Home | Databases | WorldLII | Search | Feedback Fiji Employment Tribunal

Tamani v Pacific Building Solutions [2013] FJET 24; ERT Grievance 27.2012 (14 March 2013)

IN THE EMPLOYMENT RELATIONS TRIBUNAL

AT SUVA

ERT Grievance No. 27 of 2012

BETWEEN:

SETOKI TAMANI
Grievor

AND:

PACIFIC BUILDING SOLUTIONS
Employer

Appearance:
Labour Officer on behalf of the Grevior
No appearance on behalf of the Employer

Date of Hearing: 2nd November 2012
Date of Judgment: 14th March, 2013

JUDGMENT IN DEFAULT BY THE EMPLOYMENT RELATIONS TRIBUNAL
(ON FORMAL PROOF HEARING)

1.0 Employment Relations Grievance

1.1 Background to the Grievance

This grievance was registered with Ministry of Labour on 30th September 2011. Mediation was attempted on 15th December 2011 but was not successful. The mediator referred the grievance to the ERT in accordance with s194 (5) of Employment Relations Promulgation 2007 (or "the ERP 2007") outlining the nature of unsettled employment grievance with the following terms of reference:-

"The decision by management to terminate the services of the grievor which he claimed was unjustified and unfair."

2.0 Cause before the ERT

2.1 In the Employment Relations Tribunal (or "the ERT"), the employer made representation on the first two Mention dates only. Thereafter despite being issued NOAH (Notice of Adjourned Hearing) on several occasions by the ERT Registrar, the Employer had failed to make any further representation. This was until such time, the Labour Officer representing the grievor requested that the Tribunal proceed to hearing of the substantive matter by way of a formal proof proceedings.

2.2 The Tribunal in the interim had directed the grievor to file his preliminary submissions and on 14th June 2012, the Labour Officer filed preliminary submissions for and on behalf of the grievor.

2.3 On 2nd November 2012, hearing of the Formal Proof claim was set down by the Tribunal whereby the Tribunal ordered the Registrar to issue a final NOAH to the Employer informing of the hearing date.

3.0 Formal Proof Hearing

3.1 The law that entitles a grievor to proceed to have his/her case heard in the absence of the employer who fails to comply with various notices for appearance derives from section 233 of the ERP, where it states that:

"Power to proceed if parties fail to attend

233. If, without good cause shown, a party to proceedings before the Tribunal or the Court fails to attend in person or by representation, the Tribunal or the Court may act as fully in the matter before it as if that party had duly attended or been represented."

3.2 This is further supplemented and prescribed under s238 (1) and (2) (a) of the ERP: that is, if further practice directions are sought pursuant to the Magistrates Court Rules. To that end, here, Order 30, Rule 3 will apply where it states that:-

"ORDER XXX – NON-ATTENDANCE OF PARTIES AT HEARING

Of defendant

3. If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant".

3.3 Since the Tribunal had provided ample opportunity to the Employer to make proper representation, their continued disinterest and non-appearance paved a way for the Labour Officer to be allowed by the Tribunal to have the matter adjudicated and determined on the merits of the claim by way of a formal proof claim.

3.4 The Labour Officer adduced evidence before the Tribunal by calling the grievor as the only witness to the case. The grievor testified on oath that:-

1. He was employed by Pacific Building Solutions (or "PBS") in March 2009 where he had first started worked in Laucala Island for the Employer. His last date of employment was 27th September 2011.
   
2. He told the Tribunal that PBS is a building/construction company that also engages in ship building. The company is located at Nukuwatu Street, Lami.
   
3. When he had started his employment, he did not sign a contract of service with the employer. He was paid a rate of $3.50 an hour and he worked 9 hours a day.
   
4. He further stated that he was employed as a block layer and then later he became a welder.
   
5. The Grievor stated that he got his employment at PBS through a friend that recommended him to someone by the name, Nicholas, who was the supervisor at the Company since the Grievor was a Class 3 tradesman welder.
   
6. The Grievor after beginning work at Laucala Island Resort, an Island off Vanua Levu where he did block layering in 2009, came to Suva and continued work for the Employer at Novotel Hotel, tasked to do block lining. Later the Grievor worked at the construction site at the Eye Centre located at Brown Street in Suva.
   
7. The Grievor stated that he was a welder whereby he welded beams together for the foundation of the building and he would work overtime for PBS but was never paid overtime wages.
   
8. The Grievor also worked on the construction of the RB Centre Point at Suvavou, Lami whereby he worked for hours in rain welding the beams for the building without safety gears. He stated that he was never given proper safety gears to use whilst working at the construction sites. The Grievor further stated that he would physically pull up the beams using ropes and also welded the beams in the rain without proper shelter.
   
