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Fiji National University v Ravuyawa [2015] FJHC 1032; ERCA11.2014 (24 December 2015)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA11 of 2014

BETWEEN:

FIJI NATIONAL UNIVERSITY
APPELLANT

AND:

BASILIO RAVUYAWA
RESPONDENT

Appearances: Mr. V. Kapadia for the Appellant.
Mr. R. Singh for the Respondent.
Date/Place of Judgment: Thursday 24 December 2015 at Suva.
Coram: Hon. Madam Justice A. Wati.

JUDGMENT

Catchwords:
Employment Law –Appeal –on employees claim for unfair and unreasonable dismissal, dismissal must be established first – employee who abandons work for continual absence without notification is deemed resigned therefore cannot claim he was being dismissed- summary dismissal procedure discussed- assessment of evidence and the weight to be given.

Legislation:

1. The Employment Relations Promulgation 2007 ("ERP"): ss.33.
   

The Cause

1. On 28 March 2011, Mr. Basilio Ravuyawa, was informed in writing by the employer that he had abandoned his work by being absent from work for 6 working days without notice and that he was deemed to have resigned with effect from 21 March 2011. The employee was therefore not accepted back to work.
   
2. The employee filed a claim for unjust and unfair termination which was heard by the Employment Relations Tribunal ("ERT") and a ruling delivered on 8 October 2014.
   
3. The ERT found that the cause for termination was not justified because the employee was sick and had provided a medical certificate dated 21 March 2011 when he appealed to the employer after being dismissed. The ERT found that the employer was obliged to find out where the employee was during his absence and if they could not locate the employee by telephone, it ought to have contacted the Local Police Community Post.
   
4. It was also found by the ERT that the employee had passed the message to one Mr. Bola on his absence and Mr. Bola passed the message to Timaima Nakauyaca ("TN") who passed the message to one Poasa Koroitamana("PK")Mr. Prem Sushil Prasad("PSP").
   
5. The ERT found that the medical certificate was not challenged and therefore legitimate and valid.
   
6. The ERT found that the employee had a good cause for not notifying the employer in advance of his absence. He had his leave due and he should have been given leave when the medical certificate was seen by the FNU.
   
7. In commenting on the procedure that led to the termination, the ERT found that the employer was obliged to make the employee accessible to all information based on which it was going to make an adverse decision against his employment and allowed him an opportunity to comment on the information. This was not done.
   
8. The ERT therefore awarded the employee lost wages for 2 years and 3 months.
   
9. Aggrieved at the decision the employer appealed.
   

Background

10. Mr. Basilio Ravuyawa worked for the employer as a clerical officer pursuant to an employment contract dated 22 March 2010.
    
11. The term of the contract was from 1 January 2010 to 31 December 2012 unless the contract was terminated earlier.
    
12. The contract was to be construed subject to all applicable statutes and enactments.
    
13. The employee was to obey all lawful and reasonable instructions of the employer and comply with all Human Resources Policies and Procedures as documented. The Human Resource Policy and Code of Practices were an implied term of contract between the parties.
    
14. The employee admitted that he was very familiar with the Human Resource Policies and Procedures as he himself worked in the Human Resource and Record section.
    
15. The employee resided 200 meters away from work in the quarters provided by the employer. He worked as Records Clerk in a separate building which was a wooden house that had two 20 ton containers adjacent to the wooden house which was covered over by a roof structure.
    
16. The two containers housed all of the files and records of the employees. The employee sat between the two containers some 10 feet away from 4 other people who also worked in the same building.
    
17. PSP, the immediate supervisor of the employee, was also housed in the same building and sat some 10 feet away at his desk.
    
18. On 18 March 2011, PSP noted that the employee had signed in the attendance register at 7.30am which was situated in a separate building some 100 meters away in PK's office. However the employee was not present at work throughout the day.
    
19. The employee also did not sign out the register on that day. The next two days were Saturday and Sunday. Came Monday 21 March 2011 the employee did not report to work until the following Monday 28 March 2011. He was not at work for a continuous period of 6 days.
    
