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Gade v Carpenters Fiji Ltd [2012] FJET 33; ERT Grievance 172.2011 (5 July 2012)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT Grievance No. 172 of 2011

IN THE MATTER of an Application by PAULA GADE (hereinafter referred to as “Grievor”).
AND
IN THE MATTER of an Employment Grievance between Carpenters Fiji Limited t/a Morris Hedstrom (hereinafter referred to as the “Employer”).

BETWEEN:

PAULA GADE
APPLICANT

AND:

CARPENTERS FIJI LIMITED T/A MORRIS HEDSTROM
RESPONDENT

Mr. Tokalauvere for the Grievor
Ms Prakash for the Employer
______________________________________________________________________________

RULING ON PRELIMINARY ISSUE

1.0 Preliminary Application Before the Employment Relations Tribunal (or “the ERT”)

1.1 It is only proper and fair to mention that this matter was set down for hearing on two occasions. On the first occasion, that is, on 6th March 2012, the hearing was vacated with $100.00 cost awarded in favour of the grievor on the grounds that disclosures were not properly made by the employer. A new date was assigned and hearing was re-set for 17th May 2012. On this day again, certain preliminary issues of law were raised by the grievor’s representative which I list below:-

1. That the standard of proof in the matter before the Tribunal be considered and determined on the basis of evidence weighed on “beyond reasonable doubt”;
   
2. That the Tribunal also consider the Occupational Health and Safety (OHS) issues that the grievor intended to add to his grievance matter; and
   
3. That the Tribunal also considers workmen’s compensation issues which the grievor intended to bring before the Tribunal for determination as part of his grievance matter.
   

1.2 The representative of the Grievor, Mr Tokalauvere had alluded that he wanted these preliminary issues to be considered by the ERT and thus included in the grievor’s original claim prior to proceeding to the hearing-proper of the substantive grievance matter.

1.3 The counsel for the employer raised an objection on the issue of bringing any, if not, all of the above preliminary issues at the stage when a second hearing date was set down and that too at the consent of the grievor’s counsel. She reminded the Tribunal that at the last hearing date the counsel had also raised a preliminary issue where these additional issues should have been brought to the attention of the Tribunal before agreeing to set another hearing date.

1.4 I have agreed with Ms Prakash on this. Clearly, Mr Tokalauvere has been conducting this matter from the beginning and he should not have taken another hearing date but filed a preliminary application on issues he wished this Tribunal to consider before any date(s) for hearing-proper was set down, here at least, on two occasions. The Tribunal’s views were conveyed to the parties on 17th May 2012 where the ERT also pointed out that the OHS and workmen’s compensation issues which fell within the broad jurisdiction of the ERT to consider and determine under section 211 of the ERP 2007 needed to be properly brought to the ERT. This could either be brought through the assessment of claims via the relevant and mandated authorities established within the Ministry of Labour under the Departments of Workmen’s Compensation and OHS respectively or particularly in relation to OHS matters, establish a claim that had merits of a legitimate breach of the OHS rules and regulations which was independently assessed and approved by the mandated authority. I also noted that the original claim in the Form ER1, there were no details provided by the grievor of any such allegations other than the grievor being aggrieved with allegations pertaining to theft which he has alleged as a ground for unfair termination.

1.5 Although I had put across my decision to the parties as to the preliminary issues raised by Mr Tokalauvere, Ms Prakash pointed out that the issue of ‘standard of proof’ ought to be dealt by the ERT as a preliminary issue. This issue of law largely impacted on how the substantive matter was conducted as Mr Tokauleve continued to maintain that before the ERT, the employer’s burden of proof was placed on a higher standard,which was ‘beyond reasonable doubt’, whist generally Ms Prakash stated that the standard, while not codified in any Rules and Procedures for Practice in the ERT has always been assessed ‘on the balance of probabilities’.

1.6 I agreed with Ms Prakash that this issue should be first cleared for the sake of the proceedings before the ERT and indeed, in regards to any future hearings conducted before the ERT. Further, I did not want to prejudice the grievor in the way he intended to conduct his side of the case and his expected outcome of this ERT’s determination. I also considered this issue to be at the heart of any hearing before the ERT where the standard of proof is critical in the way it shapes the ERT’s decision that cannot be regarded any less than an issue that is of substantial general interest to the administration of justice.

1.7 The preliminary issue of law thus before the ERT, put forward by the Applicant or the grievor is that the standard of proof applicable in this grievance case is one that must be assessed on “beyond reasonable doubt”.

