IN THE EMPLOYMENT RELATIONS COURT
AT LAUTOKA
APPELLATE JURISDICTION

CASE NUMBER: ERCA02 of 2013

BETWEEN:

PAUL SUNIL MUDALIAR
APPELLANT

AND:

FIJI GAS LIMITED
RESPONDENT

Appearances: Mr. Aminiasi Vulaono for the Appellant.
 Mr. Mr. K. Tunidau for the Respondent.
Date/Place of Judgment: Tuesday20October 2015 at Lautoka.
Coram: Hon. Madam Justice Anjala Wati.

JUDGMENT

Catchwords:
Employment Law – Appeal –time limitation in bringing a grievance: identified and discussed – types of grievance in which time limitation applies- whether it applies to dismissals too-duty of Court to rule on the defence of limitation when raised irrespective of the fact that the matter has found its way in Court - whether termination lawful and fair – to determine the lawfulness of the termination the court has to assess whether the cause and the procedure was justified- to determine the fairness of the termination, the manner of treatment in carrying out the termination has to be assessed.

Legislation:
1.	The Employment Relations Promulgation 2007 ("ERP"): ss. 110(3), 111(2), 200 (1), 230 (1), (2), and Schedule 4 Clause 1(2).

______________________________________________________________________________

Cause/Background 
1.	Mr. Paul Sunil Mudaliar was employed by Fiji Gas Limited some one and a half years before he was terminated on 26 June 2009. Before he was terminated he was suspended from work for breaching the company's operating and reporting procedures.

2.	When the employee was terminated he filed two cases. First he filed an employment grievance on 24 September 2009. This matter was referred to the Employment Relations Tribunal ("ERT") for determination. The referral was made on 18 November 2011. 

3.	It was on this referral that the matter was heard by theERT which decision is now appealed by the employer.

4.	It is obvious that the grievance took some time to be referred to the ERT and the reason for the delay is not known. However I was informed during the appeal that the Mediation Unit ("MU") did not refer the case for adjudication to the ERT because a criminal complaint of theft of Fiji gas cylinders was made to the police pursuant to which the employee was charged. I will comment on this aspect and procedure later save to say now that there is no requirement in law procedurally to wait for a criminal case against an employee to be finalized to proceed with the mediation or hearing of the cause in Court. It is prejudicial to both parties to wait for the criminal complaint to be finalized. 

5.	In this case the matter was not referred to the ERT as it should havebeen done in the year 2009 itself.

6.	The second case that was filed was by the Fiji Sugar and General Workers Unions on behalf of the employee on 30 September 2009, some 6 days later.

7.	In both the cases, the claims read:

"Member was terminated when he joined the Union. Union seeks reinstatement without loss of pay or any other benefits from date of suspension without pay".

8.	It is therefore not improper to say that the termination cases were brought on the same facts and one of it had to be withdrawn to avoid duplicity.

9.	On 27 November 2009, the employment dispute of 30 September 2009 was withdrawn on the request of the Union. The Permanent Secretary for Labour, Industrial Relations and Employment ("PS")wrote regarding the withdrawal to the Union and also copied a letter to the employer. The letter read:

" I refer to your report of a dispute dated 30th July 2009 reporting the existence of a dispute between your Union and Fiji Gas Limited. I have noted that the dispute is over the dismissal of Mr. Paul Sunil Mudalier.

Reference is also made to your letter dated 12th November 2009, informing us of your decision to withdraw the above dispute.

Please note that the above dispute has been officially withdrawn; this case will be also be marked the same in our records as well".

10.	The letter incorrectly refers to the dispute of 30 July 2009 when there was no dispute dated 30 July 2009 but one dated 30 September 2009.

11.	From the above letter of the PS, it is clear that the dispute was withdrawn and not the grievance that was filed on 24 September 2009.

12.	According to the referral of the MU, the matter was called twice for settlement, that is, on 10 November 2009 and 20 November 2011.Since there was no settlement of the issue at the mediation, the matter was referred for adjudication. 

13.	From the above dates, it is obvious that the first session of mediation took place immediately after the grievance was lodged and the second was when the employee was acquitted of the criminal charges in June 2011. Mr. Tunidua is therefore correct in submitting that the Mediation Unit did not refer the matter to ERT because the criminal case outcome was being awaited for.

