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Ram v Kidney Foundation of Fiji [2013] FJET 30; ERT 59.2011 (25 September 2013)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT No. 59 of 2011

BETWEEN:

REUBINA RAM
GRIEVOR

AND:

KIDNEY FOUNDATION OF FIJI
EMPLOYER

Appearances:

Mr Tofinga for the Grievor
Ms Rakai for the Employer

Date of Hearing: 5th & 17th October 2012
Date of Judgment: 25th September 2013

DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL

Employment Relations Grievance

[1] This grievance was registered with Ministry of Labour on 15th December 2010. Mediation was attempted on 16th February 2011 but was not successful. The mediator referred the grievance to the Employment Relations Tribunal (or “the ERT”) on 22nd February 2011 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:-

“That the decision by management to terminate the services of the griever which she claimed was unjustified and unfair”

Cause Before the Employment Relations Tribunal (or “the ERT”)

[2] When the matter was called before the Tribunal, the employer had elected to represent in person while the grievor was represented by Mr Tofinga. Directions for filing of Preliminary Submissions were given on 2nd April 2011 and it seems that the Employer, Kidney Foundation of Fiji (or “KFOF” or “the employer”) had filed their first Preliminary Submissions on 06th April 2011 followed by another one on 23rd April 2011 in form of a letter. Preliminary Submissions of the grievor in response to the employer’s submissions was filed on 12th April 2011.

[3] After a series of non-appearance by the employer, the first hearing date was set down by the Chief Tribunal for 15th August 2011 which was subsequently substituted for 22nd August 2011. Notices were sent to the parties by the Registrar of the ERT. On 22nd August 2011, the matter was called before me to hear the grievance. While the employer was present through the President of the KFOF, Mr Maharaj had alluded the Tribunal that he required another date for hearing as he was neither aware of the process before the ERT nor understood the procedure for tendering of evidence as he admitted he was confused with the mediation process. Mr Tofinga had strongly objected to the vacation of the hearing and had sought cost of $300.00 if this was to be considered by the Tribunal. He had rightly pointed out to the Tribunal that there were various non-appearances by the employer and that they were warned to get proper legal advice and representation by the Tribunal. He further stated that the fact that one of the Board members of KFOF was a legal practitioner, the employer should not have had any difficultly in preparing for the hearing.

[4] In view of the prevailing arguments, the Tribunal had allowed for the vacation of the hearing date subject to cost being paid to the grievor. Mr Maharaj was further ordered to seek proper legal advice and take a hearing date as soon as possible. When finally the employer had secured legal representation, they had sought time to file proper Preliminary Submissions which they did on 31st October 2011. Hereafter, the parties had sought additional time to initiate settlement talks failing which, on 31st July 2012, the Tribunal had fixed a final hearing date for 4th and 5th October 2012. The hearing proceeded on 5th October 2012 as the employer’s counsel was only available on this day and thereafter completed on the 17th October 2012. On that day, the employer had called three witnesses, while the grievor also called three witnesses. Upon conclusion of the hearing, the parties were given time to file their closing submissions, although neither filed any.

Background to the Claim

[5] Before I get into the evidence of the hearing-proper, I want to briefly lay out the claim of the grievor. Ms Ram’s claim pertains to an employment grievance. She has submitted that this grievance concerns wrongful and unfair termination. According to her preliminary submissions:

1. She was initially employed by the KFOF as Secretary/Administrator effective from 8th August 2008.
   
2. She has asserted that her contracted term of service was from 8th August 2008 to 8th June 2010 and subject to a written Employment Contract between herself and the employer.
   
3. She has further claimed that this contract could be terminated under the following conditions:-
   
   • Non-renewal by the Board upon Sixty (60) days written notice;
   • Termination by either party, upon Sixty (60) days written notice; and
   • By mutual agreement by the parties.
     
4. The grievor goes onto claim that sixty days before 8th June 2010, no written notice of non- renewal of contract was issued to her by the employer. In the interim, on 1st October 2010, the grievor was granted an additional salary increase of $1000.00 per annum. This brought her total salaried package from $24,000.00 to $25,000.00.
   
5. On 7th December 2010, the employer had terminated the Grievor’s employment by way of a written notice of even date. She was paid one month’s pay in advance, one week annual leave and one week pay.
   
6. The Grievor had noted that the decision to terminate her was with cause and she submitted that the cause contained and described in the Employer’s submission was unjustified. The Grievor submitted to the Tribunal that the employer had terminated her employment in breach of her contract and the ERP 2007. The Grievor also submitted that her termination was unfair and unjustified.
   
7. The Grievor is hence, seeking in terms of remedies, immediate reinstatement without any loss of salary or alternatively to be reimbursed the equivalent of the remainder of her contract (i.e. 18 months) together with all outstanding dues and benefits. She also seeks compensation for loss of dignity, distress of mind and humiliation.
   

[6] In counter-response, through the Preliminary Submissions, in particular submissions filed on 31st October 2011, the employer had admitted that the grievor was terminated on 7th December 2010 with one month’s advance pay, one week annual leave and one week’s wages. They did this through a termination letter dated 7th December 2010.

[7] The employer’s reasons (or cause) for terminating the grievor were manifold. First, they had maintained throughout the proceedings that the grievor had acted contrary to the policies of the Employer: she was alleged to have discharged confidential documents and written defamatory letters against the employer’s Chairman and the Board. The employer had justified that they had allowed the grievor an opportunity to explain as to why she had acted contrary to the policies of the employer, however the grievor was not able to give any satisfactory explanation. The employer thus viewed this to be a serious and gross misconduct of the grievor. Second, the employer was concerned with the grievor bypassing the Board of the Employer. It was alleged that in early 2010, while the employer’s Chairman was away overseas, the grievor on her own accord had drafted a wage increase spreadsheet demanding 40% wage increase for her husband and herself which was again viewed as a serious misconduct on the part of the grievor. The third nature of allegations had to do with the Grievor drawing up her Employment Contract. According to the employer there was no contract between the parties and if there was any, as was attached to the Employee’s submissions, it was maintained by the employer that this must have been prepared by the Employee herself given her administration officer position with the Employer. The Employer maintained that they had no knowledge of the existence of any such contract of service. The fourth nature of the allegations was clarified during the trial which was in regards to certain monies pertaining to staff wages/entitlements being misplaced or stolen under the supervision of the grievor and for which the employer had also lodged a police complaint when it was not found or replaced by the grievor.

