IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL

Grievance No 173 of 2011

BETWEEN:

MILIAKERE NALE
Worker

AND:

CARPENTERS FIJI LIMITED T/A MORRIS HEDSTROM
Employer

Counsel: Mr Noel Tofiga for the Worker 
Ms Deepika Prakash on behalf of the Employer 

Date of Hearing: Monday 2 April 2012 
Date of Judgment: Tuesday 10 April 2012 

JUDGMENT

TERMINATION OF EMPLOYMENT CONTRACT – Section 33 Employment Relations Promulgation 2007 – Summary Dismissal of Employee: Dismissal of Worker When On Maternity Leave; Opportunity to Respond 

Background

1. The Worker was a 28 year old Sales Assistant, who was terminated in her employment, while on maternity leave, by letter dated 27 April 2010. 

2. At the relevant time, the Worker's terms and conditions of employment, were governed by a written contract of employment, entered into between the Worker and the Employer ("the parties") some time on or around 21 December 2007 and a Collective Agreement between the Employer and the National Union of Factory and Commercial Workers, as entered into between those parties on 14 December 2005. 

3. The primary reason for dismissal provided within the termination letter, was that the Worker had "sent malicious texts to a customer..(in) direct breach of the confidentiality clause of (her) contract" and at the time of such alleged conduct, that the worker had been on her final warning with the Employer. 

4. At termination, the Employee was nominally provided with one week's pay, though was ultimately paid no termination pay, by virtue of an offset salary and wages deduction authority, entered into by the Worker with Carpenters Finance, a Division of the Employer, on 19 May 2008. 

5. The Worker seeks reinstatement in her employment, a remedy available under Section 230(1) of the Employment Relations Promulgation 2007, and a consequence of Section 35(iv) of the Collective Agreement if it is proved that the Worker has been unjustly dismissed. 

The Worker 

6. At the time of termination, the Worker had been engaged as a Sales Assistant with the Employer, for a period of approximately two years and five months. 

7. The Worker's employment history according to the personnel information identified by the Employer and provided as evidence in the proceedings by the Human Resource Co-ordinator Ms Pilai, was somewhat checkered at first glance. 

8. In the Employer's List of Exhibits (Exhibit R1), Ms Pilai identified various documents representing occasions where the Worker's conduct was the subject of some form of disciplinary process. 

9. Key issues identified within the exhibit were:- 

•	Final warning letter dated 4 February 2010, for excessive sick leave absences (Document C); 
•	Allegation of misconduct on 11 March 2008, relating to the sending of V-mails during office hours (Documents F 1 and F2); 
•	Suspension for allegation of theft on 4 July 2008 (Documents H1 to H3);and 
•	Various other infringements pertaining to sick leave and allegations of improper and unauthorised removal of stock). 

10. It was the evidence of Ms Pilai that she herself was not employed with the Employer during the Worker's period of employment and on that basis could not provide any direct evidence in relation to the way in which the human resource management issues pertaining to these matters were addressed at the time. 

An Analysis of the Previous Conduct 

11. At first glance, the documentation provided by the Worker does appear to tell a tale of a Worker with fairly significant conduct issues, though sometimes documentation can be misleading. 

Vmail Messaging, 11 March 2008 

12. For example, the issue in relation to the sending of a V-mail from a work computer in March 2008, appears not to have been substantiated. The Worker denied using a work computer for that purpose and the Employer seems to have provided no evidence of any such computer transaction. At issue here, was a complaint received from a member of public that the Worker had been texting this person, supposedly on the basis that the Worker was having an affair with the woman's husband. 

13. This was summarised within an Investigation Document prepared by the Worker (Report Number 47/08) as demonstrating: (the Worker's) deprival to (the complainant's) right and use and enjoy something of own is stealing and therefore (the Worker) cannot be treated to take care (of) any company stocks". 
 
14. While it is clearly true that a Worker should not intentionally bring harm or disrepute to her place of employment, it remains the case that her lawful personal conduct is her own business. In my view, the investigator was wrong to draw the conclusions that he or she did. Particularly, that the conduct is somehow analogous to theft and that the employee could therefore not be trusted. 

