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Labour Office v CBM Shipping Ltd [2012] FJET 58; ER Grievance 79.2009 (6 September 2012)

IN THE EMPLOYMENT RELATIONS
TRIBUNAL AT SUVA

ER Grievance No. 79 0f 2009

BETWEEN :

THE LABOUR OFFICER for and on behalf of OSEA VUNAKI
21 Vesivesi Road, Kinoya.
GRIEVOR

AND :

CBM SHIPPING LIMITED
EMPLOYER

Appearances:
Legal Officer Ms. Lanieta Mataigusu for the Grievor
Mr. Emmanuel Narayan for the Employer

DETERMINATION OF THE TRIBUNAL

1.0 The Employment Relations Problem

1.1 The grievor, Mr. Osea Vunaki alleges that he was dismissed by the employer CBM Shipping on 17th March 2009 and claims that the dismissal was unfair and therefore seeks compensation.

2.0 The Issues

2.1 The issues to be on the lookout for are the following:

- the form of dismissal

- the causes of dismissal, do they come under section 33 of the Employment Relations Promulgation 2007

- the employment contract and the grievance procedures

- the right to be heard and natural justice

- the unfairness of the employer's action and relevance of both Yashni Kant and Latianara.

3.0 The Evidence

3.1 The Fleet Superintendent, Mr. Hector Smith gave evidence for the employer that Mr. Vunaki commenced employment on 10th September 2006 until 17th March 2009 when he finished off as Chief Officer of the Tug Tui Wailevu. Mr. Smith added that initially he was a responsible officer but later on developed some disruptive behavior and that was the reason why he was given a final warning and suspended on 17th March 2009 for 2 days.

3.2 Mr. Smith continued that the suspension letter given to Mr. Vunaki requested him to reply in writing whether he wishes to change his attitude in order to continue working in the company. Mr. Vunaki did not reply in writing and he has not resigned. Mr. Smith also told the Tribunal that the company also paid for Mr. Vunaki's education between 7th August 2007 and 30th November 2007 as a way of supporting qualification wise and hoping that it would lead to a change in attitude.

3.3 Mr. Smith ended his examination in chief by confirming that Mr. Vunaki was not terminated but was suspended for 2 days and he had asked for written replies on whether or not Mr. Vunaki had changed his attitudes to work. Mr. Vunaki did not reply or turned up for work.

3.4 Under cross examination, Mr. Smith could not recall Mr. Vunaki coming back to see him after the suspension on 17th March 2009 when he was served the suspension letter, but agreed that he saw Mr. Vunaki working for another employer at Walu Bay.

3.5 On the grievance procedure, Mr. Smith explained that the employer uses the letter system that works this way; management sends out letters to staff to remind them of their responsibilities and in their weekly discussion they diagnose the various replies from the staff. The letter is written by Mr. Smith in consultation with the Master and the final say is with Mr. Smith.

3.6 On the actual suspension, Mr. Smith agreed that it was on 17th March 2009 and the letter was written on the same date and left at the reception as he did not have the contact address for Mr. Vunaki. Later on in cross examination, Mr. Smith agreed that he had Mr. Vunaki's personal contact number and when asked as to why he did not contact him, he argued that Mr. Vunaki was not dismissed as he was supposed to be at work 2 days after the suspension.

3.7 Mr. Vunaki is now 42 years old, married with a child and the wife is working at the CWM Hospital. He is now working as a Second Officer with CV Shipping. In his evidence in chief, he told the Tribunal that Mr. Smith called him in 2006 to serve as the Chief Officer on the Tug Tui Wailevu which belongs to CBM Shipping.

3.8 Mr. Vunaki confirmed that he did not sign any employment contract with CBM Shipping and his duties included supervising the handling of cargo during loading and checking the safety of vessel for the next voyage. Mr. Vunaki then told the Tribunal the background of the events leading up to him losing his employment with this employer.

