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Fiji Employment Tribunal |
IN THE EMPLOYMENT TRIBUNAL
AT SUVA
ERT Grievance No. 81/2009
BETWEEN:
ISOA LATIANARA
WORKER
AND:
CARPENTERS FIJI LIMITED
EMPLOYER
Appearances:
Mr. P. Rae for the Worker
Ms. D. Prakash for the Employer
______________________________________________________________________________
DETERMINATION OF THE TRIBUNAL
The Employment Relations Grievance
1] The claim by Isoa Latianara ("the worker") that the action taken by Carpenters Fiji Limited ("the employer") in terminating his services as a Security Officer on 9th August 2009 was unjust, unfair and discriminatory and he therefore demands to be reinstated without loss of pay and such other relief as deemed appropriate.
Background and Evidence
2] Ms. Reshika Singh a Cashier/Clerk at MHCC gave evidence for the employer that on 4th April 2008 she was working when at about 4:30 pm two customers entered MHCC Hardware in Suva and looking at the items and one of them was talking on a mobile phone and making a lot of noise. Ms. Singh then told the Tribunal that she heard the worker shouting and telling these two customers that they were not supposed to talk on their mobiles inside the shop and for them to go out and talk. She reported that the worker told these customers that they did not have any money and that they were just passing their time in the shop. She continued that an argument ensured and these two customers told the worker that they had money and that they could afford to buy anything in the shop. The customers then came to the cashier counter and insisted in front of the worker that they wanted to buy things from the shop and it was at that moment that the worker came in held one of the customers by the shirt, pulled him out and then punched him whilst outside the shop. Ms. Singh related to the Tribunal that she shouted and called one Mr. Aaron Hussein who was working at the back of the counter to come and see the worker harassing that particular customer. Ms. Singh told the Tribunal that she is not aware of any policy regarding the use of mobile phones or of making excessive noise but she is aware that the worker is a security officer in the shop and his job includes checking of bags and the security of the shop.
Ms. Singh agreed that the General Manager Mr. Abdul Shah called her on the telephone and asked her to write down a statement of the incident. She further agreed that she wrote down the statement and added that the worker held his hand up to the customer's face and also swore at them. On re-examination she repeated that the worker raised his hand to the customer's face but did not know whether the punch connected or not.
3] The worker Isoa Latianara in his evidence said that he had been working for the last two years before termination on 9th April 2009 and that there was no previous incident of attempted assault or harassing of customers. On the day of the incident (4th April 2009), the worker approached two middle aged customers and asked them to keep the noise down as they were laughing, yarning and talking loudly on mobile phones whilst looking for items in the shop. He told the Tribunal that he offered to serve them but the shorter customer replied that when they came in nobody was available to serve them. The worker replied that his friend Mr. Hussein was doing packing at the back of the counter and that was the reason why they were not served. The tall customer then asked him where it is written or the notice which says "No Phoning or Yarning in the Shop," and then challenged him that he got plenty money and that he could buy him
The worker further told the Tribunal that he was standing at the counter when the two customers came back to the counter and asked Ms. Singh for the Manager's telephone number. The taller customer said that he was going to report the worker and started passing cheeky remarks; that was when the worker asked them to go outside the shop and when they refused, the worker added that he pulled the taller customer by the shirt outside and called out for the MH Security Complex guard to take him away as he was causing trouble to him. The two customers left.
The worker in his evidence said that the shorter customer came back with two policemen alleging that he assaulted him and that he told the policemen that he was involved with the other customer, the taller one. The worker added that he was cautioned and the parties reconciled.
Analysis and Conclusion
4] There are different views on what happened that day, the 4th of April 2009. Ms. Singh stated that the worker assaulted one of the customers, Mr. Hussein did not see anything but heard from Ms. Singh about the assault, and four other people who witnessed the incident gave statements that there was no assault in any form whatsoever.
The report to the Central Police Station was on abuse by a staff of Carpenters Electrical in MHCC over the difference in price of goods. The Police note dated 11th April 2009 on the incident says "argument over the price of goods in the store. Both parties reconciled and matter settled. No further action required."
The Police note effectively puts to rest any claim for assault or abuse and the employer has to show the Tribunal that its action in terminating the worker was lawful, justified and fair.
