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Fiji Employment Tribunal |
IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT No. 63 of 2009
BETWEEN:
WILLIAM WONG
APPLICANT
AND:
LAND TRANSPORT AUTHORITY
RESPONDENT
Appearances:
Mr. N. Tofinga for the Applicant (or "the Grievor")
Ms. R. J. May for the Respondent (or "the Employer")
Date of Judgment: 28th December, 2012
DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL
1.0 Employment Relations Grievance
1.1 Background to the Grievance
1.2 On 15 May 2009, the grievor had registered a claim with Ministry of Labour stating the particulars of his grievance in Form ER1 as:
"I was terminated by LTA on 14th April 09 without any reasons(s) being given. Attempts to obtain a reasons(s) from the CEO was not successful".
1.3 This led to various mediation attempts on 29th July 2009; 11th and 17th August 2009; and finally on 17th September 2009. Mediation being unsuccessful, the matter was referred to the ERT pursuant to s194 (5) of the Employment Relations Promulgation 2007 (or "the ERP 2007") where the mediator gave the following terms of reference:-
"Griever Wiliam Wong employed by Land Transport Authority as General Manager Finance & Administration on a contract since 2008. On 14th April 2009 the griever received a letter of termination effective same date. The griever wrote to the CEO LTA requiring the reasons for the termination and advised that his verbal directive to vacate the office tantamount to duress".
1.4 Relief sought by the grievor as contained in the terms of reference of the mediator stated the following:
"Full payment in salary with effect from 14th April 2009 to December 2011 for the duration of his contact including the following-
2.0 Substantive Matter Before the Employment Relations Tribunal (or "the ERT")
2.1 When the matter was called before the ERT, Hon. Chief Tribunal had directed the parties to file their respective Preliminary Submissions on 7th October 2009, whereby the Employer, Land Transport Authority (or "the LTA") filed theirs on 10th November 2009 and the grievor, Mr Wong filed his on 18th January 2010. Supplementary documents in support of grievor's preliminary submissions were filed on 9th June 2011. This was an extensive list of documents that also appeared to have relevance to two other matters pending for determination before the ERT, namely, Bimal Prasad and Premsushil Prasad (ERT Nos. 39 and 40 of 2009). No date for hearing was allocated for this matter. This is because the events that followed hereon overtook the substantive hearing process as both parties consented to submit statement of agreed facts and thereafter file their respective legal submissions instead of proceeding by way of an evidentiary hearing. The Tribunal was thus required to make its ruling based on the legal submissions filed by both parties. But, first let me give a brief background as to how this matter had evolved since it was referred to the ERT on 17th September 2009.
3.0 Interlocutory Application (ERT/MA No. 55 of 2011)
3.1 On 1st September 2011, the grievor's representative as an interlocutory application, filed a Notice of Motion for determination on the question of law and Order of Compliance seeking the following redress and remedies:-
3.2 The application was brought forward by the grievor pursuant to s211, s212, and s213 of the ERP and also the relevant provisions of the Magistrates' Court Act, Cap 14. On 24th February 2012, this matter, as a Miscellaneous Application was called before me where Mr Tofinga requested the ERT to first proceed with the determination of the interlocutory application before the substantive matter could be heard. By consent, both parties admitted three documents for this ERT's consideration that was attached to the Employer's Preliminary Submission, being the following annexure:
3.3 In determining the interlocutory application, the ERT was required to decide whether or not it was lawful action of the employer to proceed to termination without cause and/or payment in lieu of notice under the provisions of the ERP 2007 (specifically, pursuant to sections 40 and 41) The termination had occurred as per Clause 10.1.a of the Agreement of Employment that was in fact the employer's main reason for terminating the applicant (as per the letter of termination).
3.4 The termination was essentially carried out in accordance with an express provision in a contract of service between the parties under a general "Termination" clause (10.0), which Clause or provision was different from the decision of the Ministry of Works and Transport's Board where it had considered that the grveior may have breached the employer's code of conduct pursuant to Clause 12.2. Instead of making the purported breach of the code of conduct a basis for termination, which in essence would have then made the termination of the employment contract (or ensuing allegations of unfair dismissal) effected on the basis of a "cause", the employer through the Board Chairperson chose to invoke an express provision of the contract of service that provided for different termination methods therein. One was "without cause". The employer argued that they had a prerogative to choose that method of termination to lawfully and fairly terminate the contract of service vide payment of salary in lieu of notice period.
