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Taukei v Fiji Hardwood Corporation Ltd [2012] FJET 61; ERT Grievances 66 & 67.2009 (21 September 2012)

IN THE EMPLOYMENT RELATIONS
TRIBUNAL AT SUVA

ERT Grievances Nos. 66 & 67 of 2009

BETWEEN:

MR. IOSEVA TAUKEI AND MR. RAIBA VASUTOGA
GRIEVORS

AND:

FIJI HARDWOOD CORPORATION LTD.
EMPLOYER

Appearances:
Mr. I. Tarai and Mr. D. Nair for the Grievors
Mr. S. Valenitabua for the Employer

DETERMINATION OF THE TRIBUNAL

1.0 The Employment Relations Problem

1.1 Both grievors Mr. Ioseva Taukei and Mr. Raiba Vasutoga were employed by Fiji Hardwood Corporation Limited as cleaners from October 2006 until mid December 2008 when they were told that their last day at work would be at the end December 2008. They are alleging unfair and wrongful dismissal and both are seeking reinstatement without loss of pay and other benefits and the payment of all Fiji National Provident Fund dues according to law.

2.0 The Issues

2.1 The issues to be considered in this case are the following:

- the employment contract

- the grievance procedure

- the notice to dismiss

- the reasons for dismissal

- the allegation of discrimination

- unjustified and unfair dismissal

3.0 The Evidence

3.1 The facts of these two cases are identical and at the hearing the parties agreed that the evidence adduced on the case of Mr. Taukei would also be applicable in the determination of the grievance of Mr. Vasutoga.

3.2 Mr. Eroni Kurucalalu joined the employer as Assistant Sawmill Manager in 2005 and stated at the beginning of his evidence that he was in employment when Mr. Taukei joined as a part time employee sometimes in October 2007. Mr. Kurucalalu explained that Mr. Taukei was engaged on an oral contract as a Night Shift Cleaner in 2007 and that he worked Monday to Saturday at 4 hours a day. Mr. Kurucalalu added that Mr. Taukei lives at Galoa Village which is about 200 meters away.

3.3 Continuing with his evidence Mr. Kurucalalu told the Tribunal that Mr. Taukei recorded his presence by filling in the time card for a fortnight pay and for the period between 14th August and 27th August 2008, Mr. Taukei was marked as being absent from work on more than 3 occasions. Mr. Kurucalalu supported his statement by the fact that all these time cards would normally end up with him for the purpose of reviewing performances.

3.4 Under cross examination, Mr. Kurucalalu admitted that Mr. Taukei did not sign any employment contract and that he was working under a Mr. Jone Moceacagi as his supervisor. This witness also confirmed to the Tribunal that the retirement age was 60 years and that one Mr. Vilitati Milio who is over 60 years old is still working as a welder.

3.5 Mr. Kurucalalu also told the Tribunal that he would not know or kept track of the types of leave taken, the reasons for other absences and the causes of dismissal.

3.6 Mr. Taukei gave evidence that Mr. Milio recruited him to be cleaner sawdust sometimes in October 2007 and that there was no written employment contract. He further advised that he was not paid for his absences from work irrespective of the circumstances which was inclusive of sick leave and other reasons. His hourly rate was $2.80 an hour, he worked 4 hours a day and was paid fortnightly with Fiji National Provident Fund deductions made.

3.7 As to his dismissal, Mr. Taukei confirmed that it could not be due to poor performance as this was never brought to his attention, nobody queried his work and he was not subject to any investigation or disciplinary proceeding. However, he informed the Tribunal that the Assistant Mill Manager told him, that he was too old and that there was no work for him. That was embarrassing and humiliating as according to Mr. Taukei the whole village came to know that he was too old to cope up with the work in the sawmill.

3.8 Mr. Taukei explained to the Tribunal that he was expecting to be employed until 60 years old and it came as a surprise when he was dismissed at 58 years old. Further, he was aware that some employees are over 60 years old and still employed. As to performance, Mr. Taukei confirmed that there was no counseling or disciplinary action for unauthorized absences and the employer did not give him an opportunity to explain why he should not be terminated or the reasons for the dismissal.

4.0 Analysis and Conclusion

4.1 From the evidence, there was no written employment contract for Mr. Taukei, so the Tribunal will refer to the Employment Relations Promulgation 2007 (ERP), that there was an oral contract under section 23 of the ERP for an indefinite period under section 29 of the ERP. In the instant case, the Tribunal will imply into Mr. Taukei's contract terms obliging the employer to maintain the relationship of trust between himself and his employee, not to treat his employee arbitrarily, capriciously or inequitably, and not to behave intolerably and to behave in accordance with good and acceptable workplace practice based on the exchange of good faith.

