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High Court of Fiji |
IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION
CASE NUMBER: ERCA NO. 6 OF 2012
BETWEEN:
CARPENTERS FIJI LIMITED
APPELLANT
AND:
B. P (SS) CO. LTD & W. R CARPENTER GROUPS SALARIED STAFF ASSOSCIATION
RESPONDENT
Appearances: Ms. B. Narayan for the Appellant.
Mr. P. Rae for the Respondent.
Date /Place of Judgment: Wednesday, 12 March 2014 at Suva.
Coram: The Hon. Justice Anjala Wati.
___________________________________________________________________________
JUDGMENT
Catchwords:
Termination of employment- In order to determine whether the dismissal was lawful the Court must look at the cause and the procedure
leading to termination- to determine the fairness of the termination, the Court must ascertain the manner of dismissal and find whether
the same was carried out with respect and dignity- whether the employee was terminated as per his contract.
Legislation:
The Employment Relations Promulgation 2007 ("ERP").
The Cause
"To decide whether the Company had ... complied with clause 4 (i) of the Master Agreement in the termination of employment of Mr. Peter Kitione."
a. 18 months wages lost as a result of the dispute as the case had been in the Tribunal for 18 months before the closing submission of the Union; and
b. 12 months' compensation for humiliation, loss of dignity and injury to feelings of the worker as he had standing in the local community and the military service.
4. The remedy of reinstatement was refused by the Tribunal on the grounds that the employee had been away from work for a long period of time and that he was engaged in a different employment.
5. The appellant and the respondent both filed an appeal against the said decision.
The reasons for the verdict of the ERT
6. In coming to the conclusion it did, the ERT found that:
1. By suspending the employee, the disciplinary process was activated and thus clause 4(i) could not be used to terminate the employee. The action by the employer to use clause 4 (i) to terminate was a fallback position. It was discriminatory as it nullified equal opportunity in employment matters.
2. Clause 4 (i) authorises either party to lawfully end the employment relationship and this does not suggest that the employer can resort to utilizing it when it finds out that it cannot justify summary dismissal.
The Grounds of Appeal and Cross- Appeal
7. The notice and grounds of appeal was filed on 5 April 2012. The grounds could have been simplified. They are overlapping in many
aspects, verbose and contain even the submissions and evidence of the appellant. I have attempted to simply the same as follows:
i. That the Tribunal erred in law when it delved into the negotiations undertaken by the appellant and the union in concluding the Master Agreement.
ii. That the Tribunal erred in fact and/or misdirected itself as to the facts and evidence in holding that in this case there were 4 (four) ways of terminating the employees.
iii. That the Tribunal in making its findings erred in fact and/or misdirected itself in evaluating and applying the evidence of the appellant's witness in relation to the appellant's company policies to this case.
iv. That the Tribunal erred in fact and in law in coming to its findings by taking into account irrelevant considerations and giving undue weight to the company policies of the appellant referred to or relied on by the respondent.
v. That the Tribunal erred in fact and in law in its finding that there is a major flaw in the appellant's argument that when terminating the respondent's employment under schedule C, clause 4 (i) of the Master Agreement the appellant need not observe the disciplinary procedures.
vi. That the Tribunal erred in law and in fact in holding that when exercising its right to terminate under schedule C, clause 4 (i) of the Master Agreement, the appellant was required to observe clause 3 titled "Disciplinary Action".
vii. That the Tribunal erred in law and in fact in holding that the appellant was required to observe clauses 3 and 5 of the Master Agreement which deals with "Disciplinary Procedure" when the respondent was not summarily dismissed for cause.
viii. That the Tribunal erred in law and/ or misdirected itself in evaluating the facts of this dispute when, in reaching its conclusion that the appellant did not comply with schedule C, clause 4 (i) of the Master Agreement, it gave undue weight to the respondent's evidence that he was suspended prior to his termination.
ix. That the Tribunal erred in fact and/ or misdirected itself on the evidence of the appellant's witness in relation to the appellant's procedure on suspension which related to the appellant's procedure generally and not specifically in relation to this dispute.