3.5 The grievor filed a Notice of Motion and through this interlocutory application sought determination on the issue of law: whether or not the termination was unlawful vis a viz whether or not the ERP permitted for termination without cause. Or should all termination be generally for a "cause" or for lawful and fair reason(s). In fact this was the grievor's initial claim (see Form ER1) that was the basis of his substantive claim.
3.6 On 5th April 2012, I had delivered by decision where the interlocutory application was concerned. It is thus crucial for a sense of clear understanding that I explain again the basis of my decision in the interlocutory application as the substantive grievance matter after the agreed statement of facts was filed before this Tribunal gives a different perspective to my interlocutory decision. That said, I have to comments that it is still largely dependent on how the law sees an employment relationship within the confines of a written contract of service being the basis of a very intricate and special relationship between two important players: the employer and the worker. Regardless of the nature and method of termination, indeed, the first point of reference for termination or allegations of (unlawful or unfair) dismissal on the premise of good faith relationship is always the contract of service between the parties. This goes to the definition of an employment; employer; and worker in the ERP which all make reference to 'contract of service' being a basis for an employment. A contract of service in the ERP 2007 under section 4 is defined as: "...a written or oral contract, whether expressed or implied, to employ or to serve as a worker for fixed or indefinite period..." (Underlining is my emphasis). Therefore, whatever the position taken by the parties in either instance (interlocutory or substantive matter), one fundamental matter remains unchanged – this is, the law.
3.8 Therefore, while the statement of agreed facts filed on 4th June 2012 may appear to confuse the gist of the claim when analyzing the basis of the termination in view of whether or not it is a "termination with cause" and/or "termination without cause", the law that I was required to analyze under sections 40 and 41 is clear which I have attempted to sum-up below. I also note that neither party appealed my interlocutory decision, hence I take it that they had understood this Tribunal's stance on the interpretation of law under the ERP 2007 when the ruling was provided.
3.9 Let me begin by stating that the grievor or applicant's position through their legal submissions filed on 23rd February 2012 was that sections 40 and 41 of the ERP have outlawed the practice, where the grievor had submitted that the ERP does not permit for termination without cause. The applicant further submitted that the natural and literal meaning of the said provision is in accordance with the criteria set down by the Fiji Court of Appeal "for interpreting legislations and legally binding agreements" as was interpreted in the case of Din -v- Westpac Banking Corporation [2004] FJCA 30; ABU)); 2003S (26 November 2004). The criterion discussed by the Court in this case was not clearly put to the Tribunal as it appears the grievor's representative just refereed to Din's case for the Tribunal's consideration.
3.10 In counter response, the Respondent or the employer had submitted through their legal submissions filed on 29th March 2012 that:
3.11 The Respondent conversely relied on the case of Central Manufacturing Company Limited v Kant [2003] FJSC 5, where the Supreme Court held the Canadian Approach on the issue of "payment in lieu of notice" (at Clause 4.2 of the Employer's Submissions). The employer quoted the following dicta, which I quote also:-
"In the absence of just cause, an employer remains free to dismiss an employee at anytime provided that reasonable notice of the termination is given. In providing the employee with reasonable notice, the employer has two options; Either to require the Employee to continue working for the duration of that period or to give the employee pay in lieu of notice..." (Underlining was employer's emphasis)
3.12 At the outset, at all times, it was an agreed fact that the Grievor's contract of service dated 14th February 2007 was terminated by the Employer on 14 April 2009 by way of giving notice through payment of salaries and allowance whereby the grievor was paid a sum of $19, 812.45 pursuant to Clause 10.1 .a of the Employment Contract.
3.13 The contract of service marked as "LTA 01", clearly showed that the duration of the employment contract was fixed for three (3) years under Clause 2.1, or, "unless sooner terminated in accordance with the provisions of this Agreement" – see below.
