IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT Grievance No. 171 of 2012

BETWEEN:

COLATI DRANIATU
GRIEVOR

AND:

YOUNG WOMENS CHRISTIAN ASSOCIATION
EMPLOYER

Appearances:

Ms Kunatuba for the Grievor
Mr. Singh for the Employer

Date of Hearing: 9th May 2013
Date of Judgment: 24th May 2013

RULING ON INTERLOCUTORY APPLICATION

Interlocutory Application Before the Employment Relations Tribunal (or "the ERT")

[1] The Employer, Young Womens Christian Association (or "YWCA") or the Respondent has filed by way of a Notice of Motion and Affidavit in Support sworn by Lavinia Padarath ("the Application") and which application was filed on 25th March 2013, inter alia seeking for the following Orders from the ERT:-

i.	That this action be struck out; and
ii.	That the Costs of this application be costs in the cause.

[2] The Employer had filed this application pursuant to Order XXVI of the Magistrates Court Rules, Section 68 Magistrates' Court Act [Cap 14] Laws of Fiji and pursuant to the inherent jurisdiction of this Tribunal to have the matter struck out in its entirety. 

[3] The Grievor had responded to the application on 9th April 2013 through an Affidavit sworn by Sera Koyamaibole, or the grievor. The Respondent further replied to the Grievor's Affidavit through another Affidavit sworn by Lavinia Padarath dated 18th April 2013.
Issues of Law Raised by the Employer

[4] The Employer has raised threefold issues of law in order to seek Orders from the ERT to strike out the entire substantive claim of unfair dismissal of the grievor: they are summarized as follows:-

i.	First Issue: Whether or not the grievor was actually dismissed from employment by the Respondent?

The Employer has submitted that the grievor was not dismissed as they argue that the Grievor was offered further employment on a voluntary basis as per the letters dated 21st February 2011 and 10th March 2011. The grievor submitted that she was entitled not to accept that offer from the employer and thus she was terminated from her contract of service dated 1st October 2009, where her duration of service was for three years. 

ii.	Second Issue: Whether or not the procedures for good faith negotiations were followed?

The Employer's second issue of law hinges on the procedure for bringing a case to the ERT under s111 (2) of the ERP. The employer submitted that the grievor had failed to follow this in terms of the internal grievance procedures stipulated by the employer, where instead she had reported her grievance directly to the Mediation Unit. They allege that this was incorrect and a breach of the ERP. The employer further alleges that the grievor was under a legal obligation to exhaust the internal grievance procedure before reporting the grievance to the Mediation Unit under section 110(4) of the ERP where it states that:-

"s110(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."

The employer asserted that by not reporting a grievance to the Respondent, the grievor had in addition to denying the Respondent the opportunity to negotiate, breached s111(2) of the ERP. The grievor in counter-defence has submitted that because she deemed herself unfairly dismissed, she had a right to go the Mediation Services directly as per Schedule 4, Sections 2 to 6 of the ERP. Hence she was under no obligation to exhaust the internal grievance procedures as outlined by the Respondent.

iii.	Third Issue: Whether or not the grievor is within time to bring this grievance to the Tribunal.

It was uncontested fact that the unfair dismissal claim was reported after lapse of some sixteen and half months of the grievance allegedly arising in this instance. The employer relied on the case of Fiji Bank &Finance Sector Employees Union and ANZ Bank [2010] FJHC 450; ERCA of 01 of 2009 (12 October 2010) to justify that the Employment Relations Court in that instance had ruled that: "…Section 109, 11 and s169 are provisions on locus standi to bring proceedings…"

The employer has submitted that the grievor did not have the locus standi to bring this action due to the lapse of time. Further the employer had stated that when the grievor came to lodge the grievance after lapse of sixteen months, she was put on notice of section 111(2) and (3) of the ERP through Form ER1 which essentially alludes her to move the Tribunal "for an extension of this period" when she had not raised her grievance within the six month period stipulated in the law as per s111(2) of the ERP.

