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Fiji Employment Tribunal |
IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT Grievance No. 20 of 2011
BETWEEN:
LEO TUKANA
Grievor
AND:
CREDIT CORPORATION (FIJI) LIMITED
Employer
Appearances:
Mr. S. Nandan and A. Reddy for the Grievor
Mr. R. Naidu for the Employer
DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL
1.0 Employment Relations Grievance
1.1 Background to the Grievance
This grievance was registered with Ministry of Labour on 28th October 2010. Mediation was attempted on 02nd December 2010 but was not successful. The mediator referred the grievance to the ERT on 2nd February 2011 in accordance with s194 (5) of ERP outlining the nature of unsettled employment grievance with the following terms of reference:-
"Leo Tukana vs. Credit Corporation (Fiji) Ltd over alleged unfair termination of Mr Tukana".
2.0 Cause before the ERT
2.1 In the Employment Relations Tribunal (or "the ERT"), the parties were directed to file preliminary submissions by the Hon. Chief Tribunal on 26th January 2011 whereby the Employer filed its Preliminary Written Submissions on 16th February 2011 and Grievor filed her Preliminary Written Submissions on 7th March 2011. Employer also filed further Submissions In Reply on 21st March 2011.
2.2 Hearing of the substantive matter was fixed for 11 and 12th August 2011 which was vacated by consent of the parties where the employer also paid a cost of $450.00 to the grievor. Hereafter hearing was re-set for 5th December 2011 which commenced but completed on 15th December 2011.
2.3 At the hearing, the employer called three witnesses to tender their evidence:-
2.4 The grievor gave evidence as the only witness from his side. Suffice to note that several subpoenas was filed and served on a number of witnesses, but none of these witnesses was called to stand.
2.5 The parties then submitted their respective Closing Oral Submissions on 29th December 2011 after they were given simultaneous opportunity to file and serve any Closing Written Submissions by 23rd December 2011 where both parties duly complied.
3.0 Issue(s) before the ERT
3.1 The ERT shall assess whether the summary dismissal was justified substantially and procedurally where after considering the submissions from both sides, this Tribunal will determine these specific issues:-
3.2 In other words, this ERT will determine whether the purported summary dismissal of the Grievor by the Employer that occurred on 30th September 2010 was unlawful, discriminatory and unfair as alleged by the Grievor. If so, should the relief (or remedies) available to the Grievor including reinstatement, compensation and costs be awarded?
4.0 Background Facts to the Grievance
4.1 The employer is a registered financial institution operating under the name of Credit Corporation (Fiji) Limited (or "CCFL").
4.2 The grievor became a "worker" of CCFL by virtue of being offered a position of Administration/Clerk/Delivery Boy/Driver since June 1992. No contract of service (or employment) was tendered in evidence from either side. However, there was no apparent contention as to the grievor's longstanding service with the employer which was confirmed by both, the Managing Director (or the "MD"), Mr. Ross MacDonald and the grievor himself.
4.3 It was an established fact that on 30 September 2010, the employer summarily dismissed (that is "with immediate effect") the grievor for gross misconduct pursuant to section 33(1) (a) of the ERP 2007. The allegation of 'gross misconduct' was in relation to "misappropriation of company funds" as contained in the employer's letter of dismissal (Exhibit "1").
4.4 The Employer gave evidence that a former cashier known as one, Ms Symone Paul was not authorized by CCFL to give a loan to the Grievor or to anyone for that matter.
4.5 It was the Grievor's evidence that he had obtained a loan of $200.00 from the cashier directly (date was not established) under the practice of IOU or "I Owe You Voucher System", which he considered and perceived to be a "normal procedure" for purposes of obtaining a staff loan at CCFL. This, he said "was his privilege" under IOU to obtain a loan through the cashier as he admitted doing on several other occasions (wasn't sure exactly how many loans he had obtained).
4.6 It was the grievor's further evidence that he had taken the loan on behalf of another staff (Praveen Dayal) who had asked him to get the loan to repair his car. He wrote a petty cash voucher of $200.00 where he would have had the voucher returned to him after repayment was made by him.
