IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL

ERT Grievance No 5 of 2012

BETWEEN:

KRISHNEE KRISHNA NAIDU
Worker

AND:

CARPENTERS FIJI LIMITED T/A MORRIS HEDSTROM
Employer

Counsel: Mr D Nair, for the Worker 
Ms M Prakash, for the Employer

Dates of Hearing: Tuesday 27 November 2012
Wednesday 5 December 2012
Wednesday 12 December 2012

Date of Judgment: Thursday 3 January 2013

DECISION

TERMINATION OF EMPLOYMENT – Section 194(5) Employment Relations Promulgation 2007; Termination of Probationary Period 

Background

1.	This is a matter that has been referred to the Tribunal in accordance with Section 194(5) of the Employment Relations Promulgation 2007, being a grievance that has failed to resolve at mediation. 

2.	The grievance of the Worker relates to his summary dismissal in employment, effective by letter of termination dated 2 September 2011.

3.	Within that letter the Employer states:

In accordance with your Employment Contract, the Management wishes to advise you that your services are terminated effective immediately for non-confirmation of probation. You shall be paid one weeks pay in lieu of notice. 

4.	The purpose of the hearing before the Tribunal, is to ascertain whether or not the Worker has been terminated justifiably and fairly in his employment. 

The Employment Contract

5.	The contract of employment between the parties is the logical first point of analysis of this matter. As the contract that is found within Document A of the Respondent's Submissions filed 16 February 2012, reveals:

•	The terms of employment were confirmed by the Employer on 6 April 2011;

•	The position offered was that of a Butcher based at Morris Hedstrom (MH) Naulu Supermarket;

•	The appointment was subject to a probationary period of three months, that provided:-

(i)	Should the Worker's services be found to be unsatisfactory during the period, his employment may be terminated without notice;

(ii)	Management at its sole discretion may extend this period to a further three months period; and

(iii)	Confirmation of the Worker's appointment is subject to him satisfying the Company's security clearance procedure.

•	The Worker would be notified of job responsibilities upon commencement of his employment and a job description would be forwarded to him in due course; and

•	The Worker undertakes to familiarise himself with company policies and procedures specified in Company Circulars in force. 

The Case of the Employer

6.	The case of the Employer is as follows. The Employer had not confirmed the Worker's probationary period prior to the decision to terminate his services. The Employer regarded the Worker as still being subject to a probationary period. 

7.	The Worker was the subject of two investigations and complaints. The first relating to an incident on 10 July 2011, in which the Worker cut, weighed and priced his own meat for purchase, while at work. It was alleged that the pricing of the product was incorrect . The Worker had apparently weighed and priced the meat as if it was lamb neck pieces, whereas it was in fact lamb shoulder, that would have attracted a higher price. 

8.	The Second allegation against the Worker, was that on 1 August 2011, he had stolen a wallet containing $120.00 from a staff member's handbag, that was being stored underneath an unused cashiers counter, to which the Worker had access.

9.	In the Worker's termination letter, the General Manager of the Employer, Mr Ameer Hussain, stated:

We refer to our recent investigation on your actions as a staff.
In the course of the investigation several discrepancies were noted in your performance as follows:

•	You had cut a portion of a lamb shoulder into curry pieces. You then weighed and priced the meat yourself. This admitted to this action. 

•	A workmate's wallet had gone missing in the store and it had been noted that you had approached the said counter where the wallet had been left, on more than one occasion. 

10.	The case of the Employer seems to be that the Worker was terminated within the probationary period due to suspected dishonesty. 

11.	In the conduct of its case, the Employer called several witnesses to assist the Tribunal.

Mr Waqavanua

12.	The first witness for the Employer was Mr Remesio Waqavanua, a Security Investigator of Carpenters Fiji Limited.

13.	 Mr Waqavanua was responsible for the investigation into the Worker's conduct, following two complaints received from the Naulu store. The first related to the incident on 1 August 2011, when a female cashier rang the Security Department to report that her wallet had been stolen at work. The second related to a complaint received on 8 August 2011 from the Store Manager, where he reported that the gross profit in the meat department was down and that it required investigation.