20. PSP, PK and TN gave evidence that attempts to contact the employee by telephone failed.
    
21. They also gave evidence that neither the employee nor any one on his behalf contacted PSP, the immediate supervisor or PK, the next most senior supervisor.
    
22. The employee had not taken prior leave for being absent from work.
    
23. On Monday 28 March the employee came to Nasinu Campus but did not sign the attendance register. He was questioned by Mr. PSP as to his absence over the 6 working days. The employee told him that he had gone to his village in Ra. He did not at any stage then when he was being questioned by PSP or PK say that he was sick or produce a medical certificate of any kind.
    
24. PK gave evidence that on Monday 28 March 2011, when he questioned the employee, he simply smiled and scratched his head.
    
25. At 11.45am on 28 March 2011, the employee was given a letter which stated that he was deemed to have abandoned his employment on 21 March 2011 and deemed to be no longer an employee with effect from 21 March 2011. The letter reads:
    

"This Memo is to inform that we have perused through your daily attendance record kept at the HR Office and note that you have abstained from work continuous for a period of 6 working days (18/3/11 till 25/03/11) without informing your supervisor about your whereabouts.

It is noted with much concern that as a responsible employee you have failed to abide by the Fiji National University (FNU) HR Policies Manual which inter alia states:

"An employee who is absent without authority for more than 24 hours during the schedule work week without acceptable notification to her/his superior or an authorized designated senior officer in the University, shall be deemed to have abandoned the position and shall be deemed to have resigned from his/her employment. In such cases, the head of department/Manager is to notify the Human resources Director who will handle related personnel processing".

Your failure to comply with the HR Policies Manual has the potential to give negative signal to other staff and we cannot condone such laxity.

Given the above and taking note of the first warning given to you on 11/08/10 on a similar breach I am inclined to believe that you have abandoned your employment/terminated your employment with Fiji National University (FNU).

Furthermore, we have also perused through daily attendance record and note that you have record of habitual absence from work without permission of the employer and without other reasonable excuse.

Therefore, as of 21 March 2011 you are deemed no longer employed by FNU and as such FNU will not be liable for any transactions on your behalf".

26. The employee has a prior history of not coming to work without informing his superiors. He was given a similar letter of deemed abandonment of his employment in August 2010. The letter was withdrawn and substituted with a warning letter of 11 August 2010. Thereafter the employee was also cautioned on his conduct in using confidential information kept in staff personal file and was issued with a first cautioned memo dated 15 February 2011.
    
27. The employee appealed against the decision of the employer. He did so by a letter dated 8 April 2011. In this letter of appeal, he attached for the first time a sick sheet provided by Dr. Yogendra Prasad dated 21 March 2011. This medical certificate was not produced by the employee on 28 March 2011. In his appeal letter the employee stated that the various officers had been well contacted. However PSP, PK and TN had all denied this.
    
28. By a letter dated 18 May 2011 the employer advised the employee that it would stand by its decision. The employee then filed a claim in the ERT on 20 June 2001 claiming that he was unfairly and unreasonably terminated from employment.
    

Grounds of Appeal and Submission

29. The employer raised 16 grounds of appeal which are repetitive and most of it also contains argument. When drafting grounds of appeal, counsel must be specific and avoid repetition. The appeal grounds must not contain submissions and arguments.
    
30. Grounds 1 and 2 which were argued together states that the ERT erred in law and in fact:
    
    1. in holding in clause 45 of the its determination that the reason for the dismissal of the employee was based on gross misconduct based on the continuous absence for six working days without investigation when the facts ascertained from the witnesses of the employer at the trial established on the balance of probability that the employee was not at work from 18 March 2011 to 28 March 2011 and was dismissed for abandoning his employment.
       
    2. in holding at clause 46 of the determination that the appellant did not do any investigation and instead issued the dismissal letter to the employee for abandoning his employment when the evidence from the employer's witnesses established on the balance of probability that the employee had not communicated his absence to the employer for six working days.
       
