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Kumar v Dhirendra Kumar Transport [2012] FJET 32; ERT Misc Application 24,25 and 26.2011 (10 May 2012)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA

Consolidated ERT/MISC Application No. 24, 25 and 26 of 2011

BETWEEN:

AKLESH KUMAR
GRIEVOR

AND:

DHIRENDRA KUMAR TRANSPORT
RESPONDENT

Ms. P. Chandra, Labour Officer for the Grievor
Ms. R. Naidu for the Respondent (or "the Employer")

Date of hearing: 23rd April 2012
Date of Judgment: 10 May 2012
______________________________________________________________________________

RULING ON QUESTION OF LAW

1.0 Interlocutory Application Before the Employment Relations Tribunal (or "the ERT")

1.1 On 23rd April 2012 this matter was set down for hearing of a consolidated matter of three different Motions with supporting Affidavit of the Respondent filed before the ERT, but on the same question of law. The ERT was to determine whether or not all the three claimants or grievors, being Aklesh Kumar, Alipate Seruvatu and Ravuama Rokotuiratu, were in fact 'workers' within the definition of the Employment Relations Promulgation 2007 (or "the ERP") and thus entitled to have their 'employment grievance' heard in terms of their allegations of an unfair dismissal. Or as per the employer's assertion, whether or not the grievors should only be classed as 'casual workers' who were allegedly not re-engaged within the 24 hour period immediately following the payment and where their grievance in whatever form should be struck out pursuant to sections 28 and 29 of the ERP.

1.2 On this day, the Labour Officer (or the "LO") informed the Tribunal that she could not proceed with the hearing as two of the claimants (Alipate Seruvatu and Ravuama Rokotuiratu) were not present in the Tribunal and only, Mr Aklesh Kumar had made himself available. The Labour Officer also informed the ERT that they had received an opinion from the AG's office that advised the Labour Department to withdraw from the matter. Hence, she needed more time to reconsider her case in terms of seeking further advice from the Labour Department.

1.3 The employer's counsel raised an objection on the basis that this was second time the case was re-set for hearing on their (consolidated) Interlocutory Motion dated 18 March 2011 and same reasons were given by the LO in both instances. Ms Naidu also informed the Tribunal that her client, being the employer in person has in both instances made himself available before the Tribunal to proceed with the hearing. Further, to attend both hearing dates, her client has had to put on hold his overseas travelling plans. Ms Naidu stated that if the hearing did not commence on this day, it would be unfair to the employer and cost should be awarded for any inconvenience.

1.4 Ms Naidu then agreed to have the matter stood down to allow the Labour Department to confirm their position in regards to the opinion they had obtained from the AG's office. This was also consented by Ms Naidu to allow the employer some certainty to make his travel plans which he has had to cancel on two occasions to be present before ERT for the hearings. The ERT granted time to the LO till 2.15pm in the noon to allude whether or not the Labour Department will be in a position to proceed with the matter or bear costs sought by the employer if it did not proceed on the day but at a later date.

1.5 When the case was re-called at 2.15pm, the Labour Officer informed the ERT that the two claimants who were not present in the morning were neither available via their phone contact nor their whereabouts known. Ms Chandra requested that the hearing could proceed on the basis of the evidence of the only present claimant, being Mr Aklesh Kumar.

1.6 The employer's counsel consented with the hearing of Mr Aklesh Kumar's evidence only.

1.7 To maintain fairness to both parties, the Tribunal ordered that the other two grievors will be heard separately should they contact the Labour Officer within 30 days and move the case forth. Otherwise, the ERT will deem the substantive matter against these two claimants (Alipate Seruvatu and Ravuama Rokotuiratu) struck out for want of prosecution as they had defaulted on two occasions when hearing was set down and they did not appear in the ERT or contact the Labour Department at all. This was an 'unless Order', meaning that after a lapse of 30 days, the grievors will have no liberty and/or right to reinstate the grievance which shall tantamount to abuse of process generally under the provisions of section 111 of the ERP. Once a matter is set down for hearing (regardless of whether it is an Interlocutory application or Substantive Motion) either party is duly put on notice and thus responsible not to cause delay in hearing the case for no good reason. On two occasions being absent from the hearing as the claimants, raises question whether the grieviors are truly interested in seeing their matter concluded or merely testing the law which cannot allow claimants to leave open cases indefinitely for want of hearing from the claimant's end. The Employment Relations Promulgation 2007 that protects the rights of both the workers and employers desires hearing of all matters expeditiously and without due delays.