[8] Accordingly, the employer had justified that in dismissing Ms Ram summarily, they had acted reasonably and lawfully in order to maintain the integrity of the Employer’s name and reputation. The Employer had maintained that they were a non-profit Charitable Trust Organisation which had started its operations on 1st March 2008. The grievor was a retired person and had come as a volunteer for charitable work as she had wished to help the KFOF in its operations and work. In effect, the grievor had joined the employer on 1st August 2008 in the Administration Department. She then had requested the employer if she could be paid some allowance due to the high cost of living. She also got her husband Mr. John Ram involved with the KFOF. The employer submitted that from 15th August 2008 they had paid Ms Ram a sum of $461.55 on a fortnightly basis.

[9] On 7th December 2010 the Employer had written to the grievor advising that her services were no longer required, effective from that day where, she was paid one month’s advance pay with annual leave and one week’s wages. In their view of the serious and gross misconduct by the grievor, the Employer had justified that they had acted reasonably and lawfully to dismiss the grievor. They had submitted the Supreme Court Judgment of Yashni Kant -v- Central Manufacturing Co. Limited to justify that the employee was treated fairly and was terminated according to the law.

Evidence of the Employer

[10] The Employer had called three witnesses:- their oral evidence is summarized as follows:-

Employer’s Witness One: Mr. Dewan Chand Maharaj

In Examination-in chief, the witness told the Tribunal that he was the founder of the KFOF which was registered as a charitable trust. It has five active members with the following patrons: Ratu Joni Madraiwiwi, the President; Dewan Chand Maharaj, the Vice President; Daven Sharma, Dr. B.P. Ram and Dr. Joji Malani, the members; and Bernadette Ganilau, the Secretary of the Board. The witness has a daily routine to check operational matters such as funding, staffing matters and resource allocation such as checking that medicine is in place. For this, he has to visit KFOF on everyday basis.

In terms of the claim by Ms Ram, he confirmed that he was aware of the grievor’s matter, where he stated the following:-

• In 2008 he was introduced to the grievor by their Board Secretary Mrs. Ganilau who had told him that there was a retired couple and that they are willing to come and support the dialysis centre. The witness then took in Ms Ram who had come in as volunteer to assist the employer where he testified that he had discussion as to the duties Ms Ram was to perform for the Foundation. He said that the Foundation had developed a small office within the CWM hospital, where Ms. Ram’s function was to manage patients and receive payments collectively with a receptionist called Sonal. Sonal would receive the money and pass it on to Ms. Ram who was to check the payments and arrange for banking. She was also given a car by the employer to conduct her duties.
  
• According to the witness, Ms Ram had only two main duties: go to the bank, check mails at the post office and then return to the Foundation. There was no other job. As to whether Ms Ram was paid any monies for her work as a volunteer, the witness stated, “Yes”. He said that he had a meeting with Ms Ram and told her that she would be given $7000.00 (annually) which he stated was roughly $550.00 per month. Ms Ram had agreed to this and had began her work around 8thAugust 2008.
  
• When asked about Ms Ram’s claim that she alleges that she has an employment grievance as to not been treated fairly and that the Foundation was wrong to have terminated her on the 7th of December 2010, the witness stated that the whole issue of dispute started when Ms Ram continuously told him that she was underpaid and wanted more pay including for her husband. He had told Ms Ram that they could not pay the salary she was seeking. The witness presented an email dated 6th October 2010 (marked as Exhibit 3) where increase in salary was sought by the grievor. Through the email, one of the board members had responded that while the witness was out of the country, Mrs. Ram had attempted to access some of the private and confidential documents of the board meetings including the bank statements as the grievor was privy to this by virtue of being a signatory to the account. The witness clarified that this was one reason the Board was not very keen to increase the grievor’s salary.
  
• The witness, however stated that the Board had agreed to pay $15,000 although they had asked him to look for somebody else who would be happy to work for the salary the Foundation could afford. He said that he had notified Ms Ram of this. Following this he had placed an advert in the newspaper (marked as Exhibit 6), which he said was two months prior to Ms Ram’s dismissal. He had conducted an interview where the new appointee was hired to understudy Ms Ram. He had informed Mrs. Ram that the new appointee would understudy her for a month after which she could leave if that was her wish. He said this was the arrangement he had personally seen to.
  
• He further stated that other work was done through the staff and the nurses at the dialysis centre. Ms Ram’s job was purely administrative in nature such as to prepare and pay salary and bank the money received from patients. He said that prior to the grievor’s termination, when he had gone to New Zealand and returned he was told by one of his staff that they had worked for two weeks but were not paid their overtime allowance which was the transport and meal allowance. This was despite a cheque was written and money was drawn for $237.00. This remittance voucher was marked as Exhibit 1. When the witness had asked Ms Ram regarding this complaint, she had told him that she would pay them. However, when he met the staff again after two days, he was informed that they were still not paid. This is when Ms Ram had told him that the money had gone missing. She further told him that she would only pay up half of the missing money as the other half should be paid by the new appointee or understudy.
  
• When asked why the grievor had offered to pay half of the missing money, the witness told the Tribunal that at this stage, Ms Ram had become a bit rowdy and thus he had calmly told Ms Ram that “...Reubina, I like the staff to be paid. Now I warn you, if this thing is not paid I will hand you to the police...”. He then stated that Ms Ram pleaded with him not to involve the police although she did not make any attempts to pay up.
  
• Subsequently, he called a Board meeting where he was given a go-ahead by Dr. Joji Malani to terminate Ms Ram on spot through a termination letter, which was tendered and marked as Exhibit 2. The witness testified that they had paid one month’s advance pay, ten days leave which was already paid but this was paid again with ten days sick leave. He confirmed that Mrs. Ram was paid a sum total of $1594.00 on 7th of December 2010 and the remittance advice was marked as Exhibit 5.
  
• He also stated that he had asked Ms Ram that he would like to meet her at two o’clock at the Kidney Foundation. However she had gone out for lunch at twelve o’clock and did not return until 3:30pm. When she had returned to office, the witness stated that Ms Ram’s things were given to a nursing staff to pass onto her where she was advised not to enter the office. This was effectively her termination process.
  
• In his attempt to explain the overall reasons for Ms Ram’s termination, the witness had stated that when Mrs. Ram had told him that her husband was not going to work at KFOF anymore and that she was not happy with the salary she was receiving, he had thought it was all coming to an end. This is when he had placed an advert in the newspaper where he had told Ms Ram that he was looking for a replacement. He said as soon as he was to get the right person she could go. Following this when he enquired about the missing $237.00 he said Ms Ram swore and uttered in Hindi a lot of silly things to the new appointee. The witness clarified from his end that this was the “wrong” done by the grievor that was perceived by the employer to justify her termination. He further stated that he had started to receive complaints from the staff as to Mrs. Ram’s conduct, where the nurses were not happy with her as they were not prepared to take instructions from her who was an administrator. In nutshell, he confirmed that Mrs Ram had been causing difficulty for the staff, had been asking for increase in her salary and also had not paid the staff their allowance despite drawing $237.00. He said that she has not come back to pay either $237.00 or half of that and the matter is now before the police for investigation. Exhibit 4 was tendered in evidence which was the police report provided by FIJI POLICE.
  
