IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER : ERCA 3 of 2014

BETWEEN:

CARPENTERS FIJI LIMITED T/A MORRIS HEDSTROM
APPELLANT

AND:

ILISONI VUNITALI
RESPONDENT

Appearances : Mr. E. Narayan for the Appellant.
Mr. V. Maharaj for the Respondent.
Date/Place of Judgment : Thursday 11 February 2016 at Suva.
Coram : Hon. Madam Justice A. Wati.

JUDGMENT

Catchwords:
Employment Law – Summary Dismissal pursuant to s. 33 (1) (e ) of the ERP for continual and habitual absence from work without the permission of the employer and without other reasonable excuse – statute and contract permits employer to summarily dismiss an employee for such a cause – employer therefore entitled to exercise its rights under the statute and the contract and if it does so the Court cannot negate that right by finding that the cause does not warrant dismissal and that the employer ought to have given a more lenient penalty - To determine lawfulness of the dismissal, the cause and procedure in carrying out the dismissal is to be examined – to assess fairness of the dismissal, the manner in which the dismissal was carried out, that is, whether the employee was treated fairly and in a dignified manner ought to be examined – dismissal cannot be said to be unfair and compensation paid for humiliation, loss of dignity and injury to the feelings of the worker for the consequences flowing from the fact of the dismissal itself.

Legislation:

1.	The Employment Relations Promulgation 2007 ("ERP"): s. 33; 34.

Cause

1.	Ilisoni Vunitali was summarily dismissed from employment on 18 January 2012 pursuant to s. 33 (1) (e) of the ERP. The reason for the dismissal was continual or habitual absence from work without the permission of the employer and without other reasonable excuse.

2.	The employee started work on 11 August 2009 as a Warehouse Assistant. The employment was on a temporary basis. The temporary employment was renewed for successive terms until 17 September 2010 when the employee secured a full time employment.

3.	As per the evidence of the employer, the employee was alleged to have been absent from work on 23 different occasions. Out of that, it was alleged by the employer that 09 days were unpaid and unexplained absenteeism and that the absenteeism caused disruption to the employer's business.

4.	The dismissal letter of 18 January however stated that the unexplained absenteeism was for 10 days. The letter reads as follows:

"Re:				Summary Dismissal

Management wishes to express its disappointment in your performance and work attitude in the due execution of your duties. It has been noted that since your appointment as a Temporary employee on 11 August 2009, our employment records indicate that you have been absent from work for a total of twenty one (21) days in 2011, which comprise of eleven (11) sick leave, four (4) unpaid sick and also a total of ten (10) unpaid absenteeism.

Your continual absence has caused operational disruption during which we have incurred extra expenses and inconvenience in getting staff to make up for your shift in your absence.

For the foregoing reasons, we hereby advise you that you have been summarily dismissed for habitual absenteeism pursuant to section 33 (e) of the Employment Relations Promulgation effective immediately without notice".

5.	After the dismissal the employee filed a claim in the Employment Relations Tribunal "ERT") for unlawful and unfair dismissal. 

ERT's Findings

6.	After a defended hearing, the ERT found that the dismissal was unlawful and unfair and that the employer shall pay to the employee compensation in the sum of $8000 within 60 days.

7.	In arriving at the conclusion that the dismissal was unlawful, the ERT found that when the employee had exhausted his sick leave, the employer ought to have notified the employee in writing of that. The employer then should have provided the employee with an option to take annual leave to sort out his health or any other issues he was facing affecting his attendance and given a final warning that if he continued the trend of such conduct where he took leave without prior approval or justification, he could face summary dismissal. The ERT stated that this would be a more justifiable response in the circumstances.

8.	The ERT found that the worker was at fault for absenting himself without seeking permission of the employer and without giving any other reasonable excuse but the employer's response was too harsh and therefore the summary dismissal was not justified.

9.	The ERT found that the employer did not fail in according the employee fair procedure in carrying out the termination.

10.	On the question of unfair dismissal, the ERT found that since the dismissal was not justified, the employee went through emotional turmoil. If the employer had not taken the harshest penalty, this could have been avoided. The dismissal was therefore unfair.

11.	In terms of how the remedy was made, the ERT awarded $10,000 in compensation for unlawful dismissal which was reduced by $3,000 because the worker had held to have caused the situation which gave rise to the dismissal. A further sum of $1,000 was awarded for unfair dismissal, totaling the compensation to $8,000.

The Appeal

12.	The employer appeals against the decision of the ERT on the grounds that:

1.	The ERT erred in fact and or misdirected itself as to the facts and in law in holding that the appellant was harsh and unjustified in terminating the services of the employee for excessive absenteeism.

2.	The ERT erred in law in holding that the employer ought to have given the employee options in writing as to how the employee could utilize any other leave available to him when such a finding does not have statutory and/or common law basis.