1.8 Suffice to note, where only Mr Aklesh Kumar's matter is concerned, on 18 March 2011, the Respondent's counsel as an interlocutory application, filed a Notice of Motion for determination on the question of law and Order seeking the following:-

1. That the Tribunal struck out with costs on the grounds that the Grievor is a casual worker whose employment is based on a daily contract and such daily contract was never terminated by the Respondent as it had not even begun to run; and
   
2. That the Employer will rely on the Affidavit in Support of Dhirendra Kumar (f/n Chandrika Prasad) sworn and filed with the Motion.
   

1.9 The application was brought forward by Ms Naidu pursuant to Order XXVI Rule 1 of the Magistrates' Court Rules and section 211 of the Employment Relations Promulgation 2007.

1.10 I also note that this matter was lodged as a claim in the Form ER1 on 22 November 2011 which was later mediated on 9th February 2011 "to resolve an employment grievance regarding alleged unfair termination of Mr Kumar" as stated in the terms of reference of the mediator. Mediation being unsuccessful, the matter was referred to the ERT on the same day.

2.0 Analysis of Evidence

2.1 The Labour Officer on behalf of the grievor has filed his response to the above Motion through an Affidavit dated 11th May 2011 where I note specifically the following paragraphs:-

4. That I am a casual worker and the respondent usually pays me on a weekly basis and at times on daily basis. (Underlining is my emphasis).

5. That I work five days in a week continuously.

2.2 It appears that the claimant, Mr Aklesh Kumar in the understanding of his employment status with his former employer, Dhirendra Kumar Transport through his sworn Affidavit is suggesting that while he regarded himself to be a casual worker per se, he also regarded and treated himself as a permanent worker of the Respondent by virtue of being paid either on daily basis (for a casual worker) or on weekly basis (for a permanent worker). The definition of the causal worker is clarified below.

2.3 Through his sworn Affidavit, there is no doubt that the grievor during his working relationship with the employer (whatever it may be) he had in fact worked as a casual worker. Whether he worked at different times or simultaneously, that is, exactly at what intervals and during which periods he was a causal worker or permanent worker, this is not clear from his Affidavit.

2.4 In defence, the employer through Mr Dhirendra Kumar's Affidavit dated 18th March 2011 and filed on 21st March 2011 is maintaining that the grievor was only a casual worker hired and paid on daily basis, where he was not re-hired within the 24 hour period and thus Mr Kumar was never a permanent employee and/or paid weekly wages.

2.5 Both the parties have agreed the fact that there was no written contract of service between the employer and Mr Aklesh Kumar. The employer has made it clear that the grevior, being a casual worker in their opinion did not require the same.

2.6 During the hearing-proper, the employer's only witness, Mr Dhirendra Kumar, who is the director of Dhirendra Kumar Transport gave the following oral evidence:-

1. He produced and adduced in evidence records kept by the employer in a book pertaining to casual workers marked as "Exhibit 1". In that book, he attempted to show the ERT different periods of casual employment undertaken by all the workers employed by him including the claimant. Mr Aklesh Kumar has evidently worked as a casual worker to deliver chicken feed for the employer. The employer confirmed the book to be a true record kept at the office.
   
2. The following dates were highlighted (where in that book under the name, Aklesh Kumar it was annotated "sign in" and sign out" and signed on these exact dates):-
   
   • 14/09/10
   • 16/09/10
   • 24/09/10
   • 30/09/10
   • 06/10/10
   • 08/10/10
   • 12/10/10
   • 04/11/10
   • 12/11/10
     
3. I must comment that the Labour Officer was not at all successful in bringing out any substantial or strong evidence in the witness's cross-examination to challenge his testimony in chief, such as any other employees' records that the Labour Department may have perused and approved on its mandatory inspection visits either annually or periodically, which could disprove that the employer's records produced at the hearing was not authentic. This has allowed me to find the evidence given by this witness to be credible and worthy to justify the employer's case.
   

2.7 In turn, the grievor took the stand as the only witness and gave the following evidence:-

1. That he was employed by the Respondent five days a week starting his employment on 17 June 2009 and finishing on 22 November 2010. He was allegedly terminated when he had failed to report to work. He confirmed that he was in fact employed as a truck boy loading chicken feed where he further added that he had worked for approximately one year and five months.
   
2. He was paid $100.00 per week, where he would start at 7.00am (and sometimes at 8.00 or 9.00am), however he stated that he was only allowed to sign in a book kept by the employer, where his normal working hours was recorded to be between 7.00am to 5.00pm. Such records were not produced or shown to the ERT.
   
3. He also stated that he was paid daily where he would sign in the book and take pay. He confirmed this with a "yes" when Ms Naidu asked him that he signed in and signed out every day.
   