DURATION
3.1 This contract of Employment shall commence on the 21st day of May 2007 and shall continue for a period of three (3) years, unless sooner terminated in accordance with the provisions of this Agreement (bold/underlining is my emphasis).
3.14 Clause 10.0 of the Employment Contract between the Applicant and Respondent stated as follows:-
"10.1 This contract may be terminated in accordance with the provisions of the Human Resources Manual as follows:
3.15 The grievor has thus raised substantive grievance claim in terms of allegations of 'unlawful, unfair and unreasonable termination', where he is seeking remedies in the form of payment in salary with effect from 14th April 2009 to December 2011 for the duration of his contact including a retraction of the termination letter and a reference letter reflecting performance for two years.
3.16 Through the interlocutory matter, he was requiring the Tribunal to determine whether or not Clause 10.0 of his employment contract was in compliance with sections 40 and 41 of the ERP 2007; if not, the Tribunal should make an order for a Compliance Order. If a Compliance Order was granted, then the grievor would have withdrawn from his employment grievance to effect the necessary Compliance Order (ground two of the Motion). In my ruling, I had stated that any Compliance Order would have essentially preempted the determination of the substantive grievance, which really should have been heard on evidence to clarify each party's obligations and rights under the said contract of service.
3.17 That being the case, I had noted that the substantive grievance matter appeared to hinge largely on the legal issues brought before the ERT by the Grievor in the form of the interlocutory application and this was predominantly the crux of the original claim or the grievance. Of course this were issues of law that was to be determined purely under the statute (ERP 2007) without hearing any evidence.
3.18 There were in fact, two fundamental issues of laws that this Tribunal had determined. First issue of law that needed to be understood was "whether or not an employer can choose to terminate a written (or express) contract of service by invoking termination methods stated therein as a right of the employer to hire and fire according to the terms and conditions of the employment", and second issue of law was: "should there be 'cause' for termination in all termination of contract of service or dismissal cases" under the statute (ERP 2007)".
3.19 If these legal issues were to be clarified as per the provisions of the ERP 2007 given the remedies sought by the grievor pursuant to the interlocutory application, then it would have made it easier for the parties to determine how to proceed with the substantive matter, if at all. Otherwise it would have appeared to be an attempt by the grievor to fast-track the matter without any real intention to resolve the grievance but rather knowing the position of the Tribunal under the statute, and thus far, attempting another line of defence although the substantive matter is no different.
3.20 After a very careful perusal of the contract of employment which is the starting point of any employment grievance vis a viz an employment relationship between an employer and a worker based on trust and good faith, I had ruled that when considering whether or not the Employer was correct in opting to terminate the grievor pursuant to Clause 10.1.a instead of Clause 10.1.b. or Clause 12.0 of the employment contract, there was nothing unlawful or unfair under sections 40 and 41 provisions of ERP 2007. In fact, I found no provision in the contract of employment that would have put the employer under compulsion to execute only Clause 12.0 for purposes of a termination if that was the basis or the employer's real reason for considering an employee's termination of his contract of service under the alleged breach of say, the Code of Conduct. The contract of service had clearly provided for different termination methods under Clause 10.0 which could be carried out in three different ways as pertained in Clause 10.1(a-c). Further, under Clause 2.1 of the contract, there was no vagueness or confusion that the contract could be "sooner terminated in accordance with the provisions of this Agreement".
3.21 In that regard, I do not wish to repeat myself where the analysis of law on section 40 and 41 of the ERP is concerned as this I very elaborately provided my interpretation of law in my ruling given on 5th April 2012. Indeed I declare that once a contract of service is written, agreed and signed by the parties, it has to be regarded with significance and value, in terms of its lawfulness and fair standing, no matter how improvident or a bad bargain it may appear to an ordinary man. As long as it did not result from fraud, duress, or undue influence, the binding force of a contract is based on the fact that it evinces a meeting of minds of two parties in Good Faith. Therefore, at the interlocutory stage, when deciding whether or not the termination of the grievor under Clause 10.1.a of the Employment Contract as agreed in writing by the parties was in compliance with sections 40 and 41 of the ERP, I had taken the view that even if the literal meaning was applied, section 40 did not make it mandatory for the parties to carry out the entire duration of the contract.