x. That the Tribunal made contradictory findings of fact on the issue of whether Pawan Sharma was aware if the respondent was suspended a week before his termination when the evidence was clear to the effect that Pawan Sharma was not involved in this case at the material time and was not aware whether the respondent was suspended as he gave his evidence from the file records of the appellant according to which there was no record that the respondent was suspended prior to his termination.
xi. That theTribunal erred in fact and / or misdirected itself in evaluating the evidence in its finding that there was unchallenged evidence that the respondent was told he would be suspended to allow an investigation to be carried out.
xii. That the Tribunal erred in fact and/or misdirected itself as to the evidence when making its finding that the respondent's suspension activated the disciplinary procedure.
xiii. That the Tribunal erred in fact and erred in law in forming the view that if there is suspension then disciplinary procedures need to be followed in termination.
xiv. That the Tribunal erred in fact and/or misdirected itself in evaluating the evidence when forming the view that the appellant picked and chose what to do without following the procedure.
xv. That the Tribunal erred in fact and/ or misdirected itself in evaluating the evidence in holding the view that there was necessity of record of allegations, proceedings, conclusions or outcome and that there was no evidence of any investigation and that the appellant had not provided any reasons for that.
xvi. That the Tribunal erred in fact and in law in holding that the action by the appellant was discriminatory in that it nullified equality of opportunity in employment matters and that the appellant chose to use clause 4 (i) as a fall back situation by being choosy.
xvii. That the Tribunal erred in fact and in law when it held that the appellant was hopping around and used clause 4 (i) to build its defence in contemplation of a suit.
xviii. That the Tribunal erred in law in advising the union and the appellant to engage in further social dialogue and realign the employment contract.
xix. That the Tribunal erred in law and in fact in its finding that the appellant resorted to utilizing clause 4 (i) when it found out that it could not justify summary dismissal.
xx. That the Tribunal in arriving at its conclusion that the appellant did not comply with clause 4 (i) in terminating the respondent misdirected itself in evaluating the evidence in relation to the issue of suspension and gave undue weight to same.
xxi. That the Tribunal failed to take into consideration or give adequate weight to the evidence as to the wrongful conduct or attitude of the respondent.
xxii. That the Tribunal failed to take into consideration or give adequate weight to the evidence that the respondent's actual complaint about his termination was that whilst his employment contract had the provision for termination he had the expectation to work until retirement and that he maintained this expectation even after it was suggested to him that the appellant may have lost confidence in him.
xxiii. That the Tribunal erred in law and in fact in awarding and assessing the compensation awarded to the respondent.
xxiv. That the Tribunal erred in law and in fact in failing to take into consideration that any compensation entitlement (if any) to the respondent was mitigated by him securing a job shortly after his termination.
xxv. That the Tribunal erred in law and in fact in awarding and assessing compensation for humiliation, loss of dignity and injury to feelings of the respondent.
8. The appellant seeks an order that the decision of the ERT delivered on 7March 2012 be set aside.
9. The ground for cross appeal is that that the Tribunal erred in fact and in law in refusing to reinstate Peter Kitione after finding that he had been unjustly suspended and dismissed when reinstatement is the mandatory remedy provided by clause 5 in Schedule H of the Master Agreement.
10. The respondent seeks from the Court that the respondent be reinstated to his former position or a position no less advantageous to him.
Appellants Submissions
11. In respect of grounds i and xviii, Ms. Narayan argued that the High Court had defined the jurisdiction of the Tribunal. In light of
that, the Tribunal exceeded its jurisdiction in discussing the making of the Master Agreement when its task should have been limited
to determining only whether the appellant had or had not complied with the express provisions of the Master Agreement, that is, clause
4 (i) in terminating the respondent.
12. The Tribunal further erred in law in advising the union and the appellant to engage in further social dialogue and realign the employment contract with the ERP, in particular, the termination clause, to eliminate discrimination and ensure equal treatment of workers. The termination in this case was made prior to the ERP 2007 coming into effect. Further, there was no evidence of any discriminatory behaviour by the appellant in exercising its contractual right to terminate under clause 4 (i). The Master agreement provides for termination without cause which is also allowed under the ERP.