4.7 The employer gave evidence that CCFL only authorized loan under their staff loan policy as opposed to any "practice" which policy was tendered in evidence as Exhibit No.2. This policy allowed staff of CCFL to obtain an authorized loan of 5% of their salary from the employer where the Managing Director's approval is required. The grievor gave evidence that the policy was known to him.
4.8 It was the employer's evidence that when they discovered that a number of CCFL staff including the grievor was involved in a cash loan transaction with the cashier, they proceeded to investigate this on the basis that they considered the loan to be an "unauthorized loan" that was not sanctioned by the employer. Subsequently, the grevior amongst his (seven) other colleagues were all summarily dismissed here at least in this instance, the employer gave reason for dismissal as misappropriation of funds in the letter of termination.
4.9 The names of the employees who were also summarily dismissed on 30th September 2010 for the same offence as pointed out in the evidence of the employer through Ms Khatoon and Mr Ross MacDonald in no particular order are as following (some names were also confirmed by the grievor):-
4.10 Danielle Keli has also alleged unlawful and unfair dismissal that took place simultaneously with this grievor where full names of all the eight terminated staff were also clearly disclosed to this ERT. In Danielle's case, I have been tasked with ascertaining whether summary dismissal was "disproportionate to the gravity of the allegation" while in this grievance there is an allegation of unfair discrimination, which is slightly a different issue.
4.11 The evidence in 4.9 above was common and crucial in both matters that attempted to draw reference to the penalty imposed by the employer on a group of staff members. In this instance, there is an allegation of unfair discrimination on the basis
that that some staff, including the grievor was given harsher penalty (summary dismissal) whilst others have been retained in their
employment who were subsequently also alleged for the same offence but not terminated.
4.12 In contrast, Keli's case alleged that the penalty such as summary dismissal was not warranted as the misconduct failed to be
classed within a range of reasonable responses that would sufficiently be regarded as "gross misconduct". Hence, it is disproportionate
to the gravity of the offence alleged by the employer.
4.13 There is apparent overlapping of facts and issues in both the grievances which cannot be considered in complete isolation to understand the overall merits of the case, but I am mindful that the allegation of unfair discrimination has to be dealt separately in terms of evidence in this case. This is not to say this ERT cannot use the basis of information and evidence that was submitted in Keli's case to understand why the grievor also felt he was unfairly terminated. This will need to be assessed in terms of the dismissal against all those who were caught and alleged of the same offence that is facing this grievor – in total, it was established that eight staff were terminated collectively on 30th September 2010.
4.14 It was also an established fact that just before the grevior and her colleagues were all dismissed, they had an audience or interview with the Managing Director, Mr MacDonald and thereafter they were handed over their letter of termination.
5.0 Is Summary Dismissal Justified in Substance and Procedure?
5.1 It was the employer's defence that they had invoked section 33(1)(a) of the ERP 2007 to carry out summary dismissal of the grievor.
5.2 There was no contention in this case that s33(1)(a) of the ERP was not a valid termination method as was raised in Keli's case where I have in detail examined the contract of service and application of laws under the ERP and which termination method was applicable.
5.3 In this grievance, the only contention known to this ERT was that the grievor did not agree with the employer that his action or any alleged misconduct by the employer sufficed for the purposes of s33 of the ERP for a summary dismissal to prevail. Section 33 (1) stipulates that:-
"No employer may dismiss a worker without notice except in the following circumstances –
(a) where a worker is guilty of gross misconduct;
(b) for willful disobedience to lawful orders given by employer;
(c) for lack of skill or qualification which the worker expressly or by implication warrants to possess;
(d) for habitual or substantial neglect of the worker's duties; or
(e) for continual or habitual absence from work without the permission of the employer and without other reasonable excuse.
5.4 Section 34 states:
"If a worker is summarily dismissed for lawful cause, the worker must be paid on dismissal the wages due up to the time of the worker's dismissal"(emphasis provided).
5.5 In Keli's case I have, in quite a detail set down my views as to how a "lawful cause" in a normal circumstance can be established given that the ERP is silent on how to establish a gross misconduct and its lawfulness; and how to establish the guilt of the employee; and thus deciding on an appropriate sanction or penalty. As I have said, in order to discipline and possibly dismiss an employee for gross misconduct, the employer will have to be able to prove that the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
- that the rule was a valid or reasonable rule or standard;
- the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; and
- the rule or standard has been consistently applied by the employer.
