IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA NO. 9 OF 2009

BETWEEN:

NIRMAL CHANDRA
APPELLANT

AND:

NATIONAL UNION OF FACTORY AND COMMERCIAL
WORKERS
RESPONDENT

Appearances: Mr. W. Hiuare for the Appellant.
Mr. V. Maharaj for the Respondent.

Date /Place of Judgment: Thursday, 29th September, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT OF THE COURT

APPEAL - EMPLOYMENT LAW – summary dismissal, grounds, procedure for dismissal and remedy.

Legislation
The Employment Relations Promulgation 2007 ("ERP") 

The Cause

1.	The appellant has filed an appeal against the decision of the Employment Relations Tribunal ("ERT") of the 11th day of November, 2009.

2.	The appellant raised 4 grounds of appeal but maintained only one ground at the hearing, which was:-

"That the learned Chief Tribunal erred in fact and in law in holding that the dismissal was justified but procedurally unfair".

The Case Background

3.	The appellant was employed as an office boy and caretaker with the respondent since 2nd August, 1991. His employment was terminated on the 2nd day of May, 2008. Subsequently, he filed an employment grievance against the employer and sought remedies for reinstatement or alternatively compensation for loss of wages.

The ERT's Ruling

4.	The Tribunal made a finding that the appellant had on more than 4 occasion wilfully disobeyed lawful orders of the employer. His dismissal was justified but procedurally unfair. The Tribunal ruled that instead of giving 7 days notice asking for written explanations why the appellant's employment should not be terminated, the employer should have taken the following steps before terminating the employee:-

(i)	Conducted a proper investigation into the alleged wrongdoing;

(ii)	Invite the employee to a disciplinary meeting. The employee should have been told-

•	All the information that was uncovered in the investigation,
•	To bring information of their own;
•	That he or she can bring a representative or a support person; and
•	That the outcome of the disciplinary process may be dismissal;

(i)	At the meeting, the employer should properly explain their information and give the 

(ii)	employee a chance to respond to it and present their own information.

(iii)	After the meeting, the employer should properly consider all the information with an open mind and inform the worker of the decision.

The Submissions

5.	The appellant's counsel stated that the ERT held that the "employer must show that a dismissal was justified substantially and procedurally and this was where the employer union fell short". Having made this finding, it was wrong for the ERT to make a contrary conclusion that the dismissal was justified but procedurally unfair.

6.	The appellant was not heard or given an opportunity to refute the alleged claims of wilful misconduct. The employer did not follow due process in terminating the employee and that is what the Tribunal has held. Once that finding was made, the termination became unlawful. It was therefore wrong when the ERT held that the nature and extent of this grievance was contributed by the employee. The ERT further erred when it reduced the remedy to only monetary compensation.

7.	Mr. Maharaj submitted that the employee was summarily dismissed under s.33 of the ERP 2007. The summary dismissal was justified and lawful. The process of natural justice was accorded to the employee. The ERT gave the worker more than he deserved but the employer was always ready and willing to pay the monies.

The Law and the Determination

8.	The employer had always maintained from the inception of the proceedings that the employee was terminated under s. 33 (1) (b) of the ERP, which was that the employee was dismissed summarily for wilful disobedience of lawful orders given by the employer.

9.	Ss. 33 and 34 of the ERP 2007 sets out the grounds for summary dismissal, the procedure, and the employee's entitlement upon summary dismissal. It reads as follows:-

"33 (1)	No employer may dismiss a worker without notice except in the following circumstances –

(a)	Where a worker is guilty of gross misconduct;
(b)	For wilful disobedience to lawful orders given by the employer;
(c)	For lack of skill or qualification which the worker expressly or by implication warrants to possess;
(d)	For habitual or substantial neglect of the worker's duties; or
(e)	For continual or habitual absence from work without the permission of the employer and without other reasonable excuse.

(2)	The employer must, provide the worker with reasons, in writing, for the summary dismissal at the time he or she is dismissed.

34	If a worker is summarily dismissed for lawful cause, the worker must be paid on dismissal the wages due up to the time of the worker's dismissal". 

10.	The Tribunal found that the employee had indeed wilfully disobeyed the orders of its employer. Having found that there was wilful disobedience of the orders; the ERT must have then looked at the prescribed procedure for summary dismissal, as wilful disobedience of employer's orders is a ground for summary dismissal. Instead of looking at the statutory procedure, it fell in error when it started to analyse the New Zealand law to ascertain the procedures.

11.	Summary dismissal is instant dismissal and there is no reason why the procedures as outlined by the Tribunal or the New Zealand law should be followed. If those procedures are followed, then the employer loses its right to summarily terminate an employee. 

12.	I have examined all the evidence tendered at the Tribunal. I uphold the Tribunal's verdict that the employer has established that the employee had disobeyed lawful instructions of the employer which caused him to be summarily terminated.

