IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT Grievance No. 176 of 2011

BETWEEN:

PETER PRASAD
Grievor

AND:

NORTHERN AIR SERVICES AND CHARTER LIMITED
Employer

Appearances:
Mr. N. Tofinga for the Grievor
Mr. R. Chaudhary for the Employer

Date of Hearing: 8th March 2012
Date of Judgment: 2nd August 2012

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 16 March 2011. Form ER1 gave the following details of the employment grievance (the problem):-

BACKGROUND FACTS:

1.	I entered into a contract of service with the Respondent Employer which effectively appointed me as their Chief Pilot on or about 21st September 2009 (see attachment marked PP 01).

2.	On or about 13 September 2010 an electronic message to one Sel Douglas was copied to me and one other. The message was in relation to some requirements that Air Operators Certificate holders must comply with in the course of carrying out their responsibilities as holders of the said certificate (see attachment marked PP 02).

3.	On or about 24th September 2010 employer through their accountable manager issued me an official warning letter for purportedly breaching the Company's Code of Conduct and the Air Navigation Regulations (see attachment marked PP 03).

4.	No prior notice was given by the Respondent employer in regards to the above mentioned warning letter.

5.	On or about 24th September 2010 I responded to the warning letter informing the Respondent Employer that the said warning was generally without any basis and therefore ought not to have been issued (see attachment marked PP 04).

6.	On 23rd November 2010 I was again advised by Mr. Selwyn Douglas, Accountable Manager that I was relieved of my position as Chief Pilot and was now redeployed as line Pilot due to some fight operations restructuring (see attachment marked PP 05).

7.	A letter signed by the Accountable Manager and dated 27th October 2010 purportedly served on me. (see attachment marked PP 06).

8.	At no time was my contract discussed nor referred to in all of the mentioned correspondences and discussions leading up to the decision of 23rd November 2010.

9.	On 24th November 2010 I informed the Respondent Employer vide electronic mail that I never did receive the letter dated 27th October 2010. In fact I categorically deny receiving the October letter before 23rd November 2010 (see attachment marked PP07).

10.	Another letter was issued to me on the same day clarifying the Respondent Employers position. The letter basically said that I was not terminated from the organization but rather redeployed from the Chief Pilot to line Pilot because of the allegations stated (see attachment marked PP 08).

11.	On or about 24th November 2010 I responded to their said letter refuting their stated reasons for relieving me of my position as Chief Pilot (see attachment marked PP09).

12.	On or about 25th November 2010 the Respondent Employer confirmed that they stood by their decisions and directed through an electronic message from Mr. Selwyn Douglass that the parties let their respective legal advisors clarify the disputed issues.

13.	On the 24th and 25th of November 2010 I sent electronic messages to one Mr. Norman Walding clarifying my position that I was still the bona fide Chief Pilot of Northern Air Services Charters Limited.

14.	On or about 27th November 2010 the Respondent Employer informed me that they did not view my existing contract as valid anymore and that the reason for deploying to the line Pilot position was because of a restructuring exercise (see attachment marked PP 10).

15.	On 28th November 2010 I responded to the letter by stating that I did not accept the reasons for my "redeployment" and that contrary to their sentiments my contract was very much alive and enforceable (see attachment marked PP 1).

16.	In a letter dated 1st December 2010 the Respondent Employer reiterated their stated position of 27th November 2010 and gave me an ultimatum that if I refused to carry out the responsibilities of a line Pilot I would be deemed to "….no longer have a desire to work…."

17.	On or about 7th December 2010 I received a letter dated 7th December 2010 deeming me to have resigned because I had failed to report in as a line Pilot (see attachment marked PP 11).

MATTER IN DISPUTE:

The matter in dispute is the manner in which the employer relegated me from Chief Pilot to line Pilot and later on dismissed me from employment because I failed to report to the relegated position. It is respectfully submitted that the said dismissal was procedurally unfair, wrongful, unjustified, in breach of s.33 of the ERP 2007, and inconsistent with UDHR conventions covering fair labour practices.

REMEDIES SOUGHT:

The reinstatement of my contract of service without any loss of pay and/ or benefits. Plus costs for this action.

ATTACHMENTS:

1.	Mr Tofinga's authorization letter to represent Grievor 
2.	Documents marked PP 01 to PP 11

1.2 Mediation was attempted on 24th and 30th June 2011 and also on 14 July 2011but was not successful. The mediator referred the grievance to the ERT on 2nd February 2011 in accordance with s194 (5) of Employment Relations Promulgation 2007 (or the "ERP 2007") outlining the nature of unsettled employment grievance with the following terms of reference:-

"The worker Peter Shailendra Sanjiv Prasad was employed by Northern Air Services Limited as Chief Pilot on a formal contract when his employment was allegedly terminated. As audit was conducted into the affairs of the company and the worker was implicated for impropriety and breaches that led the employer to formally ask the worker to do other duties. The worker failed to attend to work for continuous seven days when he was deemed to have resigned with effect from 3rd December 2010".

2.0 Cause before the ERT

2.1 In the Employment Relations Tribunal (or "the ERT"), the matter was first called for mention on 16th September 2011. Due to non-appearance of the grievor and his representative, the employer's counsel made an oral application to have the matter struck out. The employer's application was denied by the ERT for simple reason that being the first call, it entitled some leeway to parties to be present after they would be given a second chance. A NOAH (Notice of Adjourned Hearing) was to be served on the grievor and his representative. After the case was called, some minutes later Mr Tofinga appeared and explained the Tribunal that he was in the vicinity of the ERT, except that he had stepped out when the matter was called. This was duly noted in the file notes. 

2.2 Mr Tofinga was cautioned that an application for striking out was not granted to the employer although a repeat of this incident without a good cause shall entitle the employer to invoke their previous application. He was then informed that the matter was set down for further Mention on 5th October 2011 to proceed to hearing by way of preliminary submissions. On this day, Mr Tofinga nor the grievor appeared and the employer reminded the ERT that it was second such non-appearance from the grievor's end where they sought to invoke their previous application for striking out with costs. This was granted as both the grievor and his representative was not present before the ERT. Order was also granted for cost against the grievor for $200.00 whilst he was given a liberty to restore the matter within 28 days of the said Order. 

2.3 Through a Notice of Motion and Supporting Affidavit of Mr Tofinga dated 24th October 2011, the ERT was moved to hear the grievor's reinstatement and cost matter. This was heard on 5th December 2011, whereby the ERT granted the grievor reinstatement of his substantive matter and cost to be determined in the cause. The ERT gave further directions to both parties to file their respective Preliminary Submissions. The Employer filed their Preliminary Written Submissions on 30th December 2011 and Grievor filed his Preliminary Written Submissions on 24th February 2012. 

2.4 Hearing of the substantive matter was set down for 8th and 9th March 2012. On 8th March 2012, the employer's counsel, Mr Chaudary after some delay in hearing the matter in the morning appeared in the noon and explained that he will proceed on the basis of the Employer's Preliminary Written Submissions and that there will be no witnesses called from the employer's side. He stated that he intended to cross-examine the grievor and rely on the employer's submissions entirely. He had earlier alluded that he had intended to call at least four witnesses. 