13. On ground ii, Ms. Narayan submitted that the Tribunal erroneously concluded that according to the evidence, there were 4 ways of terminating the employees. The evidence of the appellant indicated that there were only 2 ways of terminating the respondent, that is, either by notice or payment in lieu of notice or summary dismissal. The evidence of Pawan Sharma in relation to suspension or termination by notice in cases where disciplinary processes have been initiated was clearly in a general context on "a case by case basis" and did not relate to this dispute.
14. In respect of grounds iii and iv, it was contended that the Tribunal erred in concluding that there was an inconsistent application of the rules at the whim of the management of the appellant. There was clearly no evidence established in this regard. In reaching its conclusion as such, the Tribunal placed undue weight on the evidence of Pawan Sharma in cross-examination that the appellant exercised flexibility in applying its company policies. The important consideration is that, neither was the respondent terminated for breaching any company policy nor were any of the company policies which Pawan Sharma was cross-examined on, applied to the respondent's case. The reference to all the company policies and the Manual which the Union referred to and adduced in evidence were clearly irrelevant to this dispute since they were introduced after the respondent's termination.
15. There was no evidence before the Tribunal that the appellant exercised any such flexibility in relation to the express provisions contained in the employment contract as it did with respect to its company policies generally.
16. On grounds v, vi, and vii, Ms. Narayan submitted that the Tribunal erred in law and fact when it concluded that there was a major flaw in the appellant's argument that the appellant need not observe the disciplinary procedures when terminating the respondent under schedule C, clause 4 (i) of the Master Agreement. The Tribunal erroneously placed reliance on clause 3 titled "Disciplinary Action". Clause 3 titled "Disciplinary Action" and consequently the procedure in Schedule H would only apply to situations where an employee is being summarily dismissed "for cause" under clause 4 (ii) of the Master Agreement. It is clear that the appellant did not dismiss the respondent for cause. The appellant simply decided to exercise its contractual rights under clause 4 (i) of the Master Agreement by ending the employment relationship without having to give any reasons to the respondent. The appellant did not summarily dismiss the respondent.
17. In respect of grounds viii, ix, x, xi, xii, xiii, xx, and xxii, Ms. Narayan argued that from the very beginning the employee's position only had been that he was terminated without being provided reasons. The issue of suspension was never brought up in the oral evidence too. It is only after the ERT's jurisdiction was defined that the company policies and suspension became an afterthought. The ERT should not have visited the issue of suspension as that was never the issue before it.
18. On grounds xiii and xv, it was argued that the Tribunal erred in fact in forming the view that if there is suspension then disciplinary procedures need to be followed in termination when suspension and termination are two separate issues since clause 3 of Schedule H of the Master Agreement clearly states that after suspension it will be decided "what subsequent disciplinary action if any shall be taken", hence in every case of suspension it is not necessary that any subsequent disciplinary action will be taken by the appellant.
19. The respondent was not dismissed for cause so there is no reason why there should be necessity of record of allegations, proceedings, conclusions or outcome, evidence of any investigation and reasons for termination. The appellant had exercised its powers to terminate without cause. The appellant may have reasons behind terminating the respondent under schedule C clause 4 (i) but it was not necessary for the appellant to provide those reasons.
20. On ground xiv, Ms. Narayan submitted that the Tribunal erred in fact and/ or misdirected itself in evaluating the evidence when forming the view as to whether the appellant picked and chose what to do without following the procedures and reasoning it with the issue of Mr. Dean being back at work whilst the respondent was on suspension when there was no evidence that the respondent's termination had anything to do with the Dean issue.
21. The Tribunal also failed to properly consider the evidence that the respondent as a 'Supervisor' had no authority to send Dean home for one week thereby either suspending Dean or firing him.
22. On grounds xvi, xvii and xix, Ms. Narayan submitted that the Tribunal erred in fact and in law in holding that the action by the appellant was discriminatory in that it nullified equality of opportunity in employment matters and that the appellants chose to use clause 4 (i) as a fall back situation by being choosy. The evidence of Pawan Sharma in relation to the appellant exercising a lot of flexibility when choosing to act was in relation to its company policies generally and not in relation to termination.