4.2 These implied terms to the contract are the basics provided for in the ERP and from the unchallenged evidence of the Mr. Taukei, the Tribunal is satisfied that the employer through its Assistant Mill Manager and supervisor conduct and lack of a performance management process has committed a serious breach of the implied terms of the contract, resulting in the ending of the employment relationship in December, 2008.

4.3 Notwithstanding that, employers are reminded that there are a number of procedural steps that must be taken before an employer reaches the point where it can dismiss for poor performance. These steps include:

- Informing the employees of the dissatisfaction with their performances requiring them to achieve a higher standard;

- Providing information in a readily comprehensible form; and

- Allowing reasonable time for the attainment of those standards.

Exhausting the above steps, the parties can then proceed through the grievance procedure. There was nothing in evidence to show that there was a grievance procedure or a system resembling it to accord due process to Mr. Taukei as even in his evidence, he stated that he was not aware that he was dismissed due to poor performance. In that connection, there was nothing in evidence to suggest that Mr. Taukei had committed one act of incompetence or negligence to warrant dismissal under section 33 of the ERP.

4.4 The New Zealand Employment Court decision in Morris v Christchurch International Airport Limited[2004] NZEmpC 58; [2004] 1 ERNZ 336 is illustrative of the distinction between the acts that should be dealt with as part of an ongoing performance management process, and single acts of incompetence or negligence that would justify dismissal. In Morris, an employee who was subject to a performance management process was dismissed as the result of a single act that occurred one month into a review period intended to take up to six months. Her dismissal was held to be unjustifiable. In this case it was evident that the employer considered Mr. Taukei for employment as he is from the nearby village and well known to the staff as he was recruited by the welder one Mr. Milio but in employment relations that is not good enough and the employer should have put Mr. Taukei through a management process and document his progress.

4.5 The employer's right to dismiss summarily depends upon a breach by the employee of the express or implied terms of his contract, but the breach must amount to a repudiation or be sufficiently fundaments. In William vs. Racher, Edmund – Davies L.J said: "Reported decisions provide useful, but only generate guides, each case turning upon its own facts. A contract of service imposes upon the parties a duty of mutual respect." This means that opposite conclusion may be reached on similar facts and that, whilst in one context one single, relatively minor breach may be sufficient to justify summary dismissal, the same will not be true of other different contexts.

4.6 In the case of Mr. Taukei, the alleged breach was in regards to performance and attitude which had been prevalent for some times without any remedial action from the employer. There was no system of management process and the employer could not take Mr. Taukei through the grievance procedure as there was none. The employer cannot claim ignorance of the law as the ERP was already in place and it covers all workers throughout the country including workers in sawmills around the countryside of Fiji

4.7 The most common instances of breaches of contract giving rise to summary dismissals are misconduct, disobedience to lawful orders and negligence. "Although every case turns upon its own facts, a single act is less likely to justify summary dismissal than a series of actions; the quality of the breach is what counts, not the consequences flowing from it, and the more serious the breach the more likely it is that it will be held to justify summary dismissal." (Stapp v. The Shaftesbury Society [1982] I.R.L.R. 326). In that regard the quality of the alleged breach by Mr. Taukei cannot not be quantified as there was no system and process and consequently any action taken by the employer would be unjustifiable and unfair.

4.8 The test for justification which applies to claims of unjustifiable dismissal is the following:

...The question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

The employer must show that a dismissal was justified substantially and procedurally and this was where the employer fell short. All the circumstances at the time the dismissal occurred would include the type, resource and size of the organization. This employer is big by Fiji standards in the timber industry. For this employer to treat Mr. Taukei in the way it did, like the way it employed him with no grievance procedure, and the way it came around and told him that he was too old to continue working was discriminatory, unethical and unfair.

5.0 Decision and Remedies

5.1 The Tribunal makes the determination that Mr. Taukei's dismissal was unjustified and unfair and in that regard Orders the following remedies:

i] Under Section 230 (1) (b), the employer to reimburse Mr.Iosefa Taukei and Mr. Raiba Vasutoga two (2) years' wages each as part of the wages lost as a result of the grievance; and

ii] Under Section 230 (1) (c), pay to Mr. Iosefa Taukei and Mr. Raiba Vasutoga, twelve (12) months' wages each as compensation for humiliation, loss of dignity and injury to their feelings.

DATED at Suva this 21st day of September, 2012

Sainivalati Kuruduadua
Chief Tribunal