5.6 Here, I have to first ascertain which was the lawful and valid rule of the employer:-
- Was it the Policy for staff loan as presented in evidence by the employer which should have been the valid and appropriate rule or standard regulating an "authorized loan" and one which would be properly sanctioned by the employer; or
- Was the practice of "IOU" used by the grievor on various occasions which he considered and perceived to be his "privilege" a valid method for seeking staff loans from the employer (through the cashier), which practice was categorically denied by the employer which they told the ERT was neither approved nor sanctioned for purposes of a staff loan at CCFL at any given time.
5.7 Simply put, I have to sieve through the evidence and examine the following questions:- Whether-
- The Staff Loan Policy was in existence, which was then available to the staff to access and utilize for the purposes of an authorized loan whenever required or needed;
- The grievor was reasonably expected to have been aware of the said Staff Loan Policy (which is the employer's approved rule or standard here);
- The employer applied the policy consistently and openly where staff had obtained loan using the said Policy;
- The grievor utilized the said Policy during his employment with the employer;
- The policy or rule had an impact on the work environment in terms of its significance in assessing the gravity of the penalty imposed; and finally,
- The employer had at any time authorized and/or directly or indirectly made known to the grievor that IOU was an acceptable practice for purposes of obtaining a staff loan and that too a loan could be sought directly via the cashier without seeking prior approval from the higher authority as per the Policy requirement (approval from the MD is required under the Policy).
5.8 Clearly, a staff loan policy existed at CCFL. Unlike the dispute in Keli's case whether the grevior had reasonable knowledge of the policy vide her contract of service, here the grievor admitted in his cross examination that he had obtained loans under the said policy; in fact, on two known occasions as raised by Mr. Naidu.
5.9 No doubt then, the grievor ought to have been aware of the Policy to have obtained these loans; therefore, I have no reservation that he knowing the authorized manner in which a loan could be obtained he completely and blatantly ignored and thus breached a rule of the employer.
5.10 He did this through his continued use of the IOU system which he considered to be his "privilege" when it was his own evidence that at no time the employer had made it known to him that IOU voucher system was another way in which he could also obtain an authorized loan, albeit here the approving body will be the cashier instead of the MD or FC. The latter issue requires some analysis as to why the grievor also regarded and perceived the practice of IOU as a privilege when he admitted that neither the MD nor the FC, two most senior Management staff of CCFL ever gave him a reason to believe or duly informed him (in writing or otherwise) in his long service that he was entitled to such a privilege.
5.11 Neither there was any evidence that the Board of Directors of CCFL had ever sanctioned the practice of IOU at any given time (as a past approved practice) and the grievor in his long service was led to believe by someone in higher authority that this was an acceptable practice or rule of the employer in terms of seeking loans from the employer. The email of Ms Begum (Exhibit "3") did not provide an iota of evidence that it was a sanctioned rule of the employer. Further the loans could be obtained directly from the cashier without a prior approval or knowledge of the MD or FC who would in any given situation be required to keep control on financial books of the company on daily basis.
5.12 It appeared that the grievor had good knowledge of the CCFL Board where he gave evidence that he had private discussions relating to his retirement plans with the Chairman. In that sense, he should have known that any "privilege" had to be sanctioned by the higher authority. After all parting with CCFL client money in form of staff loans is no trivial matter that only a cashier would be given authority and discretion on a voucher system without properly accounting to the company via the FC on daily basis.
5.13 Who bestowed the "privilege" and where did this privilege derive from was not put properly to the ERT other than the fact that it was not something approved by the MD or FC or the Board as was the evidence before me.
5.14 Indeed if IOU practice was an acceptable practice it raises some thought-provoking questions that cannot escape a prudent person:-
- Why did the grievor use the Employer's Policy at all to obtain two loans which clearly came with at least seven terms and conditions (such as only 5% of salary entitlement for a maximum period of one year, etc)? In comparison, the practice of IOU had no such terms and conditions, in fact as far as the evidence was concerned, it appeared that there was no terms and conditions at all. Therefore, any right thinking person would have only sought loans under the "practice of IOU" as it had many advantages – no timeframe for payment, no restrictions, no problem if loan was not paid at all, after all some loans are still unpaid to date as was proved in Keli's case.