15. The Employer was well entitled to warn the Worker regarding misuse of company property (such as the computer to send Vmails) and/or otherwise to send mobile text messages during working hours. This it did by letter dated 4 April 2008. 

Allegations of Suspected Theft

16. Document G1 of Exhibit R 1, is a suspension letter issued to the Worker on 4 July 2008. The document has the effect of suspending the employee for allegations of theft as a cashier. The Worker resumed work on 18 July 2008 (See Document G2 of Exhibit R1) and it would appear from the language of the correspondence sent to her that the issue was one of being negligent in the performance of duties.

17. One month later, the Worker was suspended again from her employment, as a result of having a surplus of $4.90, following the conduct of a random cash count.8 Again the worker was cleared of the allegation following the investigation and was thereafter reallocated to non-cash handling duties as a Sales Assistant, MHCC-Homemaker.

18. On 29 January 2009, the Worker was again suspended for allegations of her involvement in the improper and unauthorised removal of stock. Again following investigations, she was reinstated in her duties by letter dated 11 February and on its face, apparently cleared of such wrong doings.

Confirmation of Worker's Probationary Period

19. Despite the above issues, on 1 August 2009, the Employer wrote to the Worker, confirming her employment and indicating that she had "satisfactorily completed (her) probationary period."

20. The letter forwarded to the Worker and sending congratulations from the General Manager-Homemaker, Mr Shah states: 

We hope that you would continue to work with commitment and diligence and take the numerous opportunities available for progress and career development with the company". 

21. In light of this confirmation of permanent employment, I regard the Employer at this point in time as having been satisfied that the conduct of the Worker was satisfactory for the purposes of offering her continued employment with the company. 

Pregnancy of the Worker 

22. The confirmation of the Worker's permanent employment appears to coincide roughly with the time in which the Worker became pregnant with twins. It was the Worker's evidence that during her pregnancy that she did require to attend medical practitioners more frequently, in order to monitor the foetal development of the children. In the absence of any medical evidence to the contrary, though it is noted that Mr Tofiga did seek to supply a letter from a medical specialist to that effect, I accept this as being a plausible situation that occurs in cases of this type. 

23. I note that in Document C of Exhibit R1, that the Employer appears to be taking issue with the fact that the worker in 2009, had 14 days sick leave and that she was being warned in relation to excessive absences. The Worker appears to have been working with the Employer up to and until around 17 March 2011. This is approximately two weeks before the Worker gave birth to the twins on 1 April 2011. 

24. For reasons which I will address shortly, it perhaps comes as no surprise that a Worker who is carrying twins and required to work 45 hours per week, presumably standing all day attending sales enquiries, in such circumstances, would require the full number of sick leave available within her employment contract, in order to ensure the health of herself and her forming children.

Incident that Gave Rise to Termination by Employer 

25. On 5 March 2010, the Employer received a "formal complaint" from a customer, in relation to a text message that the complainant had received from the Worker. (Refer to the Documents marked D within Exhibit R1). The complaint that in effect has given rise to this termination, was investigated by the Employer under the auspice of its Security Manager, Mr Radrekusa. 

26. Mr Radrekusa gave evidence in proceedings and while not directly involved in the investigation process, did oversee the activity by his staff and ultimately provided a report to the Human Resource Office, dated 19 March 2010. 

27. Despite the protestations of Counsel for the Employer, that the condition and personal state of the Worker is irrelevant to the alleged conduct and that of the Employer, I strongly beg to differ. In any event, the upshot of the Investigation Process and the events that gave rise to the trigger to terminate the Worker's employment, appear to be as follows. 

28. According to the Worker, she had raised concerns with her Manager Mr Ashwin Dutt, in relation to her former partner (the father of her twins) coming into the store with his new girlfriend, apparently with the intention of taunting the Worker. 

29. It would appear that the Worker and the other female, did exchange telephone communications and later text messages in relation to certain matters. Specifically those matters appear to concern remarks directed at the Worker, as to why she was seeking maintenance payments from her ex-partner and an apparent retaliatory remark made by the Worker in a text message to the female.

30. It was this conduct that became the subject of the investigation by Mr Radrekusa. 

Issues Arising from Investigation 

31. The case of the Employer is that the Worker sent several text messages to the complainant, a person who had attended the store with the Worker's former partner to apparently apply for a Carpenters Moneylink Account.