23. The Tribunal further erred in fact and in law when it held that the appellant was hopping around and used clause 4 (i) to build its defence in contemplation of a suit when there was nothing before the Tribunal or any evidence to support such a finding.
24. The Tribunal also erred in law and in fact in its findings that the appellant resorted to utilizing clause 4 (i) when it found out that it could not justify summary dismissal when there was nothing before the Tribunal or any evidence to suggest that the appellant had contemplated summarily dismissing the respondent.
25. In light of the grounds of appeal and submissions above, the Tribunal erred in law and in fact in awarding and assessing the compensation awarded to the respondent. It also failed to take into consideration that any compensation entitlement (if any) to the respondent was mitigated by him securing a job shortly after his termination. The respondent had obtained a permanent position for 3 years which job he had abandoned himself to spend 6 months in Iraq.
26. The Tribunal erred in law and in fact in awarding and assessing compensation for humiliation, loss of dignity and injury to feelings of the respondent when there was neither any dispute raised by the respondent nor any evidence in this regard alleging any humiliation, loss of dignity or injury to the feelings resulting from the manner of his termination. To the contrary, the respondent criticized the Manager who had signed his termination letter alleging that he was incompetent, was not experienced enough to do his job and was still learning from the book.
Respondent's Submissions on Appeal.
27. On grounds i and xviii, Mr. Rae submitted that the dispute is over unfair dismissal and not over the interpretation clause of
the Master Agreement. The Tribunal had harkened to the collective bargaining negotiations to establish a basis for good faith behaviour
and fair labour practices as the overarching context in which the provisions of the Master Agreement must operate. In the absence
of a Constitution and Bill of Rights in Fiji, it is perfectly acceptable and indeed desirable for Courts and Tribunals to rely on
international labour conventions as a basis for workers' rights and fair labour practices. The Hon. Justice Jitoko in the High Court
in Judicial Review No. HBJ 21 of 2006S had misdirected himself in attempting to redefine the Arbitration Tribunal's terms of reference
and limit the Tribunal's jurisdiction. The Court was reviewing the Tribunal's decision on a preliminary issue whereby the Tribunal
had ruled that issues of fairness and reasonableness were relevant considerations even in the context of dismissal on notice. The
High Court however apparently took issue with the terms of reference and proceeded to redefine it. The High Court went astray from
well established principles.
28. It was submitted in the alternative that the decision of Jitoko, J. in HBJ 21 of 2006S was in any case overtaken by the ERP which confers wider jurisdictions on the Employment Tribunal. The dispute had in fact been referred to the ERT under the provisions of the ERP.
29. Under Section 210 (1) of the ERP, the Tribunal's general function is not only to determine disputes and grievances but also to assist parties in establishing and maintaining effective relationships. The Tribunal was therefore acting within its jurisdiction in advising the parties to engage in social dialogue to realign the collective agreement with the ERP.
30. On ground ii, Mr. Rae submitted that the ground is superfluous. The ERT's discussion of the methods in which dismissal can take place does not go to the merits of the dispute. The Tribunal only confirmed the employer's evidence that it picks and chooses and shifts between methods to support its actions as it suits.
31. On grounds iii and iv, it was submitted that this issue goes to the heart of the dispute. Pawan Sharma's evidence was unequivocal in that while company policies formed part of employees' contracts of employment and bound both the employer and the workers equally, in practice this employer's senior managers applied "flexibility" in the employer's obligations. Indeed the dismissal of Peter Kitione as confirmed by the evidence of Pawan Sharma is a classic example of such "flexibility". The evidence was clear that the grievor had been suspended pending investigation for two days. The suspension dragged on for seven days at the end of which he was dismissed on the "flexible" orders from "above". Conveniently there was no evidence of any investigation, finding or other due process on Sharma's files.
32. On grounds v, vi, and vii, it was submitted that the Tribunal quite correctly placed reliance on other clauses in the Master Agreement. The employer's actions in commencing a disciplinary process consistent with the Master Agreement and then abandoning it midstream was capricious and in extreme bad faith to say the least. Whilst the Master Agreement acknowledges the employer's rights including to dismiss under Schedule B clause a (ii), clause b of the same Schedule significantly provides:
"The employer in the exercise of his rights, shall observe the provisions of this agreement."