- Who was the staff answerable to – the cashier if something went wrong? Therefore, who would attempt recovery? This issue goes to the management of the debts as clearly accumulating a loan to the tune of $20,000(plus) is no trivial matter when the company money is used.
- Alternatively, if this was a known practice, why was the cashier carrying the burden of ultimate decision-making and no approval or knowledge of the senior management was required at all. Surely an open and honest practice would mean clearly informing the MD or FC who would have at least kept tabs and watch on the money that was being used here. Both the MD and FC gave evidence they were in dark as to this practice.
5.15 What is then of a concern to this ERT is that this was financial institution and dipping in the till so easily and freely without any usual protocols or restrictions is against the rules of the business, particularly for an employer, who had daily exchange of millions of dollars as was the evidence of the grievor . I have looked at this issue in depth in Keli's case in terms of understanding why it was important to protect this particular work environment through a proper policy as opposed to any un-codified "practice".
5.16 Further, it might have assisted the grievor's position if he had been able to bring forward credible witnesses or evidence who could have substantiated the fact that IOU was their "privilege" and the employer knew of this.
5.17 The email evidence of Shareen Begum (Exhibit "3"), from a former employee of CCFL was not enough to collaborate that such practice existed with the permission of the employer other than making a mere mention that there was perhaps, such a practice at her time. Ms Begum was not present before the ERT to give any further evidence but whatever the email provided, there appears certain plausible scenarios: –
- First, it could be that IOU may have existed at Ms Begum's time [2000-2005 (her start and end date of employment)] but the ERT also heard that the employer had terminated two cashiers (someone by the name Ana and Sushila) in the past for giving out loans under the said IOU system. It was not clear when.
- Second, it could be that the employer to counter such unauthorized IOU practices, had put in place an explicit policy where it was admitted by the grievor to have been used to obtain a properly sanctioned loan from the employer on at least two occasions but some staff still carried out the practice of IOU despite there was an explicit policy in place.
- Third, the policy was marked with the heading "Policy No. 11/2003 (revised in January 2008)" which proves that it was sometime in 2003 when the policy took effect and came into existence. In his long service since 1992, it is possible that the grievor knew of certain past practices and continued to carry on despite the policy was in place to dispel any doubt as it did not come into the radar of the employer. Keli's case proved that Ms Paul (the cashier) was receiving the CCFL's client money, receipting the same but not banking as required. If these books were properly accounted and balanced, perhaps this practice would have been exposed much earlier. It also begs the question, why staff could not simply clarify with their managers to be absolutely sure.
5.18 Therefore, any prior practice whether known or unknown and/or authorized or unauthorized by the employer is then of no relevance here. The practice of IOU has no role to play even as a privilege as believed by the grievor if the staff loan policy was being implemented and used by the staff to seek authorized loans. After all the grievor had used the policy to obtain his loans which was duly approved by the employer.
5.19 As such this ERT is not persuaded that because the grievor had still considered it a "privilege' or that other staff was also utilizing this IOU practice either intentionally or unintentionally with the guidance and carriage of the cashier therefore, it should be deemed an authorized practice of the employer for purposes of a staff loan. There was absolutely no evidence that the employer had formally, directly or indirectly issued instructions to the staff that such practice was their "privilege". This was admitted by the grievor.
5.20 To that end, I accept that IOU was not an authorized medium for staff loan and the policy was in place for purposes of an authorized loan as proved by the MD and FC's testimony. Further the grievor had used this policy twice.
5.21 I have no doubt in my mind after analyzing the evidence in this case that the employer had a reasonable rule in place where the grievor knew of its existence and purpose, particularly in a circumstance where loans (or money) could be obtained from the employer in an authorized manner.
5.22 Accordingly, this ERT will not substitute its views for that of the employer in determining whether the employer acted reasonably. The Tribunal has a task to test objectively whether the employer had acted reasonably and here I shall apply as a guideline the case of Philips Thomas v Fiji Electricity Authority [2004] FJHC 303 where the Court applied the ratio in the English Court of Appeal case of X vY [2004] EWCA Civ 662 as follows:-
"...the law on dismissal for conduct is clear. It has been said to be a four pronged test. The Foley test was cited with approval in X v Y (supra at para 18):-
"the employer must show that he believed that there had been misconduct by the employee; that there were reasonable grounds for that belief; that he had carried out as much investigation into the matter as reasonable in all the circumstance; and that the decision to dismiss him for that conduct reason was within the range of reasonable responses of a reasonable employer."