31. In respect of the above grounds, Mr. Kapadia argued that the ERT was incorrect in holding that the employer was required to carry out the investigation. The facts were self-evident that the employee did not come to work from 18 March 2011 to 28 March 2011. The employee was under a contractual duty to inform his supervisors of his absence if he was away from office for more than 24 hours.
    
32. The supervisors denied that they received any call or information regarding the employee's absence. This indicates that the employee had breached HR Policy Number 32. His only mitigation against the requirement was if circumstances were beyond the direct control of the employee or there was a life threatening emergency. None of this exception was established so there need not be any further investigation.
    
33. M. Singh, the employee's representative argued that on 18 March 2o11, the employee was at work. He had signed the attendance register. He was also on certified sick leave from 21 March 2011 to 25 March 2011. He suffered from chest infections. He therefore cannot be said to have abandoned his employment.
    
34. On 28 March 2011, the employee produced a medical sick sheet. That was not considered. The employer ought to have spelt out the alleged breaches to the employee and sought his response. Any fair and reasonable employer would have given the employee a chance to explain his position.
    
35. In ground 3 it is averred that the ERT erred in law and in fact:
    
    3. in holding at clause 46 of the determination that the employer refused to consider the medical certificate presented to it by the employee on 28 March 2011 when the decision to terminate was made by the employer on the basis of breach of the Human resource Policy No. 28 and 32.
       
36. Under this ground it was submitted that the ERT erred when it stated that the employer failed to consider the medical sick sheet provided by the employee. How can the employer consider this when the medical sick sheet was not even tendered on 28 March 2011 but on 8 April 2011, some 10 days after the termination of employment and that too when the employee appealed to the employer on its decision. Both PSP and PK gave evidence that on 28 March 2011 they were not even told that the employee was sick. The employee gave evidence that he only paid $5 for the sick sheet. It was argued that it is inconceivable how a private practitioner will only charge that for consultation. This fact supports the evidence of PK that he was suspicious that the medical sick sheet was even obtained after the termination of employment.
    
37. Mr. Singh stated that he has already made submissions that the employee was not given an opportunity to explain his position especially after he tendered a medical sick sheet.
    
38. Grounds 4, 5, and 6 states that the ERT erred in law and in fact:
    
    4. in putting the onus on the appellant in clause 47 of the determination that it should challenge the validity of the medical certificate under s. 68(4) of the ERP when that was not relevant to the decision made by the employer to terminate the employment on the grounds that the employee had abandoned the employment.
       
    5. in citing clause 2.9 in the Human Resource Policy No. 28 in clause 47 of the determination on whether the condition of the employee was life threatening emergency had to be independently verified when the onus was at all times on the on the employee under the said policy to communicate and inform the employer of his absence. There was no evidence produced at the trial by the employee that his condition was life threatening or that he was unable to communicate his absence from 18 March 2011 to 27 March 2011 when he was able to travel by bus from Suva to Rakiraki area.
       
    6. in holding in clause 48 of the determination that the employee was very sick as verified by the medical certificate and that he was not in position to think straight when there was no such evidence led at the trial that could determine the employee's condition as such.
       
39. Mr. Kapadia argued that the medical certificate was not produced to the employer when the employee was deemed to have resigned from him employment and a letter to that effect issued to him on 28 March 2011. There was no evidence produced at the trial or in the medical evidence that the employee's condition was life threatening. The employee had to establish that for him to succeed on the basis that he could not inform the employer of his absence. The ERT wrongly shifted the burden on the employer to investigate whether the medical certificate was fraudulently issued.
    
40. Mr. Kapadia stated that under s. 68(3) (a) of the ERP, it is for the employee to show that it was not reasonably practicable for him to notify the University of his absence and the reasons for it. The day he was deemed resigned that is on 28 March 2011, he did not tell anyone that he was sick, so the employer could not ask for the sick sheet. If he did say he was sick, the employer would have asked for the sick sheet.
    