3.22 I also found that these two provisions of the ERP state that a "written contract can only be terminated" at the expiry of the entire three years until of course, if and when the worker dies or passes away before the entire duration is fulfilled. Clearly, where a termination of contract in other circumstances is concerned, section 41(a) of the ERP follows on to say that "if the employer is unable to fulfill the contract" (and I note here that no lawful cause or reason is a requirement as ERP is silent on this), then "the contract may be determined, subject to conditions safeguarding the right of the worker to wages earned, compensation due to the worker in respect of accident or disease and the worker's right to repatriation".
3.23 It was thus my view that section 41 allowed for termination of contract of service in other circumstances that stretches the law to also encompass situations where if the death of the worker occurs (but is not limited to), it allows the parties to put in perspective the deceased's entitlement or rights in terms of wages and compensation that can be sought from the employer. Section 41 effectively gives room to presume that if contracts of service cannot be carried out or fulfilled by the employer [reasons or cause are not required under s41(a)], before the expiration of the entire term or duration (excluding the issue of death of the employee), then in that circumstance, it alludes to how the employee's rightful entitlement under the written contract of service can be determined in case there is a confusion or ambiguity in the contract. There is, however, no doubt in my mind as to how the termination can be invoked and carried out under section 41. First, the termination may be determined according to the conditions in the written contract (if there is no clear conditions, or there is any disagreement, it shall be interpreted keeping in mind minimum requirements of the ERP as contract of service can be implied under the interpretation section 4); and second, the right of the worker in terms of wages earned or compensation shall also be reasonably determined from the contract of service between the parties unless say, the death of worker is that of an accident or injury caused in the course of the employment then minimum statutory requirements under Workman's Compensation Act will have to be applied. This is assuming the contract of service is not compliant already.
3.24 Further, if the contract of service is offensively outside the minimum requirements of the ERP, then the ERT is obligated to bring the terms and conditions provided in the employment contract into conformity and compliance. In this instance, the termination, without carrying out the entire duration (or without a cause) is evidently allowed in the written contract of service under Clause 10.1.a and I had ruled at that relevant juncture that under section 41(a) of the ERP, contracts can be lawfully terminated before their expiry term/date (even where the death of the worker is not an issue) as long as both parties have mutually agreed to the terms and conditions through a written contract. And this appeared to be the case in this grievance matter on the face of the employment contract. The employer had invoked Clause 10.1.a of the employment contract by offering the grievor three months salary in lieu of notice and he accepted and left his employment. As such, I found that such clause was not unfair and unreasonable condition expressed in the contract in that it was not grossly outside the minimum requirements of the ERP going against the principles of natural justice and fairness when in fact, I had pointed out that both the parties could have utilized Clause 10.0 for mutual advantage and benefit. Either party could exit the contract before the expiry date/term as long as they complied with Clause 10.0 and they were able to convey to either party a clear intention to do so.
3.25 To thus, end "with cause" or "without a cause" a contract of service should be seemingly a mutual agreement between the parties. If the parties had achieved this in a written contract of service, a reasonable Tribunal should not substitute this with its own views unless the statute is breached, and section 41(a) does not state whether or not the termination must be 'with' or 'without a cause'. If taken within its literal meaning (as was applied by Mr Tofinga), clearly I had said that it can be interpreted to be "without a cause". In that regard, I did not venture beyond the natural meaning of the legislation except to acknowledge that "cause" is not a requirement under s41 of the ERP as this was the core issue of the applicant (grievor's) interlocutory application.
3.26 Further I was required to examine whether or not termination of a contract of service could be carried out via payment of salaries/wages in lieu of notice under the ERP as a lawful and acceptable termination method. Clause 10.1.a alludes to termination "by either party giving 3 months notice in writing, or payment of basis salaries and allowances in lieu of notice". I had ruled that ERP allows for this also.
