IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT Grievance No. 40 of 2010

BETWEEN:

RAJESH PRASAD
GREVIOR

AND:

COLGATE PALMOLIVE (FIJI) LTD
EMPLOYER

Mr. P Rae for Grevior
Mr. R Singh for the Employer
______________________________________________________________________________
RULING ON PRELIMINARY ISSUE

1.0	Preliminary Application Before the Employment Relations Tribunal 

1.1	The Counsel for the Employer, Mr. Singh has raised two issues on 09 December 2011 when this preliminary matter was heard:-

(a)	That the grevior does not have a right to add new issues to the current grievance before this Employment Relations Tribunal (or "ERT") which originally related to his claim of unfair demotion from the position of Sales Representative and remedies sought at that time being, reinstatement to his former position based in Rakiraki with no loss of pay and other benefits; and

(b)	That the Preliminary Submissions of the grevior dated 16th September 2011 that contains the same annexure (or documents) as in the substantive submission should be struck out or expunged as the rules of evidence dictates that these are to be properly tendered during substantive hearing.

1.2	When I heard arguments from both sides, I also noted that this grievance (matter) has been through a rather peculiar turn of events from a default judgment being entered but now set aside, followed by a referral made by the Chief Tribunal to the Employment Relations Court on a point of law with no indication whether any adjudication was still in process and therefore, I agree with both counsels that the past history is not favourable to either party and centre of focus should be on concluding the substantive hearing by allowing both sides to present their case as soon as practically possible. 

1.3	I also noted that whilst the proceedings were taking its normal legal course, the grievance has, indeed "mutated" due to the fact that the grevior is no longer employed by the employer. 

1.4	Suffice to note, I did not find any application on behalf of the grevior to maintain the status quo whilst his grievance was being adjudicated, perhaps due to the reason that circumstances itself led to the grevior discharging himself from his employment which is the core reason the grevior is now seeking to add on new issues to his initial grievance.

2.0 Original Grievance 

2.1 Through the grevior's letter of complaint dated 30th April 2009 to the Ministry of Labour, on or about 30th April 2009, the grevior was told by the employer that since he was not coming to work, his pay was blocked or stopped. This is when he wrote to Ministry of Labour to take appropriate action as he felt he was discriminated at work. His letter is blurry on the account whether at that material time he also felt or suspected that his job with the employer was under threat.

2.2 The grievance was formally lodged with Ministry of Labour on 3rd May 2009. Initial claim or grievance related to unfair demotion of the gervior, which would have essentially meant that the grevior was still at the material time "in employment".

2.3 Mediation was clearly attempted on 29 June 2009 but it failed. The terms of reference of the mediator forwarded to the ERT stated:-
 
"The grevior claims that he was unfairly demoted from the position of the sales representative therefore reinstatement to his former position based in Rakiraki with no loss of pay and other benefits. The unsettled matter involves non acceptance of reinstatement in Ba by the grevior who is demanding $35,000 as settlement which has been rejected by the employer" (my emphasis).

2.4 Here, it appears that the grevior was pursuing redress for unfair demotion through a mediation attempt to resolve this grievance. One can only do this if the grevior had the belief and confidence that the employment relationship was still intact that could be salvaged between the parties. Clearly any claim of unfair demotion would have been addressed through restoration of the position desired by the grevior or agreeing to an amicable resolution without any room for adverse conduct on other side, preserving that good faith relationship from both ends. 

2.5 But, it is now an uncontested fact the grevior is no longer employed with Colgate Palmolive (Fiji) Ltd as Mr Rae has alluded the ERT and Mr. Singh did not dispute this fact. 

2.6 He was also stopped from accessing his regular pay, which appears to be the case, even before this matter was mediated as per his first letter of complaint to the Ministry of Labour. 

2.7 He may have been forced to discharge his own service with the employer if the employer was not willing to listen to his issues relating to unfair demotion or pay him whilst the matter was mediated or adjudicated through the ERT proceedings.

3.0 New Allegation of Constructive Dismissal

3.1 On 18th August 2010, through a preliminary submission filed by the grevior, attempts were made to put the employer on notice that through their actions in attempting to force the grevior to accept an inferior condition at work and in fact going out of pocket designed to frustrate the grevior, he was forced into discharging himself from his position at that time (at page 4 of the Preliminary Submissions). 