The grievor has submitted that her claim of unfair dismissal is not subject to time-limit pursuant to Schedule 4, Sections 2 to 6 of the ERP. Hence she does not to need to seek leave of the Tribunal to bring her unfair dismissal claim. She relied on my judgment in the case of Tomasi Tabanidalo –v- Hangton Pacific Company Limited ERT Grievance No. 95 of 2011 delivered on 18th July 2012, where I had declared that dismissal grievance can be accepted by the Mediation Unit without subject to time limit where dismissal must be in relation to a breach of implied or express provisions of the contract of service between the parties.

[5] At the outset, this matter is almost similar to the grievance matter of Sera Koyamaibole –v- Young Womens Christian Association ERT Grievance No. 157 of 2012. I had delivered this judgment on the 19th May 2013 and for this reason I will completely rely on my position in terms of the law I have in quite detail elaborated therein. It seems to me that both the grievances were reported late or around the same time which also has similar facts. In that case, I had ruled that the grievor's initial contract of service was terminated by the employer, however, the grievor's actions were clear that she had raised no objection at all (or grievance pertaining to duress or disadvantage) with the employer's plans to either vary her contract of service or to make her redundant and subsequently to re-employ her on entirely new terms and conditions within a voluntary engagement. In terms of duress and disadvantage issues, she had six months to raise her grievance under s111(2) of the ERP. To the Tribunal, it was evident in this matter that the grievor had remained in the workforce voluntarily after her contract was terminated at the end of January 2011 on what was clearly an implied contract of service. Subsequently she had accepted and signed a new contract of service, irrespective of the terms and conditions and again remained in that arrangement for at least four months. Hereafter it was not clear why she waited for sixteen months before she decided to pursue her grievance under the process of the ERP.

[6] The employer's reasons were that a process of redundancy was being implemented in January 2011 that eventually saw Ms Koyamaibole accepting an alternative position proposed under their redundancy measures. I saw nothing peculiar that an employer proposes redundancy to their employees as per their statutory entitlement under s107 of the ERP. In the same breath, employees may proceed to voluntarily accept any alternative measures proposed as opposed to being made redundant. It becomes problematic when the process of redundancy is challenged by the worker(s) affected under the employer's clear statutory obligations to ensure it is their last resort approach in compliance with giving notice, which is not less than 30 days before carrying out the terminations. Further they must give employees an opportunity to part-take in consultation process to avert or minimize the terminations, and most importantly observe and carry out the requirements of s108 of the ERP which essentially demonstrates how employees shall be compensated through proper redundancy payouts. 

[7] However, this is not the terms of reference for purposes of this interlocutory application and/or the substantive matter or indeed the same issue applied to Ms Koyamaibole's case. Both cases have come late to the Tribunal on the basis of unfair dismissal claim pertaining to the termination of the contract of service at the material time. Both cases have alleged that whatever happened in January 2011 to prematurely end the grievor's three-year contract of service, this has been a process of unfair dismissal. 

[8] In Ms Koyamaibole's case she had pleaded duress and disadvantage as a basis to justify her unfair dismissal grievance and I have ruled that this cannot be justified to invoke Schedule 4, Sections 2 to 6 of the ERP through a late claim. I had declared that her written contract of service was terminated in January 2011 by the employer but because she had remained with the employer on their proposed alternative measures, being a voluntary engagement, (thus it was not relevant whether or not the redundancy process was illegal and unfair as she did not challenge this at the material time), I had declared that the employment relationship between Ms Koyamaibole and YWCA had continued. I had also ruled that both duress and disadvantage being declared not a basis for a late claim under Schedule 4, Sections 2 to 6 of the ERP, there was no merits in Ms Koyamaibole's substantive claim. This then proved that she had no good reason for the delay in coming to the Tribunal as required under s111(2) and (3) of the ERP when normal grievances are reported as it was neither exceptional circumstance nor justice of the case requires an extension of time. I had ruled that this would have been totally unfair to allow a sixteen-month late and unmeritorious matter to proceed where the employer bears the onus of proof. 