9. The Grievor when questioned about the employer's reasons given for his summary dismissal, firmly denied the reasons outlined in the termination letter dated 26th September 2012, or Exhibit 1, which stated that:
   

"...It is with regret that we now inform you that your employment with Pacific Building Solutions ("PBS") as a Tradesman Class 3 is now terminated with effect immediately upon delivery of this notice to you for the following reason(s):-

• For willful disobedient to lawful orders given by PBS;
• For habitual or substantial neglect of your duties; and
• For continual or habitual absence from work without permission and without reasonable excuse".
  

10. The Grievor testified that he was never aware of the issues outlined in his termination letter until the date of his termination. He stated that the employer had never raised any of the issues that were stated in the termination letter during his two and half year service either through verbal or written warnings. The Grevior testified that on the day of his dismissal, he was just called into the main office and was told by one, Mr Isikeli Karikaritu to leave the premises instantly since he was terminated.
    
11. In fact, the grievor told the Tribunal that he was sick days before his termination and when he reported to work on the said date stated on the termination letter, he was terminated even though he had produced sick sheet. The sick sheet could not be produced before the Tribunal as the Grievor stated in his evidence that he had given this to the mediator during the mediation session.
    
12. The grievor with honesty admitted that on certain occasions he did not attend work as he would be sick due to the long hours of work performed for the Company where he would be required in most instance to put in hard, physical labour such as lifting heavy beams and bricks and welding beams in rainy weather without proper shelter and protective gear.
    
13. The Grievor testified that he has been unemployed since his summary dismissal on 26th September 2011 up-till the date of the hearing. He has not been able to find another employment since his termination from PBS who he had accused had tarnished his reputation, hence his inability to secure employment with other construction companies.
    
14. The Grievor told the Tribunal that he had a young family and was the sole bread winner.
    
15. He also stated that he was unfairly terminated by the employer for the allegations made against him which were never put to him or addressed during the period of his employment with the Company. He stated that he was merely given his termination letter and told to leave the premises instantly causing him grave humiliation and distress.
    

4.0 Final Determination of the Tribunal

4.1 Let me begin by stating that the onus in any employment grievance matter lies on the employer to disprove the claim of unfair dismissal as alleged by the grievor in this instance. Here, the employer had waived that right by not appearing on the day of hearing to defend the claim. Nor have they attempted to file any written submissions to assist this Tribunal why they took the steps to summarily dismiss the grievor under the law and/or a contract of service.

4.2 After a careful perusal and consideration of the grievor's evidence which in this instance stands uncontested, I can only conclude that the action of the employer was not only unreasonable, unjust and unfair but also one that is no doubt, wrong and unlawful. This is because there was no proper justification for "lawful cause" under s34 of the ERP to allow the employer to exercise and invoke s33 of the ERP for summary dismissal for all the reasons stated in the termination letter. The evidence of the grievor was quite consistent as he was adamant that he was dealt in an unfair manner by just being called one day by his employer into their main office, cited for breach of his (implied) contract of service with reasons obviously permissible under s33(1) (b),(d),and (e) of the ERP 2007 but not justifiable in this instance; and thus being told to instantly leave the workplace as he was allegedly terminated via summary dismissal.

4.3 The important point to note is that no employer exercises unfettered right to invoke section 33 of the ERP as was the stand of the Court of Appeal in the case of Shell Fiji Ltd v Johnson [2010] FJCA 54; ABU0012/2009 (23 September 2010) at paragraph 30 and 31 (and which was also upheld by the Supreme Court[1] at paragraphs 26 and 27). His Lordships, Byrne and Callanchini J have stated that:-

"The right of an employer to summarily dismiss an employee at common law has been modified in Fiji by statute. At the relevant time, section 28 of the Employment Act Cap 92 (now repealed) stated:

"28 An employer shall not dismiss an employee summarily except in the following circumstances:

(a) where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of service;

(b) for willful disobedience to lawful orders given by the employer;

(c) – (e)...."

In the same Court of Appeal case, his Lordships went further and stated that:

"In the absence of a more generous term in an employee's contract of service, the summary dismissal of an employee will be wrong if it is inconsistent with the provisions of section 28."

Here, the Lordships considered the case of Fiji Public Service Association and Satish Kumar –v- the Arbitration Tribunal and Another (unreported Civil Appeal No. 13 of 1999 delivered on 19 February 2002) where the Fiji Court of Appeal had said (approving the comments made by the judge at the first instance) at page 10:

"Section 28 provided that an employer should not dismiss an employee summarily except in the circumstances specified therein. .... His Lordship said that the section did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (e) applied. He added that if any of the paragraphs applied, the common law right continued and there was not statutory or other objection to that right being fettered by an agreement between the employer and its employees...."

(Underlining is my emphasis).

