IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT Grievance No. 40 of 2009

BETWEEN:

PREM SUSHIL PRASAD
GRIEVOR

AND:

LAND TRANSPORT AUTHORITY
EMPLOYER

Appearances:
Mr. N. Tofinga for Grievor
Ms. R. J. May for the Employer

Date of Judgment: 3rd January 2013

DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL

1.0	Employment Relations Grievance

1.1 This grievance was registered with Ministry of Labour on 21st April 2009. Mediation was attempted on 17th June 2009 but was not successful. The mediator referred the grievance to the ERT on 7th July 2009 in accordance with s194 (5) of the Employment Relations Promulgation 2007 (or "the ERP 2007") outlining the nature of unsettled employment grievance with the following terms of reference:-

"Unfair termination of Employment".

2.0	Cause before the ERT

2.1	In the Employment Relations Tribunal (or "the ERT"), the parties were directed to file preliminary submissions by the Hon. Chief Tribunal on 28th July 2009 whereby the Employer, Land Transport Authority (or "LTA") filed its Preliminary Written Submissions on 9th September 2009 and the Grievor filed his Preliminary Written Submissions on 24th September 2011. 

2.2	The grievance substantive matter was set down for Hearing on 23rd February 2012 before me. On this day, the Counsel for the Employer, Ms May attempted to explain to the ERT that the employer was experiencing great difficulty as the witnesses they had anticipated would be brought before the Tribunal to give evidence were no longer available: the Acting Chairman of LTA at the material time, being Mr Anand Kumar was no longer the Permanent Secretary for Ministry of Works, Infrastructure and Public Utilities including the former CEO, Mr. Etuate Koroi who was also no longer being employed by LTA. 

2.3	According to Ms May, both these former employees of LTA were critical component through their direct involvement in the grievor's termination from LTA and without their presence, the employer had indicated that they were thus unable to properly proceed with the evidentiary hearing. Ms May had further alluded that if the Tribunal heard and determined the preliminary oral application first, this would potentially iron out the facts pertaining to the substantive grievance raised by the grievor in terms of his allegation of unlawful and unfair dismissal by the employer. Ms May explained to the ERT that if the employer was found to be in breach of the preliminary issues raised through the oral preliminary application, then the employer will accept the ERT's decision and thereafter proceed to argue on remedies only. 

2.4	In the cause of the preliminary application, the issues on the question of law that needed to be assessed by this Tribunal was:-

(a)	Whether or not the employer correctly (in law and procedure) interpreted Clause 2.0 of the grievor's contract of service as a premise to end or terminate grievor's employment with LTA where it purportedly provided for termination within the probationary period of six months?

(b)	Whether or not, according to the employment contract, the termination within the probationary period was deemed to be "with" or "without" cause? If it was with cause, what was the procedure laid out in the contract of service for termination of the grievor's employment? If it was without cause, how should a contract of service be ended lawfully and fairly (in terms of procedures too) and what was the legal position pursuant to the Employment Relations Promulgation 2007 and/or established case-laws. Some reference was made in terms of the principles in the case of Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002) to be applicable (or not) in this case; and

(c)	Whether or not the employer was entitled to terminate without notice and whether they invoked Clause 12.0 of the contract of service lawfully and fairly?

2.5	In my judgment of 26th March 2012, I had ruled on the preliminary issues of law that:-

i.	The termination within the literal and natural meaning under Clause 2.0 of the contract of service would have been lawfully "without a cause" if the employer did not use any reason to justify the basis of grievor's termination. Simply put, there cannot be two mutually exclusive concepts running parallel to each other – either there was "no cause" (or no reasons) for termination or there was "a cause". In this grievance matter, performance was admitted to be a basis of employer's decision to terminate, so the contract was deemed to be "with cause". Therefore, I had ruled that the employer could not go back and say that they had taken a literal meaning of the written contract of service and hence, it was "without cause".

