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Fiji Employment Tribunal |
IN THE EMPLOYMENT RELATIONS TRIBUNAL
ERT Grievance No. 56 of 2011
BETWEEN:
WAISAKE DRADRA
Grievor
AND:
FIJI NATIONAL UNIVERSITY
Employer
Appearances:
Labour Officer for the Grievor
Ms Rakai M for the Employer
Date of Hearing: 21st March 2012/12th April 2012
Date of Judgment: 8th September 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 21st January 2011. Mediation was attempted on 18th February 2011 but was not successful. The mediator referred the grievance to the ERT on 2nd February 2011 in accordance with s194 (5) of the Employment Relations Promulgation (or "the ERP") outlining the nature of unsettled employment grievance with the following terms of reference:-
"The decision by management to terminate the services of the grievor which he claimed was unjustified and unfair".
2.0 Cause before the ERT
2.1 In the Employment Relations Tribunal (or "the ERT"), the parties were directed to file preliminary submissions by the Hon. Chief Tribunal on 4th March 2011 whereby the Employer, Fiji National University (or "FNU") filed its Preliminary Written Submissions on 4th May 2011and Grievor filed his Preliminary Written Submissions on 20th May 2011. Employer also filed further Submissions In Reply on 13th July 2011.
2.2 Hearing of the substantive matter was carried out on 21st March 2012 and thereafter, part-heard matter was concluded on 12th April 2012. Oral closing submissions were heard on 11th May 2012 from both sides. Parties also filed their respective written closing submissions as directed by the Tribunal.
2.4 The employer called three witnesses:-
2.5 The grievor gave evidence as the only witness from his side.
3.0 Issue(s) before the ERT
3.1 The general nature of allegations pertaining to unjustified and unfair dismissal of the Grievor by the Employer that occurred on 18th January 2011 ("2010" date was mutually agreed to be a typo in the termination letter) requires the ERT in this instance to determine whether or not the summary dismissal was substantially and procedurally unlawful and unfair. Notably, while the Tribunal has the task to adjudicate grievance matters within the ambit of what is normally pleaded by the claimant in his or her original claim form (pursuant to Form ER1) which serves as the terms of reference for any ensuing grievance for the ERT, and here that grievance matter is thus referred by the Mediation Unit pursuant to s211(1)(k) of the ERP 2007 invoking the jurisdiction of the Tribunal, in practical terms, such claim cannot be strictly kept within the confines of Form ER1 only. The Tribunal also has the duty to consider the preliminary submissions from both sides to better understand the particulars (or details) of the claim and I am in no doubt that the claimant here is seeking the following issues to be remedied:-
3.2 In other words, this ERT will determine whether or not the purported summary dismissal was unlawful (or wrong) and unfair as alleged by the Grievor. If so, should relief (or remedies) sought by the Grievor including compensation and costs be awarded?
4.0 Background Facts & Evidence
4.1 No written contract of service was presented to the ERP; however, there was no contention that the grievor was not a worker of FNU. In fact, he commenced work with Fiji College of Agriculture in Koronivia as a cook sometime in February 1998. The employer was later named Fiji National University where the grievor remained in his usual position as a cook until he was summarily dismissed on 18th January 2011.
4.2 It was the grievor's allegations that he was unfairly, summarily dismissed as he was not given adequate time to respond to the allegations made by the employer. The exact nature of the said allegations were put forward by the employer in a Memorandum dated 22nd December 2010 to the effect that the grievor had removed without authorization food from the canteen where he was working as a cook. He was also alleged to have removed three taps and other fixtures that amounted to damaging FNU property when he was asked to vacate staff quarters he was occupying in Koronivia on 10th December 2010.
4.3 There was no evidence to contest this fact and so I accept that the Memorandum dated 22nd December 2010 was served on the grievor on 7th January 2011. In his evidence, the grievor accepted that he had received this Memorandum from the employer.
4.4 In his preliminary submission and later in his oral testimony, the grievor admitted that the canteen workers by practice removed left-over food for personal use; however the employer's first contention was that as the head cook in charge of the canteen operation, he was also removing raw food such as fish, lamb neck pieces, whole chicken, sausages, tinned fish, etc. This was totally prohibited. In fact, a complaint was received by FNU through a junior cook (Mr. Harry Taylor) working under Mr Dradra who informed the employer that the grievor was taking away raw food for his personal use. Mr Taylor also reported that at times these items were offered to the other cooks, including him whilst working under the grievor's supervision. A written statement of Mr. Harry Taylor was obtained by the employer which was signed by Mr Taylor on 17th June 2011.
4.5 The second contention or reason given by the employer to summarily dismiss the grievor was in regards to him damaging FNU property by removing certain fixtures from his quarters he was given as an entitlement to occupy as part of his oral contract of service.
4.6 In summary this is the evidence of the three witnesses of the employer:-
1st Witness: Mr Murti Kumar
2nd Witness: Mr Harry Taylor
3rd Witness: Ms Kinisimere Simmons
4.7 The evidence of the grievor, Mr Dradra is summed as following:-
- He was a cook for the employer since 1998. He has alleged that he was terminated on 18th January 2011 on basis of unfair dismissal, denying all allegations put forward by the employer. He informed the ERT that it was a common practice amongst the kitchen staff to take home left-over food from the canteen which he did but he completely denied taking any raw food. He further stated that he was only given three (3) days to respond to the allegations and this was inadequate as he was busy at work and had insufficient time to write any response as he had problems with his computer.