3.	The ERT erred in law in not accepting the evidence that the employee had been aware of the issues created by the continued absenteeism being productivity issues for the employer.

4.	The ERT erred in fact in finding that the employer had a duty to inform the employee of the repercussions of his continued and habitual absenteeism when there is no basis for the same in law.

5.	The ERT erred in fact and in law in finding that the sum of $8,000 was payable to the employee when the evidence and law produced at trial showed that the employee was in fact habitually absent from work. 

Submissions

13.	At the hearing the appellant abandoned ground 4 of the appeal and relied on the rest of the grounds. The first ground appeals against the finding that the dismissal was unlawful and unfair. 

14.	The employer's counsel argued that employee was terminated lawfully and fairly. In 2011 the employee was absent from work for 21 days out of which 10 days was for unpaid absenteeism. The employee had not sought permission for the absenteeism nor was any reasons provided why he was absent. The employee disputed that he was absent but The ERT accepted the employer's leave record of the employee's absenteeism. It was therefore established that the employee did absent himself for 9 days. The employer did pay the employee for those 9 days which means that the absenteeism was not with the permission of the employer. Since the employee denied being absent, it flows from that that he had no other reasonable excuse for his absenteeism. The cause was therefore justified under s. 33 (1) ( e) of the ERP

15.	In terms of procedure, under s. 33 of the ERP, the employee was provided written reasons for dismissal and was also given all his dues. The dismissal in terms of procedure was therefore lawful as the cause and procedure in summarily dismissing an employee is assessed to determine the lawfulness of the dismissal. Even the ERT found that the employer had complied with the statutory procedure in carrying out the dismissal.

16.	It was further argued that to assess the fairness of the dismissal, the manner of treating the employee whilst carrying out the dismissal is examined. If there is bad faith on the part of the employer or the employee is not treated fairly and with dignity in carrying out the dismissal then the same becomes unfair.

17.	The factors used to assess the lawfulness and the fairness of the summary dismissal is not the same. The ERT stated that the termination on spot would have had an impact on the employee and therefore awarded remedy for unfair dismissal. There was no evidence to the effect that there was bad faith on the part of the employer in dismissing the employee or that the manner of treating the employee was not fair or dignified. Since there was no evidence to this effect, the finding of the ERT is not justified on the facts.

18.	Ground 2 alleges that the ERT had no legal basis to place an obligation on the employer to provide to the employee options in writing as to how the employee could utilize any other available leave.

19.	It was argued that under the ERP, the option exists for a worker to utilize his other leave entitlements if he has exhausted his sick leave but still require medical leave for recovery or that the worker has chronic illness. In this case, there was no evidence from the worker of any need for continued medical leave or chronic illness for the employer to provide the employee with the option to utilize the remaining leave.

20.	If the employee wanted to use the annual leave or the bereavement leave, he ought to have made an application to the employer accordingly but he just absented himself from work without the sanction of the employer or without any excuse being provided for the absenteeism. There is no requirement in law that once an employee uses his or her sick leave, the employer is to provide the employee with options of how the leave is to be used. The ERT has placed an onerous burden on the employer which is not supported by law or the contract.

21.	The employer never paid the employee for 10 days which shows that those leave were not sanctioned and that the employee did not provide any lawful excuse for he absenteeism and require that the other leave be used for the days he was absent. The employer therefore had established that the absenteeism was without the permission of the employer or without any other lawful excuse. The cause for termination ought to have been therefore upheld.

22.	Ground 3 alleges that the employer had produced evidence to the effect that the employee was aware that his absenteeism affected the productivity of the employer. The ERT ought to have accepted this evidence when it neglected to do so.

23.	It was argued that the employer had given evidence that employees superior had made him aware that his absenteeism was affecting the company's productivity. The employee only refuted this evidence but did not provide any evidence that he had provide explanations for his absenteeism. There was no finding that the witness of the employer was not reliable or credible.

24.	The employee would be absent from work for at least once a week. There were 70-80 people employed at the warehouse but not all employees were employed in the same position as this one being "Packer/Container Crew". To an employer who runs a large retail business Fiji wide needs its employees to carry out work so that it can supply stocks to all the stores in Fiji on a timely basis. 

25.	The employee was aware of the affect his absenteeism had on the work and the ERT should have made a finding that his absenteeism affected the employer's business.

26.	Ground 4 of the appeal was abandoned. The final ground 5 alleges that the sum of $8000 ought not to have been awarded in light of the lawful cause for summary dismissal being established and proper procedures followed whilst carrying out the dismissal. There was no reason why this sum should have been awarded. In fact the ERT recognized that the employee contributed significantly to the grievance but did not give a proper discount for the contribution. How the sum of $8000 is made up of is also not justified and identified. The award thus must be set aside.