2.0 What is the standard of proof in the ERT?

2.1 I have read and considered written submissions from both sides. I have to say that the Applicant’s submission persuaded me to undertake a thorough research of the law on this point (I will discuss this later) given that it has always been a practice in the ERT to regard the law in the area of burden and standard of proof in the employment relation matters to rest on the employer to prove that the termination or dismissal was fair, just and/or proper or legal. In that regard, the standard of proof as I understood was well established or settled by virtue of the nature of lawsuit or liability: for example, if it is a matter criminal in nature, the standard of proof, by practice and law has always been assessed on ‘beyond reasonable doubt’ and if it is a matter that is civil in nature, then of course, the standard of proof by practice and law has remained unchanged and assessed on a lesser degree of probability or cogency, being on ‘the balance of probabilities’.

2.2 I have noted both parties have relied on Lord Denning’s dictum where he clearly explained the differing standard of proof in a civil and criminal matter as per the leading case authority of Miller v Minister of Pensions [1947] 2ALLER 372. Other than state what his Lordship had to say on the degree of cogency which evidence must reach in order that it may discharge the persuasive burden in a civil case, I will not go into this case in length. Lord Denning stated and I quote:-

“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say: ‘we think it more probable than not’, the burden is discharged but if the probabilities are equal it is not”.

2.3 To that end, I am not surprised nor is it a legal confusion as to why the ERP 2007 is also being modeled in such a manner where strict rules of evidence does not apply and where the Tribunal has wide discretion to accept and admit evidence as it thinks fit (see: sections 231 (1) and (2) of the ERP). A simple explanation for this provision in the ERP 2007 is that the Tribunal is not bound by any rigid rules of evidence and even technicalities. The broad array of jurisdiction granted to the ERT under s211 of the ERP including a general function under s210 of the ERP to facilitate mediation is testimony of the statute being flexible when utilizing the power and responsibility vested into the ERT in weighing the evidence before it. Indeed, any evidence considered by the Tribunal can include written submissions, oral evidence of the grievor or witnesses, expert witnesses and reports and documentary evidence to prove a party’s innocence or legal argument.

2.4 Employment matters arising as grievances or disputes under the ERP provisions are always civil in nature. Criminal charges can also be laid against an employer or the company (see: Part 21 of the ERP) where as a practice this is done according to the prosecution rules and procedures as enshrined in the Criminal Procedure Code, particularly when the ERP is silent or vague.

2.5 In an employment grievance (or civil) matter, how the burden is discharged that is placed on the employer is largely dependent on weighing the probative value and relevance to the applicant’s claim against the justification or evidence of the employer in the different contexts (termination, redundancy, discrimination, etc) where the said grievance would have arisen. As I have said the burden of proof is deemed to rest with the employer to show that the termination or dismissal was lawful (legal) or fair and just. This is also confirmed by Ladyship Wati in the case of Carpenters Fiji Limited v Isoa Laitianara ERCA No. 7of 2011 where she stated:

“...Once the employer made serious misconduct the basis of the termination, it was then correct for the Tribunal to make a finding as to whether the cause for termination was established by the employer as the onus to establish the ground is always on the employer...”.(bold is my underlining).

2.7 Therefore, when an employee is dismissed, the burden of proof requires that the employer show that the principal reason for the dismissal was a potentially fair and lawful one. This is somewhat different position in comparison to a typical civil lawsuit where the burden rests with the claimant. In employment matters, the rationale is that employer is in a better position to set out the reasons or justification for the termination or dismissal. This, then sets out the parameters to avoid the claimant bringing unnecessary claims, who often in a weaker position in terms of education and economic power will not need to defend their termination except as to what has been provided by the employer by way of disclosures (or documentary evidence) and/or any other evidence to justify the termination. The grievor is entitled to add another aspect of employment grievance, provided the employer is advised of this during the proceedings of such matter and thus given an opportunity to defend or reject any new or additional matter(s) [see: s112 of the ERP]. Further, the employer is required under the law [see: sections: 114; and 33(2) of the ERP] to furnish reasons for termination where this requirement gives the employer a basis to furnish justification for terminating a worker or employee.

2.8 Because the applicant did not provide me a single case authority that specifically relied or applied the higher standard of proof, being, ‘beyond reasonable doubt’ and neither I could find any such case authorities myself, I am in no doubt that it is a well established law and practice that the standard of proof in the ERT in relation to employment grievance matters are considered and determined on the basis of “balance of probabilities”. This is because in proceedings before the Tribunal the standard of proof to which a party must establish its case is something approaching the lesser standard and this confirmed by section 231 (1) and (2) of the ERP.

3.0 Is there relevance of the Rule in Briginshaw?

3.1 Mr Tokalauvere has quite elaborately produced an eight-page submission on the rule in Briginshaw that is nothing short of a “cut and paste” effort of an internet-based article on the website: http://www.wiseinvestigations.com.au/tips-balance-of-probabilities. The said article is found under the topic or heading: "Demystifying the balance of probabilities and the rule in Briginshaw".