- He also stated that he stayed in the staff quarters since 1998 where he had carried out renovation works at his own expense although he had no proof (receipts/invoices) to produce to the Employer or the Tribunal. He justified that he had only removed items that he had expensed personally to renovate the quarters when he took possession. He admitted never seeking approval from the employer prior to carrying out such renovation works.
5.0 The Law: Summary Dismissal under the ERP 2007
5.1 It was the employer's defence that they had invoked section 33(1) of the ERP 2007 to carry out summary dismissal against the grievor. The employer has relied on the case of Shell Fiji Ltd v Johnson [2010] FJCA 54; ABU0012/2009 (23 September 2010) in support of their legal arguments as contained in their Closing Submissions filed on 7th May 2012.
5.2 The facts in this grievance indicate that the Grievor was accused of twofold allegations:-
5.3 Hereafter, the Employer pursuant to the provisions of section 33(1) of the ERP 2007 summarily dismissed Mr. Dradra where he was found guilty of gross misconduct in respect of both the allegations. This was done after Mr Dradra was given an opportunity to respond, which he failed to do so within the stipulated time including any extension of time accorded by the employer.
5.4 A termination letter dated 18th January 2010 (should have read "2011"; the typo was a mutually accepted mistake and not in contention), in a form of 'INTERNAL MEMORANDUM' titled "Summary Dismissal" was given to the grveior when he was summarily dismissed.
5.5 This letter referred to an earlier Memorandum dated 22nd December 2010 where specific allegations were also laid out seeking explanation from the grievor which was never provided to the employer. In actual fact, the employer waited till 18th January 2011 to terminate the grievor which appears to confirm Mr Murti Kumar's testimony when he told the Tribunal that extra time (about a week) was allowed to Mr Dradra to provide his written explanation. When Mr Dradra did not respond at all to the employer's allegations, they then proceeded to regard this to be the grievior's admission of the alleged offences. This is clearly stated in Paragraph 3 of the said letter and I quote:-
"In absence of your explanation, it is now deemed that the alleged offences were indeed committed by you and all evidence adduced to date confirms it beyond reasonable doubt".
5.6 The grevior's main contention or allegation of unfair dismissal derives from this action of the employer where he is alleging that he was not allowed adequate time to respond and the failure to do so, cannot be regarded as an admission of guilt. Hence, cannot be deemed gross misconduct.
5.7 Indeed, the first point of reference for termination or 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 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).
5.8 The "good faith" relationship that I allude to in a contract of service was tested in the 1997 decision of the Supreme Court of Canada in Wallace v United Grain Growers Ltd 1997 CanLII 332 (SCC); [1997] 3 S.C.R. 701 where the Court injected into the employment relationship the requirement of "good faith conduct" at the time of termination, where in passing the Court spoke of "special relationship" which governs the parties to an employment relationship. This case assessed the reasonable notice period required at the time of the termination and thus Wallace is useful in considering "good faith and fair dealing" where the Court noted that:- "..., at minimum, ... in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive..." (at page 46).
5.9 What this means is that as long as the employer before proceeding to any punitive action (such as disciplinary action or even termination) as well as at the time of the dismissal is honest, upfront and makes the employee aware of the alleged misconduct which may potentially led to dismissal as per the contract of service (implied or express), for whatever reason (lawful cause or no cause) and which the employer is able to communicate to the worker in a dignified and fair manner without inflicting humiliation or misleading in terms of giving any false information, whether in writing or not, the requirement of "good faith" should suffice.
5.10 In the grievance before me, clearly there is an implied contract of service between the parties as there was no written contract of service adduced in evidence to demonstrate what were the employer's terms and conditions of the grievor's employment. But to some extent, the parameters in terms of declaring a conduct of the grievor within the category of "gross misconduct" and the penalties therein was tendered in evidence through the Fiji National University: Human Resource Policies, which was a 123 page document and I shall discuss this later in my determination.
5.11 The Labour Officer did not raise an oral contract of service to be an issue of critical importance to the grievor's case other than centering the grievance for the most part on the proper grievance procedures of the employer. Hence, seeking the Tribunal's determination on the issue whether or not the summary dismissal was procedurally fair. Clearly then, the foremost contention I see of the grievor is being denied adequate time to respond to the allegations put to him by the employer. The grievor is then relying on the case of Regina Prasad v Fiji Fish Marketing Group Ltd ERT Grievance No. 01 of 2008 where the Employment Relations Tribunal had then relied on a New Zealand case authority (NZ Food Processing, IUOW V Unilever INZILR [1990] 35) to find in favour of the grievor in that she was not accorded insufficient time and opportunity to be heard before a decision was taken by the employer to summarily dismiss her.
