IN THE EMPLOYMENT
TRIBUNAL AT SUVA

ER Grievance No. 45 of 2009

BETWEEN:

MOHAMMED AKBAR KHAN
GRIEVOR

AND:

SEAVIEW SHIPPING SERVICE
EMPLOYER

Appearances: 
Mr. P. Rae for the Grievor
Mr. R. Singh for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Relations Problem

1] The dismissal of Mr. Mohammed Akbar Khan by Seaview Shipping Services which Mr. Khan claims to be unfair and therefore seeks appropriate compensation.

References

2] In this proceeding –

- Mr. Mohammed Akbar Khan the Grievor shall be referred to as (MK)

- Mrs. Sandya Prasad the Managing Director of Seaview Shipping Services shall be referred to as (SP)

Background and Evidence

3] SP in her evidence in chief stated that she has been a Director for the last 4 years, since late 2006 and she agreed that MK started as a Master at about the same time and that he was in continuous employment until mid March 2009 when he left. SP told the Tribunal that nothing big happened as MK: "walked off the job."

4] As to the claim for annual holidays, SP maintained that MK was paid all his dues and the relevant taxes paid to the then Inland Revenue Department and she supported that by insisting that she was keeping records for these periods. On the issue of unpaid wages, SP stressed that MK's claim should not be entertained as he was paid up to 12th March 2009 before he left the job. In that regard SP claimed that the issue of unfair termination should not be entertained as MK himself made the decision to leave his employment.

5] SP further told the Tribunal that generally MK was a good worker and that problems started in 2008 with his attendance and again in 2009 when he had to be called in to move the boat.

6] Under cross examination, SP confirmed that Seaview Shipping Services is a limited liability company and was registered on 14th April 2004 and Sandy is the name of the boat and it was often leased to Paradise Shipping Services by her husband Mr. Durga Parasad.

7] As to the existence of an employment contract, SN referred to the employment contract signed between MK and her on 1st day of October 2007 which covered the following:
 Scope of Contract, Term of Contract, Hours of Work, Salary, Termination, Discipline and Contract Terms to be Exclusive.

 Under salary, the contract provided for $250 per week wages and commission of $250 for copra loaded on return trips amounting to about 8oo bags. Salaries and any accrued annual holidays will be paid on termination of employment where an employee resigns, provided 14 days advance notice is given and employee owes company no monies at time of resignation. The employee further request and agree to receive his gross salary without any tax as per Marine Act 1986.

8] MK was Captain and Master with the Island Shipping Services before the registration of Seaview Shipping Services which he joined as Master of the boat Sandy. At the hearing MK was 74 years old and unemployed but he still had vivid memories of the times he started working on boats as an 18 year old and of what happened at the Walu Bay wharf on 7th April 2009.

9] One Mr. Salen Kumar a driver for the employer reported to MK the background that on Monday 6th April 2009 the owner and another captain broke the lock of the wheel house and brought the vessel Sandy from where it was moored on 20th March 2009 by MK to alongside the wharf at Walu Bay. According to MK, the practice was when he returned from an island voyage he would be met at the wharf by both SP and Mr. Durga Prasad where he would hand over all the franchise documents and mail and they would discuss the next voyage plan and the scheduled departure dates. The last time he returned from an island voyage was on 18th March 2009 and MK testified that there was no discussion about the next voyage but on 20th March 2009 Mr. Durga Prasad told him to clean the Sandy and tie it at the mooring. MK did the cleaning and went to the office to collect his pay (13th – 20th March 2009) and it was there that the office lady one Ms. Arti told him that SP and Mr. Durga Prasad had gone overseas. When SP was called she asked that MK should await their return.

10] In his evidence MK testified that he protested to Mr. Durga Prasad for not being called to move the boat on 6th April 2009 as he had waited at home. So he came to the wharf on Tuesday 7th April 2009, went on board the Sandy and was followed to the wheel house by another captain. That captain told MK that Mr. Durga Prasad had asked him to take over the command of the vessel. Further, the captain asked MK to show him how to operate GPS E map and how to set courses and in particular in this instance to set a course from Suva to Ono i Lau. MK further told the Tribunal that like a good captain he alerted the this captain on the defects on board the boat and also reported to FIMSA for the safety of the crews and the travelling passengers.

11] Under cross examination, MK confirmed signing an employment contract with Island Shipping Services Limited and that he worked for both SP and Mr. Durga Prasad. MK confirmed receiving all wages until March 2009 but annual leave was not paid as SP claimed that Government was not paying the franchise.

12] MK maintained his claim under cross examination that he was unlawfully terminated on 7th April 2009 when Mr. Durga Prasad directed that he hand over the command of the Sandy to another captain.

Analysis and Conclusion

13] From the evidence and the submission of the parties, the Tribunal finds that MK signed two employment contracts, one with Islander Shipping Services Limited on 26th October 2004 and the other one with Seaview Shipping Services dated 1st October 2007.

14] The employment contract signed with Islander Shipping has a grievance procedure whilst the one signed with Seaview did not have one but had a clause on discipline stipulating the following:

"Employment with Seaview Shipping Services is conditional upon the Employee continuing to render satisfactory service to the Employer. Any Employee failing in this respect or committing a breach under the provisions of this Agreement shall have his employment terminated or be subject to a lesser disciplinary action solely at the discretion of the Employer."

15] SP in her evidence stated that MK left at his own accord whilst MK maintained that he was unfairly terminated. SP did not provide any evidence to substantiate the employer's claim, whilst MK's claim is substantiated by the employer's actions in directing MK to hand over command to another captain.

16] It was no surprise to the Tribunal when MK reacted the way he did, like reporting to the new captain the defects on board and warning FIMSA about the safety of the crew and passengers. The employer's conduct was a significant breach of the employment contract. In Western Excavating (E.C.C.) Ltd. v. Sharp [1978] I.C.R. 221, the Court of Appeal affirmed that the question whether an employee is entitled to terminate her employment should be answered according to the rules of the law of contract. Lord Denning M.R. said:
"If the employer is guilty of conduct which is a significant breach going to the root of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance….The conduct must be sufficiently serious to entitle him to leave at once."

17] Under the new regime of good faith between the parties, the Tribunal is willing to imply into the Seaview contract, terms obliging it to maintain the relationship of trust between itself and its employee, or not to treat its employee arbitrarily, capriciously or inequitably, or not to behave intolerably and not in accordance with good and acceptable workplace practice based on the exchange of good faith.

18] These implied terms to the contract are the basics provided for in the Employment Relations Promulgation 2007 and from the evidence of MK, the Tribunal is satisfied that the employer through Mr. Durga Prasad's conduct has committed a serious breach of the implied terms of the contract, resulting in the ending of the employment relationship on 7th April 2009 through constructive dismissal.

Decision

19] The Tribunal determines that MK has a grievance in that he was told to relinquish his command of the boat Sandy and in that regard was unfairly dismissed. Accordingly, the Tribunal makes the following Orders:

 (i) Under section 230 (1) (b) of the Employment Relations Promulgation 2007 Orders the reimbursement of wages from 12th March 2009 to 7th April 2009 lost by MK as a result of the grievance and payment of leave earned and due from November 2008 to March 2009; and

 (ii) Under section 230 (1) (c) of the Employment Relations Promulgation 2007 Orders the payment of three (3) months' wages as compensation for MK's humiliation, loss of dignity, and injury to feelings through the way he was relieved of his employment as a captain.

 DATED at Suva this 26th day of January 2012

Sainivalati Kuruduadua
Chief Tribunal