32. The complainant who in that case was nonetheless a customer of the Employer, alleges that the Worker sent her a text as follows: 

YOU APPLY TO MHCC, I ACCESS THE ACC. I KNOW YOUR PAY, YOUR DIVORCE &YOUR RUBBISH.WE ALL KNOW ABOUT YOUR GARBAGE.

33. The Worker on the other hand, claims to have sent a text message to this effect, 

I AM DESPERATE TO APPLY FOR CHILD MAINTENANCE TO FEED MY CHILDREN WHY ARE YOU DESPERATE FOR MONEY LINK. 

34. Counsel before me have argued in relation to the way in which the investigation was conducted and whether the principles of natural justice applied. For example, Mr Tofiga and his client are strong in the view that the Worker sent only one retaliatory text and that no other allegations were specifically put to her. Ms Prakash reliant on the evidence of the Security Manager, Mr Radrekusa claims that the specific allegations contained within the email communications as forwarded by the complainant to the company, were given to the Worker. Mr Radrekusa's evidence was that he had confirmed this with his investigating officer. There is no evidence that this took place and it is apparent from the formal questions asked of the Worker as evidenced in the Security Unit Interview Form dated 18 March, that there is no such reference to email communications being sighted. The statement taken by the Worker is what it is. It commences: 

"Miliakere, I will question you on the allegation that you on 5th day of March 2010, accessed the personal money link account of one (name suppressed) without authorisation whereby you breached your work ethics as an employee of Morris Hedstrom". 

35. The investigator then proceeded to ask nine quite structured questions. A simple read of that Interview Form would show how little time was involved with the investigation. So much would have been apparent to any competent human resource management practitioner. 

Bases Argued by Employer That Gave Rise to Justifying Termination 

36. The Employer rightfully takes issue with any conduct exercised by an employee that causes any harm to the reputation, goodwill and public confidence of the company. 

37. In my view though, there is no evidence whatsoever, that the Employer actually sought to look beyond the superficiality of this complaint to understand exactly what had transpired and on what basis. 

38. As can be easily glistened from the Termination Letter dated 27 April 2010, the Employer attacks the Worker's conduct on three principal bases: 

•	Sending malicious text messages to a customer citing that she is desperate to apply for a "money link" card;

•	Tarnishing the Employer's image; and 

•	Causing doubt in the customer's mind as to whether her personal information remains confidential and therefore a direct breach of the confidentiality clause of her contract of employment. 

39. In ordinary circumstances, the first complaint would be understandable enough. The problem for an employee of the company though, is that a large number of persons residing in this country, could invariably be characterised as having been customers of the Employer. This I am sure will not be the first nor last time, where an employee of the company finds himself or herself in a personal dispute with a "customer". 

Malicious Texts

40. It appears very easy for a "customer" who herself wants to be malicious, to make a complaint whether substantiated or not against an employee. On that basis the Company needs to exercise a good deal of scrutiny as to whether or not a complaint received of this type, is itself malicious or validly made. 

41. In the case in question, we are speaking of a Sales Assistant who does not work for Carpenter Finance and who in her work role, has no access to any such Money Link records. This is a situation that is well known to the Company, though is not reflected in the way in which the investigation occurred. 

Tarnishing Company's Image 

42. The second issue pertaining to damage to reputation is perhaps a more compelling one. In this case, the Employer asserts that by association or any reference to the Employer's business whatsoever, that the Worker has tarnished the reputation of the Company. But was this either the intention of the worker or in fact the reality of what occurred? This appears to have been an exchange of words, amongst two women who have at various times appeared to share the same partner. 

43. The Company could have relied on the direct evidence of the complainant in the conduct of this matter, for whatever reason it elected not to do so. I am not prepared to draw an inference either way in relation to the precise language of the text message or messages. I do not believe at any stage that the Worker was seeking to tarnish the reputation of her employer, nor do I accept based on the circumstances of the exchange, would it be reasonable to assume that the complainant herself had any genuine concerns that could not have been easily allayed. 