41. The Human Resource Policy No. 28 by clause 2.7 states that "it is the responsibility of an employee who is absent from work without leave or authority to inform his or her immediate supervisor of his absence. In the event of his inability to communicate with the supervisor, the employee shall communicate his or her absence to at least one of the following: the senior most supervisor in the section; the Dean or Director, or the sections clerical officer (clerk/typist/secretary/administrative officer)". Clause 2.8 of the same policy states that "if the employee fails to communicate such absence for 24 hours from the commencement time of work, the employee would be deemed to have abandoned his/her employment and thus deemed to have resigned from his/her position". Clause 2.9 of that policy states that "the only mitigation against the deemed resignation rule are an event that was beyond the employee's direct control, or a life threatening emergency, both of which must be independently verifiable".
    
42. Mr. Kapadia argued that the employee breached the terms of the above contract as well as clause 2.14 of the Human Resource Policy number 32 which was outlined in the letter of 28 March 2011 by which the employee was sent home. The ERT ought to have given consideration to the terms of the contract and worked out the employee's obligation. Since he could not establish a life threatening condition, his absence from work is deemed resignation. If the employee had a life threatening condition, then how could he go to Rakiraki in a carrier van? He could have at least called the workplace or attended in person and informed his superiors.
    
43. The representative for the employee argued that the employer did not give any reason why the medical certificate was not considered especially when the employee was suffering from chest infection. Any reasonable employer would have sympathized with the employee and not rushed into terminating the employee.
    
44. It was further argued by Mr. Singh that the employee attempted to inform the employer of his absence but was not successful. However the message was conveyed through one Mr. Bola of CAAF who had informed TN of his absence. Even the employer's letter of 18 May 2011 acknowledges that TN told PK of his absence.
    
45. It was argued that the ERT made its own assessment that the employee was very sick whichwas properly based on the medical sick sheet.
    
46. Mr. Kapadia argued grounds 7 and 10 together. It is averred in ground 7 and 10 that the ERT erred in law and in fact:
    
    7. in not upholding the employer's submission based on Jones v. Dunkel inference that the employee did not call Mr. Bola who the employee had asked to call the employer to advise of his absence nor did the employee call the medical practitioner to confirm that he was not in a position to communicate his absence to the employer.
       
    10. in stating in clause 15 of the determination that it believed the employee's version that he told Mr. Bola to communicate to TN when the ERT should have made a Jones v. Dunkel inference when the employee did not call Mr. Bola to give evidence whereas the employer had called TN, PK and PSP who gave evidence that none of them had been contacted by anyone on the employee's absence.
        
47. It was argued that the employee gave evidence that he called Mr. Bola who was working in Koronivia to call his superiors and advise them of his absence and that Mr. Bola had called TN. TN gave evidence that she did not receive any call from anyone.
    
48. If the employee had called Mr. Bola he should have called him to give evidence on his behalf. He could have also called Dr. Yogendra to testify that on the days he was absent, he had a life threatening condition due to which he could not inform the employer of his absence. Since these two crucial witnesses for the employee were not called by him, the ERT should have drawn a Jones v. Dunkel inference that the evidence of these two witnesses would not have assisted the case of the employee.
    
49. Mr. Singh argued that there was no need to call the medical practitioner to establish that the employee was not able to contact the employer for his absence. This ground of appeal, it was argued, makes no sense.
    
50. In ground 8, it was averred that the ERT erred in law and in fact:
    
    8. in holding at clause 50 of the determination that the employer had to provide the employee an opportunity to comment on the information before making the decision to terminate his employment when the evidence led at the trial by the employer's witnesses established that he was asked to explain his absence and was unable to do so on 28 March 2011.
       
51. It was submitted that there is no such legal requirement that the employee be given an opportunity to comment on the information gathered by the employer. The employee was asked to explain his absence for 6 working days and all that he said on 28 March 2011 was that he had gone to Ra. He was therefore asked to explain his absence. He failed to provide a lawful and valid reason. Even his appeal was considered where the employee gave an explanation and the employer did not accept the same. The employee was not denied the opportunity.
    
