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Fiji Ports Corporation Ltd v Volau [2016] FJHC 4; ERCA12.2013 (8 January 2016)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA12 of 2013

BETWEEN:

FIJI PORTS COPORATION LIMITED
APPELLANT

AND:

TANIELA DOLAVI VOLAU
RESPONDENT

Appearances: Ms. B. Narayan for the Appellant.
Ms. R. Mani and Ms. Solimailagi for the Respondent.

Date/Place of Judgment: Friday 08 January 2016 at Suva.

Coram: Hon. Madam Justice A. Wati.

JUDGMENT

Catchwords:
Employment Law – Appeal –Termination of Employment –unfair dismissal: assess whether the employer acted in bad faith and the manner of treating the employee in carrying out the dismissal – if the employer acts in bad faith or the manner of treatment is not fair, the employee is entitled to be compensated for humiliation, injury to feelings and loss of dignity- compensation for unfair dismissal will not be awarded for the consequences flowing from the fact of dismissal itself.

Cause and Background

1. The appeal arises from the decision of the Employment Relations Tribunal ("ERT") of 15July 2013 wherein it held that the employee Taniela Dolavi Volauwas lawfully but unfairly dismissed from employment on 1 April 2011.
   
2. Taniela Dolavi Volau was employed as a Stevedore at Fiji Ports Corporation Limited. His contract was extended from 1 January 2009. This was his last term with the employer. He had been working for this employer from well before. He was dismissed under the contract on 1 April 2011 for habitual absenteeism without approval of the employer.
   
3. Prior to being dismissed he had been given warnings for being habitually absent without approval. The first memorandum was given on 9 February 2006. The employee was absent for 4 days. The second memorandum was given on 20 November 2006. The employee again was absent for two days. The final warning via a memorandum was given on 14 May 2008. The employee once again was absent for 4 days.
   
4. Despite the absenteeism the employer continued to employ the worker and extended his contract. On 20 January 2009, the employee was again given a first warning under the new contract for the same reason of absenteeism. Then a final warning was given on 18 March 2011. Thereafter the worker absented himself again on 19 March 2011.
   
5. As a result of this absenteeism, the Personnel Officer issued an internal memorandum dated 30 March 2011 to the Acting CEO recommending that the worker be dismissed from employment. The recommendation was endorsed. Subsequently a termination letter was issued on 31 March 2011 to be effective from 1 April 2011.
   
6. Thereafter the worker wrote to the employer requesting to be heard on the issue of absenteeism but the employer responded by stating that the status quo will remain.
   
7. The worker's contract was terminated under clause 10.3 (c) of the contract of employment which states that:
   

"The Company may, at its sole discretion, in writing, terminate your employment under this Contract, without notice, if you as Stevedore neglects to give substantially all your time and personal attention to your duties or absents yourself without approval".

8. After the trial, the ERT found that the employee was dismissed for a proper cause. However the ERT found that the dismissal was unfair in that in the morning of 1 April 2011, the employer gave the termination letter to the wife, who did not open the same but gave it to her husband. The ERT found that the employer ought to have called the employee in its office and politely told why he had been dismissed instead of giving the dismissal letter to his wife. That would have been the proper and dignified way of treating the employee.
   
9. The ERT stated that it did not want to speculate what was going on in the employee's mind when he was opening the envelope but he would have struggled on how he was going to relate the termination to his wife. The ERT found that the employer dealt with the employee in a messy way.
   
10. On the basis that the termination was unfair, the employee was awarded compensation for humiliation, loss of dignity and injury to feelings. The compensation was 6 months wages.
    
11. Aggrieved at the finding that the employee was dismissed unfairly, the employer appealed on the grounds that the ERT erred in law and in fact in:
    
    1. awarding compensation for humiliation, loss of dignity and injury to feelings when the employee neither made any compliant in this regard nor gave any evidence that he was humiliated in the manner of the carrying out of his dismissal or that the same caused loss of his dignity or injury to his feelings.
       
    2. finding initially that it did not want to speculate on what was going on in the employee's mind when he was opening the envelope which was the correct finding then contradicting its finding and coming to the conclusion that the employee would have struggled on how he was going to relate to his wife the fact of the dismissal when no complaint was made in this regard or any evidence adduced to the effect that the employee was humiliated because the dismissal letter was delivered to his wife.
       
    3. reaching its conclusion to award compensation for humiliation, loss of dignity and injury to feelings due to the manner of carrying out dismissal, failed to give due weight to the employer's evidence that it had tried to serve the dismissal letter on the employee at work but the employee had already left for home at 10.00am and that is why the envelope was given to the company's driver to deliver it at his home.
       