3.27 This is because both sections 40 and s41 of the ERP 2007 fell under the broader spectrum of Part 5 of the ERP pertaining to "Contracts of Service", which in fact is part of Division 2 (Written Contracts). The relevant provisions in the ERP that deals with termination methods are: sections 29, 30 and 33. For example, Section 30 states the following:-
Further provisions as to termination of contracts
30.— (1) Upon the termination of a contract of service, the employer must pay to the worker all wages and benefits then due to the worker by end of the following working day.
(2) The wages and benefits due to a worker under subsection (1) must, in the case of a worker who is entitled to receive notice from the employer in accordance with this Promulgation or the worker's contract (the terms of which relating to notice are not less beneficial than this Promulgation), include wages and benefits payable in respect of services rendered during the period of notice or payable in lieu of the notice.
(3) If payment is made in lieu of notice the payment must include the wages and benefits that would have been payable to the worker if the worker had worked during the period of notice. (Underlining is my emphasis)
3.28 Clearly for this Tribunal on the issue of law as alluded in the interlocutory application, section 30(2) and (3) allows for termination where a notice period can be reasonably substituted through payment made in lieu of notice, whether or not it is taken in its literal and natural meaning. As far as the ERT was concerned there is no other interpretation, when the law that is now regulating labour relations in Fiji is this clear, unambiguous and simple to understand. Hence, I did not find that the Contract of Service (under Clause 10.1.a) offended or contravened the provisions of the ERP 2007 in accordance with sections 40 and 41 of the ERP or section 30(3). To that end, I had ruled that as the employment agreement stood, the employer had a right and an entitlement to invoke Clause 10.1. a. within a written contract of service as agreed and signed by the parties where if they had no cause to state or put forward to the grievor, then the termination could be effected without cause.
3.29 The employer consequently being entitled to exercise and invoke Clause 10.1 a. had effectively provided reasonable notice period via payment of basic salaries and allowance in lieu of notice (of three months) which they complied by paying the grievor at the time of his termination in a sum total of $19, 812.45 and which the grievor appeared to have accepted at the material time. This was lawfully in compliance with section 30 (3) of the ERP.
3.30 As a preliminary observation without hearing evidence-proper, I had gone a step further and observed that the grievor by accepting the payment which still remains an undisputed fact, will conversely bear the onus to demonstrate to this Tribunal how the employer's actions became unlawful and unfair (as the grievor deems this to be a summary dismissal) when the grievor did not object nor rejected the payment made by the employer in lieu of notice. I had ruled that as far as this Tribunal was concerned, any acceptance of the payment is deemed as the grievor's unrestraint and good faith understanding of the contract of service and his working relationship with the employer. Thus he was deemed to have acquiesced to Clause 10.1.a and its application of the employment contract. No appeal was filed against my ruling by the either party.
3.31 As a final point before I proceed to determine the substantive matter, I have noticed that the grievor had indicated that he was under duress as per the terms of reference of the Mediator to this ERT when Clause 10.1.a as a termination method was invoked by LTA and at the material time accepted by the grievor. I have to clarify that the allegation of duress was not something at all put to this Tribunal other than allegations of being forced to resign.
3.32 Instead through interlocutory application the grievor had attempted to seek a Compliance Order under sections 40 and 41 of the ERP. Failing this, he has come back to the same argument that the employer agreeing collectively (via statement of agreed facts) that there was cause for termination (as appears to be also the case in Bimal Prasad and Prem Sushil matters) had no right to invoke another termination method where the contract of service had three different ways a termination could be lawfully and fairly carried out. And while the employer chose one of the methods that had no bearing on "cause", but, instead LTA made a payment in lieu of notice which the grievor had duly accepted at the material time, the grievor thus shifting from his duress defence to section 40 defence that the contract should have been carried out till its life of three years, failing which he is back asking that termination should have been invoked with cause under clause 10.1.b. of the employment contract as finally admitted by the employer. Hence it is unlawful and unfair termination. I am beginning to think that this Tribunal is stuck on one point from the beginning and both the substantive and interlocutory applications are no different. Rather it was a waste of time when a hearing-proper of the evidence would have clarified all these matters.