14.	Mr Waqavanua investigated the complaints and handed over his findings to Mr Meli Radrekusa, the Security Manager. 

Mr Radrekusa

15.	Mr Meli Radrekusa has been engaged in the role of Security Manager at Morris Hedstrom for the past 5 years. Mr Radrekusa prepared the Security and Investigation Report to the General Manager of Morris Hedstrom on 18 August 2011.  According to Mr Radrekusa, in relation to the stolen wallet, the Worker was the only person near the counter. He stated that the CCTV footage taken on that day, showed that the Worker had come to the counter where the wallet had disappeared on four occasions. According to the witness, the Worker was seen entering a CCTV Room within the store, during this period, presumably at that stage to have concealed either the cash or the wallet.

16.	 In cross examination, Mr Radrekusa admitted that he did not know whether or not the Worker had stored his own bag underneath the counter in question. 

17.	In relation to the allegation pertaining to the incorrect pricing of the meat, Mr Radrekusa advised that he had contacted the Information Technology department of the Employer and was advised that the coding change, would have taken place at the scale within the meat department and not the point of sale. 

18.	The witness also stated that he had never seen a store policy in relation to staff purchases and weighing of meats. The Security Manager reported to the General Manager that the worker was not authorised to cut meat as he was only a butcher's assistant and not a butcher. 

Ms Elvina Pillai 

19.	Ms Pillai is a Human Resource Co-ordinator at Morris Hedstrom. She has been employed in that role for approximately 20 months. In her role she has responsibility for recruitment and administrative activities. 

20.	Ms Pillai indicated that she was involved in the appointment of the Worker. 

21.	The witness was shown a bundle of documents, marked as Exhibit E3, that she says were taken from the Employer's personnel records. Those documents included the internal assessment form, application blank and personal references of a Mr Krishnee Krishna Naidu, who it appears was working for a time at the MH City Supervalue store. Ms Pillai explained to the Tribunal the ordinary steps that were taken within the recruitment process at MH, suggesting that it appeared the Worker had previously applied for and been accepted in employment with the Employer. 

22.	According to Ms Pillai's evidence, the Worker was not confirmed in his employment with MH. because when she requested feedback from the Store Manager, he had confirmed that an investigation involving the Worker was underway. The witness was shown the suspension letter issued to the Worker on 12 August 2011. 

23.	According to Ms Pillai she gave the Worker the suspension letter, after being advised by the General Manager of the action to take. 

24.	In her evidence, Ms Pillai conceded that the Worker was not advised of his status, at the time the probationary period was otherwise due to come to an end. In response to a question from the Tribunal, Ms Pillai indicated that she was told of an investigation pending at some stage. Her evidence when pressed by the Tribunal was:

 "don't know exactly could have been just before or in that week (the week of 6 July being the probation end date). 

25.	This does not appear to have been an accurate account of events, particularly if the first complaint was not received until 1 August 2011.

26.	The witness's credibility was also challenged further, when during cross examination, Mr Nair asked of the witness, "Where are the notes in relation to probation?" She replied, "I don't know would have to check". Upon further questioning by the Tribunal, the witness acknowledged there was no probationary documentation. Ms Pillai was also not aware of who conducted the Worker's induction.

The Case of the Worker

27.	The Worker gave his evidence before this Tribunal with the assistance of a Hindi language translator. He said that he came about his employment after responding to an advertisement in the Fiji Times newspaper. He stated that he did attend an interview and was appointed for an initial three month probationary period. He says he received no induction training, other than occupational health and safety training. 

28.	The Worker says that he was never instructed in relation to the procedure to be adopted when meat department staff wished to purchase meat during working hours. 

29.	According to the Worker, in relation to the allegations of underpricing and weighing his own meat purchase, he said that he was following instructions that he received from the shop manager, that any intended purchases needed to be paid for one hour before the shop closed. He said that he did not have access to any password that was required in relation to the changing of price codes on the meat department's scales. 