5.12 The Tribunal applying the Unilever case had set out the following principles, where it stated that the employee must be given:
- Notice of the specific allegations and its gravity and possible outcome;
- An opportunity to refute the allegations (with an opportunity to have a representative, not simply a witness present); and
- Unbiased consideration of the employee's explanation.
5.13 The Tribunal went further to set out how the employer should have approached the three principles set down in Unilever's case. It stated that the employer should have done the following:-
- Conduct a proper investigation into the alleged wrongdoing.
- Invite the employee to a disciplinary meeting, where the employee should be told:-
- All the information that was uncovered in the investigation;
- To bring information of her own; and
- That the outcome of the disciplinary process may be dismissal.
- At the meeting the employer should properly explain their information and give the employee a chance to respond to it and present her own information.
- After the meeting the employer should properly consider all the information with an open mind and inform the employee of the decision.
5.14 Subsequent to the decision of Regina Prasad v Fiji Fish Marketing Group Ltd ERT Grievance No. 01 of 2008 (and various other grievance matters that was heard by the ERT), these are now subject to the decision of the Employment Relations Court as held in the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011, where the principles in the Unilever case has a significant bearing, particularly in terms of the procedures for summary dismissal as set out by the Tribunal then. I will discuss this shortly.
5.15 But first, the ERP 2007 is now is an established law of Fiji governing employment relationship between an employer and employee (or worker). Therefore the law on summary dismissal has been codified in the ERP 2007 and the employer's counsel has rightly pointed out, which was indeed confirmed by the Court of Appeal in the case of Shell Fiji Ltd v Johnson [2010] FJCA 54; ABU0012/2009 (23 September 2010) at paragraph 30 and 31 (and which was also upheld by the Supreme Court[1] at paragraphs 26 and 27). His Lordships, Byrne and Callanchini J have stated that:-
"The right of an employer to summarily dismiss an employee at common law has been modified in Fiji by statute. At the relevant time, section 28 of the Employment Act Cap 92 (now repealed) stated:
"28 An employer shall not dismiss an employee summarily except in the following circumstances:
(a) where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of service;
(b) for willful disobedience to lawful orders given by the employer;
(c) – (e)...."
5.16 In the same Court of Appeal case, his Lordships went further and stated that:
"In the absence of a more generous term in an employee's contract of service, the summary dismissal of an employee will be wrong if it is inconsistent with the provisions of section 28."
5.17 Here, the Lordships considered the case of Fiji Public Service Association and Satish Kumar –v- the Arbitration Tribunal and Another (unreported Civil Appeal No. 13 of 1999 delivered on 19 February 2002) where the Fiji Court of Appeal had said (approving the comments made by the judge at the first instance) at page 10:
"Section 28 provided that an employer should not dismiss an employee summarily except in the circumstances specified therein. .... His Lordship said that the section did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (e) applied. He added that if any of the paragraphs applied, the common law right continued and there was not statutory or other objection to that right being fettered by an agreement between the employer and its employees...."
5.18 Section 33 (1) of the ERP 2007 repealing section 28 of the Employment Act is no doubt similar in various ways. It does not also confer an unfettered right to the employer to dismiss an employee except under those matters specified under s33(1)(a)-(e) where it clearly stipulates that:
"No employer may dismiss a worker without notice except in the following circumstances –
(a) where a worker is guilty of gross misconduct;
(b) for willful disobedience to lawful orders given by employer;
(c) for lack of skill or qualification which the worker expressly or by implication warrants to possess;
(d) for habitual or substantial neglect of the worker's duties; or
(e) for continual or habitual absence from work without the permission of the employer and without other reasonable excuse."
5.19 Under the old law (and certainly the position under the current law would be same) that where there is legal confusion or lacuna in the statute, often common law position has guided the Tribunal and Courts for a clearer interpretation: however, now in the face of an explicit statutory provisions (ERP 2007), to better understand how to determine whether or not a summary dismissal is "wrong" in law (substantially and procedurally), other relevant and applicable provisions in the ERP must be read and considered in its totality. These provisions are:-
"Section 33 (2) stipulates:-
The employer must, provide the worker with reasons, in writing, for the summary dismissal at the time he or she is dismissed.
Section 34 states:
If a worker is summarily dismissed for lawful cause, the worker must be paid on dismissal the wages due up to the time of the worker's dismissal.
Section 114 provides:
If a worker is dismissed, the employer must, when dismissing the worker provide to the worker with a written statement setting out the reasons for the dismissal.
Section 7 of Schedule 4 (Section 110) stipulates: If-
(a) the worker is dismissed; or
(b) the worker is not satisfied with the employer's written response; or
(c) the employer fails to provide, within 7 days after the day on which the employer receives the worker's written statement, a written response; or
(d) the employer and worker have agreed to waive the requirements for an exchange of written statements and the worker is not satisfied with the employer's response to the grievance,
the worker may refer the employment grievance to the Mediation Services in the prescribed manner."
(Bold and/or underlining is my emphasis)
5.20 In a normal cause, the grievor has a right to come before the ERT for redress and remedies for 'employment grievance' under sections 109, 110 and 111 of the ERP for any type of "dismissal" pursuant to section 7 of the Schedule 4.