• When asked to clarify Ms Ram providing an unsigned copy of an employment contract that had the letterhead of the Kidney Foundation of Fiji in her bundle of documents, the witness stated that there was never a contract for the nurses or for the volunteers. He had never given a written contract to Ms Ram.
  

In cross-examination, he had testified that:-

• He had heard Ms. Ram swearing at the office boy (Pusp Chand) in a low voice and that she had been very harsh to the nine staff, predominantly the eight nurses. He had verbally explained to Ms Ram what the staff had complained of by sitting her down and talking through the issues. He said that he had told Ms Ram that “Please, they are qualified people and you don’t go and tell them what to do....”
  
• As to allegations against Ms Ram for leaking confidential information as per the Employer’s Preliminary Submissions dated 7th April 2011 (marked as Exhibit 8), when asked which organizations she did this to, he explained that when Ms Ram had made her submission for increase in her salary she had given information to the members outside the Foundation including sending a letter to the Ministry of Health.
  
• When asked what was the nature of the confidential information that was leaked, he responded that it was the information pertaining to the financial statements of the Foundation, that is, the amount of money that was in the bank that was leaked by the grievor.
  
• He confirmed that Ms Ram earned $14,000 and also confirmed that her husband, Mr. Ram had made an offer to be employed at the salary rate of $30,000 which the Board had refused. He maintained that both Mr and Mrs Ram came in as volunteer initially. Mrs. Ram was paid $7000 (per year) as a volunteer, and this was gradually increased when the Foundation’s financial position had improved. He confirmed that there was no written contract of service. The witness also denied signing in the presence of Mrs. Ganilau the attached agreement, or the contract of employment. When shown Exhibit 7, an email excerpt that was not clear in terms of the date and which alluded to a contract of service, the witness denied having knowledge of the same. Even when Mr Tofinga paused that “Mrs. Ram will say that this document was signed by you and her and ... that there was only one copy that was signed and it was kept in the office file. How say you””, the witness had responded” “No”. The Tribunal had noted that no signed copy of the contract was tendered in evidence – an unsigned contract was marked as Exhibit 13.
  
• The witness consistently maintained that Ms Ram had come as a volunteer but later he had given her the position of secretary/administrator. She was working at the time but there was no formal written contract. He was then referred to Exhibit 6 – a job vacancy advertisement placed by the President of KFOF in the newspaper with all applications to be received by 30th June 2008 for the position “secretary/administrator”. The witness confirmed placing this advert although he denied that he had received the grievor’s application with her CV enclosed therein dated 21st June 2008 as part of the same Exhibit. The witness though confirmed that Ms Ram had filled in this position and had a business card. He did this by stating that “...by the time she came in, she started to work and she applied for that position that she wanted to be employed and we brought her in... And she started with some salary in the beginning...”
  
• The witness was then put a series of questions in terms legal establishment and standing of the KFOF as a charitable trust. This was later put to rest by the counsel of the employer through submission of relevant documents, in particular through registration papers.
  
• He was then probed about the reasons for termination. The witness confirmed that the missing money of $237.00 which was reported to the police was the main cause of the grievor’s termination. He also stated that Ms Ram misbehaving and swearing in his presence added to this cause where the Board had given him instructions to let her go. When asked whether he had given an opportunity to the grievor to be heard on all these allegations, he responded that two months before she was terminated, she was notified as to the Board’s decision to bring in a replacement as they could not afford her demands for salary increase. But he confirmed that there were no disciplinary procedures.
  
• When asked why he paid her one month advance pay, the witness replied that he has employed about two hundred and fifty people in four different companies where the trend is to pay in this manner which the Board had agreed to. He confirmed that the decision was not based on any agreement or any contract.
  
• He was then shown a letter dated 1st October 2010 attached to the grievor’s Preliminary Submissions where he confirmed that the letter contained his signature. This was marked as Exhibit 17.
  

In re-examination, he testified that:-

• He was not aware of Exhibit 7, the email excerpt. He also confirmed that there was never a contract of service nor it was ever signed or maintained at the office. He maintained that Mrs. Ram was terminated because she did not pay the workers the sum of $237. He said he had given Mrs Ram an opportunity to pay which is still not paid to date.
  

Employer’s Witness Two: Mr. Pushp Chand

In Examination-in chief, this witness stated that he is currently the Administrator of the Kidney Foundation. He resumed his duties effective from 3rd November, 2010. He had first joined in as an Administration Officer until when he was promoted to the Administrator position. His duties concerned banking, correspondence, cost analysis, preparing financials and attending meetings as directed by the Chairman. In terms of the grievance matter, he stated the following:-

• He was familiar with Mrs. Reubina Ram as she was his superior when he was understudying her for the Administrator’s job. He confirmed that he had worked with the grievor as an understudy for one month where he stated that the duties remained same.
  
• He said that there were a few issues which were directly related to him as he was also entrusted to the case, being the person in carriage of this matter at the Kidney Foundation office. He further stated that when Ms Ram had complained that on the 7th of December 2010 she was unfairly terminated by the Foundation, he was employed by the Foundation and was at work on that day. He related that on that day, the Chairman had come and had asked her to explain about the meal allowance that had gone missing. The Chairman had asked Ms Ram if she could remit the payments to the staff where he had given an ultimatum that by 1 o’clock the payments should be remitted to the staff. If done, then the matter was not going to be reported to the police. When the Chairman returned, the witness told the Tribunal that Ms Ram had refused to pay the staff their meal allowance. This was when the Chairman had called the board members for a meeting and that was the time they had terminated her.
  
• When asked to explain what was confirmed by the first witness, Mr. Maharaj that he had asked Mrs. Ram to explain herself, where she had informed him that she should only pay half and that Mr Chand to pay the other half, the witness stated that the incident was true.
  
• He further stated that the grievor was the responsible person for such transaction and he, being a new appointee, the Chairman had asked Ms Ram for accountability but she had declined.
  
• He said that apart from Mr. Maharaj becoming aware of the fact that some of the employees were complaining for not being paid their monies, he also received complaints in relation to this issue. He said when the cash was brought into the office two of the staff had directly questioned him about payment of their meal allowance.
  