Circumstances Surrounding Termination/ Findings and Orders of the ERT

14.	The ERT found that the employer gave three reasons why the employee was terminated from work. The reasons were:

(i)	breach of the Company's operating and reporting procedures from December 2008 to April 2009;

(ii)	Unaccounted cylinders; and

(iii)	Trip sheets incorrectly completed.

15.	The employer's witness testified that the investigations against the employee started when the employer received an anonymous letter against him to the following effect:

" 19th January, 2009.

Mr. Harvey Probert
General Manager and CEO-Fiji Gas
P.O.Box 548
SUVA

RE: CORRUPT PRACTICE IN YOUR ORGANISATION

Dear Sir,

It is sad to notice that one of your staffs in Lautoka is going beyond his limit and supplying free Fiji gas to many homes in Lautoka. All this while many homes have been using blus gas. For how long he is has been doing this I don't have any idea. I only came to know this at the beginning of last year when I was approached to take the free gas and I totally ignored. He resides in Natabua Lautoka.

There are so many homes in Lautoka who do not buy Fiji gas at all but still use the gas. It works like this:

The staff picks up the gas cylinders from homes and replaces with full cylinders.
The cylinders which he picks up are many times not fully empty.
He puts these cylinders aside.
The people who are making the most out of these, keep about 5-6 empty cylinders side by.
This staff gives them the cylinder which has some left over gas and takes back empty cylinders. One cylinder lasts about a month.

I have written a letter previously to Alex "Cornnor but I don't think any action has been taken as the corruption is still in practice.

It is entirely on you to now decide what you want to as the practice is increasing.

Anonymous
Lautoka"

16.	The witness testified that the employee was not told of the operating procedures and she does not know what the procedures were and so she could not give evidence in that regard. The witness also stated that a trip sheet is normally filled by the driver but she did not bring that manual sheet to The Tribunal but instead a computer generated sheet which did not bear the name and signature of the employee. She stated that there was no request made by the employee for the manual trip sheet that he filled. The witness therefore stated that the computer generated sheet was unreliable in evidence. It was further said that the computer generated sheet was not put to the employee for his comments and so she could not holistically find any evidence of gross misconduct. 

17.	The witness stated that the employee was given a chance to meet the officials of the employer but he failed to.

18.	Based on the evidence the ERT found that the cause for termination was not justified.

19.	The ERT also found that the employer did not give the employee any chance to explain his position and be represented at all stages of the enquiry and be heard by the employer and so the procedure invoked in terminating the employee was incorrect making the termination unlawful. The ERT of course rejected that evidence of the employer that the employee was given a chance to respond to the allegations by meeting the officials of the employer. This finding was on the basis that this was said only during the trial but that opportunity was not evidenced by any letter, email or any recorded message.

20.	In deciding whether the termination was fair, the ERT found that it was not, as the employee was arrested for the criminal matter and humiliated before his family members. The employee, it was found, went through a chaotic period in his life during the currency of the grievance and that had negative impacts on his livelihood, his family and friends.

21.	The ERT therefore awarded the following remedies:

(i)	reimbursement of 17 months' wages lost by the employee. This was calculated from 18 November 2011 to 10 April 2013 being the time when the matter was sent to the ERT to hearing or trial.

(ii)	payment of further 6 months' wages as compensation for humiliation, loss of dignity and injury to feelings of the worker.

Grounds of Appeal

22.	The appellant raised 5 grounds of appeal in that the ERT erred:

1.	In law in hearing the grievance when the period to bringing the same had elapsed.

2.	In law and in fact in refusing to look beyond the referral made to it by Form 4 for hearing of the case and in dealing with the grievance arising more than two years later.

3.	In law and in fact in considering Criminal Case and holding the employer accountable for the humiliation, loss of dignity and injury to the feelings arising from that case when the same was not included or pleaded in his grievance and was a separate incident from his termination.

4.	In law and in fact in awarding damages as compensation to the employee for humiliation, loss of dignity and injury to his feelings when he did not suffer any at the time of termination.

5.	In law and in fact in awarding excessive and disproportionate damages as compensation to the employee for 17 months lost wages when the employee did not file his grievance timely and had taken up new work as a taxi driver.

Submissions of the Appellant

23.	Grounds 1 and 2 were argued together. It was submitted that under s. 111(2) of the ERP, a worker has only 6 months from the date on which the action alleged occurred to constitute a grievance to submit an employment grievance to his employer. The time period can only be extended if the employer consents to extend that period or the Tribunal extends the time. The limitation period ended in December 2009 as the termination occurred in June 2009.