4. When he was shown "Exhibit 1", the book or records kept by the employer, at first he stated that it was not the book where he had signed between 7.00am to 5.00pm. Later, he confirmed his signature and accepted it to be a book kept by the employer, although he kept saying that the employer must have two different books.
   
5. He was also shown the first entry which was 14/9/10 where he confirmed his signature.
   

3.0 Final Determination

3.1 The preliminary question of law that is before this ERT pertains to understanding who is a 'casual worker' as opposed to "a worker" in the ERP to be able to effectively use the protection and remedies if an 'employment grievance' in the form of unfair dismissal arose. According to the employer, for the substantive matter to be heard under the jurisdiction of the ERP pursuant to section 211 of the ERP, the later (being a "worker") is important to be established first for an employment grievance to prevail. Otherwise the definition of casual worker limits a claimant's scope of any redress under sections 28 and 29 of the ERP.

3.2 Let me examine the ERP 2007, under section 4 (Interpretation section) to better understand the two concepts. The following definitions are relevant here:-

1. "casual worker" means a worker whose terms of engagement provide for the worker's payment at the end of each day's work and who is not re-engaged within the 24 hour period immediately following the payment;
   
2. "worker" means a person who is employed under a contract of service, and includes an apprentice, learner, domestic worker, part-time worker or casual worker;
   
3. "employment grievance" means a grievance that a worker, may have against the worker's employer or former employer because of the worker's claim that—
   

(a) the worker has been dismissed;

(b) .......

4. "contract of service" means a written or oral contract, whether expressed or implied, to employ or to serve as a worker whether for a fixed or indefinite period, and includes a task, piecework or contract for service determined by the Tribunal as a contract of service;
   
5. "day" means—
   
   1. a period of 24 hours beginning and ending at midnight; and
      
6. "employ" in relation to an employer means to use the services of a person under a contract of service;
   
7. "employer" means a corporation, company, body of persons or individual by whom a worker is employed under a contract of service; and includes..."
   

3.3 Clearly the definition of a 'worker' can include a casual worker for purposes of lodging an 'employment grievance' before the ERT. This is generally to protect and avoid differential treatment against various classes of workers (such as apprentice, learner, domestic worker, part-time worker or casual worker) who are all treated with same respect and protection under the ERP although I agree that there may be some areas such as reasonable notice period and termination methods that may differ, through either an express or implied contract of service. Therefore, just because someone is a casual worker, it does not deny that claimant the protection of the ERP as enjoyed by a normal worker. For example, the meaning of 'employment grievance' where 'worker' includes a casual worker is entitled to seek redress against dismissal, sexual harassment or unfair discrimination as any other class of worker. Further, there is a presumption of contract of service even if there is no written contract as is the case here. The definition of 'contract period' under section 4 of the ERP state that: "the period of time or the number of days or hours to be worked for which expressly or by implication a contract of service is made. This means that by implication a casual worker is bound by a contract of service which is a 'daily contract' and this is confirmed by section 27(1)(b) – see below.

Presumption as to period of contract and termination of contract

27.—(1) In the absence of proof to the contrary and subject to subsection (2), a contract is deemed to be a contract for the period by reference to which wages are payable under the contract except that—

(a) the period must not be extended for more than one month; and

(b) the period in the case of a contract for the payment of wages at intervals of less than a day is deemed to be a daily contract.

3.5 Therefore, the claimant, even as a casual worker is entitled to have his grievance heard, albeit here he is raising his grievance as a permanent worker of the Respondent for alleged unfair dismissal where he has in his substantive claim in Form ER1 given his reasons for termination as the following:-

• Was absent on Friday, 19th November 2010 due to injury.
• When I went to my workplace I was terminated.
• No termination letter was given by the Manager.
  

3.6 The employer is no doubt contesting that the claimant was not their permanent worker at any given time to be entitled to any remedies sought by the claimant under the provisions of the ERP.

3.7 The employer continued to maintain and produced documentary evidence to prove that he was only a casual worker where he was never re-employed within the 24 hour period immediately following the payment of his daily wages for delivering chicken feed for the employer. Depending on the need, the claimant was re-hired. All the evidence pertaining to the book or records produced before the ERT, it was clear that he was never re-engaged within the 24 hour period and it was also admitted by the claimant that he at times received payment on daily basis. He also told the ERT that he signed in the employer's book every time he worked, where he signed in and out and received his pay thereafter.