5] The employer referred to "the terms and conditions of employment" of the worker in the letter dated 5th February 2008 which the worker signed on 8th February 2008. Under the Clause titled "Termination" the following is stipulated:
"Employment may be terminated by either party at any time. The party which intends to effect termination shall give to the other one week's notice or an indemnity equivalent to one week's wages in lieu of such notice. When you are guilty of any form of serious misconduct, you may be summarily dismissed without entitlement to notice or payment in lieu of notice."
The employer's submission is that the worker was dismissed with effect from 9th April 2009 in accordance with the termination clause as stated above and that he was dismissed for failing to follow company policy and procedure and for assaulting and verbally abusing a customer at the Carpenters hardware Outlet at the MHCC complex.
6] Now, let us look at this termination clause against the termination letter dated 9th April 2010 by the General Manager Mr. Abdul Shah addressed to the worker –
Dear Isoa,
I talked to you about the incident at MHCC on Saturday, 4th April 2009, in which you allegedly pulled a customer outside the shop and you assaulted him and also verbally abused him. This was confirmed by the two people that worked with you on that day – Reshma and Aaron and we had to draw the two statements out of them because they were embarrassed also by the incident. The Police was also involved.
This letter therefore serves as termination of your service effective immediately, because manhandling, abuse and assaults on customers are not condoned by the company. This is gross misconduct and you shall be paid a week's wages in lieu of notice.
All other monies owed by you as at close of business today shall be paid after all the necessary clearances are done.
7] The termination clause was not adhered to in the termination letter as the termination letter classifies the actions taken by the worker on that Saturday afternoon, the 4th of April 2009 as gross misconduct. The termination clause says if it is gross misconduct then you are terminated without notice or payment in lieu of notice. This worker was paid a week's wages in lieu of notice.
8] The worker's terms and conditions of employment are specified in the letter from the employer to the worker dated 5th February 2008 and signed by the worker on 8th February 2008. This document contains terms and conditions of employment that were current at the time of termination of employment and while it provides for a termination clause it does not provide for disciplinary and grievance procedures. For the purpose of this decision the Tribunal will assume that these procedures are in the Master Agreement and Company Policies.
9] The document dated 5th February 2008 on the terms and conditions of employment of the worker does not talk about job responsibilities and there was no evidence put forward to confirm his responsibilities. Ms. Singh in her evidence said that the worker's job as a security officer included checking bags and that there is no policy on the use of mobile phones in the shop.
10] The worker confirmed in his evidence that he pulled the customer outside after he was a nuisance and that was part of his duty as a security guard which is to protect property and remove abusive persons. He also confirmed that he mentioned this in his written statement dated 6th April 2009 to the General Manager and that he denied the allegations of assault.
11] The worker in his evidence said that he had a good working relationship with management and that could be the reason why he was given one week's wages in lieu of notice which was management's prerogative under the termination clause.
12] The Tribunal comment on the action taken by the employer on 9th April 2009 is that it acted hastily and unfairly according to the evidence. Why was the worker not given an opportunity to be heard and to state his case especially as there are four witnesses who gave statements that he did not punch the customer? Would a fair and reasonable employer done that in all the circumstances?
13] According to the common law rule that an employer having power to infringe on the rights of an employee is bound to hear him before exercising that power is both fundamental and universal and this Tribunal is satisfied that those rights have been breached. Here we have a fellow worker who serves on the frontline of the business and who occupies an important position in terms of security and safety of management, fellow workers and the public. The duty of good faith extended to the General Manager and at least requires the employer to seek explanations from the worker as the matters before him are serious and need further investigations.
14] This case illustrates that the circumstances of a worker environment are a factor to be considered. This means that the standards of what is fair and reasonable may be varied according to the circumstances and a fair and reasonable employer may not necessarily be totally impartial or neutral. Of necessity employers like MHCC bring to their decisions the values, culture and expectations of their specific work place. They must weigh the impact of the behavior of an employee under investigation on other employees and the work environment generally. However, this does not give MHCC unbridled license to impose its personal prejudices or values on this worker. The concept of fairness implies an open – minded approach and reasonableness implies rationality.
15] The employer's right to dismiss summarily depends upon a breach by the employee of the express or implied terms of his contract, but the breach must amount to a repudiation or be sufficiently fundaments. In William vs. Racher, Edmund – Davies L.J said: "Reported decisions provide useful, but only generate guides, each case turning upon its own facts.........[A] contact of service imposes upon the parties a duty of mutual respect."