2.5 At the start of the hearing-proper, there was no objection by Mr Tofinga on this issue even when he was explained by the ERT how Mr. Chaudary wished to proceed with defending the employer's case. The ERT had further asked Mr Tofinga how he had intended to proceed in terms of presenting evidence from the grievor's side, if any, and this is when he called the grievor to stand to give sworn evidence. 

2.6 Mr Tofinga later in his closing oral submissions raised that the employer did not adequately discharge the burden of proof that is placed on the employer in any employment grievance matter where he added that the employer had "voluntarily forfeited that right and chose not to adduce any evidence". He had for obvious reasons left it to the ERT to weigh the employer's case against the sworn oral evidence of the grievor. I shall shortly discuss whether the burden of proof placed on the employer through the evidence placed before the ERT has been discharged or not by the employer. Suffice to note that Mr Tofinga did not file any closing written submissions although the ERT had provided him additional 14 days at his request while the Employer filed their closing submissions on 28th March 2012.

2.7 I have also noted that Mr Chaudary has raised a preliminary issue which he had also tendered in the employer's submissions that related to the grievor not exhausting internal grievance procedures with the employer before coming to the ERT or Mediation Unit which are in effect, dispute resolution institutions established under s192 of the ERP 2007. 

2.8 The Tribunal had alluded both parties that this was something it shall address in the overall determination of the grievance matter to ascertain whether the grievor under the ERT's jurisdiction pursuant to section 211 of the ERP had rightly invoked the Employment Relations Promulgation 2007 as his right to redress when he was facing an alleged 'employment grievance'. I note that there was no apparent contention that this was not an 'employment grievance' as per the definition of section 4 of the ERP.

3.0	Issue(s) before the ERT

3.1	The crux of the alleged grievance in this matter requires the ERT to assess whether this is a case of summary dismissal pursuant to s33 of the ERP or a simple discharge of contract of service (express or implied) when the employer deemed the employee's absence from his usual pilot duties as "resigned from work".

3.2	The ERT is mindful that it will have to assess the status of the written contract of service between the parties that the grievor testified to have relied on entirely where he simply considered his alleged termination and ensuing unfair and unlawful treatment by the employer (such as relegation of duties) to be a breach of his written contract of service. Hence his position that he was terminated summarily and not discharged lawfully and fairly under his contract of service as justified by the employer.

4.0 Relevant Facts

4.1 The employer is an Airline operator and known to run a small business operation with limited flights. In essence, the employer would be the only other airline carrier in competition with Air Pacific, the largest airline operation in Fiji.

4.2 The grievor became a 'worker' of the employer by being offered a position of Chief Pilot under a written contract of service signed and entered on 21st September 2009 (as per Exhibits 2 & 3). 

4.3 It was the employer's evidence that the original contract of service between the grievor and the employer was for a period of 12 months, a fact that was not contested by the grievor at all. This was, however reduced to a six-month contract at the request of the grievor which would have essentially expired on 20th March 2010 if no further renewal was granted to the grievor or mutually accepted by both parties. This is clearly annotated on the SCHEDULE 1 attached to the contract of service where CONTRACT PERIOD is "FROM: 21/09/09 - TO: 20/03/10"; and where also "TOUR PERIOD" is clearly cancelled from 12months to 6months and where the grievor has evidently initialed his name. 

4.4 Under Clause 14.1, it states that:-

 ENGAGEMENT
 
"The Pilot agrees to serve the Company for a minimum of 06 months reneuable". (Bold is my emphasis).

 "Reneuable" appears to be a typo or error which intended to mean "renewable". There was no evidence whatsoever that the Mr. Prasad had sought to have his contract renewed when the six months period came to an end. He also did not contest that he had only desired a six-month contract initially. The general rule is that fixed-term (written) contract of service ends at the date of its expiration pursuant to s40(1)(a) of the ERP unless there is expression to have the contract "renewable" [see:s28(2)(a) of the ERP]. 

4.5 When the contract of service was not expressly sought for renewable by Mr Prasad, this is deemed to have been extended for another term as the employer under s28(1) of the ERP had not taken steps to end the contract of service upon its expiration on 20th March 2010. Notwithstanding the position under s28 of the ERP, generally the perpetuity of the contract is determined by reading the contract of service in its entirety and no contract is practically designed to last forever or indefinitely. Accordingly, to end the contract of service would be subject to Clause 16 of the said contract under the heading "TERMINATION". 

4.6	It seems Mr Prasad was entitled to enjoy an extension of the contract period for a further six months by virtue of the employer not expressly taking steps to end the same when the term had expired. There was also no apparent contention that the employer and Mr Prasad carried on in a working relationship that they had mutually established since 21st September 2009 despite the written contract of service would have effectively expired on 20th March 2010. Suffice to say that Mr Chaudary in his cross-examination pointed out to the grievor that the employer had maintained that the contract of service of the grievor (here I am assuming he was referring to 21st September 2009 contract) was not terminated as per the employer's letter dated 1st December 2010 or Exhibit 14.

4.7	It is then justified in my view that since the employer did not take explicit take steps to end the written contract of service on 20th March 2010, the grievor had every right to rely on the same to assert breach of the terms and conditions therein, particularly when it came to the designated position description and duties he was hired to perform in his capacity as a 'Chief Pilot'. Further, the employer's willingness to continue with the contract of service demonstrates that it has remained in force by virtue of both parties agreeing to keep it alive after the expiration period.

4.8	It was the grievor's position that he was at all times treating his job or position description nothing less than what was initially agreed between the parties when he had first entered into a written contract of service on 21st September 2009. When he was relegated from his chief pilot duties to a line pilot position, this is when he asserts that the whole grievance took a turn for the worst. He is alleging that this is when the employer unlawfully and unfairly treated him whilst he was still employed with Northern Air Services Limited as a Chief Pilot under a formal contract of service. 

4.9	In turn, the employer is justifying that the grievor's own response and conduct (such as not addressing certain demands of the Regulator (CAAFI) to protect their Air Operator's Certificate and inability to initiate internal grievance resolution procedures) compelled him to be treated as "resigned", particularly through his continued absence from work despite he was not terminated but only relegated from his duties.

4.10	I will shortly explore the substantive allegations to ascertain whether the grievor was allegedly terminated or deemed resigned. Before that, I intend to clear up the issue regarding the rules of evidence and burden of proof placed on the employer to discharge their justification for termination or what are the present circumstances or facts of this case. 

4.11	While I concur with Mr Tofinga that the employer did not present certain documents properly through oral evidence of the company's authorized personnel, rules of evidence before the ERT is not strictly applied under sections 231(1) and (2) of the ERP and this Tribunal may accept and admit evidence "as it thinks fit". 

