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Powder Room Services Ltd v Khan [2012] FJHC 932; ERCA 03.2011 (9 March 2012)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA NO. 3 OF 2011

BETWEEN:

POWDER ROOM SERVICES LIMITED
APPELLANT

AND:

SHAMEEM KHAN
RESPONDENT

Appearances: Mr. G. O'Driscoll, for the Appellant.
Mr. R. Singh, for the Respondent.
Date /Place of Judgment: Friday, 09th March, 2012 at Suva.
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:
EMPLOYMENT LAW- CONSTRUCTIVE DISMISSAL- APPROPRIATE AWARD- REDUCTION OF AWARD- STATUTORY POWER TO REDUCE AWARD.

LEGISLATION:
THE EMPLOYMENT RELATIONS PROMULGATION 2007 ("ERP').

1. The appeal is brought by the employer against the Employment Relations Tribunal's ("ERT'") finding of constructive dismissal of the employee. This finding was based on the employee's unchallenged evidence that he was told to resign or that he would be terminated and that a replacement was already found for him.
   
2. The employer was ordered to pay one year's salary to the employee as part of the wages lost by him and this was to be reduced by 5 weeks' salary which was already paid to him.
   
3. Aggrieved with the ERT's decision, the employer raised 4 grounds of appeal contending that the ERT erred in law and in fact in:-
   
   • Failing to consider the evidence put forward by the appellant by way of its submissions and through cross examination of the respondent.
     
   • Determining an award that was not commensurate with the length of service of the respondent with the appellant.
     
   • Failing to consider the multiplicity of conflicting evidence of the respondent which would have led to a reasonable tribunal to conclude that the respondent was not a credible witness and that his evidence had little or no weight at all.
     
   • Failing to consider the submissions of the appellant to the effect that the actions described by the respondent in his evidence were inconsistent with a man who had been constructively dismissed, particularly his requesting his job back as described by the respondent.
     
4. Mr. O'Driscoll expanded on the grounds of appeal by filing a written submission.
   
5. In respect of ground 1, it was submitted that the employee had filed its submission in the ERT. All the documents were contained in the submission and not contested. The ERT accepted the submissions. Most of the documents were put to the employee for clarification. However, the ERT's determination does not make any reference to those evidence or the cross-examination evidence of the employee.
   
6. In respect of ground 2, Mr. O' Driscoll argued that the employee had only worked for the respondent for about 7 months and only four of those months were as an established employee. To then expect that he would receive a year's salary due to his grievance is completely unreasonable. The award is also inconsistent with s. 230 (2) of the ERP. Mr. Dirscoll submitted that the ERT gave no consideration to the employee's contribution towards the situation particularly because there was clear evidence that the employee was responsible for the sanitation services at the Sheraton and complaints from that customer of the employer led to the employee's ultimate termination. The employee had not been fulfilling his duties properly. The employee admitted that the problems at Denarau were known to him and that he was there when complaints were being received.
   
7. In arguing ground 3, it was submitted that the employee in his evidence has displayed that he lacks credibility. His evidence on the number of meetings held before the termination was inconsistent. He was also inconsistent in his evidence on the month in which he received his reference from the employer and that he himself had signed the resignation letter which could not then call for any disciplinary action. The employee further was paid the wages that was due to him and that he requested for his job back. All this shows that the employee is incredible on his evidence of how he was forced to resign.
   
8. No specific submission was made in respect of ground 4. Mr. Driscoll stated that it overlapped with his other grounds and he relied on submissions he made under other grounds.
   
9. Mr. R. Singh argued that the appellant could not adduce the evidence through the submissions. The ERT did take into account the evidence adduced in the cross examination and so there is no basis for ground 1.
   
10. In respect of quantum, Mr. Singh submitted that the employee was 52 when he was terminated and he had worked for 9 months after which he was promoted to a position of Operations & Administrative Manager. The duties implemented by the employee were fully supported by the Managing Director as he was given the full authority to streamline the operational activities of the company such as quality routine checks of units in customer premises, management reports, training of staffs and implementing proper stock control measures in order to establish accurate inventory management. The reasonable notice period would be 12 months and so the award is not exorbitant. The plaintiff earned an average amount of $576.90 per week. The plaintiff's income for the last three and a half months includes overtime hours for which he was paid regular hourly wage rather than time and half. Thus the damages should be increased to reflect an overtime entitlement. The employee had actively looked for work but has not found full time or steady employment.
    
11. In respect of Ground 3, Mr. Singh submitted that there was no conflicting evidence. The ERT took into account the respondent's evidence because there was no rebuttal of any evidence.
    
12. Mr. Singh further submitted that the employee was not given a reasonable opportunity to improve and no form of investigation was carried out promptly to prove the alleged misconduct. The respondent was also not advised prior to any disciplinary meeting of the specific allegations that were alleged against him. He was also not given any opportunity to explain or deny the allegations. No explanation from the respondent or any mitigating circumstances were considered before the decision of dismissal was made against him.
    
13. I will deal with all the grounds together as they are so closely connected. The ERT accepted the employee's evidence because it was not challenged by the employer. The ERT could not consider the evidence of the employer tendered by the submissions. Moreover, nothing turned out on the other inconsistencies complained of by the employer. The crux of the evidence that the employer forced the employee to resign was not challenged. The ERT thus did not make any erroneous finding of constructive dismissal.
    
14. On the aspect of awards or the remedy, the ERT is permitted under s. 230 (1) (b) of the ERP to provide "reimbursement to the worker of a sum equal to the whole or any part of the wages or other money lost by the worker as a result of the grievance".
    
15. The employee was dismissed with effect from 13th February, 2009. By the time the ERT heard and delivered its decision on 13th December, 2009 it was already 22 months of dismissal. The ERT made an award for 12 months of salary to be paid. In terms of s. 230(1) (b), the award cannot be interfered with as the remedy was granted under the statutory provision.
    
16. However, it is very clear that the ERT did not consider that the constructive dismissal was substantially because of the poor performance of work by the employee. His inefficient services led to the employer's big client being frustrated. Had the employee performed, the situation would not have arisen and therefore the employee contributed substantially or wholly to the situation giving rise to dismissal. The employer cannot be expected to lose a major client because of improper supervision or performance of work by an employee. In that case the award should be reduced by at least 75 per cent which leaves a salary of only 3 months to be paid.
    
17. The powers to reduce the award is enshrined in s. 230 (2) of the ERP:-
    

"(2) If the Tribunal or Court determines that a worker has an employment grievance by reason of being unjustifiably or unfairly dismissed, the Tribunal or Court may –

(a) in deciding the nature and extent of the remedies to be provided in respect of the employment grievance, consider the extent to which the actions of the worker contributed towards the situation that gave rise to the employment grievance; and

(b) If those actions so require, reduce the remedies that would otherwise have been decided accordingly".

18. The employer has already paid the employee wages of 5 weeks and so this must be deducted from the award.
    
19. I now order that the employer pays to the employee a sum of 3 month's salary. The 5 weeks salary to be reduced from the said amount.
    

Anjala Wati
Judge

09.03.2012

To:

1. Mr. G. O'Driscoll, counsel for the appellant.
2. Mr. R. Singh, counsel for the respondent.
3. File ERCA No. 03 of 2011.