33. The Tribunal's approach was consistent with this holistic approach to Kitione's employment rights, rather than treating clauses in isolation as the employer intends in order to justify its actions.
34. On grounds viii, ix, x, xi, xii, xiii, xx and xxii, Mr. Rae submitted that It is undeniable and indeed confirmed by the employer's evidence that the worker Peter Kitione was suspended on 14 February 2005 for investigations and was dismissed on 22 February 2005 without the due processes provided for in Schedule H (Disciplinary Procedure) and Schedule I (Disputes and Grievance Procedure) of the Master Agreement. The employer makes much of an issue about the absence of a complaint over the suspension. Kitione's evidence was that during that week he had tried in vain to reach senior management Daniel Whippy and Rogger Powell at the Company office.
35. The Union reported a trade dispute over the grievor's termination of employment as being "unjust, unfair, harsh and wrong and that he should be reinstated to his present position without loss of salary or benefit from the date of termination". These were the terms in which disputes over dismissal were generally referenced under the Trade Disputes Act. The issue of suspension was a live issue in the determination as it preceded the termination. The dispute was referred to the Arbitration Tribunal by the Permanent Secretary, however before it could proceed the employer raised a preliminary issue over the Arbitration Tribunal's Jurisdiction. The Tribunal ruled in favour of the Union which decision the employer then sought to judicially review. When the dispute finally resumed and landed in the ERT, the Union, in its opening submission, alerted both the employer and the Tribunal that suspension was going to be a live issue in the determination. This was consistent with Section 112 of the ERP that permits the worker to raise evidence of a grievance in respect of another aspect of employment. While the Tribunal accepted evidence in relation to suspension it is unclear from the decision whether a specific remedy was awarded in that respect. The employer had raised no objection and even though it had indicated as confirmed by the ERT at paragraph 5 of the decision that its evidence would be limited to the issues raised by the Union, it brought no evidence to contradict the worker's claim that he had been suspended prior to termination.
36. On grounds xiii and xv, Mr. Rae submitted that the ERP requires that reasons be given for a dismissal. The ERP also confers a specific jurisdiction on the ERT to make a determination on justification and fairness of any dismissal.
37. On ground xiv, Mr. Rae argued that "the employer's issues with specific evidence would appear to indicate it is deviating from its initial position that it had a simple case of exercising a right to that of challenging specific evidence on the record". I cannot fathom what Mr. Rae means here.
38. On grounds xvi and xix, it was submitted that the Tribunal quite correctly accepted the evidence that the employer's actions was a serious infringement of the worker's fundamental right pursuant to international conventions. The Tribunal deserves commendation for bringing this employer to account.
39. Mr. Rae submitted that grounds xxiii, xxiv and xxv are irrelevant and without merit. The Tribunal acted within its jurisdiction. The employer bemoans the short term alternative employment sought by the worker. The fact remains that in the seven years since his dismissal the worker has been in a temporary employment. It is again insensitive of the employer, typical though it may be, to seek to ignore the hardships its unjustified and unfair actions has visited upon the worker. The employer did not refute or challenge the grievors evidence that since dismissal, he could not afford to continue higher education for his children and that he had other hardships.
Submissions on Cross -Appeal
40. Mr. Rae argued that clause 5 of Schedule H mandates that if it is proved that an employee has been unjustly suspended or dismissed
he shall be reinstated and paid all wages he would have earned without loss of benefits which normally be accrued to him during the
period of suspension or dismissal. In light of that contractual provision, the ERT was wrong in providing a remedy less than reinstatement.
41. Ms. Narayan submitted that in light of her appeal, there ought not to be any remedy. Reinstatement, in any event is out of question. There is long absence from work and the respondent found a new job. In any event, the ERT has a discretion under s.230 of the ERP to award the remedy it deems proper.
The Law and Analysis
42. I do not think that I have to adapt the pattern followed by Ms. Narayan to determine this appeal. She seems to have appealed every
paragraph of the decision, some of which are mere remarks of the ERT and does not form the basis of the ERT's reasoning and verdict.