5.21 Under section 4 of the ERP:
"Dismissal" means "any termination of employment by an employer including those under section 33" (my emphasis).
5.22 In a similar manner, the drafters of ERP have generally intended Section 33 of the ERP as a presumption in favour of the employers where clearly the requirements for a "lawful summary dismissal", must be adhered to. This is confirmed by section 30(4) of the ERP where it is clearly stated that:-
"Nothing in this Promulgation precludes either party from summarily terminating a contract of service for lawful cause".
5.23 This was further clarified by your Ladyship, Wati J in her judgment 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 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 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)
5.24 Suffice to note that where good faith requirement is concerned in this case, there was no ambiguity or false information or misunderstanding by the grievor that the employer had chosen to exercise a statutory right under s33 of the ERP to invoke summary dismissal of the grievor as per the letter of termination (Exhibit "10"). This is perhaps, the most fundamental step in satisfying the requirement under section 33 (2) and section 114 of the ERP. The worker or employee must know what is the actual breach of law or contract of service that has given rise to the grievance or dispute in the first place.
5.25 And, to test properly whether or not the employer satisfactorily under the law complied with the mandatory requirement of section 33 (2), that is to provide reasons in writing at the time of dismissal, I am of the view that first it must be established whether or not there was a lawful cause for summary dismissal (as per Section 34 where it states that: "If a worker is summarily dismissed for lawful cause, the worker must ..."). Lawful cause is vital when determining whether or not it sufficed for purposes section 33(2) of the ERP on basis of good faith that must exist between the parties at all times, more so at the time of 'without notice' terminations. The circumstances and the exact nature of the alleged offences (that is the substantive allegations) that gave rise to instant termination without complying with the usual notice period must be able to justify lawful cause under s33.
5.26 I must say that section 34 of the ERP makes only a reference but does not elaborate what really constitutes a "lawful cause". However, one would assume section 33(1) of ERP gives the prerequisite premise upon which any summary dismissal can be effected, as long as it is based on one or any of the lawful grounds [s33(1)(a-e)] stated therein. Here the employer did not specifically state in the termination letter but generally implied that it relied on the ground contained under section 33(1)(a) where, "no employer may dismiss a worker without notice except ...where a worker is guilty of gross misconduct..."
5.27 In the Court of Appeal case of Shell Fiji Ltd v Johnson his Lordships, Byrne and Callanchini J (in Full Court of Appeal) has stated that:
"...The termination of employment by summary dismissal in this case will be wrong unless (a) the Respondent's misconduct fell within one of the circumstances listed in section 28 and (b) was of sufficiently serious nature that it would entitle Shell to regard the contract of service as being at an end..."
5.28 Following this, it is my opinion that s33 of the ERP being generally invoked without any specific reference being made to s33(1)(a) as a "lawful" ground of the employer when the offence alleged here refers to "gross misconduct", does not automatically contradict or fall foul of s33(2) of the ERP (in terms of providing the exact reasons) for termination. The employer should be able to assert and allege s33(1)(a) as a ground for summary dismissal in relation to a gross misconduct if in the body of the termination letter there was implication that the alleged (mis)conduct was considered to be a serious breach of the contract of service (implied or express) and/or code of conduct imposed by the employer; and where, of course, they found the grievor also guilty of the alleged gross misconduct. It is more problematic when you are confronted with matters where there is no compliance with s33(2) of the ERP at all, in terms of the employer not making it known to the grievor the actual reasons in writing why he/she is being summarily dismissed.
5.29 This grievance matter meets the requirement of s33(1) of the ERP when the employer has attempted to give their (lawful cause) or reasons for summary dismissal in the detailed termination letter provided to the grievor as shown at paragraph five (5) and I quote:
"The offences against you are specified below:
5.30 I am once again referring to the Court of Appeal's findings in the Johnson's case (supra) as the facts in that case are similar to the present grievance. Lordships, Byrne and Callanchini J had noted and declined the trial judge's finding that the Respondent's omission to respond to the allegations in actual fact had caused the termination and that an omission to respond was not a misconduct that entitled to summarily dismiss the Respondent. The trial judge had noted and held that there was breach of implied term of employment contract where the employer had failed to either make payment in lieu of notice or give the respondent one week's notice before termination. The Full Court of Appeal considered and held that the respondent's employment was terminated because of his confirmed involvement in fraudulent fuel deliveries and not as the trial judge had found that the employment was terminated because of the respondent's failure to respond to the allegations of fraudulent fuel dealings. The Full Court then held that such a misconduct of fraudulent dealing was of sufficiently serious nature to warrant summary dismissal under s28 of the Employment Act Cap.92. The Full Court further held that the respondent was neither entitled to notice of termination nor was he entitled to payment in lieu of notice but only wages due to him up to the time of his dismissal.
5.31 Because this aspect was not challenged, I regard the Full Court of Appeal's finding in the Johnson's case to be intact or the current position as the contentious issue that was in fact appealed to the Supreme Court revolved around only one major point of contention: this was in regards to the award of general damages of $10,000 based on the legal principle outlined in the case of Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002). Yashni Kant's case outlines the common law principle which implies a term in an employment contract to deal with employees fairly at the time of dismissal. I will discuss this later when determining whether or not the grievance was also unfair in the manner it was accorded to the grievor.
