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Fiji Employment Tribunal |
IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT Grievance No. 129 of 2012
BETWEEN:
ANN LAL
GRIEVOR
AND:
CARPENTERS FIJI LIMITED t/a MORRIS HEDSTROM
EMPLOYER
Appearances:
Mr. D. Nair for Grievor
Ms. D Prakash for the Employer
Date of Judgment: 1st July, 2013
RULING ON PRELIMINARY ISSUE
Preliminary Application Before the Employment Relations Tribunal
[1] There is no formal application filed in this matter. The parties were to rely on the outcome of another matter, Kritesh Kumar v Carpenters Fiji Limited t/a Morris Hedstrom ERT Grievance No. 35 of 2012, where the Employer had filed by way of a Notice of Motion and Affidavit in Support sworn by Pawan Praneet Sharma ("the Application") and which application was filed on 9th November 2012, inter alia seeking for the following Orders from the ERT:-
[2] I had delivered the judgment in that case on 27th June 2013 where I had ruled and ordered that:
[3] The issue of law here is almost same in terms of the probation clause being identical to what was in Kritesh Kumar' s matter (see below),
Probation: You will be employed on probation for three months. Should your service be found to be satisfactory, your appointment will be confirmed thereafter. Should your services be found to be unsatisfactory during your probationary period, your employment may be terminated without notice. Management at its sole discretion may extend this period to a further three months period. Confirmation of your appointment is subject to your satisfying our Company's security clearance procedures.
(Underlining is my emphasis only)
[4] In a normal circumstance I would have directed to have this matter re-listed for call over after the judgment was delivered on the preliminary application in the Kritesh's matter. While, I do not see a need to ascertain the preliminary issue of law in great detail which I have duly attempted, particularly in terms of the jurisdiction issue and whether or not such matters can be deemed an employment grievance, I believe there is one other crucial issue that allows the Tribunal to exercise its jurisdiction to hear all matters regardless of the nature of application: this is on basis of the overall "merits of the case" warranting adjudication in the interest of justice (see: Dispute No. 35 of 2008: Fiji Bank &Finance Sector Employees Union and ANZ Bank [2010] FJHC 450; ERCA of 01 of 2009 (12 October 2010). Therefore, other than perhaps, explore whether or not this was a termination of contract of service for a "cause" (lawful and fair cause), there is really no other issue here that requires my determination at this juncture. In fact, if I find in negative, the basis to proceed with the substantive matter will be none.
Tribunal's Determination
[5] In Kritesh's preliminary judgment where the issue pertaining to whether or not the employer is entitled to terminate the probationary employment of an employee based on the contractual provisions of the Employment Contract, I had stated that:
"...Here, no doubt the issue of adjudication on the overall merits of the case comes into play (as per ANZ case).
[6] I had further elaborated that:
"In absolute fairness to both sides, there is no simple answer such as a "yes" or "no" to resolve this issue that easily. For me, to test this issue objectively will be unfair and difficult at this juncture. This is simply because it will be nothing short of trying to understand and determine the substantive claim of the grievor. Since this is a dismissal matter for purposes of sufficing the definition of "employment grievance" invoking the jurisdiction of the Tribunal under s211(1)(a) and (k) of the ERP to hear and adjudicate grievance matters, to fairly answer the employer's question whether or not the employer has the right within the probationary clause in the contract of service to terminate an employee's service should be rightly heard and determined on the strength of the evidence within a trial-proper.
This is solely on the basis that the employer had sought to justify the termination of the grievor for a "cause" (in terms of non-performance or unsatisfactory performance of the grievor) when determining the eligibility of the grievor to a permanent or confirmed position as per the employment contract. This is the crux of the grievance matter before the Tribunal. That is, the Tribunal is tasked to test this process (in terms of lawful and fair termination process) against the employer's rules and policies including any binding obligations in a contract of service. ERP 2007 merely paves the direction to set down the legal parameters although it is silent on probations imposed on employees. (Underlining and bold is my emphasis only)
[7] I was clear with the reason why this Tribunal had considered it an unjustifiable and unreasonable action of the employer when they had made "cause" a basis to invoke probationary clause to terminate the contract of service of the employee in lieu of one week's notice in that instance. These reason were derived from the rationales set down in another judgment of Krishnee Krishna Naidu v Carpenters Fiji Limited (T/A) MORRIS HEDSTROM ERT Grievance No.5 of 2012 (Judgment delivered on 3 January 2013), where His Worship, Andrew See had examined a depth the issue of how probationary period applied and what sort of circumstance could lead to justifiable and fair termination of a contract of service. He did this after the hearing of the substantive grievance, and where relevant and applicable, I quote the ruling herein: His Worship had stated that-
"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.[1] 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 willful 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.
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 circumstance 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 utilized 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..."