3.2 There is no doubt in my mind that the grevior attempted to resolve the issue of unfair demotion through mediation first which was rejected by the employer. 

3.3 Despite the counsel for the employer submitted that the grvevior cannot "change goal post" to quote him exactly, I find that the grievance has taken a new form where the grevior is now aggrieved, addition to his claim of unfair demotion, with issues relating to what can be classed as unlawful or unfair dismissal. This later claim the grevior now intends to add onto his original claim which he alleging has arisen out of a "constructive" dismissal. This is the "mutated" aspect of the grievance that Mr. Rae very rightly has pointed out to this ERT.

3.4 The notion of constructive dismissal comes from the concept that:

"An employer must not, without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee." (Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84, EAT.) 

3.5 Clearly in mind any allegation of unfair or undue demotion as alleged by the employee in addition to the employer stopping pay of the grevior in terms of his normal and regular salary/wages can be reasonable grounds to put in motion "constructive dismissal", forcing the hands of the employee to resign or be so frustrated that any contract of service has to be discharged due to the seemingly unfair or unlawful actions of the employer. In other words, there is allegation that the employer may have put due pressure that it frustrated an employee to the point of either considering resignation or indeed in this circumstance, being forced to accept that the grevior no longer had his employment with the employer when his grievance was ignored and his pay was stopped.

3.6 At this point I am considering whether constructive dismissal has any merits or not as I concur with Mr Singh that this is for the substantive hearing to prove whether or not it prevailed when the grevior was unfairly demoted and later when he had to leave his position and that too, under pressure or out of frustration with the employer. But, one thing that is clear as crystal is that the grevior is now no longer working for the employer and I cannot ignore that this grievance has taken on a new dimension which initially started with a claim of unfair demotion. 

3.7 Demotion aspect can no longer be the critical issue when the grevior has no pay to sustain his livelihood which co-exited or depended entirely on his employment. 
3.8 In other words, the grevior has found himself in a tight or difficult predicament where the grevior's future regarding his employment, remains bleak and uncertain as he has been without any means for survival when he is no longer receiving any pay. What else can an employee be reasonably expected to do in such circumstance but to reluctantly accept that he was discharged from his service?

3.9 While unfair demotion and constructive dismissal are entirely two different issues as pointed out by Mr Singh, if constructive dismissal ensues or directly follows from an unlawful and unfair action of the employer such as putting stop to someone's regular pay after he/she has voiced his/her concern or grievance regarding an action of the employer, albeit a claim of unfair demotion is still hanging in the air to be resolved or adjudicated, any form of "dismissal" that places the grevior's livelihood under threat or entirely removes him from his employment, can give rise to a further grievance, which is the case here. 

3.10 To that end, I accept that this grievance has indeed mutated whilst the issue of "unfair demotion" was still in the process of adjudication. Constructive dismissal may now also be an issue of consideration if there is reasonable evidence that it is directly linked to the claim/grievance of unfair demotion which I find in this instance to have adequate basis to be added on to the original grievance as long as notice is given to the employer to frame their defence prior to any substantive hearing.

4.0 Tribunal's jurisdiction and powers

4.1 Clearly the employer's counsel has misconstrued s112 of the ERP which states that:-

Nature of grievance

s112 If the worker brings an employment grievance in relation to one aspect of employment but during the determination of the grievance there is evidence of a grievance in relation to another aspect of employment, the decision may also cover that other aspect, provided that the employer is advised during the proceedings of such matter (my emphasis).

4.2 ERP 2007 is modeled largely on good faith principles to preserve that special and intricate employment relationship that only exists in employment law. Courts have not readily given judicial recognition to good faith discharge either in contract or tort but injected into the employment relationship the requirement of "good faith conduct", particularly at the time of dismissal. The Supreme Court of Canada in Wallace v United Grain Growers Ltd., [1997] 3 S.C.R. 701, stated that:-

 "…, at minimum, … in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive…" (at page 46).

4.3 Good faith discharge being the guiding principle when grievances are lodged with the ERT, allows ERP 2007 to extend its special protection where mere technicality would present a hurdle in terms of preventing any further issues being brought to the Tribunal that would be critical in proving the grevior's position, particularly one that has potential to show ensuing conduct of the employer that may have resulted in the loss of employment of the grevior or where strict rules of evidence may apply in normal proceedings which the ERT is not subjected to under s231 (1) of the ERP. 