6.0 Is Summary Dismissal Justified in Substance and Procedure?
6.1 I have attempted to explain in my other judgments how this Tribunal views s33(1)(a) of the ERP. In my view, there are threefold approach:-
6.2 Johnson's case as considered by the Full Court of Appeal has tremendously assisted this Tribunal to maintain its focus on the alleged offence; the employer's investigation process to establish the lawful cause or the guilt of the grievor; and the employer's final decision based on the investigation findings to declare the alleged offence within the category of gross misconduct under s33(1)(a) of the ERP to warrant summary dismissal. This is the employer's case. That is, whether or not the employer could regard the two offences (stealing raw food and damaging property) as alleged against the grevior to be sufficiently so serious or gross in nature that it warranted summary dismissal of the grievor.
6.3 Various case-laws (State v Arbitration Tribunal & Ors, High Court Suva, Civil Action No. HBJ of 2007; Clouston & Co v Corry [1905] UKLawRpAC 66; (1906) A.C. 122 at 129; etc) have concluded that "gross misconduct" is not a concept capable of being defined. Therefore, gross misconduct is not a fixed concept and shall depend on the circumstance (as per the principle in State v Arbitration Tribunal & others, High Court, Suva, Civil Action No. HBJ of 2007).
6.4 In that sense, gross misconduct is naturally not defined by the ERP 2007, but looking at a "misconduct", this can be best described as the employee's failure to adhere to the rules and policies of the employer during working hours (and sometimes even after hours). Such behaviour is normally deliberate, intentional and not as a result of circumstances beyond the control of the employee. Gross misconduct is thus that conduct on the part of the employee which is so bad that it destroys the employer/employee relations completely, and merits instant dismissal without notice or pay in lieu of notice (as decided in the case of Lamb v The Commissioner of Police [2011] NZERA 72]. Some common forms of misconduct that come to the ERT as grievance are: theft, fraud, dishonesty, negligence, and insubordination. In this grievance matter, it was allegations of theft when the grievor was alleged to have stolen raw food he was not authorized to remove from his workplace (canteen) and also damaging the employer's property (quarters) he was entrusted with that is deemed 'gross misconduct' by the employer.
6.5 In my opinion, to class a misconduct on the scale of severity, being serious or gross, cannot be an easy task for any employer where that employer without deliberate intention has to become the first "judge" to assess whether or not it fits the gross misconduct category under section 33(1)(a) and further, whether or not it allows on the strength of evidence to declare the worker's conduct so gross in order to arrive at a guilty verdict. For this reason alone, it usually assists to have in place an explicit nature of gross misconduct that may warrant summary dismissal made known to parties either in the employment contract or polices or even code of conduct of the employer.
6.6 Therefore, in order to discipline and possibly dismiss an employee for gross misconduct the employer will have to be able to prove that the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
- that the rule was a valid or reasonable rule or standard;
- the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; and
- the rule or standard has been consistently applied by the employer.
6.7 The above guideline or indeed any guidelines are not provided in the ERP to ensure that any type of dismissal is not without fair reasons or fair procedure. Furthermore, to establish whether or not the reasons provided by the employer are good enough to justify dismissal, there should be some means for assessing this, such as:-
- Was the employer's rule or policy or behavioral standard broken?
- If so, was the employee aware of the transgressed rule, standard or policy or could the employee be reasonably expected to have been aware of it (You cannot discipline an employee for breaking a rule if he was never aware of the rule in the first place).
- Is (summary) dismissal an appropriate sanction for this transgression?
6.8 Considering the nature of grievance in this case, when establishing what were the employer's acceptable rules and policies, I have perused and relied on the employer's Human Resource Polices that had extensive coverage on acceptable code of conduct, types of offences pertaining to gross misconduct and appropriate penalties therein. For example, under the heading "CODE OF CONDUCT FOR EMPLOYEES – Policy No.: HR-29, "Gross Misconduct" is defined at Clauses 8.13 & 9.10 (at page 71 and 74) and includes "...any act of dishonesty and unauthorized removal or any willful damage to property..." .
6.9 There was no contention by the Labour Officer that the grievor was not aware of this document and its purpose. Accordingly, this ERT will not substitute its views for that of the employer in determining whether or not the employer acted reasonably. Rather the Tribunal has a task to test objectively whether or not the employer had acted reasonably when dismissing the grievor (as per the principle in Michael Strouthos v London Underground Limited, England and Wales Court of Appeal (Civil) Decisions, [2004] (18 March 2004). I have also noted his Lordship Justice Gates decision (as he was then) in the case of Philips Thomas v Fiji Electricity Authority [2004] FJHC 303 where he applied the ratio in the English Court of Appeal case of X vY [2004] EWCA Civ 662 as follows:-
"...the law on dismissal for conduct is clear. It has been said to be a four pronged test. The Foley test was cited with approval in X v Y (supra at para 18):-
"the employer must show that he believed that there had been misconduct by the employee; that there were reasonable grounds for that belief; that he had carried out as much investigation into the matter as reasonable in all the circumstance; and that the decision to dismiss him for that conduct reason was within the range of reasonable responses of a reasonable employer."