4.12	There is a reason for this provision in the ERP 2007 where the ERT is not bound by the technicalities or strict rules of evidence. Because the burden of proof is placed on the employer to provide justification for termination, when in normal claims that burden is conventionally placed on the claimants, the Tribunal is thus required to consider all different aspects of evidence placed before it in its entirety, not just in isolated parts. Such evidence can be available in whatever form (preliminary submissions, oral or documentary evidence, witness statements, affidavits, written closing submissions, etc) that shall assist the Tribunal to make a final decision. 

4.13	The findings made by the Tribunal on the credibility of the evidence are based on relevant and material facts, where often, as also seen in this case, parties will have two different versions in the understanding of the substantive grievance or simply, the reason(s) [or cause] why the grievor's employment was ended. What is capable of being believed is not determined according to the claimant's subjective belief but rather focused on what is objectively or reasonably believable in the circumstances. The ERT will consequently assess evidence by weighing up its probative value and relevance to the grievor or applicant's claims. There is no requirement under the ERP 2007 that evidence must be independently collaborated before it can be accepted by this Tribunal. 

4.14	Further, the general rule of documentary evidence being regarded better than oral evidence is also taken into consideration, although I must admit this is done with utmost caution that it is not fabricated. I am also mindful of the fact that the burden of proof is always on the employer in employment related (civil) claims and the reason for this is relatively simple. The employer is regarded to be in a better position to explain what were the circumstances and material facts that led to the severing of the employment relationship between the employer and the worker. The onus is on the employer to furnish disclosures by way of Preliminary Submissions where they must submit any documents they have in their possession either leading up-to the termination with or without cause or for any other reason the employment relationship would have been broken. This is subsequently presented to the grievor as his/her right to respond. I have found that the documents attached to the employer's Preliminary Submissions (marked as "A" – "I") are in fact common documents also used by the grievor to substantiate his claim in Form ER1 and these documents were not objected to when the employer submitted their Preliminary Submissions.

4.15	To better understand the material facts relating to the substantive grievance and overall merits therein for a legitimate claim to succeed, I am relying profoundly on Form ER1 and the preliminary submissions filed by both parties, where an array of common documents are attached therein, in conjunction with Exhibits tendered at the hearing-proper. Where relevant, I have supplemented oral evidence of the grievor. 

5.0	Analysis of Evidence

5.1	According to the employer, on 13th September 2010 an email was sent to the Accountable Manager, Mr Sal Douglas and copied to the Grievor and one other. The message was in relation to some requirements that Air Operators Certificate (AOC) holders must comply in the course of carrying out their responsibilities as holders of the said certificates. For example, in the event of absence from duty in excess of 14 days, whether due to sickness, leave or any other cause, the operator shall appoint a person, acceptable to the Authority and meeting the requirement for the position to act in that position during the absence. The said email was marked in the employer's Preliminary Submissions (or "the PreSubs") dated 28th March 2012 as Annexure "D".

5.2	In the same month, it was the grievor's oral evidence that between 10th to 20th September 2010, the grievor was granted leave of absence from his duties by the employer to visit a medical specialist in New Zealand in order to have his troubling knee examined. The grievor returned to Fiji after ten days or thereabout on 20th September 2010 without any medical operation to his knees. Hereafter, he produced a certificate of fitness from a local doctor to his employer to return to his duties. 

5.3	The employer raised some issues with proper leave not been granted to the grievor but I did not find any evidence to prove this otherwise.

5.4	It was Mr Prasad's testimony that when he reported to work on 20th September 2010, he was sidelined or usurped by a consultant by the name Captain Malakai Nawai, who was now acting as the 'Chief Pilot' and sitting on his chair, and whom the company had also hired to conduct an audit in order to cite compliance for renewal of AOC which is a norm for all airline operators. The grievor also explained that the said consultant was hired because there were some anomalies with the management and flight operations although he told the ERT that he was not the person responsible for the anomalies or any other issues therein. What were the exact nature of the anomalies is not clear. This would have made my task much easier when assessing whether there was breach of specific duties pertaining to the grievor's contract.

5.5	Exhibit 5 and the Employer's Annexure "G" in their PreSubs shows that on 24th September 2010 a letter was written by the Employer to the Grievor with the subject matter: "BREACH OF COMPANY CODE OF CONDUCT AND AIR NAVIGATION REGULATION". The letter first alluded to a prior correspondence dated 22nd September 2010 which was not before the Tribunal from either side. It proceeded after mentioning a meeting that was conducted between the grievor, Captain Nawai (the consultant) and the writer, Mr Douglas on the even date where the following issues and concerns were raised by the employer against the grievor:-

1.	Failure to nominate an Acting Chief Pilot and carrying out a proper handover prior to departure to New Zealand;

2.	Failure to formally notify CAAFI of grievor's absence from office;

3.	Extending stay in New Zealand for seven days (7) days without the appropriate Management approval;

4.	Failure to obtain a medical certificate from local Designated Medical Examiners declaring fitness to resume regular public transport (RPT) duties after surgery in New Zealand; and

5.	Operating company RPT flights with an expired Commercial Pilots License.

5.6	The grevior responded in writing on the same day (Exhibit 6) to all the issues raised by the employer by stating the following: 

•	That his leave was properly sanctioned as per the Standards Documents (AOC) Section 1, Chapter 2, page 3, paragraph 1.6. Therefore he denied breaching Item No. 1;

•	That he had formally notified CAAFI through Mr. John Hill of his absence from office which was facilitated through a roaming mobile phone facility to allow the grievor to be in touch with the company. Therefore he denied breaching Item No. 2;

•	That his stay in New Zealand was with appropriate management approval and in line with his Employment Contract Clause 7. Therefore he denied breaching Item No. 3;

•	That he had obtained a medical clearance from Dr Bakani to resume regular public transport duties although there was no surgery performed on his knee in New Zealand. Therefore he denied breaching Item No. 4; and

•	That he agreed and took full responsibility for flying RPT flights for one day without a valid licence but cited a 'system failure' with the company where he said that there was far too much operational interference by Director San that made it difficult for the Chief Pilot to exercise his responsibilities that led to this unusual occurrence. Therefore he stated that company was equally culpable and responsible in terms of its own operations practices and company culture where item No. 5 was concerned. 

5.7	The grievor's above letter dated 24th September 2010 was raised in the cross-examination in regards to his explanation given to the employer as to why he flew RPT fights without a valid licence as required under the CAAFI rules and regulations. The grievor attempted to explain the ERT what were the practical procedure for renewal in a normal circumstance and the ERT was able to understand his predicament given that he also said that any breach on his part would have seen the regulatory body take action against him. This was not done. 

5.8	In my opinion then, this was not a seriously grave issue to allow the employer to assert that the grievor fell foul of the terms and conditions of his employment contract especially when they had not produced a counter response when Mr. Prasad had written to them about the 'system failure' and clearly the Regulator did not cite the grievor for any violation of his pilot licence. 