43. I must first put one issue to rest which is what the Hon. Lord President when he was the Permanent Arbitrator then said that in an unlawful dismissal case he has to determine whether the dismissal is lawful and fair. The Permanent Arbitrator was, in law correct, to have made a finding that the lawfulness and the fairness of the termination are two different limbs that has to be looked at. The judicial review decision of Hon. Justice Jitoko confined the issue to only determining whether the dismissal was in accordance with clause 4 (i) of the Master Agreement. The High Court only looked at the matter from the employer's perspective. Whilst I now cannot overturn the decision of the Hon. Justice Jitoko, I can hold in this appeal and I so do, that the ERT cannot comprehensively determine the issue of the termination only with reference to clause 4 (i) of the Master Agreement. If that was the case, the High Court could have found an answer to the said question. There was no need to send the matter before the Tribunal for a trial. I find that the ERT has correctly examined the circumstances surrounding the termination and for that the ERT had to examine the situation from the day of suspension onwards.
44. Ms. Narayan says that suspension was never the issue in the proceeding and that the High Court had defined the ERT's jurisdiction to be limited to determination of whether the termination was in accordance with clause 4 (i) of the Master Agreement.
45. From the beginning, the employee's claims was unlawful and unfair termination. The Arbitration Tribunal stated that it had to examine the lawfulness of the termination and also whether the same was fair. If that was going to stand, The ERT or the Arbitration Tribunal surely was given the powers to examine the issue of suspension too because it has a pivotal role in determination of the lawfulness of the termination.
46. The employer cannot limit the claim of an employee to what it thinks is fair for determination. I respectfully disagree with Hon Justice Jitoko's verdict of defining the Tribunals jurisdiction and I find it proper that the question of suspension was examined.
47. The Tribunal stated that by suspending the employee, the disciplinary procedure was activated and the employer than could not hop around clause 4 (i) in contemplation of a defence to the suit for unlawful dismissal.
48. Let me examine this against the employment contract and the Master Agreement.
49. The employees' contract of service has outlined that "his other conditions of employment will be in accordance with the Master Agreement and Company Policies for employees of similar status in the company".
50. Clause 3 of the Master Agreement talks about disciplinary action. It reads:
"An employee may be disciplined for an offence. When disciplinary action is contemplated, the employee shall take such action in accordance with the procedure laid down in Schedule H- Disciplinary Procedure".
51. The power to suspend comes under clause 3 of Schedule H. It is titled Disciplinary Procedure and reads:
" The employee may be suspended from working by a foreman or supervisor but that suspension shall within 24 hours of the suspension be brought to the attention of the Departmental Manager or Works Manager who will decide what subsequent disciplinary action if any shall be taken".
52. It is indisputable that the employee was first under suspension and that it was done so only in contemplation of a disciplinary action. The ERT was correct in holding that the disciplinary process was activated. The question then is what if any other rights should have been accorded to the employee after the suspension is activated. The answer lies in clause 3.
53. The suspension was done by the National Operations Manager Service Stations Mr. Imraz Taj. He in fact was the Departmental Manager. So there was no need for compliance of the first part of clause 3 of Schedule H. It is then for the Departmental Manager to decide on what and if any disciplinary action should be taken.
54. It was open to the employer to thus dismiss the employee, if I were to take that dismissal is a disciplinarily action as there is nothing else provided for under the disciplinary procedure. The contract does not specify what the disciplinary procedures are. To my mind dismissal is a disciplinary procedure. If it is not and some other actions are, then again, whether or not those other disciplinary actions should be taken was the prerogative of the employer as that is what is stated in clause 3 of Schedule H and what is agreed by the parties.
55. The employer then had the option to dismiss as a disciplinary procedure under any termination clause or if dismissal is not a disciplinary procedure to still go ahead and carry out dismissal without according any other disciplinary action.
56. In this case the employer chose to dismiss under clause 4 (i) which reads as follows:
" An employee's services may be terminated by the employee or the employer by giving of one month's notice on either side or the payment or forfeiture of one month's pay as the case may be. The period of notice will commence on the day notice of termination is given".