6.10 In keeping with this principle given that ERP 2007 does not provide guidance as to how to arrive at a "guilty" verdict for summary dismissal for gross misconduct, this Tribunal will now test objectively whether or not the employer acted reasonably in establishing a lawful cause as a basis to regard the grievor's alleged misconduct within the range of gross misconduct. And whether or not the employer accorded fair process when establishing that guilt.
6.11 There is no doubt in my mind after analyzing the evidence in this case that the employer had a reasonable rule or policy in place which the grievor ought to have known by virtue of his twelve (12) years of employment and also holding a supervisory or leadership position as the head cook. Clearly he should have been the role model as testified by Mr Taylor in terms of practicing the acceptable standard of conduct and thus knowing what sort of food he was entitled to take home that the employer had authorized or entrusted him. Clearly, the raw food was established by another cook he had worked with (Mr. Taylor) to have been taken home on daily basis by the grievor which he was not authorized by the employer. It was not clear how long Mr Dradra was in such a practice until the employer came to knowledge; however, one thing that is clear is that when the employer discovered that the grievor was taking raw food home they proceeded to investigate and found him guilty of this one incident reported by Mr Taylor.
6.12 In the case of Sinclair v Neighbour [1967] 2 WLR 1, the Court of Appeal ruled that one act of dishonesty was sufficient to warrant summary dismissal where it cautiously demarcated between placing less weight to the labeling of the act or misconduct with that of the facts that establish that misconduct. The employee in this case was summarily dismissed and his claim for damages for wrongful dismissal succeeded in lower court but Court of Appeal overturning verdict stated that:
"... I think that he (the trial judge) fell into error in attaching too much weight on the label and not enough to the facts. The facts were established. The fact that the manager took the money from his employer's till behind his back knowing that the employer would not consent was established; and it seems to me that it does not really matter very much whether it justifies the label 'dishonest" or not..." (my emphasis).
6.13 While Mr Taylor with honesty admitted that he also took raw food home on one occasion when forced by the grievor, he did his best to explain his reasons. He told the ERT that he was new to the job environment being a new recruit and thus afraid to speak against his supervisor (Mr Dradra) at the material time. Yet he still came forward and lodged a complaint to the employer as to what was the practice of Mr Dradra where raw food was considered. There was no suggestion of malice or any animosity between Mr Dradra and Mr Taylor resulting in Mr Taylor lodging a complaint with the employer. I am not one to speculate on matters not raised by any party and therefore I accept that the complaint arose voluntarily on Mr. Taylor's part that led to an independent investigation by FNU. The grievor, however contested that he was singled out and discriminated when there were other staff who had openly practiced taking raw food home. Clearly the employer did not authorize such food to be exploited for personal use of the kitchen staff as it was to be used for preparing student's daily meals. If such a practice did exist, then it was only prudent that the grievor in his supervisory role should have cleared with the employer the type of food the staff was permitted or prevented/stopped the practice if it was not permitted.
6.14 Even if there was no written policy on this specifically, being in the head cook position, and that too doing the job for 12 years, Mr Dradra cannot say he was not aware of this important rule of the employer. Left-over food was admitted by the kitchen staff (by both Mr Dradra and Mr Talyor) to be taken home. The employer appeared to have no issue in this regard but when Mr Taylor complained formally to the employer that Mr Dradra was in a habit of taking raw food home, the employer was clearly perturbed and ordered an investigation.
6.15 Evidence from the employer's witnesses indicated that the allegation of theft of raw food from the canteen that the employer gave as their first reason for summary dismissal was established to this ERT as this was clearly unauthorized by the employer. Naturally, if it was authorized, then upon discovering that Mr Dradra was in such practice, the employer would not have reacted immediately in terms of initiating an investigation and thereafter invoking the harshest of all the penalties, being summary dismissal of the grievor. In this regard, failing adherence to employer's policy or rule, it provided the employer a basis to allege "gross misconduct" in terms of having a valid reason or cause where the grievor's actions did not meet the employer's standard of conduct set down to obtain authorized food from the employer.
6.16 Furthermore, it appears that the grievor, when ordered to vacate the FNU quarters in December 2010 had either removed or damaged the said property he was occupying. The photographs tendered in evidence proved that some of the fixtures (at least a door and taps) were removed. It was not clear in what circumstance he was asked to vacate his quarters which occurred on 10th December 2010. Whether the two offences are linked or separate, this was not something made clear to the Tribunal although I do not wish to postulate events that were not brought to the ERT's attention at the hearing-proper or through the preliminary submissions. It seems that the grievor accepted that the two offences are concurrent events and he has attempted to defend both by saying that he was not provided adequate time to defend the two allegations put to him by the employer simultaneously.