5.9	Further, there was not any obvious contention in regards to him taking proper leave for medical purposes and whether he was entitled to this under his contract of service or not. Therefore, this ERT is satisfied that the employer's issues/concerns contained under 1-5 in their letter of 24th September 2010 had no real basis to allege a breach of the grievor's contract of service. 

5.10	However, one important aspect that I had duly noted which is not in the grievor's favour is that his letter dated 24th September did not raise any counter-concerns or grievance that he was being relegated from his usual duties or that the consultant was preventing him from carrying out his chief pilot roles and responsibilities: at least, these concerns were not raised at this stage with the employer although the grievor gave evidence in the Tribunal that upon arrival into Fiji from New Zealand and reporting to work on 20th September, this is when he was "sidelined and usurped by the consultant". I am also assuming he was reporting to work when this letter was prepared and handed to the employer.

5.11	On 27th October 2010, the Employer justifies that they wrote to the Grievor again raising some concerns under the subject heading "Flight Operation Management". The said letter was marked in the employer's Preliminary Submissions dated 28th March 2012 as Annexure "E" and also tendered in evidence as "Exhibit 8". The salient matters raised were in relation to certain poor performance issues the employer had with the grievor such as:-

•	poor control and supervision of the flight operations department as highlighted by the AOC renewal audit findings by CAAFI; 
•	failure to attend the CAAFI AOC security audit on 26th October 2010; 
•	on-going manipulation of the flight crew roster; 
•	accumulation of days off, etc. 

5.12	The same letter also stated that "…you are acutely aware of the Chief Pilot responsibility as the Operator's focal point for the AOC. Accordingly, you have been brief and interviewed by both management and CAAFI of your responsibility as the accountable personnel responsible…". It appears that the employer even at this stage continued to treat Mr Prasad as the Chief Pilot and brought to his attention various issues relating to his function as one. 

5.13	The letter went on to allow the grievor an opportunity to attend a meeting to discuss his issues and concerns that may have been contributing towards his unsatisfactory performance. It also stated that the grievor had shown an intention to emigrate to New Zealand, where the employer thought that this was one of the reasons for his 'lack of motivation and determination" as management personnel to aspire to the expectation of his role as the Chief Pilot. 

5.14	There was no written response to this letter by the grievor. In fact, the grievor testified that he had no recollection of this letter as he had never received the same from the employer. He stated that the address it was sent to was in fact the one he had supplied to Air Fiji (his previous employer) and this is clearly a different address in terms of what is reflected in his letter of offer dated 29th September 2009 (Exhibit 2). 

5.15	That said, the grievor had a copy of the letter when he lodged his claim and this is clearly contained in the Form ER1 at paragraph 7 or his attachment marked as "PP06". It would then be fair to say that he was furnished a copy by the employer at some stage prior to him submitting a claim with Ministry of Labour. In fact the grievor stated in Form ER1 that he had informed the Employer vide an electronic mail that he did not receive the 27th October 2010 letter which he asserts that the employer only furnished on or about 23rd November 2010 – this is proven by "Exhibit 9" which is a copy of that email sent on 24th November 2010. 

5.16	I am thus giving the grievor benefit of doubt here as the employer did not have the author or a representative available before the ERT to give any testimony to prove that they had in fact served the letter on the grevior on time. Further the grievor testified during his cross-examination that he did not agree with the contents of the said letter and to this ERT, the employer by waiving their right to take a stand at the Hearing to explain their position, have failed to prove any truth or facts alleged therein.

5.17	The grievor went onto give further evidence that his employment was terminated the day the employer had asked him to resign from his Contract of Service and this was done on 22nd November 2010. He stated that he was unemployed for "… about one year from November 22, 2010 till the day I left on the 7th November 2011…" for New Zealand. (At page 3 of the transcripts).

5.18	There was no letter to this effect from the employer nor were there any evidence such as witnesses to this meeting where this would have transpired. This allegation was also not part of the Tribunal records in terms of the claim in Form ER1.

5.19	The grievor also did not write to the employer soon after the alleged meeting to make his position clear which could have been treated as an issue nothing less than what is usually called a 'constructive dismissal'. Meaning that, if the grievor felt he was being forced into something that ultimately results him leaving his employment under pressure or coercion he should have voiced his concerns or grievance with the employer immediately as per the requirement under s111(2) of the ERP. He could have done this by invoking Clause 13 (DISPUTES) provision of his contract of service and requested the Company to resolve his grievance or alternatively seek Ministry of Labour's assistance and advice. I find that the grievor was well acquainted with the labour laws of Fiji and this is clearly reflected in his letter dated 24th September 2010 at Clause 2, page 4. Therefore, I cannot accept this part of his testimony to be credible.

5.20	Against his oral testimony that he was forced to resign stands a letter dated 23rd November 2010, which is written by the Employer to the Grievor (Exhibit "7") with a subject heading: "RESTRUCTURE OF FLIGHT OPERATIONS" where it referred to the Company's Operators Certificate. I note that the letter was addressed to "Captain Peter Prasad, Northern Air" which effectively meant that the grievor was still in employment as he was originally hired and was reporting to work. Otherwise, why would the employer use this address and title.

5.21	As per his oral evidence, clearly the grievor had accepted that he was furnished with 23rd November letter along with 27th October 2010 letter from the employer. The grievor responded vide his private email address on 24th November 2010 around midday that he had received both the letters although he was not happy that he had received the October letter for the first time as an annexure. One thing that is very clear though that he did not attempt to address or respond to the issues contained in both the letters through the same email or via a subsequent correspondence in terms of the questions raised on his performance and AOC matters.

5.22	In the first paragraph of 23rd November 2010 letter, there is mention of "…our meeting of 22nd and 23rd November 2010…". This can mean two things: the grievor was still at work and he was meeting with the employer (here, the Accountable Manager) as the grievor has not objected nor denied these meetings taking place between the employer and himself. 

5.23	In fact, the grievor had said that he met the employer on 22nd November 2010 although he stated it was because the employer was forcing him to resign while the employer here is stating through the 23rd November 2010 letter that the meeting was in relation to restructure of flight operations in its attempt to protect the Company's AOC. 

5.24	The 23rd November 2010 letter is also making reference to the Chief Pilot's responsibilities as the "…operator's focal point for the AOC" (an issue also common in 27th October 2010 letter). This is the point onwards that appears to have created the main divergence between the two parties where the employer is alleging that the grievor had failed to do his part in securing an AOC for the company pursuant to his duties and responsibilities as the 'Chief Pilot'. The grievor maintains that this was not a part of his contractual duties. 

5.25	Regardless of the prevailing circumstance, there was no evidence that the grievor was relegated from his contractual position before this letter was written to him although the grievor continued to maintain that he was sidelined from his position since his return from New Zealand. If this was a fact, then I find it completely strange that the grievor did not raise his concerns with the employer in any of the grievor's prior correspondences in terms of his normal duties (under Chief Pilot position) being relegated to another position. 

5.26	He also did not raise any issues and concerns that being forced to resign as per his testimony to the ERT, he considered this to be his termination from his employment.