52. In response it was submitted that the employer acknowledged in its preliminary submission that the employee has notified of his absence. After that the employee produced a valid sick sheet pertaining to his sickness. In no way did the employee abandon his employment under the contract.
    
53. Ground 9 states that the ERT erred in law and in fact:
    
    9. in holding in clause 50 of the determination that the employer when it could not locate the respondent by phone should have contacted the local police community post in an attempt to locate the employee when such responsibility should not lie on the employer and the onus was at all times pursuant to the contract of employment and the employment policies on the employee to advise the employer of his absence.
       
54. It was contended that if what the ERT held was the law than it would be an onerous burden on all employers in Fiji who would be required to file reports with the Fiji Police of workers not turning up for work for a 24 hour period.
    
55. Ground 11 states that the ERT erred in law and in fact:
    
    11. in holding at paragraph 53 of the determination that the employee did not abandon his employment as he had good cause for not notifying the employer in advance and for not obtaining consent for his absence as he was very sick as confirmed by the medical certificate and that there was also other mitigating factors which are not disclosed by the Tribunal. The Tribunal erred in law and in fact when it failed to consider that the employee was not sick enough to go to a medical practitioner in Valelevu and thereafter take a journey of 3 to 4 hours to go near Rakiraki on Kings Road whilst at the same time failing to make one phone call to the employer advising of his absence for a period of 6 days.
        
56. Mr. Kapadia repeated that if the employee could go to the doctor and to Rakiraki, why could he not make a telephone call to the employer. There is therefore no basis for the ERT to find that the employee was very sick to notify the employer of his absence.
    
57. Grounds 13 and 14 states that the ERT erred in law and in fact:
    
    12. in holding in clause 54 of the determination that the employer's refusal to grant retrospective leave to the employee was unreasonable and also the employer's refusal to recognize the medical certificate as alarming when the basis of the dismissal of the employee was breach of the employment contract to communicate his absence from work to the employer.
        
    13. in holding at clause 56 of the determination that the dismissal by the employer was not justified as a fair and reasonable employer would not have dismissed the employee in all the circumstances when the evidence from the witnesses of the employer clearly established the negligence of the employee in not communicating his absence from work.
        
58. It was argued that when the employee was sent home then there was no medical certificate to consider leave. The employee did not even mention about his sickness on that date. Even the medical report did not show any serious illness that could have a life threatening impact which precluded the employee from notifying the employer of his absence.
    
59. Mr. Singh submitted that the employee did not seek approval for retrospective leave. He utilized his sick leave as he was entitled to the same.
    
60. Grounds 14 and 15 states that the ERT erred in law and in fact:
    
    14. in holding that the employer pay to the employee wages lost for a period of two years and three months when the employee's contract of employment in any event was expiring on 31 December 2012 within 1 year and 9 months from the date of termination.
        
    15. in delaying the decision after completion of hearing on 27 June 2012 for a period of 2 years and 3 months when by law pursuant to s. 171 of the ERP, it was required to give a decision within 60 days of the hearing and as a result of which the ERT imposed punitive damages on the employer for its failure to deliver decision in a timely manner.
        
61. The above grounds are self-explanatory. Nothing more was added during the submissions. Mr. Singh submitted that the remedy is justified under s. 230(1) (b) of the ERP. The hearing was completed on 27 June 2012. This was two years after the termination.
    
62. There is nothing new about the delay in the ERT, said Mr. Singh. This is a well-known occurrence and there are cases as old as 5 years in the ERT. The delay is neither the fault of the employee so he has the right to receive lost wages.
    
63. Ground 16 alleges that the ERT erred in law and in fact:
    
    16. in failing to properly consider the employer's submissions and the evidence and failed to exercise his discretion properly is not dismissing the employee's grievance in light of the evidence of the employer's witnesses.
        
64. It was argued that the employer's submission on Jones v. Dunkel was not considered and that the respondent did not put his case to the employer thereby breaching the principles in Browne v. Dunn.
    