6.17 Clearly, when he was ordered to vacate the property owned by FNU, he should have sought the employer's clearance first by at least requesting an inspection of the property prior to vacation to show the real condition of the quarters (some wear and tear is expected); and where he had invested personally by renovating the quarters, he should have requested compensation or put a proposal to the employer in good faith to request that he should be fairly reimbursed. That said, it is expected that when the grievor would have taken possession of the quarters, the fixtures would have been provided (door and taps at least) and upon vacating the quarters, it is then likely that the owner would want the property in the state it was provided. Not have fixtures removed particularly when the grievor did not provide any response to the employer nor he had attempted to seek a counter-claim if he had invested in that property, regardless of whether or not he had receipts/invoices as proof of any renovation claim. In that regard, damaging property amounts to a serious offence as the employer's photographs gave sufficient basis to demonstrate fixtures were removed.
6.18 In my opinion, both the offences were serious in nature and therefore it is this ERT's finding that the employer's main reasons for dismissing the grievor was for a lawful cause which was duly established from the evidence. Once a lawful cause is established, it should thus suffice for purposes of section 33(1) (a) in terms of meeting the criterion for "gross misconduct". To this ERT there was credible and overwhelming evidence to prove gross misconduct was committed by the grievor. Even if this was grievor's first offence, it was established by evidence that he had taken the raw food he was not authorized, in conjunction with damaging the property.
6.19 Once the employer has made this a basis for termination, they have rightly invoked section 33(1)(a) after properly conducting a "guilty" assessment of the alleged offence and notifying the grievor of the same (on procedural fairness – see below). Thereafter they will be required to immediately terminate the grievor where procedures are concerned for summary dismissal (as per the principle in Isoa's case – see below).
6.20 Because the burden of proof is always on the employer to disprove grievance on the basis that it was carried out lawfully and fairly, to eliminate confusion or better still legal ambiguity, ideally Section 33 of the ERP should have further stated that a dismissal must be for a fair reason after following a fair procedure, as this is a concept that both the employers and employees are failing to completely understand. In my opinion, although all the mentioned reasons for ending the employment relationship will have the same end result, different procedures would have to be followed prior to dismissing an employee.
6.21 How else can an employer come to a guilty assessment of the alleged offence under s33 of the ERP unless some procedures for investigation and truth or fact finding are conducted?
6.22 In fact one of the four pronged Foley test for dismissal cited in X v Y [2004] EWCA Civ 662 is that:- that the employer had carried out as much investigation into the matter as reasonable in all the circumstance; and under s33 of the ERP, it is my view that prior to arriving at a guilty verdict, facts and evidence gathered by the employer will need to be reasonably and fairly assessed where at least the employee's views and objections have to be noted in line with the purported breach of the rules, policies and standards of the employer. This would be, in my humble opinion the prerequisite investigation process prior to arriving at the guilty verdict.
6.23 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:-
"...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).
6.24 Isoa's case is not 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. To that end, the employer could immediately proceed to terminate the grevior.
6.25 I must comment that it is a challenging task to find that balance between reasonably arriving at a guilty assessment and complying with s33 (2) of the ERP where reasons for summary dismissal must be provided in writing at the time of dismissal. For this, employer will have to carry out reasonable "procedures" for investigation as per any agreed grievance procedures and then communicate the same to the grievor in such a way that "good faith" (Wallace case) at the time of dismissal is not compromised. It would be even more difficult when any agreed internal grievance procedures within the confines of a contract of service (express or implied) requires giving both parties an opportunity to be heard including an appeal system where the decision of the employer can be reviewed and such internal mechanism will need to be respected under s110(4) of the ERP where it states that:-
"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.
(2) The procedures required by subsection (1) must be—
(a) agreed by the parties and consistent with the requirements of this Part; or
(b) if there are no agreed procedures, the procedures set out in Schedule 4.
(3) All employment grievances must first be referred for mediation services set out in Division 1 of Part 20.
(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 is my emphasis)
6.26 Foley's test gels easily with the principles of natural justice, where at least a fair process for investigation is required to be invoked prior to arriving at a guilty verdict where procedural fairness is concerned. In any given situation an employer cannot deny an employee his /her unfettered right to be heard but Isoa's case is clear that once gross misconduct is established by the employer there is prerogative of the employer to waive that right and proceed to immediate termination. The principle followed in the case of Dunning (A.J.) & Sons (Shoplifters) Ltd v Jacomb (1973) IRLR 206 is then more apt here, where the Court said:-
"...the approach developed that a procedural defect would only make the dismissal unfair if the decision might have been different at the end of the day. The trend is to see procedural matters as issues of substance to be weighted in the scales of the overall merits of the case".
6.27 Simply put, the employer's right of summary dismissal arises not from a 'divine' managerial 'right to fire' but from the terms of the contract, express, incorporated and implied. When an employee commits a sufficiently fundamental breach of contract of service (implied or express) by failing or willfully refusing to carry out his/her duties as per any standards, rules or policies, the employer has the right to dismiss him/her 'on the spot' without giving the requisite notice. Therefore, the question of natural justice does not arise in this case because first, ample evidence established that the grievor had breached the policy of the employer where Mr Taylor's evidence proved that the grievor took raw food home by removing this from the canteen without authorization of the employer. He also did not justify to the satisfaction of the Tribunal why he removed fixtures from the university quarters he was occupying upon vacation.