30.	He also indicated that he signed the statements taken by the investigator, though now disputes the statement . The Worker said that the statement was never read back to him in his own language. 

31.	In relation to the allegations of underpricing the meat that he purchased, the Worker maintained his position throughout cross examination. He says that he asked a co-worker to weigh the meat and that person refused to do so, telling him to "weigh it yourself". 

32.	The Worker indicated that in relation to the allegation of theft, he admitted going to the area of the unused cashier's counter in search of a dust pan and said that he did so as he was advised by one of the staff, that this is where it was located. The Worker understood this person's name to be Laila, though during proceedings indicated that she was also referred to as Sera. He maintained that this person was a different person from another employee also known as Laila, that the Investigators spoke to coinciding with this incident. 

33.	The Worker stated that he was not interviewed by the police in relation to this incident. He claimed that he accessed the CCTV room, to look in there for the dust pan and says that he has also used that room before to store his own belongings. He also claims that this room was also occasionally used to store dust pans and brooms.

34.	According to the Worker he left school at the end of Term 1 in Form 3 and that he was not a qualified butcher. 

35.	The Worker denied having previously worked for the Employer, though indicated that he also had an identical twin brother, who did work at the MH City Supervalue Store some time ago.

36.	The Worker maintained that he did also show the Security Officer on duty, the purchased goods before he left the store that day. 

37.	 In relation to the allegations pertaining to the stolen wallet, Counsel for the Employer put to the Worker, that he had identified that beneath the counter in question, there were personal belongings, including handbags of staff. It was put to the witness that he had deliberately returned with the purpose of stealing from them. This according to Counsel, was the reason why the Worker was seen entering the CCTV Room. The Worker denied these propositions. 

38.	The Worker claimed that the statements that were taken from him, were not read back to him. He said that the Investigators did not ask him for clarification in relation to the employee that he spoke to, when he sought to locate the dust pan. 

Role of the Tribunal

39.	The role of the Tribunal in cases of this type, can be found within Section 230(2) of the Promulgation.

40.	 The Tribunal is required to make a determination as to whether or not the dismissal is justified and fair. In Nale v Carpenters Fiji Ltd, this Tribunal indicated that for a decision to be justified, it would need to be capable of demonstration that it was just, right or valid. For a decision to be fair, it could neither be harsh, unjust nor unreasonable.

41.	 The case before me is somewhat more novel, because it concerns itself ostensibly with a Worker who at the relevant time was on probation. Firstly, there is nothing within the Promulgation that alters the inquiry that needs to take place in the case of a worker on probation. A Worker who is terminated within a probationary period, may still be the subject of a termination that is unjustified and or unfair. 

42.	The distinguishing feature of a probationary arrangement, is the fact that the ongoing willingness of the Employer to be bound by the employment contract, is subject to the satisfaction of certain requirements which need to be met as conditions precedent, before the contract comes into full force. 

43.	In the present case, these terms and conditions can be drawn out of the letter of engagement dated 6 April 2011, where the probationary clause provides:- 

o	Should the Worker's services be found to be unsatisfactory during the period, his employment may be terminated without notice;

o	Management at its sole discretion may extend this period to a further three months period; 

o	Confirmation of the Worker's appointment is subject to him satisfying the Company's security clearance procedure;

Requirement that Performance be Satisfactory

44.	The first condition that can be identified, is that the Worker's service must be found to be satisfactory during the probationary period. 

45.	It is useful to note that the language here, provides the Employer a discretion as to whether or not the services of the Worker should be terminated. I can accept that discretion. What I believe is unlawful however, would be any reliance on the provision where it assumes that unsatisfactory performance would give rise to termination without notice. 

46.	That term is unlawful. It runs against Section 33 of the Employment Relations Promulgation 2007, that provides: 

(1)	 No employer may dismiss a worker without notice except in the
following circumstances-

(a) where a worker is guilty of gross misconduct;
(b) for wilful disobedience to lawful orders given by the 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.