65. Mr. Singh repeated that the employee had a right to be heard on why he was absent from work. He was not accorded that right. If he was, it would have been established that he was sick and as such not able to report to work. He was denied natural justice of being heard and explained the cause against him. That makes the procedure in dismissing very unlawful and so the employee is entitled to lost wages as ordered by the ERT.
    

Law and Analysis

66. I will deal with all the grounds of appeal collectively as one overlaps the other and it would be meaningless to deal with each ground individually.
    
67. I must say that the first issue before the ERT was to decide whether the employee was dismissed or that he terminated the contract of service by abandoning the employment.
    
68. It is not disputed that the employee came to work on 18 March 2011 and signed the attendance register. I find from the evidence that after signing the attendance register, he left the premises without informing the employer. The employee says that he was at work. If he was, why did not anyone see him there or he signed out when he left work after close of business. If anyone saw him, that person could have testified to that effect. There was evidence from PSP that the employee was not seen at work and that evidence is substantiated with the attendance register. On the balance of probability therefore, it was established that the employee did not attend work on the day except for coming in and signing the register.
    
69. The following week he stayed back from work, again without informing the employer. He says that he called one Mr. Bola but he did not call Mr. Bola to give evidence to that effect. The employee said that Mr. Bola informed one TN but she denied at the trial that anyone informed her of the employee's absence.
    
70. It was for the employee to establish that he had informed someone under clause 2.7 of the HR Policy No. 28 of his absence. That someone should be an immediate supervisor and in case where the immediate supervisor cannot be called the senior most supervisor in the section, the Dean or Director, or the sections clerical officer. Mr. Bola does not fall in the category to be contacted for this employee. Even if he does, there is no evidence expect for the statement of the employee that he did call Mr. Bola. The ERT gave no reasons why the employer's witness's evidence were rejected and the employee's version accepted especially when the employee failed to call Mr. Bola to testify on his behalf or in the very least produce his telephone bills showing that he did call Mr. Bola and the length of time he spoke to him.
    
71. There was no basis on which more weight was given to the evidence of the employee especially when the supervisors of the employee and TN denied receiving any call. In his appeal to the employer, the employee had stated that he could call Mr. Bola as his witness. Why he did not call Mr. Bola was not explained. To counter the evidence of the witnesses at least the telephone bills of the employee could have been produced.
    
72. The employee in his appeal to the employer stated in his letter that he made the call on 22 March 2011. Even on his own admission the employee did not communicate the absence within the 24 hours as required by clause 2.8 of the HR Policy No. 28. He was away from work from 18 March 2011. If he called the office on 22 March 2011, that makes it more than 24 hours thus breaching the term of the contract and proper for the employer to conclude that the employee was deemed to have resigned on 21 March 2011.
    
73. Mr. Singh says that the employers letter of 18 April 2011 and the employer's preliminary submission acknowledges that TN notified PK of the employee's absence. What the letter of 18 April 2011 says is that PK came to know about the employee's absence from TN. it does not say that the employee had notified the office of his absence. Of course if the employee is not at work, one officer will tell the other of the absence. That does not mean that the employee is exonerated from complying with the provision of informing the employer of his absence.
    
74. I have also perused the employer's preliminary submissions. There is nothing to the effect where the employer admits being notified of the employee's absence within 24 hours of him being away from work.
    
75. There was clear evidence that there was failure by the employee to contact the employer to notify him of his absence. The exception to this would be if the employee faced an event which was beyond his direct control or that there was a life threatening emergency. None of this was established at the trial or through any independent evidence as provided for by clause 2.9 of the HR Policy Number 28. Under this clause it is for the employee to establish that he could not contact the employer because of the situation he was in.
    
76. It is indeed correct that if the employee could visit the medical practitioner on 21 March 2011 and travel to RakiRaki, his health condition was not so serious to disable him to go to work and inform someone of his medical condition or make phone calls to appropriate people and inform them of his absence.
    