6.28 Let me now briefly look at the manner in which the grievor was terminated. I have already accepted that there is justification for "gross misconduct" in substance in that the grevior's conduct at the time of his dismissal was within a range of reasonable responses as alleged by the employer (as per principle in X v Y [2004] EWCA Civ 662). He was terminated not because he failed to respond to the allegations but on the basis of the employer's investigation that proved there were merits in the two allegations.
6.29 I would like to say that where the allegation of unfair dismissal is concerned, the Court in Isoa's case has made it abundantly clear that:-
"...it is not the aspect of right to be heard that leads to unfair dismissal. It is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's actions must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in carrying out the dismissal..." (emphasis added).
6.30 The Full Supreme Court when Johnson's case was appealed [see: Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011)], also echoed this by adding that:-
"...For a claim of this category to survive, there has to be a cause of action, evidence and causation shown. Simply, the employee has to plead that the manner of dismissal was unfair, evidence must be tendered on what constituted unfair treatment, together with the evidence that the said treatment caused the employee distress or humiliation or physical and psychological harm. That is the legal parameter on which such a claim operates and survives..."
6.31 This is a case where the Supreme Court looked at the principles set out in the Yashni Kant's case in terms of unfair termination allegations and where it observed that:-
"...Yashni Kant's case even made it clear that there has to be evidence that the manner of dismissal caused the humiliation. There has to be the link in the unfair treatment leading to humiliation without which the Court cannot speculate such breach of an implied term otherwise every dismissal case would succeed a claim based on the manner of dismissal because dismissal naturally leads to distress and humiliation..."
6.32 In this instance, the original claim of the grievor pertains to unfair termination. The mediator gave the following terms of reference to the ERT: "The decision by management to terminate the services of the grievor which he claimed was unjustified and unfair". There was no evidence in this matter to lead the Tribunal to the fact that the termination was unfair in the manner it was accorded to the grevior other than the grievance procedure of according natural justice as deemed to be any grievor's right to be heard and respond (including being given an appeal procedure against the employer's decision) was the foremost contention or pleaded by the grievor as unfair treatment. In that sense, I found no evidence of unfair termination in terms of Wati J's finding in Isoa's case: that "...it is not the aspect of right to be heard that leads to unfair dismissal. It is the manner of treating the employee in carrying out the dismissal that must be considered...".
6.33 I have noted that the Labour Officer has submitted that the decision of a dismissal following poor or unfair procedure will not necessarily result in the finding that the dismissal was unjustified if the conduct was bad enough but it may result in the employee being awarded monetary compensation. The Labour Officer had based this on s230(2)(a) & (b) of the ERP where it provides for:-
Employment grievance remedies
"230.—(1) If the Tribunal or the Court determines that a worker has an employment grievance, it may, in settling the grievance, order one or more of the following remedies—
(a) reinstatement of the worker in the worker's former position or a position no less advantageous to the worker;
(b) the reimbursement to the worker of a sum equal to equal to the whole or any part of the wages or other money lost by the worker as a result of the grievance;
(2) If the Tribunal or Court determines that a worker has an employment grievance by reason of being unjustifiably or unfairly dismissed, the Tribunal or Court may—
(a) in deciding the nature and extent of the remedies to be provided in respect of the employment grievance, consider the extent to which the actions of the worker contributed towards the situation that gave rise to the employment grievance; and
(b) if those actions so require, reduce the remedies that would otherwise have been decided accordingly."
6.34 To better answer the Labour Officer's assertion, it is crucial to first examine section 33 (2) of the ERP 2007, where it is mandatory that "the employer must provide the worker with reasons in writing for summary dismissal at the time he/she is dismissed" (my emphasis). Here, time of dismissal is critical component to lawfully establishing "summary dismissal".
6.35 There is no doubt in my mind that the employer discharged the grievor from his employment in compliance with s33(2) of the ERP at the time they carried out summarily dismissal by providing reasons, both in writing and verbal communication.
6.36 In fact, Mr Dradra was accorded additional time to respond, yet he failed to appreciate the gravity of the two offences in the first instance and when he was accorded further time he still paid no heed to the nature or the seriousness of the offence to defend himself. Hence, I am satisfied that employer had reasonably conveyed to the grievor the reasons for his summary dismissal where he appeared to have had all the details to properly understand the exact nature of the allegations and circumstances leading to his summary dismissal when the employer wrote to him, first, on 22nd December 201. On the day of his dismissal (18th January 2011) he was again given a written statement from the employer (his letter of termination).
6.37 That said, I do not think it would have made a difference even if the grievor had responded as the alleged offences were established by the employer to be deemed or regarded as 'gross misconduct" within the ambit of their HR Policies. In that regard, the employer was entitled to invoke s33 of the ERP immediately as per Wati J's ruling in Isoa's case (supra) – that is, proceed to summary dismissal immediately without any right to procedures for hearing. Hence, s230 (2) (a) and (b) of the ERP does not apply in this instance.
7.0 Decision & Orders:-
Dated at Suva this 8th day of October, 2012.
..............................
LEGAL TRIBUNAL
[1] Shell Fiji Limited And Fereti Filipe v Benjamin Joshson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011).
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