(Underlining and bold is my emphasis only)
[8] Here the distinguishing factor is that there is an employment grievance to invoke the Tribunal's jurisdiction to entertain the original claim. However, whether it was an unlawful, unjustifiable and unfair response of the employer when the employer had exercised its right to terminate the grievor's contract of service under the probationary clause (for a cause or not) has to be assessed on the basis of the letter of termination provided to the grievor when he/she was terminated. This shall provide the basis to assess what were the employer's reasons for termination, if any. In that respect, the Employer's letter dated 24th February 2012 to the grievor stated as follows:-
"Ann
Re: Non-confirmation of Probation
We refer to our appointment letter dated 22nd November, 2011 and advise you that as per your contract, you had been placed on probation of three months.
In accordance with your Employment Contract, Management wishes to advise you that your services is terminated with immediate effect for non-confirmation of probation. You shall be paid one weeks pay in lieu of notice.
By copy of this letter the Payroll Supervisor is advised to pay all monies due to you after the necessary clearance are completed..."
[9] Clearly the employer had invoked the "probation" clause in the contract of service to terminate the grievor and I have the same opinion as His Worship, Andrew See as per his decision in the case of Krishnee Krishna Naidu where he had stated that "...the language here provides the Employer a discretion as to whether or not the services of the Worker should be terminated...".
[10] I too agree that there is a discretion with the employer and therefore it makes sense to also agree with Worhsip's further pronouncement that "...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..."
[11] In this instance, there was a slight variation as the employer had simply utilized its discretion without stating that it had relied on the criteria pertaining to "performance or security clearance" hence it appears to be a termination "without cause" under the probationary period.
[12] In actual fact, His Worship, Andrew See in the above Naidu's case had considered the essential elements in the probation clause that he had regarded as "condition precedent" before the contracts came into full force and which then entitled the employer to terminate the grievor lawfully and fairly in reliance of those criterions only; these were:
[13] Nadiu's termination was for a cause where the employer had very eloquently pushed for "performance criteria" which they had maintained violated their security clearance procedures in terms of the grievor's integrity and honesty as a confirmed employee being put to test which apparently the grievor had failed. Here, the employer has not stated any specific cause that made the grievor's termination subject to either the performance or security clearance procedures. They had stated in their Preliminary Submissions filed on 24th September 2012 that:-
"The employer states that it exercised its contractual right to non confirm the employment of the Grievor pursuant to the Employment Contract which terms and conditions were agreed to by the Grievor".
[14] In the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011], the Employment Relations Court had made the following observation in view of issues relating to fair procedures: Wati J had noted and I quote for quote:-
"It is my duty to comment more on the procedure to terminate "for a cause" and "without a cause". In any given situation, the employer is not obligated under the termination clause to give any opportunity of hearing, as found by the Tribunal. When the termination is without cause, what is there to hear the employee on?"
[15] Under the definition section 4 of the ERP, a "dismissal" means "any termination of employment" and to me this is broad enough to encompass probationary period that is used as basis for a termination. When applying her Ladyship, Justice Wati's ruling in the above case, clearly where there appears to be "no cause for termination" (here within the terms of the probationary period), and which is the case as per the letter of termination when read within its literal meaning, then the employer may proceed to terminate without necessarily according the procedure for hearing. This would mean the employer would be waived from justifying the actual reasons why the termination took place other than informing the grievor that the employer exercised its pure discretion under a termination clause in the contract of service pertaining to probation. This would then seemingly satisfy the requirement of s114 of the ERP.
[16] That being the case, I do not think that the law relating to unjustifiable dismissal here is greatly affected where the employer has dismissed an employee at the end of the probationary period in reliance on the natural and literal meaning of the contract of service. Therefore, although there was nothing in the language of the letter of termination to suggest that the employer had sought to imply or rely on "reasons" (or cause) when invoking the probation clause the employer has set down the parameters that guard fair and justifiable termination in terms of when this clause is to be exercised when terminations are considered. These are the three elements already highlighted in Naidu's case and it applies here too. The grievor is entitled to be tested for his/her performance within the six month period including undergoing any security clearance procedures as deemed necessary.
[17] Again without preempting the substantive matter, it is my opinion that for fair termination to persist, natural justice and good faith principles demand that the employer has to provide all necessary avenues to the employee to mitigate his/her grievance, have the right to be heard before any type of termination is effected (that is, before casting the guilt) and thereafter be given an unequivocal decision (as reasons) in writing whether or not the employee can carry on in that special employment relationship.
[18] For this reason, I find that the employer cannot rely on "no cause" argument and exercise its contractual right or discretion through any unilateral decision-making. The natural and literal meaning of the contract of service provides for a very distinguishing feature of the probationary arrangement, which is really the fact that there was willingness of the Employer and the Employee to be bound by this employment contract, and which is thus subject to the satisfaction of certain requirements which need to be met as conditions precedent, before the contract comes into full force. Performance is one such requirement.
Decision and Orders
[18] In accordance with the aforesaid, the Tribunal declares and orders that:-
DATED at Suva this 1st day of July 2013.
LEGAL TRIBUNAL
[1] Except where it could be shown that the Employer was solely relying on Section 33(1)(c).
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