5.27	The Air Operator's Certificate (AOC) is every airline operator's mandatory requirement and this is renewed by the Regulator after citing compliance. The grievor had given evidence that a consultant was hired because there were some anomalies with the management and flight operations, however, it was his position that he was not the personnel responsible for the anomalies or any other issues therein under his contract of service, or under the Northern Air Services Limited Operating Policies and Procedures and other relevant Manuals (as stated under Clause 1.1 of the Contract of Service). 

5.28	An example of 'relevant Manuals' would be the "Standard Document Air Operator's Certificate, May 2006" (Exhibit "17") that was placed before the ERT by Mr Tofinga to compare the actual duties of different personnel in the airline industry including that of a chief pilot. 

5.29	This document was objected by Mr Chaudary but I found this to be relevant as it was referred in the employment contract and is a standard industry guidelines.

5.30	The grievor had maintained that it was the Accountable Manager's responsibility to secure an AOC and he was not in any capacity responsible or in-charge of this important role. The employer had contradictory views and through their letter of 23rd November 2010 they had made specific reference to the grievor's duties and responsibilities surrounding AOC renewal. 

5.31	The grievor's representative through the use of the Standard Document Air Operator's Certificate highlighted that the Chief Pilot's duties which is not specifically stated would be equivalent to the Job Description (or the "JD") pertaining to "Person responsible for the training, checking, competency and qualification of the crew members" in the said document. According to the grievor, this particular JD does not anywhere state that the grievor was the person who was responsible to secure an AOC in compliance with the Regulator's requirements. 

5.32	I am in agreement with the grievor when in fact the document has a JD specifically pertaining to this role under "Person responsible for the maintenance, airworthiness and serviceability of the operator's aircraft". Nowhere, it states that the responsibility shall also vest in the Chief Pilot's JD to secure an AOC.

5.33	However, the responsibilities for 'Accountable Manager' is stated in the same document as:-

"This person shall have the authority and responsibility within the applicant's organization of ensuring that all the activities authorized under the Certificate and undertaken by the organization can be financed, properly resourced and carried out in accordance with the requirements and standards prescribed under the Air Navigation Regulations and these Standards. The person shall also ensure that the activities undertaken by the organization are carried out in accordance with the requirements of the organization's own documentation". (Bold is my emphasis).

5.34	The last function and duty of the Accountable Manager alludes to what would be captured into the organization or company's own documents such as a contract of service. At Clause 1.1, the contract makes reference to this. 

5.35	In the contract of service, the duties of the grievor are contained under Clause 2. Further duties are alluded in the "Operations Manual" but this was not before the ERT for scrutiny. I have read through each duty listed under Clause 2(a) – (k). There is no specific mention of the grievor being tasked with AOC responsibilities. However, there are very general terms such as: 

•	Clause 2 (a) refers to "…he/she shall use his/her best endeavours to further the prosperity and reputation of the Company"; 

•	Clause 2(c) refers to "Duties shall include, but are not limited to:…"; and

•	Clause 2(g) refers to the grevior to "be responsible to the Accountable Manager at the location of his/her employment or to such other person as may be notified to him in writing". (Bold is my emphasis)

5.36	Generally speaking, if the employer did not specifically state or include this particular duty in the grevior's job description as reflected in the employment contract, then the employer should have written to the grievor to add any additional duties under Clause 2(g) where the Accountable Manager had the authority to do so as the grveior's immediate supervisor. There is no clear evidence this was done by the Accountable Manager until certain letters were written in October and November 2010 to the grievor. 

5.37	In that case, the grevior has justification to assert that he was not required to reasonably protect the company's reputation which hinges largely on securing a valid AOC to operate as a legitimate and lawful airliner in Fiji, when it appears that the Accountable Manager had failed to designate this specific and very critical duty to the grevior, either within the explicit or implied terms and conditions of the contract. To subsequently lay blame on the grevior for any anomalies would be unjustified in the absence of evidence showing that the employer had put the grievor on notice that this was also one of his duties before 13th September 2010 when the issue of compliance with AOC appears to have first surfaced.

5.38	On the other hand, I find that the grievor understood the ramification of protecting the company's reputation in terms of the AOC being an integral part of the daily operations of the airliner. Again, his letter of 24th September 2010, at Clause 5, page 4, assists me to understand how the grievor viewed this crucial aspect in terms of his own roles and functions at the Northern Airlines where he stated and I quote:-

"…Indeed, I would say that CAAFI have acceded to many of my requests to assist the Company to get off the ground; may I remind you that until I joined the Company it faced many problems with CAAFI and upon my joining, due mainly to my good reputation with CAAFI, an AOC as an IR operator was granted for the full term, where formerly it was given on a piecemeal basis. Northern Air was only a VFR operator prior to my joining…" unquote 
(Bold is my emphasis)

5.39	While this is not a clear admission of the grievor that he was in fact responsible for AOC, it does give a reasonable basis to ponder whether he had joined the employer to assist in such matters where his good standing with the Regulator and also his competency in dealing with compliance matters for purposes of AOC was the reason he came together with the employer. I say this with conviction when I read the next clause (6) in the same letter, where the grievor stated, and I quote:

" the Company needs to assess both its operations culture and its employment practices and this was the basis on which I had accepted Director San's pleadings to join the Company last year when I was in fact happily involved in running my own restaurant business which I subsequently closed down so that I could spend more time assisting Northern Air to get off the ground…" unquote (Bold and underlining is my emphasis)

5.40	Reverting to 23rd November 2010 letter, I have to say that the real situation on the ground was something else that in effect surpasses the position under the written contract of service where any good faith understanding between the grievor and the employer is concerned. This is a small airline business and the grievor was no doubt involved in the various aspects of airline operations including overseeing compliance with the Regulator's rules and procedures. Apart from the grievor's own reference as to his input towards AOC and its compliance, when the various letters and meetings are taken into consideration (say, as per paragraph 1 of 23rd November 2010 letter) this would have notified the grevior as to the employer's expectation regarding AOC.

5.41	As I have stated earlier, the grievor has not denied nor objected to these meetings where the Accountable Manager in the letter begins by stating that the grievor was acutely aware of his duty to address also AOC matters as a Chief Pilot (paragraph 2). He goes onto state that the grevior was aware of the current circumstances surrounding the AOC renewal, where he was briefed and interviewed by both the Management and CAAFI as to these responsibilities. 

5.42	This appears to put the grievor on reasonable notice that the Accountable Manager as his direct supervisor was liaising and working with the grievor to address the AOC matter where, the grievor was then required to abide by his directive under Clause 2(g) regardless of what was specified as his contractual duties. In fact, Clause 2(c) makes it clear that the duties in the contract "include but are not limited to" and when read in line with Clause 2(g), it would be fair to say that once the Accountable Manager had asked him to do something, the grievor was required to follow the directives and instructions and carry out such duties assigned to him.

