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

Singh v South Pacific Waste Recyclers [2014] FJET 1; ERT Grievance 14.2013 (30 April 2014)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL

Decision

Section 230 Employment Relations Promulgation 2007

TERMINATION OF EMPLOYMENT CONTRACT – Section 194(5) Employment Relations Promulgation 2007; Referral of Grievance to Employment Relations Tribunal

Background

1. This is a grievance that has been referred to the Tribunal in accordance with Section 194(5) of the Employment Relations Promulgation 2007. The grievance relates to a decision by the Employer to terminate the employment of the Grievor, in circumstances that he claims were unjustified and unfair. The grievance between the parties was not resolved in mediation, previously held under the auspice of the Mediation Unit on 20 November and 5 December 2012.
   

The Case of the Employer

2. The Employer engaged the Grievor as a Mechanical Supervisor at its Laucala Beach tissue making factory, on or around 18 July 2011. According to the evidence at the hearing presented by the two witnesses for the Employer, Mr Sanjay Kirpal, Chief Financial Officer and Mr Lawrence Naidu, Chief Engineer; it was not long before an assessment was made by the Employer that the Grievor was identified as not having the relevant skills to undertake his role. The trigger for reaching this position seems to be an email communication sent to Mr Kirpal from Mr Naidu on 4 October 2012, in which the various indicative complaints regarding the Grievor were set out.[1]
   
3. According to the oral evidence of Mr Kirpal, he stated that the Grievor had been warned several times earlier in relation to his lack of capacity to undertake his role. On the other hand, Mr Naidu, who was the direct supervisor of the Grievor had no first hand knowledge of any warnings, but had been involved in 'advisory' discussions with Mr Singh. It appears after this time on 4 October 2012, the situation escalated significantly. What followed, was that Mr Kirpal suspended the Grievor without pay for a fortnight period in order to undertake an investigation into the allegations.[2]
   
4. The next step to occur, was that the Grievor was called to attend the office of the Employer on 19 October 2012, where he was handed a termination letter. According to Ms Rakai of Counsel, the Grievor was paid out in lieu of the notice period under the contract of employment [3], as well as his accrued annual leave entitlements. Ms Rakai acknowledges that the Grievor was not provided with an opportunity to respond to any investigation; she acknowledges further that he was not even interviewed as part of this process, nor subsequently provided with any understanding of the specific issues arising out of that process. In Counsel's submissions it is noted that she categorises the dismissal as a 'summary dismissal', but nonetheless during an exchange with the Tribunal concedes that there is no evidence advanced by the Employer to that effect.
   

The Case of the Grievor

5. The Grievor on the other hand was the only one to give evidence on his behalf. He denies that he was derelict in his duties. He states that he had not received any proper training in the use of the plant at the factory and says at no time was he formally warned by his employer, prior to having been suspended from duties.
   

Employers Operating Logs

6. One matter that the Tribunal wished to explore with the Employer was in relation to the relevant documentary evidence that it could point to, in support of claims of production wastage and inefficiency. To understand some of these issues, Mr Naidu explained and provided the Tribunal with a copy of the flow process relating to production[4] and identified several aspects within the production operation 'Log Books' of the Employer, indicating a lack of diligence and poor overseeing by the Grievor in relation to product quality. The Tribunal accepts that the Employer did have cause for concern in relation to the manner in which the Grievor undertook his role.
   
7. In this regard Mr Naidu referred to the lack of detail in the log entries made by the Grievor in relation to quality control, wastage and controller interventions.[5] I am not that that convinced that the data would have shown great anomalies in his comparative work, nor is there any real evidence of logged or documented concerns regarding any of the shifts that the Grievor had been working on.
   

Issues for Consideration

8. The task of this Tribunal is to determine whether the termination of employment was both justified and fair. In Nale v Carpenters Fiji Ltd[6], this Tribunal found
   

For a dismissal to be justified, it would need to be capable of demonstration that it was just, right or valid; capable of being defended with good reasoning. A decision would be unfair, if it was harsh, unjust or unreasonable.