This means that opposite conclusion may be reached on similar facts and that, whilst in one context one single, relatively minor breach may be sufficient to justify summary dismissal, the same will not be true of other, different contexts.
16] The most common instances of breaches of contract giving rise to summary dismissals are misconduct, disobedience to lawful orders and negligence. "Although every case turns upon its own facts, a single act is less likely to justify summary dismissal than a series of actions; the quality of the breach is what counts, not the consequences flowing from it, and the more serious the breach the more likely it is that it will be held to justify summary dismissal." Stapp v. The Shaftesbury Society [1982] I.R.L.R. 326
17] The test for justification which applies to claims of unjustifiable dismissal is the following:
...The question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.
The employer must show that a dismissal was justified substantially and procedurally and this was where the employer fell short.
All the circumstances at the time the dismissal occurred would include the type, resource and size of the organization.
This employer is a big employer. For this employer to treat one of its employees in the way it did to the worker like the way it confronted him with allegations and not listening or considering his explanations is unethical.
A dismissal following poor or unfair procedures will not necessarily result in the Tribunal finding that the dismissal was unjustified if the conduct was bad enough but may result in compensation.
18] However, the Courts in New Zealand have recognized that most employers will not be able to provide perfectly fair procedures for dismissing employees. In BP Oil v NDU [1992] 3 ERNZ 483 (CA): the Court of Appeal said - "The question is essentially whether it was open to a reasonable and fair employer to do so in the circumstances."....
In NZ Food Processing IUOW v Unilever New Zealand Ltd (1990) 1 NZLR 35 the Court also said that.. "the employer's conduct of the disciplinary processes is not to be put under a microscope and subjected to pedantic scrutiny."
This means that minor procedural inadequacies should not render a disciplinary action unjustified but in this case the Tribunal found that the worker was confronted with the allegations, denied the formal disciplinary procedure in his employment contract and served the termination letter. That would not qualify as a minor procedural inadequacy.
19] From the evidence the Tribunal is satisfied that the employer did not make any attempt to accord the employee all the fair procedures as stipulated in the leading Unilever case which says that the employee must be given:
In the same token, the Tribunal recognizes that employers are not perfect and their conception of what a fair procedure is varies and the Courts in New Zealand have recognized that most employers will not be able to provide perfectly fair procedures for dismissing employees. In BP Oil v NDU [1992] 3 ERNZ 483 (CA): the Court of Appeal said - "The question is essentially whether it was open to a reasonable and fair employer to do so in the circumstances."....
20] In the earlier Unilever's case the Court also said that.. "the employer's conduct of the disciplinary processes is not to be put under a microscope and subjected to pedantic scrutiny."
This means that minor procedural inadequacies should not render a disciplinary action unjustified but in this case the worker was called by the General Manager told to write an explanation of what happened and three days later was given his termination letter. That would not qualify as a minor procedural inadequacy.
The Tribunal in analyzing the evidence and arguments has come to the conclusion that the worker Isoa Latianara has a grievance in that he was unlawfully, unjustifiably and unfairly terminated in that the employer did not follow fair procedures especially the right to be heard.
The right to be heard in person is very important as it gives an opportunity to reply especially when a person's livelihood is under threat of being adversely affected.
21] The Employment Relations Promulgation 2007 in sections 230(2) (a) & (b) provide for the following -...in deciding the nature and extent of the remedies to be provided in respect of the employment grievance, consider the extent to which the actions of the worker contributed towards the situation that gave rise to the employment grievance; and if those actions so require, reduce the remedies that would otherwise have been decided accordingly.
22] The hearing of this case was done some seventeen months after the termination and taking into consideration all the circumstances, the Tribunal makes the following decision.
Decision
(i) The worker Isoa Latianara to be reimbursed a part of the wages lost as the result of the grievance;
(ii) The worker to be compensated for loss of dignity and injury to feelings;
(iii) The total of (i) and (ii) above to be the equivalent of the worker's wages for seventeen (17) months;
(iv) The total wages at (iii) above to be reduced by the equivalent of the worker's wages for five (5) months in view of the worker's contribution towards the situation that gave rise to the employment grievance; and
(v) The balance of twelve (12) moths wages to be paid to the worker Isoa Latianara within 14 days of this decision.
DATED at Suva this 8th day of March, 2011
Sainivalati Kuruduadua
CHIEF TRIBUNAL
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