[9] The facts of this grievance are slightly different. The grievor in this instance is alleging that she was unfairly dismissed when the employer prematurely ended her contract of service which would have ended on 1st October 2012, when in effect it ended on 27th January 2011. She also asserted that the employer had directed her to transfer her existing contract of service into a volunteer position which she had refused outright unlike in Sera Koyamaibole's case. She was then asked by the employer to go home as YWCA had no funds to pay her salary she was receiving under her contract of service dated 1st October 2009, signed on 20th October 2009. Ms Draniatu also maintained that she had been discussing her grievance with various YWCA officials as reflected in her written submissions filed on 27th November 2012. Some of the issues related to certain staff still receiving their normal pay; the financial position of the employer being sound; and the employer had re-advertised her position around mid 2011 offering a salary between $12,000-$20,000 to the new incumbent (at paragraphs 5, 9, 12 respectively). She also submitted that she did not receive a termination letter when she was sent home in terms of being made redundant when her contract of service dated 1st October 2009 was terminated. 

[10] I agree with the grievor that her contract was terminated and not continued as the employer had attempted to suggest. Any alternative measures proposed under redundancy plans is often regarded as a new arrangement or terms and conditions unless the consultation process is invoked to vary the existing contract of service which must be mutually accepted by the parties and all variations noted in writing. 

[11] Further, the contract of service must allow for variation of this sort otherwise it gives no scope for parties to vary the existing contract of service. Hence, termination of the contract is inevitable when redundancy process takes place. 

[12] No doubt, given the fact that the grievor had not accepted the alternative measure proposed by the employer in January 2011, this claim will have the potential to probe and test the redundancy process implemented some sixteen months ago, that is, if this (late) claim is deemed and accepted under the jurisdiction of the Tribunal to hear grievances. Again, as I had stated in Koyamaibole's case, I have the foremost task through this interlocutory application to determine whether or not the reasons for the delay were fair and justified to bring a late claim in this nature and whether or not the grievor's claim in the way it found its way into the Tribunal should be heard on the basis that the delay was occasioned by "exceptional circumstances"; and second that the "justice of the case requires an extension of time" (see: Mark Raymond Creedy vs. Commissioner of Police (2008) 3 NZLR 7 and Melville v Air New Zealand Ltd (2010) NZEmpC 87). 

[13] As I have cleared the air regarding the rules of evidence from the Tribunal's end, I only wish to make one other matter clear. This is in relation to a letter dated 30th May 2013 written by the employer's counsel after the grievor's counsel had filed written submissions. Mr Singh had noted certain anomalies indentified through annexure relating to email communications that were not in evidence of the grievor's sworn testimony or by of Preliminary Submissions. I concede to the employer's concerns that the grievor being represented by a qualified legal practitioner should have weighed the repercussion of flouting basic rules of evidence notwithstanding that the rules of evidence under the ERP is not strictly applied (s231 of the ERP).

[14] In fairness to the employer, since they bear the burden of proof, and this is a late dismissal claim, the grievor's counsel should have disclosed and put the employer on notice regarding all the information, documents and correspondences they had wished to rely upon that would have justified the grievor's late grievance. She could have done this through first, the preliminary submissions and second, they had another chance to submit this when they had filed Affidavits in response to the employer's interlocutory application. Third opportunity given to them was when I allowed the grievor to take stand during the interlocutory hearing. I simply sought to hear the grievor explain the Tribunal in her own words with any supporting evidence whether or not she had good reasons for delay in coming to the Tribunal before the entire unfair grievance claim could be struck out. This is permitted under s112 of the ERP as long as the employer is put on proper notice. In all three instances, Ms Kunatuba did not submit these (email) evidence properly and it is even more concerning that she did not appreciate the gravity of this application that has the potential to entirely struck out the grievance claim which is a grievance matter outside the usual six-month period to report and resolve grievances. It is late by at least a year regardless of dismissal claims being allowed to come to the ERT under section 2 of the Schedule 4. 

[15] I have explained this Tribunal's position where I have stated in Sera Koyamaibole's case that no reasonable adjudicator can allow for any type of claim to flout s111(2) of the ERP to be deemed a grievance of unfair dismissal under section 2 of the Schedule 4. Thus easily allow a claim to originate as a late claim at any given time. 