44. Consider the email communication sent by the complainant to Carpenters Finance. (Document D at email pages 2 of 4 and 3 of 4) of Exhibit R1. In my view it is self serving and designed to cause as much harm to the Worker as possible. To that end, it appears to have been successful.

Causing Doubt in Customers Mind 

45. The complainant states inter alia: 

I am working at (xxxxxx ) as a credit officer, we are not allowed to give any information or use this record for a personal use". 

46. In my mind, the complainant did not genuinely hold any fears as to the confidentiality of her own personal information. As a credit officer with a competitor of the Employer, she would have been well aware of the protocols associated with these matters. Her target was a Sales Assistant who at the time was heavily pregnant carrying two children fathered by the complainant's partner. This was a spiteful exchange between parties and should have been seen as such.

47. So much should have been ascertained by any competent Human Resource practitioner oversighting this issue. But that appears to be the problem. There is no evidence of any such oversight or enquiry made by such person, only the report undertaken by the Security Manager, that provides no evidence of any employee relations considerations being applied whatsoever. 

Use of Confidential Information

48. The final issue that is again of understandable concern to the company, relates to the possible breach by the Worker of the obligation to keep confidential information of the Company. 

49. I have read the "Non-Disclosure and Confidentiality" Clause of the written Employment Contract dated 21 December 2007. 

50. I am not convinced that the Worker either: 

•	Revealed confidential information to any person; 
•	Used confidential information to the intended detriment or probable detriment of the Employer; 
•	Used information to injure or cause loss either directly or indirectly to the Employer. 

51. The Worker was clearly under pressure, both financially and emotionally. When giving her evidence, she gave the impression that she sincerely believed that the complainant and her former partner were simply provoking her. 

52. The worker admits to having said to a co-worker, "why is (the complainant) coming in here taunting me" and was told in response, she is here to apply for a Money Link account. 

53. Strictly speaking, the Worker should not have made any mention of the complainant's application. I accept that as being the exemplary conduct of a well balanced person. The circumstances though apply a different environmental context that must be taken into consideration, if only to understand what motivated the Worker to do what she did. 

54. There is no evidence of any enquiry made by the Employer in this regard. In the context of this employment situation, I regard that state of affairs as being a shortfall in the way in which the Employer, dealt with this matter. 

Obligation of the Employer When Terminating an Employee 

The Common Law

55. In Central Manufacturing Company v Kant, the then Supreme Court held, that 

..there is an implied term in the modern contract of employment that requires an employer to deal fairly with an employee, even in the context of dismissal. 

56. Specifically, the Court held that while the common law implication plainly does not extend to a requirement that reasons be given, or that a hearing be afforded at least where the employee has the right to dismiss without cause and to make a payment in lieu of notice. It does extend, however, to treating the employee fairly, and with appropriate respect and dignity, in carrying out the dismissal. 

Statutory Obligation

57. While the Employment Relations Promulgation 2007 does not set out a statutory framework for how unfair dismissals within employment should be adjudged, the 

Promulgation does nonetheless provide strong signposts that termination in employment (whether with or without notice, or with or without cause) should be undertaken fairly. 

58. Consider for example the language at Section 230(2) of the Promulgation. The Tribunal and Court both have powers to remedy or resolve grievances that arise out of "unjustifiable or unfair dismissals". Yet these terms are not defined within Section 4 of the Promulgation. So what is an unjustifiable or unfair dismissal? 

59. Section 4 of the Promulgation defines the term "dismissal" to mean: 

any termination of employment by an employer including those under Section 33" 

60. In the case of a written contract, for example, such dismissals would include, any termination of employment that is unilaterally initiated by the Employer, including termination arising under:- 

•	Section 41 (in the case of a worker's inability to fulfil the contract, or due to sickness or accident; and 
•	Section 33 (that deal with the circumstances in which summary dismissal is justified); and 
•	Section 29 (in all other cases where termination is provided with notice).

61. In the absence of any statutory or apparent common law definitions of "unjustifiable and unfair dismissals", I would attribute the following ordinary meanings to such words. For a dismissal to be justified, it would need to be capable of demonstration that it was just, right or valid; capable of being defended with good reasoning. A decision would be unfair, if it was harsh, unjust or unreasonable. 