• He had told these staff that Mrs. Reubina Ram was the Administrator and he would have to consult her first before he could distribute the money. He explained that the remittance advice and cheque was written on Tuesday but cashed on Wednesday. He had given the cash to Mrs. Ram who told him that she had given the staff their wages but the allowance would be paid on Friday. He said that he had consulted Ms Ram on two occasions and had asked her to disperse the payment: on the second time, she had stated: “Who are you? You have to listen to me because you are my junior staff. I’m your boss..” He said apart from this, she gave no other reasons for holding onto the money.
  
• He said that in terms of the procedures, once the cheque is cashed from the bank, the office policy is that it should be paid immediately. This excludes petty cash. He further stated that before Mr. Maharaj had left for New Zealand, he had consulted both, Mrs Ram and himself where he had made it clear that only the money for the petty cash could be kept in the office while all other money should be dispersed immediately. He said the money is locked in a drawer and only Mrs. Ram had access at that the time. He said as the Administrator, had later written a report in relation to what had transpired. This was tendered and marked as Exhibit 9.
  
• He also confirmed that the Foundation gives signed contracts to staff although no contracts are given to volunteers.
  

In cross-examination, he testified that:-

• He did not believe that he should have paid half of the missing money. Mr Tofinga had shown him a sample wages slip (marked as Exhibit 10) and this was objected by the counsel as she had rightly pointed out that it lacked official markings of the employer with no stamp or letterhead. This was also not given to the employer for verification process prior to the hearing.
  

In re-examination, he testified that:-

• The job application prior to joining the Kidney Foundation was for Administration Officer. He said that when he had started with the Kidney Foundation, he was told that he was going to understudy Mrs. Ram for that position.
  

Employer’s Witness Three - Mr. Satendra Kumar Sharma

In examination-in-chief, he testified that:-

• He was employed by KFOF as staff nurse for 3 years. His main duty is to attend his patients. He recalled Mrs. Reubina Ram where he confirmed in 2010, Ms Ram paying out salary and/or overtime allowance to the staff. He had stated that in December 2010 he had worked overtime but due to some problem the staff was not paid. He confirmed that he told Mr. Maharaj in early December 2010 that the meal and transport allowance was not paid. He said he had enquired with Pushp Chand but not Mrs. Ram.
  

In cross-examination, he testified that:-

• Mrs. Ram did not have any role in supervising the nurses.
  
• He said between September 2009 and December 2010, Mrs. Ram never growled at him or talked harshly to him. He however said that some of the nurses were complaining about her, specifically sister Sereima was saying she was not on good terms with Mrs Ram as whenever Sereima had asked for something from Mrs. Ram, she would refuse her.
  

This was the evidence of the employer.

Evidence of the Grievor

[11] From the Grievor’s side, three witnesses gave sworn testimony where the summary follows:-

Grievor’s Witness One: Mrs Bernadette Rounds-Ganilau

In Examination-in chief, the witness had stated that:-

• She was an Honorary Secretary for the Kidney Foundation almost since its inception.
  
• When shown the grievor’s bundle of documents; first a letter dated the 27th of March 1997 on a Pacific Conference of Churches letterhead with her signature at the bottom, she had confirmed that this was her signature – this was tendered and marked as Exhibit 11.
  
• Then she was questioned in regards to the advert placed in daily newspaper dated 21 June 2008 which she had confirmed was within her knowledge. This was tendered and marked as Exhibit 12.
  
• Then she confirmed that she was the author of the email marked as Exhibit 7.
  

In cross-examination, she testified that:

• In relation to the email dated 30th July 2008, which she had confirmed she had written, and which document seemed to be at the heart of the dispute, she explained that she had access to this email: kidney@connect.com.fj. She confirmed that she being a voluntary secretary at the time, everything was copied and given to Mr. Maharaj and the recipient was Reubina.
  
• When asked to explain that Mr. Maharaj tried to deal with the issue about the contract as to why there was no signed copy with the Kidney Foundation or with Mrs. Ram, she stated that it took quite long, more than a year for any of the employees to sign their contracts because they always wanted changes to the document. She stated that Mrs Ram was aware of this.
  
• She also confirmed that she had drafted the document in transition as a non-legal person but this was an ongoing process and there was no satisfaction within this document. If ever signed, the only signatories to the contract would have been Mr. Dewan Maharaj and Mrs. Reubina Ram.
  
• She further testified that she wondered where the phantom signed document was. She stated that since Mrs. Reubina Ram was privy to the confidential information that was in the Foundation's files, she no doubt would have looked up to see that there was no contract.
  
• She said if it was her, she would have automatically ensured that she had a signed contract. She considered this sad that they were now looking for a signed contract when during the term of employment nothing was sought or clarified or confirmed. She said she had asked Mr. Ram to give her a copy of the signed contract but to her mind she was not sure whether it existed.
  

Grievor's Witness Two: Mr. William Grainger

This witness was called to give evidence on the character of the grievor where he read out a letter stating that he has known Mrs. Reubina Ram for almost twenty-five years. He further stated that he has closely worked with Ms Ram where he had found her to be very sincere, dedicated and truthful to any task that has been assigned to her.

Grievor's Witness Three: Mrs. Reubina Ram

The witness was the grievor herself who stated the following in examination-in-chief: that:-

• She was employed by Kidney Foundation where she had started work on 4th August 2008.
  
• When shown Exhibit 6 – an advertisement that had appeared in "The Fiji Times", she confirmed that the next page was her application she had sent to the employer detailing her job description.
  
• When shown Exhibit 7, she responded that this was a document sent to her via an email by Mrs. Bernadette Ganilau asking her to come and sign her contract on Friday. She stated that the email had an attachment which was the contract containing her job description therein. When shown a copy of the document referred to, she had identified the grievor's document marked as "A" in the preliminary submissions. The contract was tendered and marked as Exhibit 13.
  
• She stated that this was her employment contract with Kidney Foundation. When asked whether she had signed the contract, she then stated that she did sign the document but didn't have a copy for herself. As to whether anyone from the Kidney Foundation had counter-signed the contract she had stated that Mr. Maharaj had called her to come and sign on Friday which she said she did along with Mr Maharaj. She said that the first copy was left with Mr. Maharaj.
  
• When asked to respond to Mr Maharaj's assertion that she was a volunteer, she stated that she was not a volunteer worker. She was a contracted worker employed by Kidney Foundation and she had her salary slips to prove it. She then tendered in evidence at least 60 pay-slips marked as Exhibit 14 and a bundle of envelopes (about 59) marked as Exhibit 15. Ms Rakai had alluded the Tribunal to record her objection that these documents were not given to her earlier nor verified with the office records.
  