9. In Vodo v SCA Hygiene Australasia[7] this Tribunal referring to the decision of Northrop J in Selvachandran v Peron Plastics Ltd (Dec 329/95; VI 1322R/94) considered how the term valid (or justified) could be relevantly considered as follows:
   

"..the adjective "valid' should be given the meaning of sound, defensible or well founded. A reason that is capricious, fanciful, spiteful or prejudiced could never be a valid reason.....at the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must be applied in a practical common-sense way to ensure that the employer and the employee are treated fairly."

10. As to fairness and whether or not a Worker has been unfairly dismissed, a useful analysis of the relevant issues that warrant consideration, can be found in Byrne and Frew v Australian Airlines Ltd [8], where McHugh and Gummow JJ stated:
    

11. The concept of fairness, needs to be set in the context of 'fair in all of the circumstances of the case'. I am satisfied that the justification for the termination, was a valid reason if it was the case that it could be supported on the facts. But these are not that clear. Despite that, the impression I gained from the Grievor's evidence was that he did not fully appreciate the importance of his supervisory responsibilities. There was certainly no attempt during the course of proceedings to distance himself from the observations of Mr Naidu on 4 October 2012. That being said, I cannot see how a termination could be fairly executed in circumstances where the worker was not given an opportunity to respond to the allegations that led to his suspension. To suspend a worker without pay is a significant action taken by an Employer. Ordinarily it should only occur, where the intervention was completely necessary to remove the worker from the workplace immediately. In this case, he could have easily been reassigned to another task, while his competence and conduct was being fairly assessed. There is simply no evidence before the Tribunal to support that action. The evidence is that the worker was not interviewed in response to the allegations of Mr Naidu. He was not given an opportunity to put his case during or at the completion of the investigation. The decision to terminate could have been justified in the event that the decision came about in a fair manner. But what if the data did not support the action? What of the case of fabrication of evidence against a worker. There was no formal evidence of counselling or any remedial training to assist the Grievor undertake his role. The termination was unfair for the above reasons.
    

Appropriate Remedy

12. The worker has been absent from the Employer's workforce for some period of time. The fact that the Grievor has now found employment, means that on this occasion, reinstatement would not be an appropriate remedy. The termination was however abrupt and it failed to bring the relationship to an end in a fair manner. Had the Employer applied a basic system of performance management that possibly was documented and provided some evidence of at least an attempt by the Employer to give the Grievor an opportunity to improve, a termination by the giving of notice and for that reason, would have been fair. This decision was not fairly executed and the Grievor has no doubt suffered by the suddenness of the Employer's action. As a result, I order that the Grievor be provided with three month's salary equivalence. This amount would seem to be appropriate to compensate for some of the adjustment factor associated with the changing of a job and having regard to the relatively short time period in which the Grievor was employed.
    
13. Finally, if it is the case that the Employer has in fact paid out the notice period of one month, then such an amount can be offset against the ordered entitlement. The Employer is also asked to verify the fact that it has paid to the Grievor his accrued annual leave entitlements, made available to him in accordance with the relevant provisions of the Promulgation.
    

Decision

This Tribunal Orders that

(i) The Employer be ordered to pay the Grievor the sum of $2880.00, being the equivalence of twelve week's salary, payable within 14 days.

(ii) Such an amount can be offset against any notice period otherwise paid to the Grievor that is substantiated through the Time and Wages Records of the Employer.

(iii) That the Employer must substantiate to the Grievor, that it has paid all accrued annual leave entitlements, or in such case as it has not, make the same payable to the Grievor within 14 days.

(iv) The Grievor is free to make an application to the Tribunal for Costs within 28 days.

Mr Andrew J See

Resident Magistrate

^[1] See Exhibit E3

^[2] See Exhibit E4

^[3] See Exhibit E1, where the Termination provision allows for the payment of one month’s notice in lieu.

^[4] See Exhibit E6

^[5] Though during a question from the Tribunal, Mr Naidu himself acknowledged the lack of detail in one of his own entries on 11 November 2011.

^[6] [2012] FJET3 at [61]

^[7] [2012]FJET 20

^[8] (1985) 185 CLR 411