4.0 Final Determination of the Substantive Matter
4.1 Grievor's main justification for unlawful and unfair summary dismissal pertains to the following as contained in his legal submissions filed on 25th June 2012:-
"The Grievor was unlawfully terminated for the following reasons:-
The Griveor was unfairly terminated for the following reasons:-
Further proof that termination was with cause:-
2.14 On 14th April 2009 the Grievor was informed by CEO that he should resign or be terminated.
2.15 Grievor refused to resign and he was subsequently summarily dismissed".
4.2 Both the parties had consented and opt to have the interlocutory application heard first to clear the issue of law. As I remember the main reason was that the employer had some difficulty proceeding to hearing-proper as most of the witnesses it intended to call were no longer employees or Board members of LTA. Thus, while the issue of law under the interlocutory application was the grievor's application, it was agreed by both parties that it would have assisted them to seek a sensible and amicable resolution as the employer (through LTA's legal counsel) alluded the Tribunal that it did not intend to appeal the Tribunal's decision other than seek direction. Whatever the decision of the Tribunal, the parties had then agreed, if there was a necessity to still determine the substantive matter, they would present a statement of agreed facts and subsequently provide legal submissions to the Tribunal to rely on the same. Of course this would mean that without delving or allowing this Tribunal a proper glimpse of the facts and evidence via a hearing-proper pertaining to the allegation amounting to "cause" of the dismissal, this Tribunal was required to rule on the basis of statement of agreed facts and legal submissions. I have to say neither document gives the real basis to test what constituted "cause" for termination and whether or not the cause was lawful and fair based on the employer's justification. But this is the path both parties have duly agreed to and I have read the statement of agreed facts and legal submissions from both sides.
4.3 Accordingly, I am of the view that while both parties have agreed to waive the substantive (evidentiary) hearing to test and prove what was the allegations pertaining to "cause" or actual reasons for terminating the contract of service of the employee (say, cause pertaining to breach of code of conduct for alleged corrupt practices) vis a viz through summary dismissal, the employer appears to have agreed that there was a cause for termination. Although this is done quite vaguely and without clear facts it appears that LTA is admitting that "cause" was considered by the Board of the Ministry of Works and Transport prior to the decision taken by LTA to terminate the grievor under Clause 10.1.a.
4.4 If there was a (lawful) cause to terminate the grievor, then clearly the onus rests on the employer to establish that the termination was not wrong, unlawful and/or unfair.
4.5 Despite there being a "cause" for termination as finally admitted through the statement of agreed facts, the employer has maintained throughout the proceedings that they had opt to chose one of the termination methods generally under the Termination Clause 10.1 of the contract of service that entirely excluded "cause" factor (pursuant to clause 10.1.a). They also argued that they had never misled the grievor as they had clearly penned out the termination letter stating that they had invoked clause 10.1.a. and therefore, the employer's main reason for dismissing the employee was not for a cause. LTA through its Board chairperson at the time terminated Mr. Wong by giving him three months salary and entitlements and sent him home on-spot.
4.6 After perusing the grievor's justification as stated above (in 4.1) there is no doubt in my mind that the grievor understood that his contract of service contained a termination clause under 10.1 as he asserts that the employer had breached clause 10.1.b which he says, is what he was entitled to be accorded at the time of his summary dismissal. I agree.
4.7 When there is a "cause", he should have been terminated in accordance with Clause 10.1.b, particularly where cause related to a serious misconduct which appears to be the basis here in terms of breach of code of conduct or allegations of corrupt practices or abuse of office which is easily classed in the general category of "serious or gross misconduct".
4.8 Even though the ERP 2007 generally allows for termination without cause under section 30 in lieu of payment of salaries/wages, once the employer admits there was a cause for dismissal and that cause relates to serious misconduct, then clearly s33 of the ERP comes into play. Here, the grievor was terminated immediately without notice except he was provided payment in lieu of notice.