62. So it would seem the intention of the Promulgation is to ensure that all terminations of employment are both justified and fair. Unlike the common law, the Promulgation does not just concern itself with the manner in which the dismissal was executed, but whether or not it was justified or fair as a substantive decision. A remedy for reinstatement would not be made available, if the role of a tribunal was only confined to the manner in which an employer treated a worker at dismissal and not whether or not, the decision to termination was actually justified in the first instance. 

Bringing an Employment Contract to an End by Termination of the Employer 

63. The critical focus of termination law is that the unilateral action taken by the Employer to bring to an end the employment contract is placed under scrutiny. 

64. In the case of a Worker seeking statutory relief, what is being pursued, particularly where reinstatement is sought, is the intervention of the court or tribunal, to declare the termination, unjustifiable or unfair. 

65. This requires two considerations. Firstly, an assessment as to whether or not the termination was unjustified or unfair, but secondly, whether such a remedy is a feasible one.

66. The interrogation of employment grievances alleging unjustifiable or unfair dismissal, therefore have as their focus the cause or reason for termination. It would be hard to envisage an employment contract, other than in the case of a Section 40 Contract, where a cause was not attributable to its termination. 

67. An Employer may for example determine that a position is genuinely redundant, in which case, the action to terminate may be justifiable and depending upon how the redundancies determined, fair. The termination may be based on the inability of the Worker to meet the key performance objectives of the position, or it may be as a consequence of the employee's behaviour and conduct at work. It may be due to communication or personality disputes. These are all causes. An employer does not bring an employment contract to an end for no reason, for no cause. 

68. A Worker engaged under a contract for an indefinite period of time, is entitled to understand the reason for termination. To not do so, in my mind, at least in a prima facie sense, renders the termination, unfair or unjustifiable. An Employer may say that it has no obligation to provide such reason, but in my mind such a state of affairs would more likely than not, be unfair. 

The Right to be Heard by An Employee 

69. In Carpenters Fiji Ltd V Latianara, Wati J stated at [26]: 

When the termination is without cause, what is there to hear the employee on? And, if there is serious misconduct, then it is the prerogative of the employer to terminate the employment immediately. If all of these procedures of hearing and explanation are accorded to the employee, then the purpose of summary dismissal is lost. 

70. Circumstances where there are no causes for the termination will be most rare. As illustrated above, an Employer will always have a reason for bringing an employment contract to an end. 

71. That being said, there is no express statutory requirement providing an employee with a right to be heard prior to effecting termination. 

72. Article 7 of the International Labour Organisation Convention No 158, Concerning Termination of Employment at the Initiative of the Employer provides that: 

the employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before (s)he is provided an opportunity to defend him/(her)self against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity. 

73. Whilst it is recognised that the Republic of Fiji Islands is presently not a signatory to this Convention, the adoption of this protocol by Employers may nonetheless prove a prudent measure, particularly where the decision to terminate was made without full access to all of the required facts, or where allegations against the employee may have been erroneous, mischievous or false. 

74. That is, the termination decision could remain unfair or unjustified, because the decision making process was highly flawed and incomplete. 

The Case of Ms Nale 

75. It is the case, that Ms Nale had been placed on a final warning at work, the primary reason relating to sick leave absences. In the circumstances and based on the obvious health and safety issues impacting on a female shop assistant working full time, while carrying twins, I do not believe that such a warning was reasonable. There is absolutely no evidence whatsoever, that the Employer made any accommodation at all for the Worker and her state of health, during the relevant period. Her contractual sick leave entitlement would have provided for the taking of all of that leave.

76. More concerning though, was the fact that in relation to the incident of 8 March, where Ms Nale engaged in a personal exchange with her husband's new partner, that again no accommodation appears to have been made by the Employer in the consideration of all of these issues. 

77. There is no evidence whatsoever of any human resource management intervention. The response of the Worker's manager at the workplace appeared to be, "just ignore them". Clearly more support was required. The fact that the investigation of the issue took place when the worker was on pre-confinement maternity leave, makes the conduct of the Employer more heavy handed. Ms Nale gave birth on 1 April 2011 and some three week's later, when at the hospital with a new born child with pneumonia, was told to come to the workplace and collect a letter that summarily terminated her employment.