ii.	Subsequently, the employer had failed to correctly interpret Clause 2.0 of the Contract of Service where they had made a basis of the termination, using a "performance" criterion that negates its natural and literal meaning. For this reason, they were thus obligated to explain to the grievor as part of his substantive claim how they had approached the evaluation of the grevior's performance to justify his termination. I had stated that this would have been adequate to allow the grievior to seek compensation if the employer could not prove "performance" as a justifiable basis for termination. 

iii.	I had further ruled that I was not content from the employer's written legal submissions provided to the Tribunal then that the aspect of the unsatisfactory performance was proven on the balance of probabilities as is the standard required before the ERT.

iv.	To that end, I had further stated in my decision that if the employer accepted my decision as they had alluded during their oral application, then rightly the grievor was entitled to remedy in terms of unfair termination when he was not given an explanation how and why his termination was decided on the basis of presumably, poor or unsatisfactory performance. This is the only aspect that this ERT had found was breached by the employer. The employer in my opinion had complied with Clause 12.0 in terms of payment in lieu of notice which proves that they had attempted to somewhat discharge the contract of service lawfully and fairly although they fell short of explaining to the grievor why his performance was not satisfactory to entitle him a permanent position.

v.	Lastly but not least, I had ruled that the parties could either proceed to substantive hearing on the issue of employer's justification for termination on the basis of "performance" keeping in mind that LTA would have still required the two witnesses mentioned above to reliably prove this contentious issue, which really was the basis for granting their application for the preliminary matter. Or the employer could proceed to argue remedies as they had indicated.

2.6	My preliminary decision was not appealed. I suspect that this is because LTA had alluded the Tribunal that it was merely seeking my direction through their preliminary oral application and once this was provided they were amenable to attempting resolution as to a mutual remedy sought between the parties. In fact parties had appeared before me on 10th April 2012 and the Employer gave an undertaking that they would consult Mr Tofinga directly to consider a settlement proposal. This was however, not done. In the interim the parties had proceeded to file a statement of agreed facts and legal submissions that in actual fact canvassed similar issues in two other matters: Bimal Prasad v LTA (ERT No. 39 of 2009) and William Wong v LTA (ERT No. 63 0f 2009). A statement of agreed facts pertaining to all these three matters was collectively filed in William Wong matter on 4th June 2012 that was also regarded to be a basis of this and Bimal Prasad's matter. The parties hereafter had agreed that whatever the decision taken by the Tribunal in this matter would also be the position in Bimal Prasad's case, who also was in fact terminated within the probationary period just like Mr Prem Sushil Prasad. Only William Wong's case was slightly different on facts where he was allegedly terminated under a termination clause in the contract of service and which decision has been provided by this Tribunal on 28th December 2012.

3.0 Decision and Orders

Given that the parties have not been able to reach on their own initiative a mutual and amicable resolution viz a vis a settlement on remedies that LTA had given an undertaking to provide the grievor since my preliminary ruling dated 26th March 2012, I am thus providing the following Orders:-

1.	The termination is deemed unlawful and unfair on the basis that LTA has not shown any lawful and fair cause to justify termination within the probationary period.

2.	Accordingly, I Order three months salary to be paid to Mr Prem Sushil Prasad as compensation that should cover for a reasonable notice period or injury to feelings and dignity when he was unfairly sent home when his probationary period came to an end. 

3.	However, given the length of this case since its inception in 2009 and LTA's constant reneged position and thus prolonging the finalization of the substantive matter, I will further order an additional one month salary to be added onto the three months salary already ordered herein. This is because even if LTA had paid any salary in lieu of notice at the material time Mr Prasad's contract of service was being terminated under the probationary period clause, this cannot discount for the time wasted by LTA in concluding this matter within a reasonable period despite the Tribunal had given LTA a fair opportunity to do so.

4.	The sum total of four month's salary shall be paid within three months of this decision by LTA.

5.	The parties will bear their own cost.

Dated at Suva this 3rd day of January, 2013.

LEGAL TRIBUNAL