3.9 Mr. Vunaki took the Tribunal back to 14th Of March 2009 when the Tug Tui Wailevu was on the voyage from Labasa back to Suva and on reaching the waters of Nukulau Passage, he handed over the watch to the Captain who was furious that someone had used the credit on the company mobile phone, so he took the phone and threw it at the side of the deck breaking it into pieces. Back in Suva, Mr. Smith called the Captain and Mr. Vunaki into his office and advised him to pay for the phone. Mr. Vunaki told the Tribunal that he refused as he did not break it, the Captain did. Mr. Vunaki explained to the Tribunal that it was immediately after that refusal that Mr. Smith turned to him and ordered "you go pack your things from the boat; I do not want to see you in this office and do not want to see you near the boat". That was the reason why he left this employer.

3.10 Mr. Vunaki stayed away for about 3 months then went back to Mr. Smith on 3rd June 2009 asking for his work back as he was virtually broke. He said that Mr. Smith advised him that he did not have any work for him. Again on 15th July 2009, Mr. Vunaki made another attempt of trying to be re-employed with CBM Shipping but the answer was the same.

3.11 Then came November 2010 when the Captain of the Tug Tui Wailevu came searching to his place in Raiwaqa for him to serve as Chief Officer on another trip. Mr. Vunaki agreed that he was a bit hesitant, since his case was before the Tribunal. Mr. Smith was away overseas at this particular time, so the Captain arranged with one Mr. Adrian the Accountant for Mr. Vunaki to take the trip as the Chief Officer.

3.12 There was no second trip as Mr. Smith was back in the office and got another Chief Officer to replace Mr. Vunaki who was paid wages for the trip taken and sent home.

3.13 Looking at the history of his employment at CBM Shipping, Mr. Vunaki said that he was not given any verbal warning but remembered receiving a warning letter from Mr. Smith but could not recollect its contents. Mr. Vunaki added that this employer does not have any grievance procedure and Mr. Smith controls everything as everybody is answerable only to him.

3.14 Mr. Vunaki was then shown the document dated 17th March 2009 that Mr. Smith referred to as the warning letter, suspending him for 2 days. Mr. Vunaki recognized the signatures to be that of Mr. Smith on the left and his signature on the right and when asked as to the date he received that letter, Mr. Vunaki told the Tribunal that he received it on 6th October 2009 in front of Mr. Haribans Narayan the Mediator in the mediation room.

3.15 Mr. Vunaki was next shown a copy of his seamen's record book which shows the date of engagement and the date of disengagement on a particular vessel, and the record book is normally signed by the Captain and stamped by the company. Mr. Vunaki stated that authorization for the company's stamp is done only by Mr. Smith and in that connection the claim by Mr. Smith that he did not see him again in June 2009 is false.

3.16 Mr. Vunaki further told the Tribunal that he went back to see Mr. Smith on 15th July 2009 asking for work as he was to about to get married and needed money but the answer was the same: no work for Mr. Vunaki. At this juncture, Mr. Vunaki reiterated that at that time, he still had not received any letter from the employer whether it be suspension or termination. Mr. Vunaki also added that other employees were treated the same as there was no grievance procedure.

3.17 Under cross examination, Mr. Vunaki repeated that he was not given any letter on 17th March 2009 and that is the reason why he did not know whether he was suspended or not. He also told the Tribunal that he again worked for CBM Shipping in 2010 and was paid for that work.

3.18 Still under cross examination, Mr. Vunaki agreed that the employer paid for his further training with a fee of $1,000 plus wages totaling $4,000. He was then asked that if the employer paid for his training to the tune of $4,000 would the employer terminate him? Mr. Vunaki answered that he would never terminate but would give that worker a suspension letter by hand and make sure that he receives it.

3.19 On re-examination. Mr. Vunaki explained that the Managing Director of the Company, Mr. Justin Smith asked him if he wanted further training at the Maritime School and when he agreed, the company paid for his fees and asked him to sign a bond. He did not sign that bond.

3.20 Mr. Joe Tasman Tehana gave evidence for the grievor. He stated that he worked for the employer in 2006 as a seaman until January 2007 when he was terminated over the filling of a 20 liter diesel in Savusavu. He outlined to the Tribunal that once the tug boat arrived in Suva he was called into the office and Mr. Smith told him to pay for the 20 litre diesel and go home. There was no disciplinary hearing, no warning letter and no termination letter.

