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Waimuka v Outrigger Beach Resort [2017] FJET 12; ERT Grievance 4.2017 (25 July 2017)

Background

1. This grievance has been referred to the Tribunal in accordance with Section 194(5) of the Employment Relations Promulgation 2007. The Grievor was terminated in his employment by letter dated 3 November 2016, following what the Employer says were repeated incidents of failing to carry out the duties of a Food and Beverage Outlet Manager. Specifically, the final and determinative complaint against the Grievor related to his failure to have the pool side area of the resort, prepared as part of the early morning shift, so that the hotel was presented in the best possible light for guests upon commencing to use the facilities at the start of the day.
   
2. The Grievor’s case is that his dismissal was not justified on the basis that there had been no complaint by hotel guests pertaining to the reported incident on 2 November 2016 and that he was unfairly and unreasonably terminated at work.
   

The Case of the Employer

3. The Employer provided the Tribunal with some background information pertaining to the employment arrangements governing the Grievor’s former contract. This included the Employee Handbook^[1], a Job Description of Duties, ^[2] an Orientation Checklist and the Disciplinary Guideline Policy.^[3] In addition, the Employer submitted to the Tribunal a copy of the Grievor’s Performance, Planning and Development Review (Jan 2016)^[4], together with a series of Notices of Disciplinary Action that had been issued to the Grievor during the most recent course of his employment. These included:
   
   • Notice of Disciplinary Action dated 10 February 2015^[5];
   • Notice of Disciplinary Action dated 4 December 2015^[6];
   • Notice of Disciplinary Action dated 11 March 2016^[7];
   • Notice of Disciplinary Action dated 25 April 2016^[8];
   • Notice of Disciplinary Action dated 14 October 2016^[9]; and
   • Notice of Disciplinary Action dated 3 November 2016^[10].
     
4. It was the final Notice of Disciplinary Action dated 3 November 2016, that gave rise to the termination of the Grievor’s employment. In effect, the Employer argues that there had been an ongoing and progressive set of performance related issues that have led to the justification of the termination of employment.
   
5. The Employer relied upon the evidence of Mr Christopher Hamilton, the Executive Assistant Manager of the Resort to explain the rationale for the decision to terminate. In summary, the evidence of Mr Hamilton was that the hotel was a ‘five star resort’ and that it had to provide service standards at that level for those who pay and expect that service. Mr Hamilton drew the Tribunal’s attention to the annual performance rating that had been provided to the Grievor and indicated that it was well below the acceptable standard required. Mr Hamilton provided the Tribunal an overview of the other performance infringements contained within the Notices of Disciplinary Action.
   
6. The second witness to give evidence on behalf of the Employer, was Ms Sharon Naidu, the Director of Human Resources. Ms Naidu spoke of the attempts to implement a Critical Improvement Plan for the Grievor in response to concerns that had been raised by Mr Hamilton regarding the Worker’s performance.
   

The Evidence of Mr Waimuka

7. The Grievor commenced his employment at the resort in January 2014. The Grievor indicated that at the outset of his employment, the work was difficult being required to work in the hot sun for in excess of 10 hours per day. In relation to complaints made regarding the Grievor’s capacity to train and brief his staff, he indicated that this was never of concern. In response to the allegation that he had spoken inappropriately to one of the overseas female guests,^[11]this too was clarified and in part denied. More fundamentally, in relation to the allegations concerning the failure to keep tidy the pool side area for the commencement of the resort day, the Grievor attributed some of this to the fact that insufficient staff had been allocated for the morning shift and that he was not aware of the fact that one designated person had failed to come to work.
   

The Justification of a Dismissal in Employment

8. In Kumar v Nanuku Auberge Resort Fiji[12], this Tribunal has set out the basis on which a dismissal decision can be justified as follows.

As a starting point, at least in the context of ‘unjustifiable dismissal’, the question needs to be asked, having regard to the Statement of Reasons provided, wr a termination tion based on those reasons was justified. The question post Central ManufacturiKant,&#1t, where a new regulatorime isme is installed, must be, Can the dismissal be justified? The initial question to askot how the dismissal takes place, or what is relied on as part of that process, but whetherether the reasons for giving rise to the decision to terminate are justifiable. The concept of whether or not a termination or dismissal[24] at work is justified or not, has been enshrined in international labour law for many years. The Termination of Employment Convention, 1982 (No. 158) adopted at68^{thIntional Labour Convention session in Geneva, sets out withinithin Part II, Division A, a framework for assessing whether or not a dism is jied. Article 4 fo 4 for example, provides that “The eThe employment of a worker shall not be terminated unless there is a valid reason for such termination concerned with the capacity of conduct of the worker or based on the operational requirements of the undertaking, establishment or service. Articles 5 and 6 thereafter provides additional illustrations of circumstances that would not constitute a valid reason for termination. These include union membership, filing a complaint or participating in proceedings against an employer, discriminatory grounds based on attribute, absence due to maternity leave or temporary absence from work because of illness or injury.}

Northrip J in Selvachandran v Peteron icsstics,[25] provided the followiarificaification when parabestion was being eing asked as to whether a termination decn decision was a valid one. In that case, his Honour stated:

Act doe give a meaning to thoo those phrases or the adjective “valid". A reference to dictionaries shows that the word "valid" has a number of different meandepenon the context in which it is used. In the Shor Shorter Oter Oxford Dictionary, the relevant meaning given is " Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason."

In its context in subsection 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). 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, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, when Considering the construction and application of section 170DC.

A comparable set of criteria for setting out the “test for justification” is located within Section 103A of the Employmelations Act 2060;2000 (NZ), thatides:-