77. The ERT improperly placed the onus on the employer to locate the employee through local police. The contractual obligation is on the employee to notify the employer of his absence and not vice versa that the employer should look for the employee. There is no such resource available in any employment situation I know of that the employer's must find out the whereabouts of the employee. Particularly in this case, if there was such an onus on the employer, there will not be the term in the HR Policy imposing an obligation on the employee to notify the employer of his or her absence.
    
78. When the employee went to work, he was not dismissed. He was deemed resigned and the employer gave the employee a written explanation why he was not required at work because of his resignation. It was the employee who had terminated the contract and not the employer.
    
79. Although my findings are enough to allow the appeal and dismiss the orders of the ERT, I wish to make some further comments on the findings of the ERT. It says that the employer ought to have provided the employee all information to comment on before the dismissal.
    
80. Both parties construed this to be a case of summary dismissal. Even if I were to agree with them that the employee was summarily dismissed under s. 33(1) (e) of the ERP for continual or habitual absence from work without the permission of the employer and without other reasonable excuse, there is no requirement that the worker be provided a hearing or information to comment on.
    
81. There is also no requirement that an investigation be carried out. If on the facts before the employer, it is satisfied that there is a cause for dismissal, it can proceed to exercise its powers under s. 33 to dismiss the employee. In this case, there was no need for any investigation. The employer had before it the attendance register which speaks for itself and information by the superiors that the employee had not notified them of his absence. That information was sufficient for the employer to exercise its powers to dismiss the employee. The employee was given written reasons for dismissal. This is one of the procedural requirements for summary dismissal.
    
82. The ERT also found that the employee was entitled to leave. The issue of leave does not arise. The employer's concern was staying away from work without notification. If that is established, then the employee has deemed to have resigned from his employment and that is what actually happened. The employer was not obliged to consider leave when it assessed that the employee had deemed to have resigned from work.
    
83. This is not the first time that this employee has gone through such a situation. He has faced a similar scenario in his career before with the same employer and on that basis he ought to have been more vigilant and taken pro-active steps to inform the employer. When I say inform, there has to be proper notification to the employer. In this case, at least the sick sheet could have been tendered on the same day it was obtained before he proceeded to RakiRaki. The work place was not as far as RakiRaki and it not acceptable conduct on the part of the employee to say in a wishy-washy way that he informed the employer.
    
84. The ERT also found that due to the employee's medical condition, he was not able to think straight. That fact finding is not established in any evidence to this effect. If the employee could not think straight, he would not have gone to the doctor or to his village in RakiRaki. He travelled such a long distance on his own. The ERT made an assumption of the employee's mental condition to be improper which is incorrect in law to do so without any evidence.
    
85. Further, the ERT contradicts itself when it says that the employee had a good cause for not notifying the employer in advance and obtaining consent for the absence. This finding contradicts the finding that the employee notified Mr. Bola of his absence.
    
86. From the evidence, I find that the employee was not able to establish that he informed anyone of his absence and if he was not able to do so, I do not find that he had any valid explanation why he could not do so. The employer was therefore correct in holding that the employee had terminated his employment contract and refusing to provide any further work to him from 21 March 2011.
    
87. The employee has therefore under the contract deemed to have resigned from the employment. The employer did not dismiss him.
    
88. Even if the employer dismissed the employee, there was lawful cause for it to do so. It did not breach any procedure under the requirements for summary dismissal. None has been alleged to have been dismissed in that the written reasons for the dismissal or the up to date pay was not given.
    
89. In the final analysis I find that the ERT was wrong in finding that the employer dismissed the employee. It is the employee who terminated his employment contract by abandoning the same. I find that even if he was summarily dismissed, the employer had lawful cause to do so.
    

Final Orders

90. I allow the appeal on the basis that the employer did not dismiss the employee from work and so he is not entitled to any remedy as ordered by the ERT.
    
91. The orders of the ERT are set aside in whole.
    
92. Each party must bear their own costs of the proceedings.
    

Anjala Wati
Judge

24.12.2015
____________________

To:

1. Mr. Viren Kapadia for the Appellant.
2. Mr. R. Singh for the Respondent.
3. File: Suva ERCA11 of 2014.