[6][ While the ERP is not clear how late claims could be assessed as done in New Zealand, the test adopted in Mark Raymond Creedy vs. Commissioner of Police (2008) 3 NZLR 7 and Melville v Air New Zealand Ltd (2010) NZEmpC 87 is of great use and importance. Hence the grievor must satisfy that there was "good reasons for delay" by coming directly to the ERT through an application to seek leave to have an extension of time (as per the requirement of s111(3) of the ERP). That said, if the systems and processes of the ERP through mediation process by no fault of the grievor eventually places him/her before the Tribunal via the mediator's powers to refer matters to the Tribunal, where no such application is done simply on the basis of section 2 of the Schedule 4, even then to properly invoke the Tribunal's jurisdiction to hear and adjudicate a grievance matter with merits cannot be compromised or deemed sufficient by mere reference of a "matter" by the mediator. In either context, without crossing the hurdle of satisfying the Tribunal that there was "good reason for delay", late claims in this nature have no place for adjudication on premise of good faith and natural justice within which an employment relationship is executed and survived. 

[10] In that regard, I cannot overlook prejudice caused to the employer to be furnished these email correspondence in the manner in which the grievor's counsel had attached them to the written submission. For purposes of this interlocutory application I will give these documents no probative value as the employer had two deficiencies when the matter was heard. First, Mr Singh argued his case by relying entirely on the Affidavits sworn by both parties which he submitted was the evidence to be considered by the Tribunal in an interlocutory application and second, he did not have the benefit of bringing any witness to test these documents as to its authenticity or relevance. Further, he had only seen these documents in this form for the first time, which is, after the hearing of the interlocutory application being concluded.

[11] That being the case, I had the testimony of the grievor who was consistent in her recount of what had happened leading up to her termination and how she had ended in the situation where she deemed herself unfairly dismissed, albeit some sixteen and half months since the termination.

[12] Technically speaking, the Tribunal has to disregard the email correspondence where this proceeding is concerned. This is however, of no consequence in terms of the grievor's attempt to explain to the Tribunal that she had sought audience with the employer in various form including through email exchange, writing letters and also through meetings in 2011 and again in 2012 with various YWCA officials including the President of the YWCA. This was to discuss her future standing in terms of her contract of service which was unilaterally terminated by the employer in January 2011. For instance, in grievor's Written Submissions filed on 27th November 201, through "APPENDIX 13", the Minutes of the Meeting with Mrs Leba Mataitini, YWCA President held at YWCA office in Suva on Friday 10th February 2012 at 2.30pm, it is stated that:-

"…2. Colati Osborne – She asked that she will not return to YWCA as an employee and asked that she be paid the salaries due to her to when her contract expires. (which is from end of January 2011 when she was asked to go home because of financial constraint to October, 2012). A total of 21 months.

3. Mrs Leba Mataitini replies that she will discuss that with the Treasurer and Mrs Qionibaravi and seek legal opinion from the Labour Department and will get in touch with Colati to determine how much YWCA should pay Colati for the period…" 

(Underlining is my emphasis)

[13] Here, I understand Colati Osborne is the grievor which is confirmed by the National President of YWCA, Ms Leba Kalofaki Mataitini's letter dated 10th March 2011 addressed to "Mrs Colati Orsborne Draniatu" inviting the grievor to accept a new contract of service in a Volunteer capacity. It appears that the grievor had strongly refused to allow the employer to merely terminate her contract of service which she maintained had a fixed duration of three years. Hence she did not want to transfer her services or for matter continue her service with YWCA in any other capacity. It seems that since January 2011 when she was terminated, she had reservations with the reasons provided by the employer, particularly when she alleges that she was promised to be re-engaged to her initial position after the financial situation of the employer would have improved. Instead, YWCA went ahead and hired someone else. The grievor again pursued this issue with the employer on 30th March 2012 before finally coming to the Labour Department on 11th April 2012. 

[14] In my opinion, clearly termination was done summarily without adequate or no notice at all. No proper letter of termination was given under s33(2) of the ERP to outline reasons in writing why the contract of service was ended prematurely (without notice) other than certain letters provided by YWCA alluding to the employer's financial situation and that the employer will pay the grievor her last salary towards the end of January 2011. This action in itself terminates the contract of service. This is because the employer is not entitled to vary the terms and conditions of an employment contract especially where payment of salaries and entitlements such as leave is concerned. This must be done within a good faith engagement and here there was no evidence either from the preliminary submissions or during the hearing that such a process was undertaken mutually. 