24.	The employee had filed a grievance within the stipulated timeframe but that was withdrawn and formally endorsed by the PS. There was therefore nothing remaining before the limitation period expiring for the ERT to hear. The issue of limitation was raised at the ERT which failed to make any determination under s. 111(2). 

25.	The only finding in respect of the objection on the limitation period was as follows:

" As to the claim being outside the limitation period, the Tribunal rules that it is guided by FORM 4 (Certificate of Declaration and Referral of Employment Grievance to Employment Tribunal) sent to it on 18 November, 2011 which is its terms of reference for adjudication".

26.	Although the matter was referred for adjudication, the ERT ought to have ruled on the issue of limitation period and since there is no finding on limitation, the appellant maintains that the grievance heard by the ERT was statute barred.

27.	The next two grounds 3 and 4 relate to the 6 months wages for humiliation, loss of dignity and injury to feelings. It was argued that this was not justified because the employer was entitled to make a complaint to the police and it did not cause the humiliation. The police had to carry out its procedures and the aspect of arrest is not within its control. It is wrong to use actions of the police to punish the employer.

28.	It was also argued that this remedy ought not to have been granted as it was not pleaded for. The only request was for reinstatement without loss of salary and benefits. If the remedy was not pleaded for, it cannot be granted.

29.	The last ground states that it is appropriate to reduce the award of 17 months' wages under s. 230(2)of the ERP as the employer may not have terminated the employee if he met with it as requested in the suspension letter. The evidence of the employer was also not contradicted that the employee was given an opportunity to meet and explain his situation. If that opportunity was utilized then the termination may not have occurred at all. If the grievance arose, then the worker has contributed to the same as well.

Submissions of the Respondent

30.	Mr. Tunidau submitted that the employee had filed a grievance on 24 September 2009 and this was referred to the MU. The employer attended the mediation and it would have been served to attend the mediation. The Unit did not refer the matter to ERT as a criminal charge was pending and this has been the practice of the Unit to wait for the finalization of the charge. This is very prejudicial to the worker as it waits without any job and remedy. The timeframe of 6 months was complied with. It is the delay by the Unit to submit the grievance to ERT for determination. The employee has no control over this matter.

31.	On the issue that the matter was settled and withdrawn, it was argued that the dispute by the Union that was filed on 30 September 2009 was withdrawn. The grievance filed by the employee on 24 September 2009 was never withdrawn. The initial one had to be withdrawn as both were based on the same facts for the same termination.

32.	A grievance is always first required to be referred to the MU as per s. 110(3) and 200 (1) (a) of the ERP. That was done in this case. However s. 111(2) requires that the worker submits a grievance to the employer. This section 111(2) does not apply to dismissals. It only applies to workers who have internal grievances. Mr. Tunidau argued that this contention is substantiated by schedule 4 clause 1(2) of the ERP which states that the time frame of 6 months does not apply to grievances arising out of dismissals.

33.	The criminal case of course had a bearing in this matter. Even on the highest standard of proof, the employer could not establish the cause for dismissal. That shows that the cause for which the employee was terminated was not even established at the criminal court.

34.	The employee is entitled to all lost wages as a result of the grievance and the ERT exercised it discretion under s. 230 of the ERP to grant part of the wages lost. That discretion cannot be flawed on the basis that the employer is unhappy with the award or finds it excessive.

Law and Analysis

35.	Before I deal with the grounds of appeal, I will refer to both the dispute and the grievance that were filed. The outline of the dispute/grievanceas stated in both is that "the member was terminated when he joined the Union". It appears that that was not the basis upon which the parties continued with the case but on the basis whether the causes stated in the termination letter was justified, whether the procedure in carrying out the termination was lawful, and whether the manner of carrying out the dismissal was fair.

36.	I then deal with the issue of the dispute being settled and there being no remaining cause before the ERT. The matter that was withdrawn was the dispute and not the grievance. The grievance stayed intact although the MU did not refer it to the ERT as expeditiously as it should have. The parties did not have any control over this matter.

37.	The practice of waiting for the criminal matter to finalise is prejudicial because it holds up the chances of an early finalization. One of the objectives of the ERP is to efficiently settle problems between the worker and the employer. The waiting of the criminal cause to be finalized defeated the objective of the Promulgation. 