4.4 Section 112 of the ERP is thus a unique provision that allows a grevior to come before the ERT to also voice any additional issues directly linked to the original grievance and that too during the determination of the grievance. It is not limited to the hearing stage only. 

4.5 Section 112 is lucid in its intention and purpose where the grevior can allude the Tribunal and the employer if there is evidence in relation to another aspect (but clearly must be directly linked to the original grievance), then those issues can be put before the ERT for determination as long as the employer is put on notice during the proceedings. 

4.6 I do not agree with the employer's counsel that s112 means that only time any further issue(s) should be brought to the attention of the parties is when the substantive hearing is conducted. According to Mr Singh, evidence should be led at the substantive hearing stage and left to ERT to decide if further issues introduced by the grevior have merits and whether it should be considered in the final determination of the ERT. In fact, this would offend natural justice and fairness which clearly s112 is trying to avoid by allowing the employer an advance opportunity to respond to any new or further issues being introduced by the grevior. To leave this at the substantive hearing stage would mean unfair surprises and prejudice to the employer's right to defend as they would be would put on-spot due to shortage of time and opportunity to gather response.

4.7 Therefore advising the employer during the proceedings is in compliance with natural justice and fairness as it is in the employer's favour. This is because even before proceeding to substantive hearing if the new or further issues have no merit or justification, the employer can always apply to the ERT to have the additional matter struck out or not considered as rightly the grevior must have evidence to add any further issues to the initial grievance. Here, in my view, the fact that the employer had stopped payment of grevior's pay has forced him to seek redress for dismissal, which he intends to challenge in a form of a constructive dismissal.

4.8 Once such application is made, either formally or through preliminary submissions, the ERT is obligated under its jurisdiction pursuant to s211 (1) (a) and ((i) to adjudicate.

4.9 As for s111 (2) of the ERP, being raised by Mr Singh preventing the grevior from adding further aspect of grievance, where the worker's right to use procedures indicate that they must inform their employer's within the period of 6 months on which the action alleged occurred, I find that this provision of the ERP is also misconstrued by the counsel for the employer. 

4.10 Simply put, grievance must be first raised with the employer within 6 months of the action that the worker is aggrieved with. After lapse of 6 months, any extension of time would be given if the employer consents. This is assuming that the grevior is still in employment and the internal grievance procedures are available to address the grievance before it lands at the doorsteps of the Ministry of Labour (that is, before Mediation Unit or ERT respectively).

4.11 Under s111 (3) of the ERP, without doubt the ERT has powers to grant extension of time if an application is made, provided, it is satisfied that there are good reasons for delay. No application was made by the grevior considering that the grievance was no longer within the realm of the special employment relationship that once existed between the grevior and employer – it had been reported to the Ministry of Labour. 

4.12 Here the grevior has raised a further issue invoking s112 of the ERP which allows the grevior to add further aspect of the grievance if there is evidence during the proceedings. 

4.13 So far, I am convinced that s112 of the ERP allows the grevior to add "constructive dismissal" as a further issue to be determined during the substantive hearing. In addition, the notice given to the employer is fair procedure which the employer can reject if they feel they are up to defending new issues being brought at the hearing stage by the grevior. 

5.0 Preliminary Submission and Annexure

5.1 I have already commented during the hearing of the preliminary matter that rules and procedures for the ERT are not clearly codified and often parties argue before me regarding the rules of evidence that applies to the ERT. As indicated above, s231 (1) and (2) of the ERP allows the ERT flexibility and discretion in this regard where the Tribunal may accept and admit evidence as it thinks fit and is not be bound by the strict rules of evidence. 

5.2 Where appropriate the ERT can invoke Magistrate Court Rules under s 238(2) of the ERP for regulating practice and procedure of the Tribunal where there is a lacuna or absence of such rules. But first, the ERT has discretion to admit evidence it thinks fit under s231 of the ERP.