[15] Hereafter, a new contract of service in form of a voluntary engagement was being drawn up by the employer. This was forwarded to the grievor after her termination in January for purposes of re-hiring her on a new position as a volunteer to be paid $20.00 a day for her service. She refused this alternative measure of the employer. It appears on the face of the facts that the grievor was not properly consulted or convinced how the voluntary engagement would have been a fair response to the financial difficulty pleaded by the employer at the material time. 

[16] Whether or not the redundancy process was justified, legally and procedurally under the relevant provisions of the ERP is yet to be seen within any substantive hearing. This would mean that if the redundancy process is challenged, then the employer bears the onus of proof to justify this strictly under s107 and s108 of the ERP. I am of the view this is very likely since the employer has justified this to be a basis for invoking early termination of the contract of service. 

[17] Obviously, when the grievor had refused to sign a new contract of service, she was sent home by YWCA except called on some occasion to complete certain work she had the capacity to conclude. This was in terms of certain acquittals she had to do for a donor project she was handling as part of her duties she had performed under her contract of service dated 1st October 2009. For this, she was paid $20.00 a day for completion of work requested by the employer. This does not deem that she was re-hired or for that matter, her employment had continued. 

[18] While the grievor had not applied for leave to come to the Tribunal with a late claim, for the requirement of "good reasons for delay" to suffice, in this instance I am persuaded that the grievor was entitled to come to the Tribunal to have her grievances heard, albeit it is late, and through the mediation process of the Mediation Unit. This is solely on the basis that the employer was continuing to engage with her as per the meeting Minutes placed before this Tribunal during the filing of Preliminary Submissions and thereafter in the written submissions. The employer was put on notice as to these documents. This would give some basis to qualify that the employer through their actions had implied to extend the period of dispute resolution process irrespective of the fact that their internal grievance procedures were not strictly invoked and exhausted in terms of the written grievance procedures. It nevertheless, sufficed when the employer kept the window of good faith negotiation open with the grievor even after she was terminated in January 2011. They did this till 2012 as seen through their own invitation to the grievor to be present at YWCA meetings in 2012. Clearly the grievor cannot merely usurp any such meeting decorum and part-take as an outsider. I am also of the view that it was the employer who had dragged their feet in resolving this matter through various self-initiated engagement by the grievor since she was terminated. 

[19] Any grievance procedure has to be a two-way initiative and totally guarded by good faith principles. For now, I shall give benefit of doubt to the employer and declare that they had allowed to extend the grievance process to take its course outside the ambit of their written grievance procedures. Therefore when the grievor had refused to accept any further employment or engagement on the terms and conditions unilaterally imposed by the employer when the employer was proposing redundancy, she was within her right to do so. 

[20] I have to comment that in any event, the redundancy process does not put the employee on compulsion to accept whatever is dished out by the employer. This has to be a mutually accepted good faith consultation and agreement. Therefore, an offer for alternative position also does not constitute that the contract of service or the employment of the grievor secured in 2009 was still intact or continued. It has to be mutually negotiated and accepted as was the case in Sera Koyamaibole's grievance, although she later alleged it was done under duress. In that case I had found no evidence of duress (or disadvantage) to justify a late claim under section 2 of the Schedule 4, hence the claim was declared to be without merits.

[21] In this instance, I find the grievance is with merits. I will thus allow the substantive matter to proceed as the grievor has the locus standi with her employment grievance under the ERP to invoke the jurisdiction of this Tribunal. The employer then has a case to answer. 

Decision and Orders
 
[34] In accordance with the aforesaid, the Tribunal declares and orders that:-

1.	The entire claim of unfair dismissal as a grievance submitted by the grievor complies with the ERP, invoking the jurisdiction of this Tribunal to qualify and allow a late claim pursuant to section 2 of the Schedule 4 to be heard and adjudicated. In that regard, the grievor's claim is not declared out of time as prescribed in the ERP 2007. 

2.	Subsequently, the interlocutory application of the employer is not successful and the grievor's claim is declared an "employment grievance" under section 4 of the ERP to proceed to substantive hearing forthwith.

3.	Cost will be assessed in the cause of this matter.

DATED at Suva this 24th day of June 2013.

LEGAL TRIBUNAL