5.23 In Keli's case as I have extensively explored that ERP 2007 does not provide the required guidance in arriving at a "guilty" decision for summary dismissal. This Tribunal will then test objectively whether the employer acted reasonably in establishing a lawful cause as a basis to regard the grievor's alleged misconduct within the range of gross misconduct. And whether the employer accorded fair process when establishing the guilt of the grievor.
5.24 The grievor admitted taking $200.00 under the IOU practice from the cashier whom he said was for a third party who did not come to the ERT to confirm this fact. It begs the question why the grievor thought he could obtain a loan so easily from the cashier and the staff (Mr Dayal) who needed the loan could not.
5.25 In fact, why didn't Mr. Dayal go directly to the MD under the policy for a loan if he was in a desperate need for a loan?
5.26 Was the practice of IOU Mr. Tukana's privilege only and not Mr Dayal's? After all, there was nothing stopping Mr Dayal from obtaining a loan directly from the cashier just as Mr Tukana did as there were no terms and conditions to these loans as opposed to any loans obtained under the policy of the employer – rather a restrictive channel as opposed to the IOU practice.
5.27 Was it because this practice was in fact known and utilized by certain staff only including the grievor while others were cautious or perhaps afraid of the consequences knowing that it was not a practice that was approved by the employer. In fact, the grievor admitted when cross-examined whether the long standing practice was an arrangement between the cashier and those staff borrowing money from the company to which he replied, "Yes".
5.28 Further, IOU was supposedly known to everyone as an open and approved practice, so why did Mr Dayal approach the grievor to get a loan for him. These questions were not explained particularly why the grievor took upon himself to obtain a loan for his colleague as this would not be a normal thing to do which carries liability on the recipient of the loan to repay.
5.29 Therefore, this evidence would have helped the grievor's case if Mr Dayal came before the ERT (rather than submitting a letter from the cashier) to explain what was his difficulty in getting a direct loan from the cashier and why did he prompt Mr Tukana instead.
5.30 Besides it was clear in the diary notes and email evidence of 27th September 2010 provided by the cashier that was in fact submitted in Keli's case that Mr. Dayal was never mentioned therein. I have relied on s231 of ERP to admit evidence here that I think is fit. Keli's case has similar facts and this case cannot be looked in isolation in relation to certain crucial evidence presented in both cases where there are apparently related facts that has to be pieced together to understand the overall merits of the case.
5.31 I have also noted that it was the grievor's evidence that after his termination he emailed the head-office in Port-Moresby to state that he had been unfairly terminated. The email evidence was not put before the ERT but the MD, Mr MacDonald shed some light that the grievor also alleged that there was "some corruption" in CCFL. There was also overwhelming evidence in Keli's case of what appeared to be a "casher's lending scam". The grievor too alluding to corruption tends to point to obvious "wrong" being done somewhere although the scam or corruption aspect is something for the police investigation to fully ascertain on its merits and grounds for criminal prosecution if required.
5.32 In my mind, however, it would not be unreasonable to infer that the instant reaction of the employer demonstrates that their suspicion may have had some valid grounds to assert that the records of the company was certainly "manipulated" as alleged by the MD. This would allude that some staff may have been deliberately concealing vital information from the eyes and knowledge of the employer through their direct and indirect involvement with the cashier.
5.33 How else was the loans to staff being managed which clearly was not accounted for in the daily banking records which in Keli's case, was clearly admitted by the cashier that she had received money from the clients of CCFL which was receipted but not banked (as per her email correspondence to FC). So, the critical question to ponder on why were these loans not properly accounted and disclosed to the employer if IOU was in fact an open and known practice across the employees?