• When asked about the incident concerning when Mr. Maharaj had drawn the Tribunal's attention to money missing from the drawer, the witness explained that she was given the money for meal and transport allowance for the staff on Wednesday. She said that on Thursday she had discovered that the drawer was broken by the person who took over from her at that time. She then wrote an incident report to Mr Maharaj (this was not produced to the Tribunal).
  
• Ms Ram explained that Friday was a normal pay day, so when she could not pay the staff it was reported to the President who was away at that time. She said the blame was pointed to her for $237.00.
  
• When asked to explain why she offered to pay only half of the missing money, she responded that since she was the person who was responsible for the money and there were two people who were holding keys to the office, the responsibility should have been shared. She said that the money had gone missing when she was absent from the office. Prior to that the money was in the office. In her incident report to Mr. Maharaj she said she was willing to pay half and Pusp Chand, the understudy was to pay the other half since both staff were responsible in the office. She said it was it was common knowledge that the drawer was unlocked as the key was broken and never been fixed.
  
• As to Mr. Maharaj's claims that the witness was very harsh with all the employees, she stated that as an Administrator, if she were to find that the company resources were not used properly, or there was something that was is not done in accordance with the policy and the rules and regulations, she told the staff to comply. But she never used coarse language or sworn to her superiors or to her fellow workers.
  
• When asked whether she had said derogative words in Hindi to her subordinate Mr. Pusp, she stated that this was not true as she used to have lunch together. They were good friends and that she had taught him everything that was needed to be known. She confirmed that Mr Pushp came in November and the witness was terminated in December but before she was terminated, she had trained and made Mr. Pusp familiar with the systems put in place by herself.
  
• As to what happened in the last few days before she exited the Kidney Foundation, the witness stated that she had put a proposal to the Board after the expiry of her two year contract. When she had first joined the Kidney Foundation, she agreed to work for $12,000 salary at the time on the basis that once the financial situation of the Foundation would have improved it would be reviewed. So when her contract came to an end and when she gave a proposal, not a demand, she said that Mr Maharaj did not like her report to the Board members. Here, she had exposed the funds in tune of $1.5 million in the Foundation's account. Thereafter, Mr Maharaj put an advertisement in the paper to replace her because he did not want to pay her what she was seeking under the new contract.
  
• When asked whether after she had made a proposal, there was a response, she stated "yes". She tendered in evidence a letter dated 1st October 2010 marked as Exhibit 17. She had received an increase with all her benefits recorded and she stated that she was quite happy with what was offered. She further said it was not what she had proposed but she was quite happy until she got terminated.
  
• When shown her termination letter, she confirmed receiving it. She also confirmed receiving all her final dues stated therein. She stated that she never thought that she would be dismissed.
  

The witness in cross-examination testified that:-

• She had prepared contracts for the Foundation and had access to information that was held by the employer.
  
• This included giving the Board certain financial information as she had presented in her proposal. She said she gave in her administration report every month a report as to the expenditure made and how much money was in the bank within a balance sheet.
  
• When paused by Ms Rakai that the issue here pertains to whether Kidney Foundation had followed proper procedures in terminating her in relation to the monies that had gone missing she was reminded that she had stated that the key to the drawer was broken and that it had been broken for some time. When asked to explain why she had not fixed the broken key for safekeeping of all money in her custody, she had stated that she had reported this to Mr Maharaj.
  
• When asked to explain the incident report she had mentioned, she had stated this was more in relation to the missing money and not so much on the drawer where the money was usually kept.
  
• When asked if she was banking daily, hence why these monies were not paid out immediately after it was cashed from the bank, she responded that she normally paid workers on Friday. That was the procedure that she had been using for the last two years. But when asked if she had exercised her discretion on that day to not pay out the workers, their $237.00 she confirmed this to be true. She further confirmed that she had sought to pay half when Mr Maharaj asked her although she has not paid to date.
  
• When it was put to her that the sole reason she was terminated on the 7th December is because of the missing money, she stated that she offered to pay half but employer rejected this.
  
• This is when Ms Rakai reminded her that she knew in advance that her daughter's graduation was on Friday, for which she was going to be absent from work and she still had in her discretion decided not pay the staff when the money was cashed and further when she was given an ultimatum by her employer to deal with the issue about the monies but she had refused to pay, she had no answer.
  
• She however said the employer did not write in the termination letter the reasons for her termination. When asked to respond that she had told the Tribunal that she had never anticipated being terminated on 7th of December or never saw it coming, she was pointed to the post that was advertised in the newspaper. She clarified that the post was advertised to relieve her husband and was told that somebody would understudy her as an Admin Assistant. The new incumbent was not to replace her. When referred to pay slips produced by the grievor she was asked to explain the gross annual salary stated therein for $10,588.00, when in her preliminary submissions at paragraph 2.5, she had stated that her salary was increased from $24,000 to $25,000, she said this was a typos. Same was raised in terms of Exhibit 17, a letter from the President that increased her salary with benefits in terms of a car in tune of $10,000.00, again she said this was an error in the pay slip. She later clarified that added together her total salary package was about $25,000.00
  
• As to the signed contract of service she had confirmed that it truly existed. She was then paused the question how was it that neither the employer nor she had a signed copy despite she had access to information as the Administrator. She continued to say that she had signed a contract in the presence of Mr. Maharaj and thus she was not a volunteer as she had worked as a contract staff for two years and four months with the Foundation.
  

This was the evidence of the grievor.
Final Determination

[12] An "employment grievance" is defined in the ERP (s4) to be:-

"...a grievance that a worker, may have against the worker's employer or former employer because of the worker's claim that—

(a) the worker has been dismissed;

(b) the worker's employment, or one or more conditions of it, is or are affected to the worker's disadvantage by some unjustifiable action by the employer;

(c) the worker has been discriminated within the terms of Part 9;

(d) the worker has been sexually harassed in the worker's employment within the terms of section 76; or

(e) the worker has been subject to duress in the worker's employment in relation to membership or non-membership of a union"

(Bold is my emphasis applying to this instance)

[13] For any employment grievance to prevail, there first, must be an employer and employee (or worker) relationship established. There were some issues raised by the employer that the grievor in this case was a mere volunteer with no written contract of service binding the parties. Let me look at the definition of what constitutes an employee or worker. It seems only the word "worker" is defined under s 4 of the ERP to mean "a person who is employed under a contract of service, and includes an apprentice, learner, domestic worker, part-time worker or casual worker".