3.21 Under cross examination, Mr. Tehana agreed that he did not raise a grievance with the Ministry of Labour.

4.0 Analysis and Decision

4.1 From the evidence there is no employment contract entered between Mr. Sunaki and the employer CBM Shipping. However, the employer in its written submission provided a "Consort Shipping Crew Conditions of Agreement" which the Tribunal assumes to be the document regulating the working conditions of the seaman and the Captain, however there was no evidence adduced that the document applied to the Captain and crew of the Tug Boat Tui Wailevu.

4.2 In the absence of any employment contract and consequently no grievance procedure, the Tribunal had to look at Mr. Smith's "letter system". This was happening in March 2009 one year after the coming into force of the Employment Relations Promulgation 2007 (ERP) and the absence of a written employment contract in this case is a clear breach of the ERP.

4.3 The letter system adopted by Mr. Smith is an impersonal way of dealing with disciplinary issues and denies the worker natural justice and the benefits of the good faith provisions in the ERP.

4.4 In his evidence Mr. Smith stated that the suspension letter was served on Mr. Vunaki on 17th March 2009 and under cross examination he said the letter was left at the reception. This is a crucial piece of evidence as Mr. Vunaki claimed that he did not receive the letter on 17th March 2009, but on 6th October at the mediation session. Mr. Smith is so unsure of his position that the Tribunal believes in the evidence of Mr. Vunaki that on 17th March 2009 he was not served any letter and told "you go pack your things from the boat; I do not want to see you in this office and do not want to see you near the boat".

4.5 Mr. Smith said that he suspended Mr. Vunaki on 17th March 2009 by giving him the letter which Mr. Vunaki rightly disputed, so he went home. As far as he was concerned, the employer did not need him any more as it was said expressedly to him by Mr. Smith ....I do not want to see you in this office and do not want to see you near the boat..

In Western Excavating (E.C.C.) Ltd. v. Sharp [1978] I.C.R. 221, the English 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."

4.6 Under the new regime of good faith between the parties, the Tribunal is willing to imply into Mr. Vunaki's contract, terms obliging the employer to maintain the relationship of trust between itself and its workers, not to treat its workers arbitrarily, capriciously or inequitably, not to behave intolerably and to behave in accordance with good and acceptable workplace practice based on the exchange of good faith.

4.7 These implied terms to the contract are the basics provided for in the Employment Relations Promulgation 2007 and from the evidence of Mr. Vunaki, the Tribunal is satisfied that the employer through Mr. Smith's conduct has committed a serious breach of the implied terms of the contract, resulting in the ending of the employment relationship on 17th March 2009 through constructive dismissal.

4.8 Mr. Vunaki did not know the reasons why the employer ended the employment relationship. All he knew were the orders of ..I do not want to see you in my office or come near the boat. There was no letter of suspension or termination so Mr. Vunaki was entitled to feel that the employer has ended the employment relationship. (Carpenters Fiji Limited v Laltianara) [2011] FJET 3; ERCA 07.2011 (8 September 2011)

4.9 The absence of any formal communication letter or otherwise to Mr. Vunaki made the ending of the employment relationship more bitter and unfair. He just came off the Tug Boat Tui Wailevu as Chief Officer and whilst the crew watched in awe, he exited Mr. Smith's office a broken man. (Central Manufacturing Company Limited v Yashni Kant).

4.10 The Tribunal finds that there was no summary dismissal under section 33 of the ERP, there was no written employment contract, there was no grievance procedure and there was no natural justice in this employment relationship.

5.0 Decision
5.1 Consequently, the Tribunal makes the determination that Mr. Vunaki has a grievance in that his employment is affected to his disadvantage by an unjustifiable action of the employer, CBM Shipping. The unjustifiable action of the employer is detailed from paragraph 4 onwards in the "Analysis and Decision" part.

5.2 Under Section 230 of the ERP, the Tribunal in settling the grievance Orders the following remedies:

[i] Under Section 230 (1) (b) the reimbursement to Mr. Vunaki of 2 years wages lost by the worker as a result of the grievance;

[ii] Under Section 230 (1) (c) the payment to Mr. Vunaki of one year wages as compensation for humiliation, loss of dignity and injury to feelings; and

[iii] Under Section 230 (2) (a) and (b) reduce the total remedies in [i] and [ii] above by 6 months.

DATED at Suva this 6th day of September 2012

Chief Tribunal