78. If that wasn't enough, the Employer then decided to offset the Worker's final termination pay, against money owing through another Division, Carpenters Finance. 

79. Counsel for the Employer initially sought to argue that the authority for that offsetting of final termination pay (so that the Employee received nothing at all) was contained within the "Settlement of Debts Owed" Clause, as contained within the Employment Contract dated 21 December 2007. 

80. I reject totally reliance on that contractual term, as support for such conduct. Clearly the language of that clause only envisages offsets arising out of the employment relationship. The class of debts captured in that group of words is quite clear. 

81. Counsel then sought to rely on an "Authority For Deduction From Salary/Wages" dated 19 May 2008, that was entered into with Carpenters Finance. In ordinary circumstances that offset would be valid. However, regard needs to be had to Sections 47(1)(d)(i) and 47(5) of the Promulgation, that imposes a limit of 50% deduction of wages within a given pay period, in respect of articles or provisions purchased on credit by the worker from the employer. 

82. Ms Prakash argued that this provision only applies during an ordinary wages period for a continuing employee and is not applicable in the case of termination pay. While the language of the provision could be clearer, the policy intention in my mind is to ensure that an employee will not be so disadvantaged as a consequence of any such deduction, that it would deprive an employee the capacity to meet basic living needs. 

83. If anything, that policy should be more protective of the vulnerability of an employee at termination, particularly if it transpires that the termination was unfair or unjustified. I am not prepared to find that the government so intended employees at termination to be denied the protection of this provision. 

Conclusions 

84. There is no doubt that the Worker has had a checkered employment history. Although outside of several cash handling transgressions, following investigations, which she appears to have been cleared of, her employment history does not appear that extraordinary. Yes, the personal exchange with the partner of her husband was unfortunate, but in the circumstances of a young woman pregnant with twins and without a partner, somewhat understandable. 

85. The Worker felt she was being tormented in the workplace. According to her evidence, the conduct of her husband and his girlfriend was not an isolated incident. I believe that Ms Nale was genuinely distressed by this conduct and I do not think that the Employer adequately safeguarded her own vulnerability during these occasions. 

86. None of these issues appear to have been canvassed by the Employer in its investigation and there appears no record of any discussions that Ms Nale had with the Human Resource Office of this large employer at any stage, following the complaint being received on 8 March. 

87. To my mind, the Employer saw this opportunity as a window to terminate the Worker, under the guise of breach of confidential information. The incident should have been seen for what it was. For some reason there appears to have been another agenda afoot. That agenda was to terminate Ms Nale. I find that the termination was not justified and that the manner in which it was brought about, highly unfair. 

Remedy 

88. The Master Agreement that governs the regulatory terms and conditions of the Worker, provides at Clause 35 (iv) 

If it shall be proved that an employee has been unjustly suspended or dismissed he/she shall be reinstated and paid all wages he/she would have earned without loss of benefits which would normally have accrued to him/her during the period of suspension. 
 
89. The Worker was on maternity leave from her Employer, commencing 17 March 2010. Her maternity leave would have continued for a minimum period of 84 consecutive days, up to approximately 10 June 2010. 

90. In ordinary circumstances, particularly given the length of time that the Worker has been absent from the workplace, I would have been inclined to the view that reinstatement was not a viable option and that some form of compensation, would be the more suitable remedy. Having said that though, on this occasion, there is a collective agreement in place that serves as the agreed means between the industrial parties, as to how cases of this type should be resolved. 

91. On that basis, I find that the Worker's case has been made out and it has been proved to this Tribunal, that the dismissal was unjust. I order that the Employer observe the terms of Clause 35(iv) and reinstate the Worker, as and from 10 June 2010. On that basis, I am not prepared to order costs against the Employer.

DECISION OF THE TRIBUNAL 

92. The Tribunal orders: 

(a) That the Employer reinstate the Worker, in accordance with Clause 35(iv) of the Master Agreement Between Carpenters Fiji Limited representing Morris Hedstrom and The National Union of Factory and Commercial Workers. 

(b) That the commencement date for the purposes of the calculation of entitlements be 10 June 2010. 

Mr Andrew J See
Resident Magistrate