[14] Employment relationships albeit with a volunteer, where the grievor in this instance had received a payment for her service within a period of two and four months (undisputed fact) is captured by the definition. As always, the basis of employment relationship is substantiated through a contract of service. Indeed, the first point of reference for termination or dismissal on the premise of good faith relationship (see: the decision of the Supreme Court of Canada in Wallace v United Grain Growers Ltd., 1997 CanLII 332 (SCC); [1997] 3 S.C.R. 701) is always the contract of service between the parties. In the statute, this goes to the definition of an employment; employer; and worker in the ERP which all make reference to 'contract of service' being a basis of an employment. A contract of service is defined as: "...a written or oral contract, whether expressed or implied, to employ or to serve as a worker for fixed or indefinite period..." (Underlining is my emphasis).

[15] Thus, putting to rest whether or not the grievor has an employment grievance in this case is established even if she was regarded to be a volunteer with no written contract of service signed between the parties. Contract of service is clearly both, oral and written arrangement where section 23 of the ERP further confirms this position. Here, the grievor had adduced an unsigned copy of the document which she had deemed to be the written contract of service. The employer had strongly rejected this on the basis that there was never one executed and signed between the parties. Hence, the employer further objected how the grievor had conjured one for the purpose of this grievance matter.

[16] To resolve this issue, the grievor had subpoenaed her first witness, Mrs Bernadette Rounds-Ganilau, who was the Board secretary and who had introduced Ms Ram to the employer, and who further had been called to give evidence as to how the said document (Exhibit 13) came into being. The witness confirmed during her testimony that "... to her mind she was not sure whether it existed...". Keeping in mind that the rules of evidence is not strict under s231 of the ERP, I have to say that since the grievor did not produce any signed copy when she was solely handling administrative matters for the employer since its inception where she had admitted having access to such information and where she could have easily secured for herself a copy, in fairness to all parties, I cannot give probative value in its entirety to Exhibit 13. I, however, find that despite the contract may not have been signed and executed for reasons explained by the employer, there still existed an implied contract of service between the parties. To what extent, I will determine this very shortly. I add here though that the responsibility squarely lied on the employer to ensure that there was a written contract of service under section 37 of the ERP.

[17] The second most vital component to any employment grievance is employer's justification or reasons or cause(s) for termination and the termination method used to effect the dismissal of the worker. Here, I am in doubt that it was a summary dismissal with cause as per the letter of termination dated 7th December 2010 (Exhibit 2). In that letter it was stated that:-

"...This is to advice you that your services are no longer required effective as of today. Please find enclosed a cheque containing the amount of 1 month advance pay, 1 week Annual leave pay and 1 week wages. You are hereby relieved of your duties effectively"

[18] The letter was somewhat challenged by Mr Tofinga in terms of the President, Mr Dewan Maharaj having no authority to fire Ms Ram. I did not see this as a critical issue where this matter is concerned. It was established that the employer was a charitable trust organization where Mr Maharaj was at the behest of the decision-making relating to all aspects of running the organization on the advice and authority of the Board. Naturally then, it extended to procurement and termination of anyone employed by the organization. I also think it is fit to mention here that how the organization was set up and its legal standing really had no bearing on the terms of reference for this grievance case. If the grievor had felt that there were certain issues as to the employer's legal establishment under the law being either peculiar or irregular, I believe she would not have engaged herself from the start and remained there for at least two years, in whatever capacity. To me, Mr Maharaj's standing to pen out a termination letter was neither improper nor unauthorized as he gave evidence that it was after consultation of the Board that he had considered the termination of the grievor. Whether or not he had lawful reasons to terminate Ms Ram on-spot and whether it was procedurally fair or not, is another question. This must meet the minimum statutory criterion set down under section 33 of the ERP before any termination can be regarded as lawful and fair.

[19] Further, I want to comment that whilst I have accepted that there was no written contract of service between the parties when the employer had effected summary dismissal, it seems it was done through payment in lieu of notice in terms of one month's advance pay and one week's wages. The one week annual pay was the grievor's entitlement and right under s34 of the ERP.

[20] Your Ladyship, Justice Wati in the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011 had looked at how contract of service can be interpreted in view of termination methods. Here, the Court had pronounced that there were two mutually exclusive dismissal regimes in the worker's employment contract where dismissal could occur either by a week's notice or payment in lieu, or summary dismissal for serious misconduct without notice or payment in lieu. Additionally, the Court had noted that the employer was entitled to dismiss summarily for gross misconduct pursuant to s33 of the ERP (as per Respondent's Submission at page 5). The Court went onto say and I quote for quote:-

"...Indisputably the termination clause permits termination without cause....and also for summary dismissal, without notice for serious misconduct. Once the employer made serious misconduct the basis of termination, it is then correct for the Tribunal to make a finding as to whether the cause for termination was established by the employer as the onus to establish the ground is always on the employer. When the Tribunal made a finding that the lawful cause to terminate was not established, the termination became wrong and unlawful. The employer cannot then go back and rely on its giving of one week's wages in lieu of notice to say that it relied on the termination clause. That clause could only be relied on, if termination was done "without cause". In this case, the termination was for a cause and I no better way to put it than Mr. Rae has that in circumstances of this "there could not be a hybrid or combination of termination methods..."

[21] Notwithstanding this case authority as a leading one, the ERP 2007 gives further clarification. For instance a "dismissal" under the ERP means "any termination of employment by an employer including those under section 33" (my emphasis). In terms of the method for termination, in this case I do not see a problem. The employer is entitled under the statute to send the grievor home for summary dismissal under section 33. In turn, section 29 lays out the notice period when there is absence of specific agreement between the parties. When a written contract of service caters for termination clause then parties are duly bound as Isoa's case has pronounced. But here the one month's advance payment plus an additional week's pay was a fair response of the employer by any standards, as they could have chosen not to give more than what was due to Ms Ram up to the time of dismissal as per section 34 of the ERP. This is a significant determinant factor in deciding the fairness of the termination process (or the manner in which the grievor was treated at the time of her dismissal). The employer had evidently chosen not deprive the grievor a short-tem source of livelihood by putting her on adequate notice (one month's pay is equivalent to one month's notice) that she had no further employment despite it was summary dismissal from their perspective. This cannot be considered a hybrid termination method but is a classic example of payment in lieu of summary dismissal.