5.43	Consequently, when the Accountable Manager states in the letter that the time given to the grievor to rectify the anomalies cited by the Regulator to implement the corrective measures pertaining to the AOC renewal audit finding to an acceptable standard was not carried out satisfactorily despite they have met on at least two known occasions since the problem was first highlighted to Northern Airlines by CAAFI on 13th September 2010 (the email was copied to the grievor) I do not believe that the grievor can easily escape his responsibility by saying that this duty was still the sole responsibility of the Quality Assurance Officer or Accountable Manager and not his "…to fix the problems associated with airline…" (Page 18 of the transcripts).

5.44	Once the employer assigns the worker a duty and reasonable notice and time was allocated to attend to the same, the worker is obligated to perform diligently the instructions given to him. His employment contract was clear that the duties listed therein was not exhaustive and as long as he was put on notice of additional duties to perform, I see no reason why the worker cannot attend to the employer's directives to achieve the designated task for which he was no doubt paid for. 

5.45	The worker could have escaped responsibility if he was not competent and skilled to perform such duties that would have been outside his qualification and experience. Mr Prasad testified that prior to this job, he was employed with Air Fiji Limited as the Manager Safety and Security & a Trainee Captain. He has also assisted to secure an AOC for the employer when he joined the Company. At no time he suggested to the ERT that he was not qualified to perform this particular duty that was allegedly forced onto him. He only maintained he was not responsible for this duty.

5.46	He also did not demonstrate to the ERT that the prevailing duty was affecting his normal duties either by overloading his current tasks and responsibilities or interfering with his core functions. Indeed without a valid AOC he would be helpless to schedule flights. 

5.47	From 13th September till 20th September 2010, the grievor has valid reasons not to attend to this duty. He was out of office. 

5.48	Upon his arrival, since 20th September and when he met with the employer on 24th September 2010, there is no evidence that he had been relegated from his Chief Pilot position as per his claim. Further he had failed to write to the employer and make his position clear that he would not tolerate any relegation of his position; that he could not be the person responsible for addressing AOC renewal issues and his reasons for this; and that he would not give into the pressure to resign, which in nutshell, sums up the grievor's prime allegations. Up-till 23rd November 2010, there was no evidence that demonstrated that the employer by asking the grievor to rectify the anomalies found by the CAAFI was outside the grievor's skills and qualification to remedy, hence he was incapable in practical sense to address the same when the employer had asked him to do this task. After all he had done this in the past.

5.49	The employer is then justified to write to the worker and express their concerns and they did this through their letter of 23rd November 2010. I find that despite the grievor did not consider the AOC his responsibility, the employer relied on his expertise as a Chief Pilot which is reflected in the relevant parts of the letter where it states:-

"….With your previous management experience, you were acutely aware of the Chief Pilot's responsibilities as the operator's focal point for the AOC…" 

However, given the circumstances that currently surrounds the AOC renewal; it has become apparently clear that we lack the depth to adequately supervise the AOC activities and ensure a safe and efficient operation. Accordingly, you indicated to CAAFI Inspectors that despite ample time allocated for your administrative duties, you failed to implement the necessary corrective measures pertaining to the AOC Renewal audit finding to an acceptable standard. 

Given the above and our correspondence to you on the 24th September and 24th October, we are now reliving you from the position of the Chief Pilot and reallocating you to the position of Line Pilot with the Northern Air…"
 
(Underlining is my emphasis)

5.50	The grievor denied speaking to the CAAFI Inspectors and so I will not dwell on this part of the evidence. 

5.51	The exact nature of the audit findings are not before the ERT. Whether this directly impacted the duties performed by the grievor can only be assumed in terms of flight interruptions and operations of the airliner if AOC is not complied with. 

5.52	Yet, one thing is clear that the employer had apportioned the responsibility on the grievor to rectify the audit findings. But, the grievor's adamant position was that he refused to address issues pertaining to AOC renewal as he considered this not to be his responsibility at all, but one to be rectified by the Accountable Manager or his direct supervisor. This could be the case as an industry practice although there is no evidence that the grveior had informed the employer that he will not be responsible for this duty and laid out his reasons for this. 

5.53	Undoubtedly, AOC is not a light or trivial matter for the airline Company. If flights operations were to take place in the usual manner, the employer would have had to re-strategize its operation methods in order to comply with the Regulator's laws and policies. When the grievor, being the most senior personnel failed to oversee or assist in addressing this important duty assigned to him, it is fair to assume that the employer out of necessity would have been compelled to relive the grevior from his Chief Pilot position and reallocate a position of Line Pilot.

5.54	In my view, this effectively meant, that the employer was still maintaining the grievor in his employment except that they had considered and assessed the grievor's capability to address duties assigned to him, where he had failed to take instructions and carry out the task he was assigned. Clearly he was not terminated at this point at all. 

5.55	The grievor's evidence highlighted that whilst he had considered relegation of his duties since his arrival from New Zealand on 20th September 2010 up-til when he was in actual fact relegated by the employer via the letter of 23rd November 2010, he was still receiving his normal pay which he was entitled as a "Chief Pilot". At this stage, his duties were not substantially increased (in fact it would have decreased) and his salary and entitlements was not summarily affected.

5.56	On 24th November 2010, the employer wrote once again to the grievor under the heading: "APPOINTMENT OF CHIEF PILOT" (Exhibit 10). The letter started with "Further to our discussion of today…", which suggests that the grievor and the employer had discussed the contents of the letter before the employer had penned out their position and the grievor was still at work. 

5.57	In spite of the grievor stating in his testimony that he was forced to resign and he considered this act of the employer his termination, the letter essentially offered the grievor a chance to re-negotiate a new contract of service that the company had deemed expired or ended on 20th March 2010 and where it stated that the "current company salary structure is to be the basis of negotiation". 

5.58	The grievor told the ERT that this would have drastically affected his salary agreed under the chief pilot position as the gross annual income would now be pegged between $9,000.00 – $12,000.00 while he was currently receiving about $33,000.00 as his gross annual income. The grievor did not present documentary evidence to prove what the acceptable salary scale in the industry is. 

5.59	In response to letter dated 24th November 2010, the grievor wrote to the employer on the same day (Exhibit 11) and put the employer on notice that his contract under Clause 14.1 was not terminated on 20th March 2010 and that it was still current. However, he accepted when questioned by Mr Chaudary that the contract was for 6 months as per his own request and was renewable at the discretion of the Company. He further stated that there was differing interpretation of the contract term or period between the grievor and the Company and this was entirely true.

5.60	In that same letter, the grievor stated that he did not accept the employer's reasons for terminating his contract as a Chief Pilot or offering him to enter into a new contract as a line pilot. He also sought an explanation why the letter dated 27th October 2010 was received by him so late. However he did not comment or defend any of the allegations made therein by the employer.

5.61	On 27th November 2010 the Employer wrote to the Grievor under the heading: "Employment Contract" (Exhibit 12) informing Mr Prasad that the term of his contract for six months was as per the grievor's request. He was now formally told by the employer that his contract term was extended for another lifetime "which is six months commencing from with effect from the last expiry of this contract". 