    4. awarding 6 months' compensation for unfair dismissal which is an excessive amount especially in light of the finding that the employer had taken all reasonable and possible remedial steps before dismissing the employee which should have nullified or mitigated any award of compensation to the employee in the circumstances of the case.
       

Submissions

12. Ms. Narayan argued that the ERT found that the termination was lawful in that the cause and the procedure to terminate the employee were fair. However it held that the termination was unfair because the wife was given the dismissal letter. The ERT stated that that was not a dignified way of treating the employee.
    
13. The employer had tried to serve the dismissal letter to the employee on the day but the employee had left work early at 10.00am and had gone home. That is why the driver had to deliver the letter at home and when the employee was not at home, the letter had to be delivered to the wife.
    
14. The wife gave evidence and so did the employee. No one stated in their evidence that the serving of the letter of dismissal on the wife was humiliating and demeaning. There was no complaint to that effect. Even the ERT initially found that it cannot speculate on what was going on in the employee's mind when he opened the envelope but then it wrongly concludes and contradicts that the employee would have struggled to inform his wife about the termination.
    
15. The finding of the ERT was not based on any evidence but its own opinion and not justified.
    
16. Ms. Narayan argued that even in the closing submissions of the employee, no compensation was sought under the head as there was none claimed and any evidence given pertaining to that. The award under that head is not properly founded on the facts and thus must be set aside.
    
17. The counsel for the respondent argued that the ERT justified why the award was made for humiliation, loss of dignity and injury to feelings. The basis on which 6 months' is awarded is not stated in the judgment, but the ERT did not make a finding on its opinion. There was evidence that the letter of dismissal was given to the wife and not the employee. That was not the proper procedure of serving dismissal letters and so the dismissal was unfair and the employee entitled to compensation.
    

Law and Analysis

18. There is no dispute or any issue raised by the parties that the termination was lawful in that the cause for which the employee was dismissed and the procedure leading to dismissal was proper contractually and in law.
    
19. The question is that of unfair dismissal. When assessing whether the dismissal was fair or not, the courts will assess whether the employer acted in bad faith or the manner of carrying out the dismissal was improper that led to the worker being humiliated, demeaned or degraded.
    
20. Compensation for unfair dismissal will not be awarded for the consequences flowing from the fact of the dismissal.
    
21. In this case, there was indeed no evidence by either the employee or the wife that they were humiliated or felt degraded because the termination letter was given to the wife. The ERT itself said, when there was lack of evidence in this regard, that it did not wish to speculate what was going on in the employee's mind when he opened the letter. Immediately after that finding, the ERT opined that the employee would have struggled to relate the fact of dismissal to the wife. This was not the evidence of the employee but the opinion of the ERT based on which the finding was made that the dismissal was unfair. This is not the correct basis on which such a finding can be made and upheld.
    
22. There was nothing in the manner of treating the employee that was wrong or unfair or any bad faith act on the part of the employer. It tried to serve the dismissal letter on the employee. He was missing from work. The employer then tried to serve the letter on the employee at home. He was missing again. All this shows that the employee was not willing to accept the letter. The employer tried its best to serve the letter which had to be given to the employee the same day so the next best option was to hand the letter to the wife which the employer did. The letter was safely given to the employee and so the requirement to give reasons for dismissal was complied with.
    
23. Even if the letter of dismissal was not given to the wife, the employee would still have had to inform her that he was dismissed as she would be the very next person whom the employee would have or should have told about the dismissal. Any employee would go through that struggle of informing the fact of dismissal to a family member but that is a consequence flowing from the dismissal itself and not something that has been caused by the employer.
    
24. The employer has treated the employee in a very dignified way. It had not embarrassed the employee in any way when carrying out the dismissal. He had been warned again and again which was not adhered to by the employee. In order to improve its productivity the employer had to terminate the employment of this employee and it followed the procedure to do so.
    
25. The evidence given in court does not establish that the dismissal was unfair and so I set aside the award of the ERT.
    

Final Orders

26. In the final analysis, I allow the appeal and hold that the dismissal was both lawful and fair and thus the employee is not entitled to any remedies. I set aside the award of the ERT which granted the employee 6 month's wages for humiliation, loss of dignity and injury to feelings of the worker.
    
27. Each party to bear their own cost of the appeal proceeding.
    

AnjalaWati
Judge

08.01.2016
____________________
To:

1. Lateef & Lateef Lawyers for the Appellant.
2. AG's Chambers for the Respondent.
3. File: Suva ERCA12 of 2013.