4.4 The employer, despite knowing the case was before the ERT and where they had made at least two appearances still showed no real interest to defend the claim when they were also put on notice regarding the formal proof hearing. While such defiance itself is contemptuous conduct on the part of the employer, however, this alone cannot hold the claim to be deemed unlawful and unfair in the absence of any defence or justification put forward by the employer to exonerate their role in the way the dismissal took place. That said, I cannot overlook that the employer, did not only fail to come to the aid of the Tribunal through their side of the story despite being given several opportunities but also their letter of termination is clearly failing to provide the facts pertaining to the allegations or reason(s) given to justify summary dismissal under the statute. Section 33(2) of the ERP along with s114 of the ERP entitles any grievor to be able to comprehend the actual facts and evidence that leads up to his/her dismissal, more so applies mandatorily at the critical time when a summary dismissal is exercised.

4.5 Clearly, the essential Good faith[2] element upon which a special working relationship is always built on requires that the employer provide clear reasons or "lawful cause" under s34 and where mutually agreed under s30 (4) of the ERP that would have caused the summary dismissal to take place. This was clearly missing in this grievance. This then made the grievance unlawful under an explicit statutory provision where the employer has evidently given grounds for summary dismissal as prescribed in the statute to merely justify invoking the law that is permissible to the Employer, but has obviously failed to justify "lawful" cause(s) by backing it up with the facts and evidence that would have led to the dismissal in terms of the employee's track record maintained by the employer. Thus, for purposes of s33, not just any cause or without a cause, a termination shall be deemed "lawful", the termination must pass the test of meeting the criterion for lawful cause on the standard of balance of probabilities in employment matters.

4.6 Additionally, of course, the grievance was aggravated because the termination was on-spot that had placed greater onus on the employer to exercise s33 of the ERP with caution and not arbitrarily. This had obviously left the grievor without any means of livelihood being terminated on-spot and/or without any compensation in lieu of notice at the time the grievor was sent home. Mr Tamani had disclosed to the Tribunal with quite distress apparent in his testimony that he is still without any employment and blames the employer for causing a dent to his reputation. He said that the actions of the employer had not only cost him his job with PBS due to this unfortunate and untimely exit without any valid cause or justification, but it has been difficult for him to find another job in the same industry given that his reputation has been tarnished. There seems to be some merit in this when the employer discharged the grievor's implied contract of service without a lawful cause whilst also falling foul of s30(6) of ERP by not providing a Certificate of Service.

4.7 It is then my final finding that the lawful cause to terminate was not established on the onus of proof placed on the employer, hence the termination is declared wrong and unlawful.

4.8 Following on, the main substantive claim of the grievor of that of his right to hearing in a summary dismissal case being denied, hence it was deemed to be unfair dismissal, is no doubt waived and regarded to be prerogative of the employer where summary dismissal is clearly proved and declared lawful and just [see: Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011]. However the distinguishing aspect of this particular grievance is that the employer had no lawful justification for summary dismissal (under s33 of the ERP) in the first place. This made the grievance in substance and procedure, both unlawful and unfair.

4.9 Here, I am not one to put too much emphasis on the "right to be heard" strictly speaking when the overall merits of the case demonstrated that the grievor was clearly distraught and shocked when he was called up suddenly by the Employer to vacate his workplace despite he said he had produced sick sheet for his absence from work the previous working day(s). There is no counter-evidence to dispute this. If, however, absenteeism was an issue of grave concern to the Employer, this reason was not proved to the Tribunal to justify lawful cause under s33 of the ERP. No attendance records or clear pattern of absenteeism was produced to the ERT. Neither were the other two grounds (s33(1)(b) and (d) ] proved to the Tribunal's satisfaction that was used by the Employer in an attempt to justify summary dismissal of Mr Tamani. In actual fact, there was no supporting facts or evidence to allow this ERT to find the justification in affirmative.

4.10 I am thus not satisfied that the employer had provided the grievor through the letter of termination comprehensible reasons as to why he was considered for summary dismissal under s33 of the ERP 2007 despite he had given almost two and half years of service without any adverse employment record to show lawful cause for summary dismissal.

4.0 Decision and Orders

Taking into consideration evidence adduced in the Tribunal, this ERT gives the following decision and orders:-

1. The allegation of unfair (summary) dismissal has merits and this Tribunal declares it both, unlawful and unfair, substantially and procedurally. The employer is ordered to reinstate the grievor to his position within 30 days of this judgment and further pay him compensation in terms of six months wages.
   
2. If the employer and grievor consent mutually to waive reinstatement, the grievor is then entitled to be paid compensation in terms of a round figure of $5,000.00 that he is entitled for his unlawful and unfair termination.
   
3. No cost is awarded to both parties.
   

Dated at Suva this 14th day of March, 2013.

Joshika Samujh
LEGAL TRIBUNAL

^[1] Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011).
^[2] I have noted the 1997 decision of the Supreme Court of Canada in Wallace v United Grain Growers Ltd., 1997 CanLII 332 (SCC); [1997] 3 S.C.R. 701 where the Court rejected judicial recognition of bad faith discharge either in contract or tort but injected into the employment relationship the requirement of “good faith conduct” at the time of termination, where in passing the Court spoke of “special relationship” which governs the parties to an employment relationship.