(2)	 The employer must, provide the worker with reasons, in writing, for the
summary dismissal at the time he or she is dismissed.

47.	The parties cannot contract out of their statutory obligation. 

48.	I note however, that within the termination letter, the Employer has paid one week's notice to the Worker. To this end, the statutory notice periods are set out within Section 29 of the Promulgation as follows:

29.—(1) Subject to subsection (2), a contract for an indefinite period may, in the absence of a specific agreement between the parties to the contrary, be terminated by either party—

(a) if the contract period is less than one week, at the close of a day without notice;

(b) if the contract period is one week or more but less than a fortnight or where wages are paid weekly or at intervals of more than one week but less than a fortnight, by not less than 7 days notice before the employment expires;

(c) if the contract period is a fortnight or more but less than a month or where wages are paid fortnightly or at intervals of more than a fortnight but less than a month, by not less than 14 days notice before the employment expires; or

(d) if the contract period is one month, by not less than one month's notice before employment expires.

(2) The notice required under subsection (1) must be given in writing.

49.	The contract in my view is for an indefinite period, even though it contains within it a probationary arrangement. The fact that at termination the Worker had been employed for a period of five months, would ordinarily have implications based on the absence of any contractual arrangement to the contrary. I will address the effect of this further on. 

Management May Extend the Probationary Period At Its Sole Discretion

50.	The next term within the probationary clause that needs to be considered, is that the period of probation may be extended at the discretion of Management. The most logical rationale for this would be where there may be some doubt as to the Worker's suitability for the position based on competence or conduct. 

51.	There is no evidence before the Tribunal that the Employer had extended the probationary period. Clearly the time period that was agreed between the parties had passed, but that does not mean that the probation had come to an end in this case. The clearest reason for that, is likely to be based on the presence of the remaining provision contained within the clause. That is, the need to achieve security clearance. 

Clearance of Company's Security Procedure

52.	The final condition precedent is that the confirmation of the worker's appointment, is subject to him satisfying the company's security clearance procedure.

53.	There is no evidence before the Tribunal as to what was entailed by this requirement. Though it appears that this would require Human Resources clarifying with the Security Department, that the Worker was a fit and proper person to be confirmed in his position. 

54.	The notion of clearance, would in my view, have an expectation that the Security Department would need to endorse the Worker's suitability from a risk management perspective. This does not appear to have taken place and in my view will have consequences that flow from it. 

Could it be Assumed that these Conditions Have Otherwise Been Met?

55.	A logical consideration out of all of this, is whether or not the parties may have otherwise through the course of their conduct, sought to waive the conditions precedent to confirmation of contract . That is, could it be assumed by their conduct that they were prepared to accept that the probationary period had come to an end and the Worker confirmed in his substantive position. 

56.	If it was to be the case that the course of the conduct of the parties rather than their actual words, needed to be considered in the context of whether or not the probationary period had been brought to an end by agreement, then several principles of law need to be considered. 

57.	Enfield J. in SVI Systems Pty Ltd v Best & Less Pty Ltd identified some general principles of law that needed to be taken into consideration when the conduct of the parties is sought to be relied on, as a means of interpreting intent and contractual obligation. This included, that the law is more concerned with the interpretation to be placed upon the words and actions of the parties by a reasonable person in the position of the person to whom the words or actions are addressed, rather than subjective intention. That is, what would a reasonable person in the position of the Worker had assumed at that time?

58.	Further, his Honour determined that whether terms have been included by a course of conduct, requires that the party alleging such, must be able to identify steps taken by the other party in so incorporating and accepting such a state of affairs. D J Hill & Co Pty Ltd v Walter H Wright Pty Ltd [1971] VR 749; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251.

59.	Counsel for the Worker, did not identify any such steps that would have given that impression to a reasonable person. 

60.	Finally, as observed by Justice Enfield, the course of conduct must be consistent and sufficiently long.  In the case of the Worker, I am not convinced that this was the case. The probationary period was to operate until 6 July 2011. The investigation of the Security Department was operational from at least 5 August 2011. While the conduct of the Employer was not perfect in this regard, I do not find that the length of period of delay, could have in these circumstances, been construed as giving rise to the Employer otherwise accepting that the probationary period had expired and that the Worker was now confirmed in his employment. 