5.3 As a customary practice, since and before the ERT was put in place, preliminary submissions for the substantive matter have allowed both parties to have a cursory glimpse of each other's case before the ERT. As a practice, first the employer submits their Preliminary Submissions who is put at the test of disproving any allegations brought forward by the claimant or employee which originates once the Ministry of Labour receives a grievance under s111 of the ERP which allows the grevior a right to use the ERP procedures for redress and remedies sought. The onus lies with the employer to provide justification for any allegations of unlawful or unfair dismissal or any other issues raised by the employee or grevior on the basis that employee is in an economically vulnerable position with his/her right to work and livelihood being affected or under threat. 
5.4 In doing so, the employer is at the liberty to disclose all documents relating to the allegations that will prove that there was genuine and reasonable justification for the employer to implement or take certain actions against the employee which the grevior is complaining against. 

5.5 In response the grevior will be required to put forward their response to employer's Preliminary Submission and can seek further disclosure of documents such as the termination letter, letter of appointment, contract of service, etc as a right to disclosure from the employer.

5.6 The employer is also given a final liberty to respond to the Preliminary Submissions of the grevior and may add further documents that will support their position. The same documents shall be tendered in evidence once the substantive hearing is heard, but most importantly these documents allow both parties adequate opportunity to understand and comprehend each other's position and this is all encompassed in the same "good faith" dealing throughout the process. If during the proceedings both parties realize that they still want to negotiate and attempt final settlement without the need for adjudication, often parties allude the ERT prior to heading for any substantive hearing. 

5.7 As Mr Rae has aptly indicated, these submissions along with any supporting documents are not substitute for pleadings, rather it allows both parties a fair opportunity to grasp the extent and severity of the allegations whilst also it gives the ERT a glimpse into the likely issues and defence raised by the parties so it is able to invoke its general function under s210 of the ERP to assist both parties to achieve and maintain effective employment relations. It also gives a chance to both parties to bring forward grievances or disputes backed up with facts and evidence so as to avoid unfair surprises at the substantive hearing. If one parties constantly fails to heed ERT's directions for filing preliminary submissions, it can give grounds to the employer to seek striking out application and/or alternatively, the grevior can proceed to formal proof if employer fails to defend their position despite given a right to do so. All in all, ERT process is kept fairly simple and speedy as the underlying basis is to avoid unnecessary delay to someone whose livelihood is under threat. 

5.8 The employer's counsel had issues with the same annexure being attached to the current preliminary application before the ERT which are also annexure for the substantive preliminary submissions. Mr Singh requires these to be struck out or expunged. I cannot see the rationale behind this. The documents clearly reinforce the grevior's position which he has pointed out to have evolved into a "mutated" grievance from unfair demotion to constructive dismissal. To support this, he requires evidence under s 112 of the ERP and that evidence has to be linked directly to his initial grievance. Other than that, the fact that his employment is no longer intact with the Colgate Palmolive (Fiji) Limited, a fact that is not denied by the employer's side, this in itself allows him to come before the ERT, albeit his dismissal will be seen as a secondary issue to the allegations of unfair demotion which was his principal claim before the ERT. However, if he is not receiving any pay, demotion no longer remains a principal allegation, as it appears his dismissal, created out of circumstances now takes prominence.

5.9 As such, I do not see any reason why these documents or annexure should be expunged. They have been part of the substantive preliminary submissions, the employer already knows about them and therefore they are not new or prejudicial to the employer but simply has attempted to provide grevior's likely evidence to substantiate his position to add on "constructive dismissal" to his initial claim, which I have duly accepted has mutated. 

5.10 Indeed the value, worth or merit of these documents in proving whether or not constructive dismissal is of an issue with relevance here is not under consideration and thus I cannot comment whether they are likely to impact the employer's position unfairly. However, they are not new or unknown documents so any potential prejudice is out of question and in fact I note Mr Singh did not explain why these documents should be expunged other than stating that they should be tendered as part of evidence during the substantive hearing.

6.0 Decision

1)	I shall allow the grevior to add "constructive dismissal" to his foregoing claim of unfair demotion under s112 of the ERP on the basis that he is no longer employed by the employer.

2)	I do not see any need to strike out or expunge the annexure to 16th September 2011 submissions to the preliminary matter. ERT is not bound by strict rules of evidence and it is my view they do not prejudice the employer's position in any way.

3)	Given the past history of this matter ranging from issues of representation of the grevior, delay, default judgment being entered and set aside and so forth, the way forward is for the parties to proceed to substantive hearing after dates have been allocated by the ERT.

DATED at Suva this 9th day of January 2012.

LEGAL TRIBUNAL