of the employer's procedures as contained in the "cashier cash handling and register tape control" Policy/Procedure marked as Exhibit "G".
6.7 As such, I find that the grevior was responsible for the missing or lost (or stolen) money as no other person(s) handled her register. If the grevior cannot account for the lost money, then she has to be held responsible for this shortfall whether it was stolen or not. She is then answerable to the employer as to how these monies went missing that was under her protection and trust.
6.8 The employer in such circumstance had no choice but to assume that the grevior took the money without authorization or approval of the employer, amounting to theft as the grevior has not explained what has happened to the money that she was entrusted with.
6.9 To that end, this ERT will not substitute its views for that of the employer in determining whether the employer acted reasonably; rather the Tribunal has a task to test objectively whether the employer acted reasonably: (see: Michael Strouthos v London Underground Limited, England and Wales Court of Appeal (Civil) Decisions, [2004] (18 March 2004).
6.10 I have also noted his Lordship Justice Gates (now the Hon. Chef Justice) decision in the case of Philips Thomas v Fiji Electricity Authority [2004] FJHC 303 where he applied the ratio in the English Court of Appeal case of X vY [2004] EWCA Civ 662 as follows:-
"the law on dismissal for conduct is clear. It has been said to be a four pronged test. The Foley test was cited with approval in X v Y (supra at para 18):-
"the employer must show that he believed that there had been misconduct by the employee; that there were reasonable grounds for that belief; that he had carried out as much investigation into the matter as reasonable in all the circumstance; and that the decision to dismiss him for that conduct reason was within the range of reasonable responses of a reasonable employer."
6.11 The Tribunal is of the view that the employer had reasonably drawn conclusion that the (missing) money was removed by the grevior physically at the time she was handling the cash register as documentary evidence in terms of the employer's system records of all the transaction handled by the grevior did not reconcile with the money received and submitted by the grevior at the end of her shift.
6.12 This clearly establishes a basis for the employer's justification for alleging "gross misconduct" in terms of having a valid reason or cause where "theft" can fall within the ambit of gross misconduct if employer has set down a standard of conduct where any form of theft is unacceptable.
6.13 The most glaring evidence that the employer had at the time of the alleged misconduct was their system records of all transaction where the grevior's records of the day's takings during her shift could not be reconciled. Thus the employer's main reason for dismissing the grevior was for a cause.
6.14 Accordingly, the employer to the satisfaction of this Tribunal has established that there was a gross misconduct on the part of the grevior when she could not account for the missing money which they viewed or regarded to be stolen by her.
7.0 Is Summary Dismissal Justified in Procedure?
7.1 In the case of Carpenters Fiji Limited v Isoa Latianara ERCA No. 7 of 2011, Wati J has said that:-
"...if there is serious misconduct, then it is the prerogative of the employer to terminate the employment immediately. If all these procedures of hearing and explanations are accorded to the employee, then the purpose of summary dismissal is lost..."
7.2 I have accepted that there is justification for "gross misconduct" in substance in that the grevior's conduct at the time of her dismissal was within a range of reasonable responses as alleged by the employer. The above case alludes that once a serious (or gross) misconduct is established then procedural fairness or justice is not required. To end, the employee could have immediately proceeded to terminate the grevior.
7.3 However, in this instance, the grevior is alleging that she was not aware of her "summary dismissal" until she enquired with the employer some 14 days after she was suspended on 1st October 2010, pending investigations. The employer did not lead any evidence to negate grevior's allegations in this regard nor present their side of the story as to when and how the grevior was handed her termination letter to effect "summary dismissal".
7.4 Clearly there was no dispute from both sides that she was suspended as per employer's Exhibit marked as "D". The "suspension letter" also alluded that the grevior would be notified of the "status of her employment with the company once investigations finalize". This evidently means that the grevior was suspended (with immediate effect), but not clear whether with or without pay, however, one thing that was clear is that she was not dismissed immediately as required by the procedures for a "summary dismissal".