3.2 As Mr Tokalauvere has stated, the article attempts to demystify two commonly occurring concepts in workplace investigation reports which are:

1. the 'balance of probabilities' – this relates to the standard of proof required to determine whether there is sufficient evidence to substantiate allegations; and
   
2. the rule in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 – this relates to the standard of the evidence required if allegations involve a crime, fraud or other type of moral wrong doing, which if proven, would have serious consequences for the alleged wrong doer.
   

3.3 I have read the said article that is word for word (to a large extent) making the body of grievor's written submission. The danger of direct importation of such piece of writing without appreciating the relevance to the case in hand and how it would apply to the facts of the case can be excused if the person putting together the legal submission has limited or no legal training. What it certainly does not justify is wasting time of the ERT and the Respondent by deliberately misdirecting how the case of Briginshaw is of such critical importance in the application of the matter before me. For example, I can only say that the part under Clause 5.9 of the Grievor's submission did not carry the entire truth reflected in the article which would have cleared the air about the rule in Briginshaw.

3.4 Let me begin by highlighting some parts of the said article that is of relevance.

1. The article stated that:
   

"...where workplace investigations concern matters which could amount to crime or other moral wrong doing, with potentially serious consequences for the alleged perpetrator, the investigation report will often refer to the case of Briginshaw v Briginshaw. This case is usually mentioned in the context of whether the standard of the evidence is sufficient, on the balance of probabilities, to substantiate the allegations".

2. Under the heading "Applying Briginshaw intice", the article cale carried on and stated that:
   

Subsequent cases have applied the Briginshaw prle asing that that depending on the nature of the allegation, the strength of the evidence ence required to meet the standard of proocivil cases may change. However the civil standard of proof does not change: it i it is always the balance of probabilities (see the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170 – 171).
[Bold and underlying is my emphasis]

3.5 In the grievor's submission under Clause 5,9, the part that I have highlighted in bold above is missing. This is neither an innocent mistake nor a tying error. It appears that Mr Tokalauvere was so caught up in copying the article in such a way that it favoured his argument only that he had in fact failed to read what followed thereon which he has captured word for word in the submission's next paragraph and which I quote:-

"Practically speaking, this means that in civil cases examining conduct which is potentially criminal or fraudulent, the judge will need to closely scrutinize the evidence to be satisfied that it is strong enough to substantiate the allegations of fact on the balance of probabilities.
(Again bold is my emphasis).

3.6 Briginshaw principle provides no fallacy to the current case before the ERT. And there is absolutely no misconception that the standard of proof is always the balance of probabilities. Nowhere in the article used by Mr Tokalauvere it is indicated that courts have substituted the standard of proof to "beyond reasonable doubt".

3.7 What the Briginshaw principle simply points out is that the evidence in any grievance matter will depend on the nature of allegations, where clearly cases of serious misconduct such as theft that warrants summary dismissal has to be proved on the strength of evidence, witness statements, documentary evidence and so forth. For instance, an employer simply trying to advance a defence that they suspected the grievor and thus acted on someone else's words to terminate him without any foundation or solid proof to link the grievor to the alleged crime or offence will have little or no probative value in persuading the ERT to accept the employer's justification for termination. In the same breath, if the employer's investigation report reveals compelling evidence in terms of eye witness statements, documentary evidence, verbal and written warnings issued to the grievor alleging similar offences in the past work history, the Tribunal may consider all the evidence available in order to make the correct or preferable decision. Evidence is assessed in its entirety and not just in isolated parts weighing up its probative value and relevance to the alleged grievance.

3.8 I have to caution the grievor's representative that if he intended to use and rely on the said article to advance his legal arguments, he should have done with sincerity although I have to also comment that lack of legal expertise in writing submissions should not provide a free gateway to putting any kind of submissions for the sake of it. A large part of the submission was irrelevant to this case (especially clauses 6.0 and onwards) as it failed to show the application of Briginshaw principle to the current grievance before me. Misreading of the principle or rule as held in Briginshaw's case is possible for someone in Mr Tokalauvere's position who has only gained access to the bar as a right to representation by being involved in labour disputes and grievances. This does not mean any type of irrelevant issues and submissions that have a potential to delay hearing of the substantive matter shall be entertained.

3.9 I am thus putting the grievor and his representative on notice that the ERP is premised on fair proceedings at all times (s216(2) of the ERP) and I am mindful that cost should be awarded against the grievor for the wasted time in determining an issue that was well established. I will reserve issue of cost and consider this in the cause.

4.0 Decision and Orders

1. It is my final decision that the standard of proof is well settled and it is "balance of probabilities". This remains unchanged when assessing matters before the ERT.
   
2. Cost against the grievor shall be assessed in the cause for wasted time in determining this matter.
   

DATED at Suva this 5th day of July 2012.

LEGAL TRIBUNAL