5.34 Accordingly, I do not see a reason how the evidence that the grievor obtained a loan on behalf of someone else would bail or mitigate the grievor's actions out of the fact that he was obtaining unauthorized loans from the cashier (which he also admitted to have done on other occasions) and which is the crux of the issue before me. At the outset, I must say, Mr. Dayal gave no evidence whatsoever, either in writing or oral to substantiate the grievor's position and thus, I did not find this evidence reliable.
5.35 In any event, how does obtaining a loan for Mr Dayal make it any less culpable unless the grievor is also alleging unfair discrimination that Mr Dayal is still in employment whilst he has lost his job? In his evidence the grievor did not provide any specific names of the persons he believed would have caused him unfair discrimination, something which I shall deal in the later part of this determination.
5.36 There was three documentary evidence tendered before the ERT – the termination letter; the policy; and Shareen Begum's email.
5.37 A letter by Symone Paul was marked for identification but not tendered in evidence. The first two were facts duly established but as I have explained above the email evidence did not prove to certainty that the practice of IOU was authorized by the employer and that it ought to have been running parallel to the staff loan policy No. 11/2003.
5.38 Evidence did establish that the policy was in existence and that the grevior had used it on two occasions.
5.39 Mr Mow gave evidence that he came to knowledge through a relieving cashier of the shortfall in the money in the till. When the cashier Symone Paul was asked to explain she told him was due to money taken by staff as "loans" and Leo was one of them. A sum total of the said loan stood roughly above $20,000.00.The FC gave evidence that after the cashier had provided him with a list of the names including dates of the loans taken by Leo Tukana recorded in her diary, he then proceeded to inform and seek the Managing Director's directions.
5.40 FC after his discussion with the MD then proceeded to investigate or interview all those staff allegedly involved in taking a loan from the cashier. This is when he spoke to the grievor on 27th September 2010 as confirmed by both, the FC and the grievor. During their discussion on 27th September 2010, grevior admitted to the FC that he took loans from the cashier including the $200.00 loan discovered by the employer in this instance. He was shown amounts (of the loans) by Mr Mow and he agreed to the dates. I have noted that the dates of various mentioned loans were not clarified but there was no objection from Mr Tukana that he had not met with the FC or that he did not agree to taking loans under IOU practice from the cashier as per cashier's diary notes.
5.41 The only contention of Mr Tukana was that he was unable to present his side of the story at that interview with the FC or at the subsequent meeting with the MD. In the meantime, the grevior paid the money back to the company after few days of his meeting with the FC.
5.42 The FC after his interview with all staff on 27 September 2010 reported to the MD.
5.43 MD gave evidence that on 29 September 2010, the FC reported and confirmed to him that Leo with seven other staff had taken unauthorized loans from the cashier totaling about $21,000.00 appropriately. He then reported the matter to senior management team consisted of himself, FC, General Manager, Legal (Neelam Sharma); General Manager Lending (Krishna Raju); and General Manager Portfolio (Navin Kumar).
5.44 At the senior management meeting, MD reported and discussed that eight staff had "taken funds without authorization from the cashier manipulating company's records so that amounts would not be disclosed to the company". The management staff then agreed unanimously that eight employees were "completely out of normal operations which amounted to gross misconduct and must be dismissed forthwith".
5.45 The senior management team had decided that the eight staff should be dismissed the following day, on the 30th September 2010. Hereafter the MD called all the eight staff face to face, but separately in office and dismissed them one by one on 30th September 2010.
5.46 From the entire evidence presented to it, the Tribunal is convinced that:-
- The employer had reasonably drawn conclusion that the money used by the cashier to loan the grievor was not authorized by CCFL. This is based on their explicit policy in place which the grievor had used in the past to also obtain loans therein. Therefore, he ought to have known the authorized policy of the employer; and
- The staff involved in IOU practice knew it was unauthorized practice that could lead to serious penalty and this could be one reason Mr Dayal did not approach the cashier directly, but instead used Mr Tukana to get him a loan who admitted that he had used IOU practice on other occasions.
5.47 Failing adherence to employer's policy, it provided the employer a basis to allege "gross misconduct" in terms of having a valid reason or cause where the grievor's actions did not meet the employer's standard of conduct set down to obtain an authorized loan. It is then this ERT's findings that the employer's main reason for dismissing the grievor was for a lawful cause which was duly established from the evidence.