27.	Mr. Maharaj argued that even though the absenteeism was high, the employer was obligated to provide to the employee counseling on his absenteeism. It is the lack of counseling and the right of the employee to be heard on the issue that makes the dismissal unlawful. 

28.	Mr. Maharaj argued that indeed the reasons provided for the dismissal was proper but before the dismissal the procedure was not followed and that is the unjustified action of the employer that concerned the employee and the ERT.

29.	The onus was always on the employer to investigate that the absenteeism was without reasonable cause. This investigation could have been done by the employer through an interview with the employee and seeking his explanation for the absenteeism. No such interview was conducted. The employer's witness stated that verbal warning was given to the employee but no reliance could be placed on this evidence as there was no corroboration of this evidence. What would have been sufficient was a written warning. The employer did not discharge the burden that it had a just cause to terminate the employment. It had to establish that the absenteeism was without permission or reasonable excuse.

30.	Mr. Maharaj further argued that the ERT recognized that the employee had contributed to the situation and so had reduced the initial award for unlawful dismissal from $10,000 to $7,000. A further sum of $1,000 was awarded for unfair dismissal. The ERT was within its statutory powers to make such an award and also to reduce the remedy by a third for the worker's contribution. There is no legal flaw in the award of the remedies and it ought to be upheld.

Law and Analysis

31.	The employer had exercised it rights of summary dismissal under s. 33 (1) (e) of the ERP. The onus is on the employer to establish that the dismissal was lawful and fair. 

32.	In order to establish that the dismissal was lawful, the employer had to establish one of the causes under s. 33 of the ERP and that the procedure in carrying out the dismissal was as prescribed by law.

33.	I will first discuss the cause for which the employee was dismissed. For that I have to analyse the provisions of s. 33 (1) (e) of the ERP pursuant to which the employee was summarily dismissed. S. 33 (1) (e) states that "no employer may dismiss a worker without notice except for continual or habitual absences from work without the permission of the employer and without other reasonable excuse".

34.	S. 33 (e) requires the employer to establish that the employee had not sought permission from the employer for continual or habitual absences and also that for those absences there were no other reasonable excuses.

35.	A report was produced by the employer which shows that the employee had been absent for more than 24 days in the year 2011. Out of that, the employer paid 11 days of sick leave. This means that the employer had recognized and accepted that the employee was sick and entitled to use his sick leave. The employer cannot complain about these 11 days of absenteeism. 

36.	The contract between the parties provides that the employee is entitled to 11 working days of sick leave with full pay and the employee qualifies for this after he has been in continuous employment for 3 months. The clause also requires that all sick leaves be substantiated with a certificate from a registered medical practitioner.

37.	For the employer to pay the employee for the 11 days medical sick sheet indicates that the employee had produced the medical sick sheet which was recognized by the employer.

38.	The employee's leave record produced by the employer also shows that the employer had noted that there were 3 unpaid sick leaves and 9 unpaid absenteeism. The 3 unpaid sick leaves were for 19/08/2011; 25/08/2011; and 26/08/2011. The employer categorized this as unpaid sick leave. It flows from the records that the employee had informed the employer that he is sick and that he did not produce any medical sick sheet for him to be paid. 

39.	The employee may not be paid the leave but the employer was aware that the employee is sick. That sickness for not coming to work is a reasonable excuse. The employer did not produce any evidence to say that it did not accept the explanation or that the employee was not sick on the day.

40.	Although the employee had exhausted all his sick leave of 11 days, he could have been paid if he was sick as this is what the contract provided for. The contract states that "sick leave, including sick leave in excess of the employee's entitlement must be taken in accordance with the employer's policy, contained in the Staff Handbook".

41.	The Staff Handbook was not produced in evidence to indicate what the employee could have done to claim pay for the 3 extra days of sick leave. The employee has given evidence that he is also not aware of what is in the handbook and in this regard I find that the employer ought to have informed the employee as to how it could apply to recover pay for the 3 days for which he was sick. The employer failed in its duty when it came to paying for this 3 days sick sheet. I therefore find that for the 3 days of unpaid sick leave, the employee had a reasonable excuse to be away from work. 

42.	In total therefore the employees absence of 14 days out of 24 days that he was away from work could not be said to be continual or habitual absence without other reasonable excuse.

43.	I now deal with the 9 days unpaid absenteeism which were on the dates being 08/02/2011; 08/03/2011; 14/03/2011; 15/03/2011; 02/05/2011; 07/07/2011; 08/07/2011; 05/09/2011; and 15/09/2011. The employee denied being absent for these 9 days. The ERT had accepted that the leave records produced by the employer was correct and no reason why it should not be relied on. The employee could not refute that he was not at work on the said days.