[22] This leaves me only to determine the employer's cause for termination as the onus to establish the ground is always on the employer. When establishing "lawful cause" as required under section 34 of the ERP and further under section 30(4) of the ERP where it states that:- "Nothing in this Promulgation precludes either party from summarily terminating a contract of service for lawful cause", the employer binds the employee to a good faith employment relationship by relying and obliging to the terms and conditions of the contract of service (implied and express) as well as any codified rules, policies and procedures regulating an acceptable code of conduct including the types of offences that may lead to appropriate penalties such as summary dismissal.

[23] Going to back to the employer's case, they had sustained throughout the proceedings that there were various reasons leading up to the grievor's termination. Overall, it was justified that the grievor had acted contrary to the policies of the employer and that she had been cited for gross misconduct in several incidences. Specifics of the allegations pertain to Ms Ram engaging with the employer's Board without authorization when seeking an increase in her salary; discharging confidential documents to outside party; writing defamatory letters against the employer's Chairman and the Board; and also drawing up a contract of service without the consent or approval of the employer. Amidst of this, the final and the principal reason for the grievor's summary dismissal was attributed to her supervisory role looking after the administration department where some monies that were cashed for the purposes of worker's salary and entitlements were misplaced or lost. A police report was adduced as evidence of the missing money.

[24] In support of all these allegations, the employer did not present me with any human resource policy or procedures that essentially regulate these conducts, albeit there was no written contract of service. Where initial allegations are concerned, no warning letters were produced to show how the employer had viewed and tackled the grievor's previous conducts (or misconducts) of "acting contrary to the policies of the employer".

[25] On the contrary, it seems that in response to the grievor's request for a salary increase, this was met by the employer positively when they wrote to her on 1st October 2010 (Exhibit 17) agreeing to "salary to be increased from $14,000 pa to $15,000pa". Added onto the $10,000 fringe benefits in terms of the car given to Ms Ram and her husband as pertained in that letter, since 1st October 2010, Ms Ram was clearly earning a total salary package of $25,000.00 (inclusive of fringe benefits). In that sense, for the employer to justify and thus pin the reasons for termination on the grievor's (mis)conduct in terms of the breach of their policies, and which policy was not produced is rather an unbelievable state of affairs. For example, when the grievor wrote to the Board seeking an increase in her salary, this act was not deemed by the employer to be serious at the time and to me holds no merits since Mr Maharaj had indicated that the Board did make the final decision. If the Board had disagreed with Ms Ram's conduct in any context, whether in seeking an increase in salary, say by using the organization's sensitive financial information to present her case, then they should have resolved to inform Ms Ram accordingly. If necessary, they should have issued a warning letter. Instead Ms Ram received an increase in her salary. This was conveyed to her by the President in writing, and copied to Dr Malani, Dr Ram and Deven Sharma (I believe these are the Board members).

[26] Hence until 1st October 2010, any misconduct perceived by the employer during the trial was no doubt considered trivial and unserious to be either recorded in the personnel file or warranting warning letters or even dismissal. This is a plain indication that the employer had no reason to question or adversely speculate Ms Ram's conduct or her suitability to perform her task as an Administrator, at least till 1st October 2010. I should also clarify the issue raised to indicate that Ms Ram's on-going harsh behavior with the staff had been another reason to force the employer to seek a substitute Administrator which Ms Ram knew of.

[27] The understudy, Mr Pushp Chand gave evidence that he is currently the Administrator of the Kidney Foundation. He had resumed his duties effective from 3rd November, 2010 as an assistant to Ms Ram and promoted to Administrator position when the vacuum was created through Ms Ram's departure in December 2010. Clearly the evidence in terms of the letter dated 1st October 2010 proves that Mr Chand was there to understudy Ms Ram but not to replace her. It seems that Mr Maharaj's evidence tends to justify a series of allegations made against the grievor in terms of showing a pattern of bad conduct forcing the employer to find a replacement, particularly since the employer was not happy with Ms Ram seeking a salary increase, which Mr Maharaj had further qualified that the Board had ordered this. It is not a plausible fact nor bears any truth when the glaring evidence is the letter of 1st October 2010. Mr Maharaj is the author of the same. I then accept that Ms Ram remained in her original position as an Administrator and Mr Chand no doubt was happily inducted by Ms Ram as an assistant. Her evidence that she taught Mr Chand the work she was doing for the past two years (confirmed by Mr Chand's evidence) shows that the two did share a good rapport. If Mr Chand was to replace her, I do not think Ms Ram would have been this forthcoming in the event that she had neither tendered in a resignation nor informed the employer that she had wished to leave. This too, after she was offered an increase in her salary and which she had stated was pleasantly accepted by her. Further the employer had attempted to justify that the greivor was rather harsh to nurses and the staff of the Foundation but the employer's third witness, Mr Sharma testified that Mrs. Ram did not have any role in supervising the nurses, nor between September 2009 and December 2010, Mrs. Ram growled at him or talked harshly to him.

[28] That being the case, within two months of increase in her salary, around December 2010, the relationship between the grievor and employer took a different turn. There was no reservation that the money drawn for $237.00 when Mr Maharaj was out of country had somehow disappeared. When Mr Maharaj returned, he testified that he had asked Ms Ram regarding a complaint he had received from a staff that their entitlement for allowance was not paid. Ms Ram had told him that she would pay them. However, when he met the staff again after two days, he was again informed that they were still not paid. This is when Ms Ram had told Mr Maharaj that the money had gone missing. She further told him that she would only pay up half of the missing money as the other half should be paid by the new appointee or understudy. The police report adduced by the employer indicated that investigations were still open although the incident had occurred in 2010. To any reasonable Tribunal, the police investigation being open does not prove that the grievor is culpable nor it establishes who had taken the money. It does, however place the grievor under a reasonable scrutiny since she had authorized the cashing of the money and keeping it in the office when it was not the usual practice. It was proven that only petty cash was kept while any other money such as worker's wages or entitlements was paid out immediately. Further it seemed strange to me that knowing that the drawer in which such monies was usually kept was not safe since it had a broken lock, I am not sure why Ms Ram did not take any precaution. This is particularly when there was a new person in the office and the blame could be apportioned to anyone.

[29] It is then even more strange that the employer did not take steps to establish how the money went missing through a proper investigation process. The task of the employer was to establish this first before casting entire guilt on Ms Ram unilaterally or arbitrarily before even considering and according the harshest penalty of summary dismissal. For Ms Ram to offer to pay half of the missing money is perhaps seen as an admission of guilt by the employer but it was obviously a way to advice Mr Maharaj that the burden should be shared equally by those who should have been directly or indirectly responsible. The new understudy was also present in the office and had knowledge of the money as per his testimony. Anyone could have taken the money and therefore, the employer should have embarked on a full-scale investigation (internally and externally) to establish the guilt, if any of the grievor. In doing so, the employer could have suspended her with or without pay pending investigation; or alternatively, issued stern written warning to all those present in the office to be placed on their personnel file, whilst also putting in place stringent written policies to combat future occurrence. Another option open to the employer was taking a portion of the grievor's salary if she had agreed to pay half in her goodwill to address the loss. These were some penalties appropriate here.