61.	A longer period of time, may have caused me to reach that conclusion, but for the fact that it was only one additional month, I am not prepared to find on that basis. 

The Alleged Incidents and the Conduct of the Parties

62.	The Promulgation does not draw a distinction between the rights of Workers within or outside of the probationary period. A Worker can still be treated unfairly or unlawfully whether inside or outside of probation. At issue now, is whether this has been the case.

63.	 Ordinarily the entering into a probationary period by the parties, in some ways reflects a cautionary approach to employment contracting. The purpose of a probationary period is often to trial the suitability or mutual relationship that will be required to make the substantive contract workable. More often than not, an Employer will identify to the Worker at the commencement of the probationary period, the key indicators that it will rely on in assessing suitability. This may canvas a broad set of skills and attributes. 
 
64.	In the matter before the Tribunal, the Employer has offered no real understanding as to what the performance evaluation framework in the case of a probationary employee would be. The Worker is entitled to know what these will be and in my view is also entitled to know where he or she has not met the mark. 

65.	The decision to appoint or terminate at the conclusion or during probation, should be informed by this information. It should be transparent and easily accessible. The Employer's own systems seem insufficient in this regard. 

66.	The termination letter to the Worker relies on two issues, these were described as being:-

In the course of the investigation several discrepancies were noted in your performance as follows:

•	You had cut a portion of a lamb shoulder into curry pieces. You then weighed and priced the meat yourself. This admitted to this action. 

•	A workmate's wallet had gone missing in the store and it had been noted that you had approached the said counter where the wallet had been left, on more than one occasion. 

Failure to Follow Correct Procedure – Meat Department

67.	There are a couple of observations that can be made. Firstly the Employer provided no evidence whatsoever of any induction or training that the Worker was given in relation to the policy in question. The witness for the Employer, Mr Radrekusa, gave evidence that he had not seen a policy. The Worker was an unqualified butcher. He held no formal training qualifications in the trade. How he can be described in that role, without more, is a little unusual in my view. This also appears at loggerheads with the Security Manager's own report, where he states:

Staff Krishnee is a butcher attendant and not a butcher to cut meat. He breached the following 

•	cutting meat 
•	cutting his own meat 
•	priced his own meat himself 

68.	The Employer provided no evidence of any training given to the Worker in relation to meat preparation, nor in relation to protocols regarding the weighing and pricing of staff purchases. For a large supermarket chain, I would have thought it should have been a fairly simple to task to have produced the relevant policies. This did not take place.

69.	Nor did the Employer provide any evidence from anyone in the Meat Department or store, as to how the scales pricing is set, who has the capacity to alter the pricing codes and whether in fact the Worker had access to such information. Again, this would have been fairly simple information to have adduced as evidence. 

70.	The Worker was being accused of only one occasion when he actually served himself and priced his purchase. If it was the case that the Security Department had been contacted by the Store Manager as a consequence of concerns that he had in relation to the gross profit from that department, I would not think such concerns would have been motivated by one possible indiscretion on the part of the Worker. The sum in question would have been only a couple of dollars at most. It also should be kept in mind, that the Worker's incident took place on 10 July 2011, though the concern from the Store Manager was raised with Security only on 8 August 2011. I am a little intrigued by the delay and the fact that the complaint seems to coincide with the investigation into the alleged theft of a co-worker's wallet. 

71.	Having said that, I do not think the policy of the company as submitted by Counsel, was an unreasonable one. Employees while at work, should not be in effect 'serving themselves'. I am surprised why the Worker would not have just understood that to have been a fairly basic practice in any event. One would normally expect an employee on probation to even be more cautious in relation to these matters. 