4.9 This matter is similar when compared to the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011, where the Court had looked at how contract of service can be interpreted in view of termination methods. Here, the Court had considered and noted that there were two mutually exclusive dismissal regimes (in the worker's employment contract) where dismissal could occur either by a week's notice or payment in lieu, or summary dismissal for serious misconduct without notice or payment in lieu. Additionally, the Court noted in Isoa's case stated that the employer was entitled to dismiss summarily for gross misconduct pursuant to s33 of the ERP. The Court went onto say and I quote:-
"...Indisputably the termination clause permits termination without cause....and also for summary dismissal, without notice for serious misconduct. Once the employer made serious misconduct the basis of termination, it is 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. When the Tribunal made a finding that the lawful cause to terminate was not established, the termination became wrong and unlawful..." (unquote)
4.10 Further your Ladyship, Wati J clarified and said that:-
"When the Tribunal made a finding that the lawful cause to terminate was not established, the termination became wrong and unlawful. The employer cannot then go back and rely on its giving one week's wages in lieu of the notice to say that it relied on the termination clause. In this case, the termination was for a cause and I have no better way to put it than Mr Rae has that in the circumstances of this case "there could not be a hybrid or combination of termination methods" (Bold is my emphasis)
4.11 Here, the Board of LTA had recommended that Clause 12.2 of the contract pertaining to breach of code of conduct should be the basis of termination but the Chairman of the Board invoked clause 10.1.a for reasons only known to him (see: "LTA 08" as part of the annexure of the preliminary submissions of the employer)
4.12 Further, I understand the chairman's locus standi or jurisdiction or indeed his standing as the rightful authority to terminate the grievor is questionable in this matter hence the grievor also seeking to declare that the termination itself was accorded under unlawful hand or authority.
4.13 I am not one to digress from the facts that is pleaded and agreed by the parties. This aspect to me becomes irrelevant other than focusing on the substantive matter as to whether or not there was cause for termination; if so, what is the appropriate method of termination. Was this unlawful and unfair. I agree that this grievance becomes unlawful when the employer had failed to establish and justify cause to this Tribunal, whatever they maybe.
4.14 If the "cause" pertained to offences relating to corrupt practices that the grievor was absolved of but now he has been tried again of the same allegations or offences, then this becomes a very serious matter. No one is entitled to be charged and tried twice for the same offence. However, I must admit that this aspect of the agreed facts is still blurred as even the grievor admitted in his original claim (Form ER1) that he did not know the reason why he was being terminated and the employer has only very vaguely admitted that there was a cause in the statement of agreed facts without making known the actual facts surrounding the cause. It is then unmerited for this Tribunal to suspect or substitute its own opinion or guess in the absence of clear agreed facts given that substantive hearing was mutually waived.
4.15 In that regard, I find that the summary dismissal was for a cause and the cause related to certain serious misconduct (considering there was mention of breach of code of conduct in the minutes of Board meeting) and termination could only be justified under clause 10.1.b arising out of Clause 12.2 of the employment contract. Clause 10.1.a is thus a wrong termination clause or provision making the termination unlawful.
4.16 Where procedure for hearing is concerned, notably, the Employment Relations Court in the case of Carpenters Fiji Limited v Isoa Latianara ERCA No. 7 of 2011 provided the following dicta to be followed where, Wati J has stated and I quote for quote:-
....it is my duty to comment more on the procedure to terminate "for a cause" and "without a cause". In any given situation, the employer is not obligated under the termination clause to give any opportunity of hearing as found by the Tribunal. When the termination is without cause, what is there to hear the employee on?...if there is serious misconduct, then it is the prerogative of the employer to terminate the employment immediately. If all these procedures of hearing and explanations are accorded to the employee, then the purpose of summary dismissal is lost..." (at page 8).
4.17 Isoa's case may not be clear whether or not any procedures are required to ascertain the guilt of the grievor (and what sort of procedures should be used) prior to declaring the alleged conduct "serious", but it is quite clear that once a serious (or gross) misconduct is established in substance, then procedural fairness is not required for purposes of a summary dismissal
4.18 My analysis of Isoa's case being slightly different from the current grievance is that there was clear indication by the employer that they had serious misconduct as a basis for termination of Mr Isoa Laitianara, a security officer who had allegedly stopped a customer from certain unruly conduct and in doing so, the employer took punitive actions to dismiss him summarily on grounds of gross misconduct. This was the initial basis to terminate the employee – that is "for a cause". They paid him one weeks' wages in lieu of notice also.