44.	The employer says that there were no explanations given for these 9 days absent. The employee is denying being absent and if he does so, it is not sustainable that he would have given the employer any reasonable excuse for not being at work. Even at the trial the employee did not establish any reason why he was absent for 9 days.

45.	I also accept that the employer had not given any permission for the employee to be away from work and if the employer did, there would be approvals in his personal file and a copy with the employee which he could have produced to counter the evidence. There were also no explanations in the employees file why he was away or during the trial any evidence produced by the employee giving excuses or explanations for his absenteeism for 9 days. 

46.	Out of the time away from work, the employee would sometimes be away for two days consecutively making a total of 48 hours of absence without permission and excuse. This is not an acceptable conduct under the law and the contract of the employee.

47.	On the evidence before the ERT, the employer had established that the employee had been habitually or continually absent without its permission and without any other reasonable excuse. Even that finding is made by the ERT and not challenged. Once the cause is established, the employer has its prerogative to exercise its rights to summarily dismiss an employee. The ERT found that the employer ought to have counseled the employee or advised the employee how other leave could be utilized. 

48.	There was undisputed evidence by the employer that for an employee to proceed on leave, an application has to be made. That is the position in all employment places, be in in civil service or private employment. If the employee wanted to use his leave entitlement, he was at liberty to make an application for paid leave or unpaid leave. There was no such application.

49.	It is not for the employer to advise the employee on how the balance leave could be applied or utilized. It is for the employee to decide that and make an application accordingly. The ERT had erred in law in placing that onerous burden on the employer. The employer is also not under any contractual obligation to work out the leave for the employee. 

50.	Indeed if the employee was sick and wanted to use the balance leave for his sickness, a proper application was necessary for the employer to consider that option but in absence of any such application, the employer cannot presume that the balance leave must be applied to sick leave.

51.	This employer has so many employees. It cannot be expected to be working out leave for all employees. The individual responsibility is on the employees.

52.	The ERT stated that the employer could have provided counseling but no such requirement is placed on the employer statutorily or by the contract. The employee knew at all times that he was not to be in continual or habitual absence from the employer without its permission or without other reasonable excuse. That is a ground for summary dismissal and that is specifically stated in his contract, let alone the ERP. Having known that he ought to have been careful. There was no need for counseling as the employee is already put on notice via the contract.

53.	I find that the employer had established that it had a lawful cause to terminate the employee. The employer stated in evidence that the production of the employer was affected. There need not be any finding on this aspect. What needed to be established by the employer was that the employee was in continual and habitual absence without the permission of the employer and without any other reasonable excuse. All employees are needed at work and if the employer could do without one, it would not create a vacancy for that position. Any employee's time away from work without permission and reasonable excuse presumably affects all employer's but as I have said the employer need not have established that the continual and habitual absenteeism affected its business.

54.	The ERT found that although there was continual and habitual absenteeism, the penalty of summary dismissal was harsh. Once a cause is established under s. 33, the employer has the right to summarily dismiss the employee. A finding that summary dismissal is a harsh penalty negates the employer's statutory and contractual right to summarily dismiss an employee. A finding of that kind is not supported by law or the facts of the case.

55.	The next issue is whether the employer followed the correct procedure in dismissing the employee. There is no complaint that under s. 33 (2) and s. 34 of the ERP the employer did not comply with the provisions of informing the employee of the reasons for dismissal and granting him all his pay up till the termination. In that regard there was no procedural non-compliance for the dismissal to be held to be unlawful. 

56.	The question of unfair dismissal remains to be dealt with. The ERT found that the dismissal would have had an impact on the employee. Indeed, it would have, but that is the consequence that flows from the fact of dismissal itself and where an employee faces this, he is not entitled to any remedy for unfair dismissal. There has to be evidence of the fact that the employer acted in bad faith or that the manner of treating the employee was not fair or undignified. I have perused the entire record and have not found any evidence on which it can be found that the dismissal was unfair.

57.	Since I find that the dismissal was lawful and fair, I do not find that any remedy is justified in the circumstances. The employee has caused his own employment and there is no justification why the employer could not have terminated the employee under the provisions of the ERP and the contract.

Final Orders

58.	In the final analysis I allow the appeal on the grounds that the ERT erred in making a finding of unlawful and unfair dismissal and awarding the remedy of $8,000 to the employee. The orders of the ERT are set aside in whole and substituted with an order that the dismissal was lawful and fair and that the employee is not entitled to any remedy.

59.	I order that each party bears their own costs of the proceedings.

Anjala Wati
Judge
11.02.2016
____________________

To:
1.	Patel Sharma Lawyers for the Appellant.
2.	MC Lawyers for the Respondent.
3.	File: Suva ERCA 3 of 2014.