38.	The grievance that remained intact was brought without delay and within 6 months. The employer even attended the mediation on 10 November 2009. This indicates that the employer was aware of the grievance and that it was submitted to it within the requisite timeframe.

39.	I also agree with Mr. Tunidau that the requirement of s. 111(2) to submit the grievance within 6 months to the employer relates to internal grievances and not dismissals as there is no point in submitting the same when one has been dismissed. The proper cause is to file the grievance and let it be referred to the MU for settlement first as required by s. 110(3) and 200(1) of the ERP.

40.	I am also inclined to look at schedule 4 of the ERP which also supports the contention that the time limit of 6 months to submit the grievance to the employer relates to other grievances an employee has but that excludes dismissals. The 6 months' timeframe is to allowthe employer to remedy the grievance rapidly and as near as possible to the point of origin.

41.	I find that the employment grievance filed on 24 September 2009 was not settled and not caught by any time limit for it not to be referred to ERT for a determination.

42.	This issue of limitation was not properly dealt with by the ERT and if it was, I think the appellant would not be so aggrieved. The question of limitation is a question in law and it is neither waived not regularized by the referring of the grievance to the ERT.

43.	The next is the issue of granting 6 months wages for humiliation, loss of dignity and injury to the feelings of the worker.

44.	The Court is not bound by what the worker asks for to remedy the grievance. What remedy is to be granted and the extent of the same is a matter for the discretion of the Tribunal. This is clear from the use of the word "may" in s. 230 (1) of the ERP.

45.	For an employee to seek the remedy for humiliation, loss of dignity and injury to feelings, what he needs to plead is that the termination was unfair. In this case the parties ran the trial on the basis that the claim was that the termination was unlawful and unfair. The employer was thus not prejudiced when the remedy under this head was considered.

46.	For an award to be made under this head, it has to be shown that the manner of carrying out the dismissal was not proper and this basically refers to the treatment provided to the employee when he or she was being dismissed.

47.	Injuries for humiliation, embarrassment, and damage to self-esteem should only be considered where it could be shown that an employer engaged in bad faith conduct or unfair dealing in the course of dismissal. The dismissed employee is not entitled to compensation flowing from the fact of dismissal itself.

48.	In this case there was no evidence of the employer acting in bad faith or unfair dealing in the manner of dismissal. The award was based on the fact that the employee was arrested by the police but that is a matter that was beyond the control of the employer. It was the employer's right that the complaint be made and whether the charging process was fair or that the employee got acquitted does not affect the fairness of the termination. 

49.	The 6 months' salary that was awarded was based on improper consideration of facts and ought to be set aside.

50.	The final issue is to assess the 17 months compensation that was awarded. The employer argues that this be reduced. In the grounds of appeal, the issue that is raised is that the employee was re-employed. However in the submissions of the appellant, it was argued that the remedies ought to be reduced as the employees actions contributed to the grievance as he had not taken advantage of the opportunity to respond or consult the officials of the employer.

51.	Even if this ground was not raised, what had concerned me is that one of the reasons the ERT found that the termination was unlawful was that the procedure invoked in terminating the employee was not justified in that the employee was not given a chance to respond to the allegations.

52.	I must say that although the cause was not justified to terminate the employee and there being no appeal against this finding, the procedure to terminate the employee cannot be flawed and the ERT's finding that no chance to respond or explain his position by the employee to be erroneous on the evidence.

53.	The employee did not contradict the evidence of the employer that he was given a chance to consult his representative and to explain his position. The employee did not take advantage of that opportunity.

54.	The letter of suspension was given to the employee before termination. That letter itself indicates the right to explain. The ERT was therefore wrong in finding on the facts that there was nothing in writing to that effect. I think it is important that the suspension letter of 27 May 2009 outlining that right be cited for clarification:

"…
Dear Paul,
Re: Suspension of Employment – Theft

During the months of December 2008 through April, it has been highlighted that you have been breeching the company's operating and reporting procedures and as a result there are periods where quantities of LPGas product has not been accounted for.

All staff have been trained and retrained on the set of operating and reporting procedures and during your weekly tool box meetings reminders have been issued on the compliance with these procedures. A memo relating to "theft in any form will not be tolerated" was sent to all staff and placed on terminal notice boards.

Given that it may take months to finalise the police investigations, we would like to meet with you to provide you with an opportunity to put forward any facts or mitigating factors before further action is taken.