[30] To henceforth, say that to date Ms Ram has not come forward and paid the half or any part of the money is rather unwarranted when she was sent home on-spot without a proper investigation process (via collection of witness statements, paper evidence, etc) in order to draw a fair assessment and thus casting guilt on the perpetrator. Section 33(1)(a) of the ERP is clear that the employer has to be satisfied that the "...worker is guilty of gross misconduct..." The employer through Mr Maharaj had admitted that there were no disciplinary procedures. Whilst it was a small charitable organization, there is still no excuse for not instilling minimum standards or policies for fair process of investigation when a worker is potentially at the door of a dismissal. It is more aggravated when a summary dismissal is involved. Therefore, for lawful cause to persist and be proven, this process is pivotal step by the employer on a lesser standard, on the balance of probabilities. There is no requirement for the right to hearing after the guilt is proven that shows lawful causes exists (see again the case of Isoa Latianara): here the Employment Relations Court has provided that:-

"...if there is serious misconduct, then it is the prerogative of the employer to terminate the employment immediately. If all these procedures of hearing and explanations are accorded to the employee, then the purpose of summary dismissal is lost..." (at page 8).

[31] Further, pending the outcome of the external, police investigation, although by any standards two years is rather unfair and far too long, the employer could have reserved the right to re-visit the allegations if criminal charges were laid and proven in a court of law.

[32] In my mind then there is absolutely no misgiving that the employer in this case had no reasonable basis to find the grievor guilty of any of the grounds stated under s33 of the ERP, in particular s33(1)(a) of the ERP which would have justified summary dismissal of Ms Ram in the absence of a written contract of service. This was indisputably a decision made unilaterally and arbitrarily without due process for fact finding being invoked – indeed the first step to natural justice, been infringed.

[33] In that regard, none of the grounds for the grievor's termination, especially the act of negligence or dishonesty in the execution of her duty was proven that allows the employer to have valid reasons or lawful cause to justify summary dismissal of Ms Ram. I then find that the summary dismissal of Ms Ram to be unlawful.

[34] In fact the penalty was grossly disproportionate to the act of (mis)conduct alleged here. Neither the employer could prove that she had acted contrary to their policies nor that she was directly culpable for the missing money other than Ms Ram failing to be protect the money she had taken in for safekeeping. Prior to that, she had no other history of such misconduct. When the Tribunal finds that the lawful cause to terminate was not established, the termination becomes wrong and unlawful (see: Isoa's case).

[35] In terms of whether there is any merits of unfair dismissal claim here, Madam Justice Wati, in Isoa's case had relied on the case of Central Manufacturing Company Limited v Yashni Kant [Unreported Fiji Supreme Court Case Number CBV 0010 of 2002] to clarify the issue. In this case the Court had ruled that in carrying out the dismissal, the employer must treat the employee fairly and with appropriate respect and dignity. Ladyship Wati had additionally pronounced that:-

"...it is not the aspect of right to be heard that leads to unfair dismissal. It is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's actions must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in carrying out the dismissal" (underlining is my emphasis).

[36] In another case of Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011),, the Full Supreme Court also echoed this by adding that:-

"...For a claim of this category to survive, there has to be a cause of action, evidence and causation shown. Simply, the employee has to plead that the manner of dismissal was unfair, evidence must be tendered on what constituted unfair treatment, together with the evidence that the said treatment caused the employee distress or humiliation or physical and psychological harm. That is the legal parameter on which such a claim operates and survives..."

[37] In the grievance matter before me, the issue of unfair dismissal largely centers on the grievor's denial to her right to due process such as not been accorded a proper investigation, followed by her right to be heard before she was considered for the penalty of summary dismissal. This in itself would have caused her emotional and psychological distress - not knowing how the employer considered the act (or the alleged misconduct) on the scale of severity in regards to the employer's rules and policy and what sort of conduct warrants summary dismissal since no written contract of service spelt this out must have given her the shock she had talked about during the trial stating that she did not expect immediate termination this way. Not to accord a fair process of investigation to establish the truth is one-sided way of delivering penalty. This can't be fair or A justified action.

[38] Further, she had no prior history or record of bad conduct. No verbal or written warning was adduced in evidence to show any prior offending and there was no evidence of her unruly conduct with the staff who came to the trial to testify. Indeed with her blemish-free record, a police report without being concluded to date is further humiliating. The grievor said it was defamatory against her pristine reputation working for various organizations in the past although the employer is not to be blamed for the lack of police vigilance to resolve the missing money case. Nonetheless, it does not give a favourable picture of someone's character who would be hunting for another employment or seeking to help another charitable organization. In the two years she had served the employer, it seems she did her best to accommodate the organizational goals to provide help to the kidney patients as well as the employer regardless of the workload and the nature of work required. When the Foundation had its financial challenges she remained committed and sincere and after two years she was granted an increase in her salary. I do not think any right thinking person being patient and faithful in dire times of the Foundation when it was getting on its feet and then subsequently being granted the recognition via an increase in salary would deliberately or willfully cause to break that trust by being grossly negligent or dishonest. This was in fact decided by the employer unilaterally without a proper investigation to establish the guilt, if any.

[39] This action of the employer, by any means amounts to unjustifiable and unfair termination. The only redeeming feature is the employer letting go Ms Ram with some dignity when they paid her adequate notice pay despite it was a summary dismissal. Distress as she may have been at the time for loss of her job, she had some means to sustain her livelihood until a new job came her way.

Decision and Orders

[40] In accordance with the aforesaid, the Tribunal declares and orders that:-

1. The Employer's decision to summarily dismiss the grievor is unlawful and unfair. Accordingly, the grievor's grievance claim is allowed.
   
2. No remedy for reinstatement is awarded to the grievor given that the relationship seems to be broken beyond any repair. She is however, granted a compensation in terms of eight month's salary (pegged at $25,000 per annum) keeping in mind that she was paid some monies at the time of her dismissal by the employer. This is carefully considered in terms of the grievor's own responsibility to ensure that the monies entrusted in her custody was kept in a safe place and if this was done, perhaps she would not have lost her job.
   
3. The parties will bear their own cost in this matter.
   

DATED at Suva this 25th day of September 2013.

JOSHIKA SAMUJH
LEGAL TRIBUNAL