Allegation of Possible Theft

72.	The language of the termination letter, falls short in stating that the Worker had been found guilty of theft, as well it should. In Digitaki v Mobil Oil Australia Ltd, the Court of Appeal recognised the need to lift the evidentiary bar where the consequences of finding adversely against an individual may be brought to bear. Citing, Dixon J in the Australian High Court case of Brigginshaw v Brigginshaw, it was noted that 

 'reasonable satisfaction' is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

73.	 There is no evidence whatsoever before this Tribunal that the Worker did in fact steal a co-worker's wallet. There is no evidence of any theft having been reported to the police. And no evidence of any staff person who directly witnessed the worker's conduct, that could have perhaps been admitted as evidence in proceedings. There is though evidence of a large employer, not providing appropriate personal lockers for its staff to secure personal effects during the day. This was conceded by the Employer's own security personnel to be a situation that was inadequate. Employees deserve such basic conditions at work and an Employer has an obligation to ensure the security of an employee's immediate personal effects, where because of the nature of their work duties, they are not able to adequately safeguard such items. 

74.	Having said all that, I am not convinced as to the reasons why the Worker saw fit to go back to the counter area on four occasions, if there was no dust pan at that location. Though it should be noted that according to Mr Radrekusa, the Worker was observed returning to this counter over a 6 1/2 hour period. In some respects, that may not have been too frequent a revisiting of the location, when spanned over six and a half hours. Again, one would have thought it would have been easy enough for a witness to give evidence explaining where the cleaning equipment was housed and what the counter in question, was actually used for. 

Conclusions

75.	The Worker should not have been serving himself in the meat department of the store. His own evidence is that he has worked for four years previously in comparable roles. I would be surprised if the policy was any different anywhere else. I am also surprised if the Worker did not understand what was the coding for the meat product he was purchasing. This seems to me to be a fundamental task undertaking within any meat department, delicatessen or fruit and vegetable section. That is, to properly identify the product and weigh it accordingly. It may not be a work task or skill readily apparent to a by-stander in Victoria Parade, but I think for someone who has worked in retail supermarkets for some time, it would be a little more difficult to explain away.  

76.	In relation to the other related allegations that perhaps the Worker was negligent in the way he was cutting meat, that to my mind is a skills issue and I would think reflective of the fact to some extent, that a semi-qualified person is ostensibly undertaking the role of a qualified butcher. The Employer is quite entitled to be suspicious of the conduct of the Worker, in relation to the stolen wallet. I am not satisfied though that this should have formed the basis of his termination letter, as it seems unfair to some extent to have referenced this within that correspondence when the evidence was circumstantial. I nonetheless recognise that in the eyes of the Employer, his conduct was unexplainable and the Employer is well entitled to be suspicious of that conduct. 

77.	Finally, a probationary period is understood to be just that. Perhaps in some respects, the evaluation criteria to assess performance and suitability may be less structured and less developed in such circumstances, though it still needs to be underpinned by fairness in approach and justifiable conduct, where a decision is made to bring the probationary period to an end, whether prematurely or with the effluxion of time. The Employer had clear concerns in relation to the Worker's honesty and has utilised the probationary period, in order to exercise its right not to confirm his employment. 

78.	On balance, and it is rather on a fine line, I find that the Employer did justifiably and fairly bring the contract to an end. The Worker would not have gained security clearance. In this regard, I note that the employer paid the Worker one week's payment in lieu of notice. This entitlement appears to be derived from the general termination provisions contained within the contract proper. The probationary clause needs its own defined notice period. Ordinarily I would have thought it should have been one week's notice. At the time of termination, the Worker had been engaged for a period of approximately five months. While the Promulgation does set a higher standard of notice in such cases, it nonetheless also enables industrial parties, to negotiate and agree on arrangements in writing, of a lesser amount, where mutually acceptable. 

79.	While the notice period of one week in an employment contract would seem highly inappropriate for a long serving employee, in the case of a probationary employee, it would in my mind be appropriate and consistent with the legal obligations of the Employer in these circumstances. 

80.	The grievance and application of the Worker is therefore dismissed. 

Mr Andrew J See
Resident Magistrate