4.19 In this instance, while "cause" (but again I reiterate that clear facts was not put to the Tribunal properly) may have been considered at some point in time prior to the grievor's termination by the LTA Board members as reflected in the minutes of the meeting, however, he was neither put on notice as to the cause in writing by LTA, nor investigated in this particular instance for the said offences (or cause) nor I had been properly divulged evidence regarding the exact nature of the allegations that LTA apportioned against the grievor. I understand in February 2008 he was investigated for abuse of office (as per annexure LTA 05) and later absolved of the charges or disciplinary process laid against him. There were no facts adduced that the cause in this instance is related to or is same to the previous allegations of corrupt practice or abuse of office. In fairness to all, whether or not the cause was related to the previous charges hence the decision of LTA to terminate Mr. Wong can only be tested by evidentiary hearing of the "cause" and this was not done.
4.20 In this instance it appears that some months later of being absolved of any allegations or charges considered by LTA or the relevant Ministry, Mr Wong's termination was purely based on Clause 10.1.a of the contract of service as stated in his termination letter dated 14th April 2009 (annexure LTA 11). There was absolutely no mention of cause being a basis of his termination other than the employer honestly agreeing during the proceedings that Mr Wong was at some stage was considered by their Ministry for breach of code of conduct. Thus there was cause. Since the onus is on the employer to establish and prove that they had justification for cause (whatever it may have been) in order to vindicate that the termination was lawful or fair, the employer should have assisted the Tribunal by clearly stating what the cause related to.
4.21 This being the most important aspect of such grievance matters, LTA has considerably failed on its part by not providing vital information and facts/evidence, which then leaves me no choice but to declare this grievance unfair also. This is because it is not the aspect of right to hearing that makes a grievance unfair but the manner of treating the employee in which dismissal is accorded that makes it unfair (see Isoa's case at page 9).
4.22 Wati J in Isoa's case has also pronounced that "the employer's actions must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in carrying out the dismissal". Here, because the grievor was denied the very right to know why he was terminated, he was sent home completely incognizant of the fact why his source of livelihood was snatched away from him. When the employer had a cause for termination, the grievor thus deserved every right to know the reasons for his dismissal (as per s114 of the ERP) so that he could properly channel the truth and seek a sense of understanding what he had done wrong.
4.23 If this was a summary dismissal as allowed under section 33 of the ERP as a right of the employer, then Mr Wong could be sent home immediately without notice but s33(2) of the ERP requires all employers to provide reasons in writing at the time of dismissal. Further, this method of termination cannot be substituted by Clause 10.1.a if there was a cause, particularly one for serious misconduct.
5.0 Remedies
5.1 Section 230(1) and (2) of the ERP are relevant. This Tribunal has discretion to consider and award whole or part of the salaries or wages lost due to unlawful and unfair dismissal. Section 211 (2) (a) is also relevant which empowers this Tribunal to adjudicate on matters within its jurisdiction relating to claims up to $40,000.00.
5.2 I have noted and taken into consideration that the employer did not send the grievor home entirely penniless at the time of his dismissal. In actual fact, Mr Wong has been already paid three months salary equivalent to $19, 812.45. Because he did not refuse this method of termination entirely by accepting the payment in lieu of notice, he is then also not without responsibility on his part.
5.3 Adding onto $19, 812.45 in my consideration for a fair remedy, I will further award a blanket $10,000 to be paid to the grievor for the fault of the employer in not carrying out the dismissal in accordance with Clause 10.1.b of the employment contract and furthermore, for breaching section 114 and section 33(2) of the ERP. This shall cover any emotional suffering caused to Mr Wong for undue anxiety and grief since his termination which also takes into consideration the length of proceedings since 2009. Reinstatement is not a remedy sought and so I will not make any orders to that effect. LTA will also provide a reference letter (a certificate of employment) to Mr Wong for the duration of his employment as per section 30(6) of the ERP.
6.0 Decision and Orders
DATED at Suva this 28th day of December 2012.
LEGAL TRIBUAL
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