5.62	The letter further alluded that the company was undergoing restructure and that review of all the employment contracts were being considered including his. He was told that it was the management's decision to deploy the grievor as a line pilot. The letter ended with "…we look forward to working with you for another term of the contract and in the future", which was a clear intention of the employer to continue the working relationship with the grevior. 

5.63	There was no mention of the current salary, entitlements or benefits being reduced or taken away from the grievor. In fact, in paragraph 2, the employer states that: 

"Presently the company is undergoing its structure and in the process we are reviewing employment contracts. In the process we have noted that your contract of employment had expired without a formal extension but you have continued to enjoy the same privileges, benefits and remuneration. By this letter we formally inform you of the extension …for another lifetime…"

5.64	Clearly, while the position title of the grievor was being varied, the employer did not broach the subject nor indicated that the grievior's entitlements would be affected. In fact at this stage, the grievor was still receiving his normal salaries and benefits while the transition (restructure) was in place.

5.65	In the last paragraph of the letter, the employer is stating "Please report to duties as usual…". It would appear that the grievor was being requested to attend work as he was not doing this in the usual manner. 

5.66	In his oral testimony the grievor confirmed that from 25th November 2010, he had ceased from reporting to work stating that: "…my employment was effectively ceased on the 22nd of November when I was asked to resign from the Company from my position as Chief Pilot…". 

5.67	He later testified in his cross examination that he did not report to work "because I was told that my role as Chief Pilot was no longer mine and that they had informed CAAFI that I was no longer the Chief Pilot".

5.68	On 28th November 2010, the grievor wrote to the employer rejecting the employer's proposal to redeploy him to a line pilot position and maintained that he was still the chief pilot. He also rejected the reason based on "restructure" of the Company in doing so. I noted the last paragraph where the grevior stated and I quote:- 

"…I suggest that you consider all these issues relating to the breach of my employment contract as Chief Pilot before you ask me to return to work…" unquote.

5.69	It appears that the grievor had simply taken upon himself not to attend to his usual duties in an effort to boycott against the employer's decision although he continued to enjoy the contractual entitlements where payment of salary was concerned. This would tantamount to the grievor's inability to invoke any good faith settlement through the Internal Dispute Resolution Clause (13) of his contract of service. He simply decided to work out of his job without registering a grievance with the Grievance Board under Clause 13.1.2 and seeking remedies therein. 

5.70	Because he was still in employment and not terminated as the evidence suggests, he was entitled and mandatorily required to undertake this procedure in good faith prior to coming to any external party for conflict resolution. This is the position under the ERP pursuant to s110(4) which states:-

110.—(1) An employment contract must—

(a) contain procedures for settling an employment grievance, including confidentiality and natural justice; and

(b) where possible, in the case of sexual harassment complaints, the need for women to be represented on the grievance panel.

(4) Where an employment contract includes an internal appeal system it must not provide for appeal to the Tribunal or Employment Court, and the internal appeal system must first be exhausted before any grievance is referred for Mediation Services. 

(Bold and underlining is my emphasis).

5.71	While the grievor used his contract to strongly assert his position in terms of his duties, responsibilities, title, his entitlements and benefits relating to his role as the "Chief Pilot, there is no evidence whatsoever that the grievor proceeded to invoke his contract of service to seek redress through the internal grievance system, failing which he was entitled to come to the Mediation Services under section 110(3) of the ERP where it states:

Section 110 (3) All employment grievances must first be referred for mediation services set out in Division 1 of Part 20.

5.72	On 1st December 2010 when the Grievor had failed to report to work for at least five working days the Employer wrote and advised him to return to work forthwith otherwise it will be deemed that he had resigned from work. The Company maintained there was no breach of the contract of service and continued to inform the grevior that he was not terminated from his employment. 

5.73	There was no response from the grievor to this letter neither he came forward to discuss his issues with the company formally by invoking the internal dispute resolution mechanisms. If he had and there was no response or the process was ineffective, his evidence would have made sense that such a system in actual fact did not exist. For this reason, I agree with Mr Chaudary that the grievor (and not the employer) did not take effective steps to engage or enter into a conflict resolution dialogue as obviously the greivor was aggrieved with his chief pilot position being relegated to a line pilot position although there is no evidence whatsoever that his salary and entitlements were affected.

5.74	In addition, if he had deemed his relegation of duties as a termination, he was entitled to come to the Mediation Service directly without this procedure at all. He came to Mediation Services in March 2011 after the employer took actions to completely sever the contractual relationship. This was evidently after they had attempted to offer the grievor an extension on his contract of service without taking away the usual entitlements and salary.

5.75	Abstaining from work and not confronting the grievance are two different actions that only aggravate the grievor's position where good faith resolution to the problem was concerned. The grievor could have still reported to work and attempted to sort out his concerns with the employer. After all he was still on the payroll.

5.76	I have to comment that the employer by not taking any harsh steps to stop the grievor's regular salary and entitlements despite the stand-off strengthens their position. How can the grevior justify collecting his salary when he considered himself terminated, hence his reason for not reporting to work at all. If that was the case, he should have invoked s110(3) immediately and sought redress through Mediation Services as he had stated in his letter dated 24th September 2010. Not take a unilateral decision to abandon his usual duties which I must say was not one that could be easily substituted as it is a specialized industry with only licenced personnel approved for pilot duties. Such conduct without mention would affect a small airline business which is also listed as an essential service under Schedule 7 of the ERP. 

5.77	On 7th December 2010, a letter titled "Deemed Resignation" was written by the Employer to the Grievor. This letter advised the grevior that with effect from 3rd December 2010 it was deemed that the grievor had resigned from work. He was required to return all equipment, documents and identity cards to the office forthwith. The grievor testified that he was told to return these properties before this letter was written to him and he was denied access as chief pilot because CAAFI was notified he was no longer holding that position. 

5.78	I have read the previous letters from the employer which encouraged the grievor to return to work. This meant that he was still treated as a 'worker' of the employer. Clearly he ceased to be a worker from 3rd December 2010. Furthermore, I see no reason why the employer would write and commit itself on paper that the grievor was still their worker and advise CAAFI otherwise until of course, when on 3rd December 2010, in actual fact, he was deemed no longer a worker of the Company.

5.79	Whether the letter of 7th December 2010 is justified or not, has to be tested against the contract of service under its Termination Clause. For example, Clause 16(d) (iii) states that:- 

This Agreement may be terminated forthwith by notice in writing to the Pilot in the event that the Pilot:-

(iii) is guilty of ….or shall fail to carry out any of the duties or responsibilities imposed upon him/her hereunder or shall neglect or dispute any lawful order or direction of the Accountable Manager or shall fail to give his/her whole business time and personal attention to the business and affairs of the Company or shall absent himself/herself there from without leave or just cause…"

5.80	I am convinced that the grievor as a pilot (regardless of his seniority or title under this Clause) had no valid or "just cause" to be absent from work as the employer was entitled to select the company's executive pilots under Clause 6(d), particularly in the terms of retrenchment or in this instance, when they attempted to restructure the Company's operations to protect their AOC. I have to say that the grievor was well aware of this which is his own recommendations to the company in his letter dated 24th September 2010 at Clauses 5, 6 and 7. 