I will be in Lautoka terminal from Wednesday 3rd June 2009 for one night and will be happy to meet you in person with a staff representative of your choice.

Please be advised as of today your suspension will continue however this suspension will be served "without pay…".

UNDERLINING IS MINE

55.	The remedy of 17 months wages lost as a result of the grievance was not only based on the cause being unjustified but the procedure as well. In this case I do not find that the procedure was flawed in any way.

56.	Still on the same facts that the employee was given an opportunity to respond, I do not find it improper to consider s. 230(2) of the ERP at this stage. The employee could have explained his case to the employer and at least justified his position. He remained silent, causing the employer to believe that he committed the acts and/or was guilty of the same. That subsequently caused the termination and that is what the termination letter said that there was no explanation from the employee's side. The termination letter reads:

" Dear Paul.
Re: Termination of Employment – Theft
…
Your employment as a LPG driver is being terminated on the basis of gross misconduct and breaches of the Company's operating and reporting procedures (from December 2008 to April 2009). Liquid Petroleum Gas ("LPG") and LPG cylinders which were in your possession are unaccounted for. There have been breaches of the company's reporting procedures and your trip sheets have been incorrectly completed. The police are investigating the matter and you may be charged.

All staff have been trained and retrained on the set of operating and reporting procedures and during your weekly tool box meetings reminders have been issued on the compliance with these procedures. A memo relating to "theft in any form will not be tolerated" was sent to all staff and placed on terminal notice boards.

A letter was couriered to you on 28 May 2009 stating that your employment had been suspended pending police investigation. The letter further stated that I could meet with you in person in Lautoka on 3 June 2009 to give you the opportunity to put forward your side of the story or any mitigating factors before further action was taken. You did not make any contact with me and I returned to Suva. I still have not have from you.

We enclose a cheque for one week's pay in lieu of notice and your other statutory entitlements…"

UNDERLINING IS MINE

57.	The employee has to take partial responsibility of his non-action for failing to explain his position resulting inpartial responsibility for the dismissal as well. The remedy must be reduced under s. 230(2) of the ERP. By how much it must be reduced should be decided once it is established what the correct award should be.

58.	Is 17 months wages lost the correct award? The 17 months wages was based on the fact that the matter was referred to the tribunal and not heard until 17 months. In fact it was not established as to who was behind the delay. The initial delay in referring the matter to the ERT is laid at the MU's door step. It failed to refer the matter for almost 2 ½ years. Then when the matter was referred, the time taken to hear it is laid on the employer without any justification. Was the employer responsible for this delay? Why should it be punished when the facts do not establish that? The facts also do not reveal that the employee caused the delay. In absence of that it is the duty of ERT to find a remedy which justifies the position of the parties with reference to other factors.

59.	In this case, the employee was not out of job. In cross- examination he admitted that he had a job from 2009 -2013 and that was an electrician's job and that he was still working at the date of the trial. Under re-examination he stated that he made an effort to find permanent employment elsewhere but could not because of the pending allegation. 

60.	The evidence is confusing in that first the witness says that he was employed as an electrician then he says he could not find a full-time job elsewhere. I do not know whether he meant another full-time job apart from that of the electrician's job or that his job of an electrician was not full-time. The evidence extracted through re-examination is confusing.

61.	What is however clear is that the employee had some form of employment to sustain himself.

62.	I find that the employee ought to have reasonably been awarded at least 8 months' wages as a result of the grievance considering the fact that he found some form of employment and that 8 months was enough time for him to look for a suitable job for himself. 

63.	This 8 months wages is reduced by 2 months considering the fact that the employee ought to have utilized the opportunity to explain his side of the case when asked to and in absence of any he ended up being terminated as the employer had no other option but to accept the guilt of the worker.

64.	I find that the proper remedy in this case is 6 months wages lost as a result of the grievance.

Final Orders

65.	The appeal is allowed. The order of the ERT is set aside and substituted with the finding that since the cause for termination was not established, the same was unlawful and therefore the employer ought to pay the employee 6 months' wages being part of the wages lost as a result of the grievance.

66.	The parties must bear their own cost of the appeal proceeding.

AnjalaWati
Judge
20.10.2015
____________________
To:
1.	Siwatibau and Sloan Lawyersfor the Appellant.
2.	KevueliTunidau Lawyers for the Respondent.
3.	File: Suva ERCA02 of 2013.