13.	The employer was under a statutory obligation to provide the employee with reasons in writing for the summary dismissal at the time of his dismissal. The employer wrote to the employee on 2nd May and terminated his employment on the same day. The reasons for the termination was stated in the letter as follows:- 

"2nd May 2008
Mr. Nirmal Chand
82 Robertson Road
Suva

Dear Nirmal

We refer to our letter dated 25th of April 2008 regarding the offences that you had committed on Saturday 19th of April 08 and on Monday 21st of April 2008.
Through our letter dated 25th of April 2008 offences committed by you were clearly pointed out and further more you were advised that the Union is contemplating terminating your service for said offences. You were given 7 days time to explain your thoughtless actions. We take note that within the 7 days period, effective from 25th of April 08 to 1st of May 2008 you have not provided any explanations nor are you disputing the fact that you have wilfully disobeyed lawful instructions of your employer.
Hence, with immediate effect your service with the Union is terminated. Please be advised that before close of business today you are to vacate your flat.
Please return all Union's properties in your possession and vacate your flat prior to uplifting your final wages together with your accrued entitlements.

Yours faithfully
John V. Mudaliar
Acting General Secretary"

14.	In the letter of 2nd May, reference is made to the letter of 25th April, 2008 which reads as follows:-

"25th April 2008
Mr Nirmal Chand
82 Robertson Road
Suva 

Dear Nirmal

On the morning of Saturday 19th April 2008 you were instructed by the writer to stay at the Union Head Quarters and look after the union's property while the Union's Annual General Meeting was being held at the Suva Civic Centre. You refused to allow the writer's instruction and insisted for you to be allowed to attend the AGM. In response the writer reiterated his instruction for you to stay at the Union Head Quarters and look after the union's property.

You disregarded the writer's instruction and went to the Suva Civic Centre and tried to force your way in. It was clearly pointed out to you at the Civic Centre by the Executive Committee Delegates and the Security Officer that you were not allowed to be in the AGM, but you insisted and argued with them. That you also created lot of commotion and embarrassment by shouting and making negative comments regarding the Union.

That on Monday 21st April 2008 after midday you came to the writer to give your sick leave for two days. Since as per your sick leave you were required to resume normal duties on Wednesday 23rd April 2008, you were requested to hand over the office and hall keys to the writer so that it can be used by Vilikesa. You blatantly refused to hand over the said keys and you went down stairs to your flat. On the writer's instruction Vilikesa came to your flat to request for the said keys. In response in a threatening manner you demanded Vilikesa to leave you alone or else you were going to call the police.

The said incident was reported to the writer by Vilikesa, that after receiving the said report the writer called you and instructed you to hand over the said keys which was the union's property. Your response was that "I will not follow your instruction".

In the evening of Monday 21st April you finally gave the said keys to the Executive Sub-Committee members, namely sister Ilisabeta Copeland, Brothers Pita Banuve and Matereti Tuikoro when they approached you.

Your above actions are a clear case of insubordination, which warrants immediate termination of your employment with the Union.

It must also be pointed out to you that you are already on final written warning.
We seek a written explanation from your within the next 7 days with effect from the date of this letter as to why your employment with union should not be terminated.
In the mean time you are suspended without pay.

Yours faithfully

John V. Mudaliar

Acting General Secretary".

15.	The two letters and in particular the letter of 2 May, 2008 fulfils the obligation required by s.33(2) of the ERP 2007, that is, the procedure to summarily dismiss an employee.

16.	The following of the procedure accurately, makes the summary dismissal lawful and justified. 

17.	Now to the question of the employees entitlement. I do not know whether the employee was paid wages up till the date of dismissal but if he had not been, then that is the only order the ERT should have made in the circumstances. I note that the letter of 2nd May did advise the employee to collect his due wages and entitlements.

18.	The ERT, having found that the dismissal was justified, could not have granted a remedy to pay three months wages in compensation for loss of benefits. This would have been an appropriate order had the finding been made to the effect that summary dismissal was unlawful.

19.	When the ERT found that the summary dismissal was justified because the employee was in disobedience of the lawful orders of the employee, it could not then contradict its verdict by finding that the employer fell far short of establishing that the dismissal was justified substantially and procedurally. I cannot fathom how such contradictory findings could be made by the ERT. 

20.	Although, I agree with Mr. Hiuare that the findings are contradictory, the results will still not favour the appellant as the contradiction has been resolved in favour of the respondent. 

21.	There is no cross-appeal by Mr. Maharaj but in light of the obvious inconsistency in the verdict of the ERT, I have no option but set aside the parts of the decision of the ERT where the ERT held that:- 

(i)	 The employer fell in error when it did not show that a dismissal was justified 
 substantially and procedurally;

(ii) The New Zealand law on procedures to dismiss an employee was applicable;

(iii) The employer's procedure to terminate the employee was unfair; and
 
(iv)	 The employee must be paid 3 months wage.

Final Orders

22.	The parts of the decision of the ERT enunciated in paragraph 20 (i) –(v) of my judgment is set aside and substituted with a verdict that the employee's summary dismissal was lawful and justified and thus he is not entitled to any remedy but all wages and benefits due to him up till the date of dismissal.

23.	Orders accordingly.

Anjala Wati
Judge
29.09.2011 
_____________________________

To:
1.	Mr. Hiuare, for the appellant.
2.	Mr. V. Maharaj, for the respondent.
3.	File: ERCA No. 09/2009.