5.81	For example, he stated at Clause 7 that:

"…Having noted the above, I nevertheless would like to give the company an opportunity to make amends and review its policies, both operations and employment to ensure that we all have a good working environment exercised in good faith and that the people of Fiji can rely on an excellent and safe commercial service in the public interest."

5.82	The Company was also entitled to add and change duties under Clause 2 (c) and (g) of the contract of service. Further, the grievor did not attempt to resolve his grievance with the employer under its dispute resolution mechanisms explicitly contained in the contract, in particular when he refused to accept any relegation of his position title. 

5.83	It was his argument that the employer should have set in motion this process when he refused to attend work until his chief pilot position was restored. I do not agree with him. The employer maintained that there was no breach of his contract of service and if the grievor was certain that his contractual standing with the company was being breached or he was being constructively dismissed by being forced to resign, he should have voiced against this to the Grievance Board under Clause 13.1.2. Or alternatively he should have sought Mediation Services assistance immediately if he was completely persuaded that he was terminated as per his claim. 

5.84	Instead he gave the expectation and somewhat placed the employer under due anxiety by not attending to his duties that he still wanted to remain in his position where he continued to collect his usual pay and entitlements. This is despite his self-declaration that he was in fact terminated, where he refused to perform duties allocated to him by the Accountable Manager, or re-adjust to the new duties given by the employer in their attempt to protect AOC status. 

5.85	There was not an iota of evidence that his salary and entitlements was affected when the employer gave him a further six month extension of contract of service and this was proven till the last day when he was "deemed resigned" from his employment because he was still collecting the same pay he was normally given in his position as a chief pilot. I found that the grievor's evidence that "…Perhaps I was….I would probably conclude that I may have been…" when asked about receiving his final pay till the last day rather an obscure attempt at telling the truth when any person would not be so complacent about his/her regular pay, especially it was a fact that he was not receiving it in the usual manner. This then would have been a clear proof of termination as alleged by Mr Prasad.

5.86	In my view, since 22nd November 2010 and up-till 3rd December 2010, if the grievor declared himself terminated, it is extraordinary conduct that he did not seek proper redress under the company's internal grievance procedures yet remained on the payroll without attending to his usual duties. I have to say that there is no display of good faith on the part of the grievor here.

6.0 Remedies

6.1 The grevior gave evidence that he is now based in New Zealand where he is studying and working simultaneously since November 2011. His family has also moved to New Zealand and therefore reinstatement is not a viable option as a remedy. 

6.2 With limited choice in Fiji in the airline industry the grevior told the ERT that he was forced to go overseas and upgrade his skills and qualification as his chances of getting an employment in the airline industry in Fiji was difficult when the employer finally let him go. The grievor claimed that there was cost to this in terms of the grevior now training as a helicopter pilot in New Zealand which was only necessitated when Northern Airlines treated him unfairly. 

6.3 I do consider this rather an unfortunate circumstance but I do not find that the employer can be blamed for the grievor's prevailing hardships and financial circumstances. 
6.4 In mind, the grievor has equally, if not, solely contributed towards this grievance by failing to report to work when his salary and entitlements were not affected. No question that his position title was changed but there was no evidence that his financial agreement with the company was substantially impacted or was impacted at all.

6.5 Further, it was the grievor who had sought a short-term contract of six months and this was renewable subject to mutual agreement of the parties but clearly even the grievor admitted that it was not an indefinite contract. The grievor did not explain to the Tribunal why he had wanted a short term contract when he was aware of the limited employment choices in the airline industry in Fiji. Therefore, the employer cannot be held liable for something that they did not unilaterally or unfairly inflict on the grievor as he was still given an option to remain in workforce on the same benefits but he refused to work. In fact he did not attend to his usual duties since 25th November 2010.

6.6 The grievor also told the ERT that prior to joining the employer, the grievor was running a profitable coffee shop business in the central business district in Suva and he had to sacrifice this venture to join Captain Sen who the grevior said had given him a reasonable expectation that he could do both, the chief pilot duties whilst run the coffee shop simultaneously. 

6.7 I found this to be a rather peculiar preposition on the part of the grievor given that it was completely against the provisions found under Clause 2 (b) and 3(k) of the contract of service. Clearly, he was required to devote himself exclusively to his pilot duties and not allowed to engage in other trade or business activity. He also in his letter dated 24th September 2010 admitted closing down his coffee shop where he states "…so that I could spend more time assisting Northern Air to get off the ground". 

6.8 To then suggest that he could do both the jobs at the same time where had to sacrifice his coffee shop business is of no consequence once he entered into the said contract of service. As such, these losses, if any (no evidence was produced) cannot be mitigated as part of his loss of any earnings or damages by joining or being relieved by the employer in the said circumstances.

6.9 In addition, if, for some reason his contract was not renewed when the six month period had expired which, in any event, is the right of the employer to extend or reject extension; it is difficult to tell what would have been the grievor's financial situation then as he was the one who had sought such a short-term contract. I still am unable to understand why he wanted such a short-term contract when he was aware of the challenging times in finding employment in the airline industry. 

6.10 Lastly, the manner in which the grievor was terminated was also just and fair. He was not appearing for his usual duties and the employer after giving him two written notices finally had to let him go under the contract of service when the grievor failed to show just cause for his continued absence from work. 

6.11 I agree that he was aggrieved with the relegation of his usual position title but there is no evidence that his duties were considerably varied as he would still be carrying out some of the duties listed under Clause 2 particularly where Clause 2(f) is concerned. His salary and entitlements were also not varied as there is no evidence of this. Clearly the employer justified that their restructure plans necessitated this action and if the grievor was still unhappy with the decision of the employer, he should have invoked Clause 13 of the contract to resolve the difference between the employer and himself. After all, he was still enjoying the benefits and salary under his employment contract. He could have simply cited and invoked Clause 20 to resolve this impasse and sought action from the management in terms of mutually varying his position title from Chief Pilot position to a Line Pilot position. He did not do this. 

7.0 Decision & Orders:-
1.	The Employer is justified in writing to the grievor to inform him that his position in the Company is deemed resigned. This is not a summary dismissal case but one that has forced the hands of the employer to end the contract of service when the grievor failed to undertake his duties and responsibilities as assigned by the employer. 

2.	Accordingly the allegation of unlawful and unfair summary dismissal is dismissed forthwith.

3.	I invoke my pervious Order of $200.00 cost awarded when the matter was struck out on 5th October 2011 which is to be paid by the grveior to the employer within 60 days of this decision.

Dated at Suva this 2nd day of August, 2012.

LEGAL TRIBUNAL