57. Clause 4 (i) is the same as the termination clause of the employment contract which reads:
"Employment may be terminated by either party at any time. The party which intends to effect termination shall give to the other one month's notice or an indemnity equivalent to one month's salary in lieu of such notice. Where you are guilty of any form of serious misconduct, you will be summarily dismissed by the Company without entitlement to notice or payment in lieu of notice".
58. There is no requirement in the disciplinary procedure to make any independent investigation, call for explanation, and making a determination after hearing both parties. So far as the disciplinary action is concerned, the employer has the right to do choose what it will do. In this case, it exercised its rights under clause 4 (i) to terminate without cause.
59. The termination was procedurally justified and as such there ought not to be any remedy granted for unjustified termination
60. Was the termination unfair? This relates to the manner in which the dismissal was carried out. There is nothing in the evidence to suggest that the process of dismissal was embarrassing, humiliating and hurt the feelings of the workers. Indeed the employee would have gone through those felling as all dismissals brings that feeling of lowered repute. However the employer did not act or treat the employee in a way to cause that. The award for humiliation, embarrassment and injury to feelings is thus not properly founded on the facts.
61. I agree with Ms. Narayan that the ERT need not go into the aspect of how the Master Agreement was negotiated. Its duty was to ascertain the lawfulness of the termination under the contract of employment. It flows from there that the parties must be free to negotiate what they feel protects their rights and interests. The ERT is an adjudicating body. It does not have to play the role of a consultant in directing or advising the parties on what should be expected from the other.
62. When the ERT made the comments on processes of termination, it made a general comment on the processes used by carpenters and not what process is agreed in the employment contract and the Master Agreement between the parties. This comment does not affect the determination and so I do not wish to make an issue about that.
63. It is correct that the employer's flexible procedure in terminating the employees did not apply to the employee in question. The remarks should not have been made in this case. It influenced the decision of the ERT which was inappropriate in deciding the question.
64. The appellant had activated the disciplinary procedure by suspending the employee. If the contract did not provide that after suspension it was the discretion of the employer to decide the disciplinary action to be taken and that further disciplinary procedures were to be taken, I would have held what the ERT held that the employee ought to have been given the rights under the disciplinary procedure but the contract provides for the employer to choose the disciplinary action with or without taking any other action after suspension.
65. I do not agree with Ms. Narayan that disciplinary procedure will apply to situations where the employee is being summarily dismissed and not where he is dismissed without cause. Firstly this case is not just about activation of clause 4 (i). It is about activation of disciplinary procedure. If it was a straight forward activation of clause 4 (i) then Ms. Narayan would be correct. Secondly summary dismissal takes place on spot. It requires no notice, no procedure but just a cause for termination, the act of termination, written reasons for termination and up to date pay otherwise the term summary dismissal loses it purpose.
66. I do not think that using clause 4 (i) by the employer was in contemplation of a suit. There is nothing to suggest that. I find that the activation of clause 4 (i) is or was the right of the employer under clause 3 of Schedule H. The appellant also did not choose clause 4 (i) because it could not justify summary dismissal but that it had the right to terminate an employment contract for no cause.
67. In the final analysis, I find that clause 4 (i) was either used as a disciplinary action under clause 3 of schedule H and if not then the employer had the right not to take any disciplinarily action and independently exercise its rights under clause 4 (i) without reference to the suspension. It need not, as of right, accord any disciplinary procedures to the employee.
68. The remedy provided by the ERT is thus unsustainable. In light of my reasoning the cross-appeal is redundant but I wish to make a comment that if unjustifiable dismissal was found, reinstatement was a mandatory remedy under clause 3 of Schedule H of the Master agreement. The ERT had no discretion to reduce the remedies under s.230 of the ERT.
Final Orders
69. I find that the termination was properly conducted under clause 4 (i) of the Master Agreement and as such the employee is not entitled to any remedy.
70. The orders of the ERT are set aside in full.
71. Each party must bear their own costs.
Anjala Wati
Judge
12.03.2014
____________________
To:
1. Ms. Narayan for the Appellant.
2. Mr. P. Rae for the Respondent.
3. File: ERCA 6 of 2012.
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