7.5 The case of Central Manufacturing Compnay Limited v Yashni Kant [Unreported Fiji Supreme Court Case Number CBV 0010 of 2002] clearly states that in carrying out the dismissal, the employer must treat the employee fairly and with appropriate respect and dignity. This was followed by Ladyship Wati in Isoa Latianara's case.
7.6 The lingering 14 days where the grevior was waiting at home to hear from her employer whether or not her employment was still intact or secure until she was forced to find out the "status of her employment" is nothing short of the employer toying with her emotions and subjecting her to humiliation and unnecessary stress before she was handed her termination letter.
7.8 Of course, this is when she finally accepted that she has been summarily dismissed. And that too by an ordinary staff who finally relived her of the agony rather than a Manager who should have given her the final dismissal face to face as contained in the employer's own contract of service signed between the grevior and the employer.
7.9 Under the "Disciplinary Procedure" clause (at page 3) of the employment contract dated 1st August 2008, wherever applicable and relevant it states that:-
"The employer's disciplinary procedure is contained in full in the Staff Handbook. The employer's disciplinary procedure is summarized as follows:-
(a) if an employee acts inappropriately or unacceptably;
- (i) the employee may be summarily dismissed and will not be entitled to payment in lieu of notice;
- (ii) the employee may:-
- be given a first warning of a first offence;
- be given a final written warning for a second offence;
- may then have an explanation interview with his/her manager;
- may have a further interview in which his/her employment is terminated (underlined parts are my emphasis)
7.10 In the Tribunal's view, the grevior was denied discharge in the proper manner within the realm of a "summary dismissal" which was agreed between the parties through the contract of service. In any event, good faith demands that at the time of dismissal, the grevior ought to be properly discharged. 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, 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..." (my emphasis).
7.11 Instead of the grevior in person being properly explained the reasons for her termination through her Manager whom she first went to see (a person called "Manager Asish") she was referred to the head office. At the head office one person named Archana told her (as per grevior's evidence) that the "money is short under your name and you have to pay $500 and I said no I did not take the money so I can't pay $500...": this is when she was handed her dismissal letter by Archana.
7.12 It was not clarified what position this person, Archana held in the company but surely summary dismissal required that the grevior was immediately and properly explained the reason(s) for her termination (however valid and justified) by a Manager. Thereafter the employer could have sent her home, preserving her dignity.
7.13 However here, the employer subjected the grevior to a 14 day wait where she was hoping to know "the status of her employment" from the employer.
7.14 This amounted to inhumane treatment by the employer. Indeed it is humiliating and distressful for the grevior to wait around home hoping to hear from the employer who gives that assurance through the suspension letter and the employer did not contact her at all until she was forced to take action.
7.15 In the meantime not knowing the status of your employment (not clear in this case if she was receiving any pay during suspension) and not knowing the status of your future livelihood is not only emotionally stressful for the grevior and her family but one that impacts her economically – if she knew she was terminated immediately, then she could have accepted the transition and prepared herself to look for another job.
7.16 It is then my view that the period of 14 days whilst the grevior waited to hear from the employer cannot be substituted or be treated as "summary dismissal" even if the employer finally decided to terminate the services of the grevior on that basis after concluding its investigations.
7.17 If so, how can this be regarded as treating the employee fairly and with appropriate respect and dignity in carrying out the dismissal when the employer failed to contact the grevior soon after it had taken a decision to summarily dismiss her. In fact, the employer failed to contact the grevior at all. If it did, then I had no evidence before me to prove that the employer took immediate steps to inform the grevior soon after their investigations were complete to discharge her.
7.18 Further under section 33 (2) of the ERP 2007 it is mandatory that "the employer must provide the worker with reasons in writing for summary dismissal at the time he/she is dismissed." (my emphasis). Time of dismissal is critical component to lawfully establishing "summary dismissal".
7.19 In that regard, while there is incontrovertible ground to justify gross misconduct to invoke summary dismissal against the grevior as a penalty for her wrongdoing, clearly the employer fell short of discharging the grevior from her employment with respect and dignity at the time they allegedly carried out summarily dismissal.
8.0 Decision and Orders:-
Dated at Suva this 19th day of January 2012
LEGAL TRIBUNAL
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