3.8 While in any employment related grievance or issues of conflict between an employee and employer (regardless of the nature of work done by the employee or worker) requires the employer to bear the onus of proof, where accordingly, any documentary evidence and sworn affidavit and oral testimony discharges that onus adequately to the ERT's satisfaction "on balance of probabilities" as is the standard in such cases, and where that documentary evidence is also in compliance with the requirements of the ERP (here under section 45 of the ERP for the employer to maintain and keep records), then it becomes more critical for the claimant to come to the Tribunal with a little more than what he has to say. The Labour Officer did not produce any counter evidence or witness to substantiate the claimant's allegation at all. There was no inspection report to even contest by any investigating officer as to the authenticity of the records. As such I have to accept the same as genuine and true records for purposes of s45 of the ERP.

3.9 How else could the claimant have proven his allegations? He could have brought a witness who had seen him work within the period of 17 June 2009 and 22 November 2010 for five days and thereafter paid wages every week at the said workplace at one given time as per his evidence. This person could have been someone he had worked with or someone from the place where he had delivered the chicken feed. I cannot say for sure but comment that if the other two claimants had shown up to the hearing, their testimony would have had some impact on employer's evidence, assuming that they also would have had similar issues against the employer. This would have definitely raised reasonable doubt as to the employer's records and the employer would have had a surmountable task on their hands to prove how three former "casual workers" would have colluded to bring such a claim before the ERT.

3.10 That said, the documentary evidence in terms of the payment records maintained by the employer where the claimant agreed it was his signature has to be treated as genuine records which was clearly maintained over a period of three months. After each day's entry, the records were ruled out for another entry, straight after the previous entry. The clear way it was presented to the ERT proved that the employer did not add or exclude any entry to play with the records in any regard. Further the Labour Department did not provide an iota of proof to discredit the records to allege it was false records or there were second records maintained by the employer that was deliberately not shown to the ERT.

3.11 What is even more of a concern is that the claimant signed the records and accepted (after denying at first) that this was the book he had signed in and out. His contradictory evidence and his allegation that he finished from his 5 days a week employment on 22 November 2010 has to be weighed against the last entry in the book, which was 12/11/10. Therefore at what stage he was employed for five days, that is, before this entry, after this entry or simultaneously, this was not clear at all. To that end I am persuaded by the employer's submission that the employer has sufficed the definition of 'casual workers' as per the records maintained under s45 of the ERP. I also accept that under section 28 of the ERP where most glaring evidence is the documentary evidence, this ERT cannot presume a new contract of service where under subsection (2)(c) if is a daily contract and where wages are paid daily.

3.12 I thank the employer's counsel for her written submissions and note that the LO did provide the ERT any submissions. In Employer's submission, I also note the counsel has referred me to two case authorities: In re Application by Ports Authority of Fiji [1996] FJHC 34; and State -v- Arbitration Tribunal of the Republic of Fiji, ex parte Ports Authority of Fiji [1999] FJHC 118. I am of the view that ERP 2007 is clear on the position of casual workers and their rights and protection as long as the employer has discharged the burden of proof required under the statute that is now the law of the land, as was clearly done in this case, the employer is then entitled to have the matter decided in their favour.

4.0 Decision and Orders

1. Mr Aklesh Kumar, being the claimant or grievor is declared a 'casual worker' under s4 of the ERP.
   
2. To that effect, under section 28 of the ERP, there is no presumption of a new contract of service when he was in fact discharged on 12/11/10 from his casual nature of duties under a daily contract. Clearly the 'daily contract' had ended after the claimant was discharged on the same day from his service and thus not re-engaged for next 24 hours following the payment of his wages. This is regardless of hours of work he had done as the ERP does not impose minimum hours in day for casual workers.
   
3. The employer has, to the satisfaction of this ERT, proven that the claimant was discharged from his daily contract of service and never re-employed within the 24 hour period immediately following the payment. To that end, there is no reason for this ERT to hear the substantive claim which clearly revolves around the issue of law whether or not the claimant was a casual worker. Here it is proven he was a casual worker. There is also no contention whether he was paid any dues or not when he finished his daily contract. In fact, the grievor is raising unfair dismissal, which in my view, is no longer an issue to be resolved if his daily contract of service was discharged when his casual work was complete and he was not re-engaged for next 24 hours following immediately after that discharge.
   
4. I find that the grievor has not brought any evidence to allow this ERT to adjudicate on the issue of "unfair dismissal". I am thus, dismissing the claim of the grievor on the basis that there are no reasonable grounds to prove an allegation of unfair dismissal. This application is allowed in favour of the employer and substantive matter is herewith dismissed.
   
5. Parties will bear their own costs.
   

DATED at Suva this 10th day of May 2012.

LEGAL TRIBUNAL