5.48 Once a lawful cause is established, it should thus suffice for purposes of section 33(1) (a) in terms of meeting the criterion for "gross misconduct". There was credible evidence to prove gross misconduct on the part of the grievor in fact existed. Hereafter the employer will be required to immediately terminate the grievor where procedures are concerned.
5.49 I have discussed in length the issue of procedural fairness in Keli's case and I am my steadfast on my position. Suffice to say, the recent judgment in the case of Carpenters Fiji Limited v Isoa Latianara ERCA No. 7 of 2011 provided the following principle where, Wati J has stated and I quote for quote:-
"...if there is serious misconduct, then it is the prerogative of the employer to terminate the employment immediately. If all these procedures of hearing and explanations are accorded to the employee, then the purpose of summary dismissal is lost..." (at page 8).
6.2 In this instance the process of arriving at the decision to summarily dismiss the grievor was done without delay and without any intention to inflict or cause humiliation or disrespect to the feelings and emotions of the grievor.
6.3 I acknowledge that the grievor is a longstanding employee of CCFL. However, I have discussed in Keli's case that summary dismissal can arise out of a single, but gravely serious act or misconduct that the employer regards would completely break or sever the trust and confidence that the special working relationship builds over many years of "good faith relationship" between an employer and his/her employee. The "good faith" requirement is one of the integral foundations of the ERP which is an extraordinary requirement to be observed by both parties at all times that keeps it apart from any commercial agreements (verbal or writing).
6.4 In that regard if the employer chose to summarily dismiss the grievor who was the longest serving employee of CCFL; an upstanding community leader; had no previous record; nor he was ever caught in any dishonest act or misconduct given the volume of money he handled in his long service with the employer on daily basis (sometimes up-to $1m), does not vindicate his actions in this (one) instance.
6.5 For example, if he was caught earlier given that he had been taking loans under IOU practice for quite some time on various occasions, I do not believe that the employer's decision would have been any different. After all some staff were terminated in the past by the employer for using this practice and I have no reason to double guess the employer other than examine the allegation of unfair discrimination.
6.6 I find that the termination was lawful and valid under s33(1)(a) of the ERP.
6.7 There was some contention as to breach of s33(2) of the ERP as was also in Keli's case, where I have attempted to dispel misconception as to the reasons provided by the employer in terminating Keli. Here, same reasons were provided (misappropriation of company funds) and my determination in Keli's case stands because in this case the MD gave credible evidence that the "company records were manipulated".
6.8 This would mean that the grievor by indirectly obtaining a loan through an unauthorized means may have colluded with the cashier to take money from the company in such a manner that was deliberately concealed from the employer. The cashier's efforts to evade and not disclosing banking records properly to employer so that staff like the grievor could easily get their hands on the company money cannot be treated as a dishonest and fraudulent conduct on the part of the cashier only. The grievor participated willingly and regarded this whole practice of IOU his privilege. To treat him with no responsibility or culpability is simply paving a freeway for staff to hide behind the principle perpetrator when the secondary perpetrators like the grievor are equally at fault. Hence I do not see that the employer failed to satisfy s33(2) of the ERP.
6.9 Further, it is my opinion that despite the employer admitted that they did not have a proper written grievance procedure laid out for resolving these kinds of matters, I am wondering whether it would have made a difference. This is because I am concerned that despite there was an explicit, written staff loan policy in place yet, the staff had chosen to use a practice which they believed to be their entitlement or privilege. And not just for a small breach of trust but one that involved taking money without the employer's knowledge or authority where almost $21,000.00 was accumulated in loan through this practice. Some was recovered, while others not.
6.10 Recovery or repayment then does not free the grievor of the potentially serious nature of the act as observed in the case of Sinclair v Neighbour [1967] 2 WLR 1 where the Court of Appeal ruled that one act of dishonesty was sufficient to warrant summary dismissal. Here, the Court stated that less weight must be placed on the labeling of the act or misconduct (such as dishonest, fraudulent, etc) with that of the facts that establish that misconduct. This was followed in a local case of State –v- Arbitration ex parte Fiji Development Bank, High Court, Suva, Judicial Review No. 0020 of 2006 (27 April 2007).
6.11 If IOU practice had a recognized standing at CCFL, then I see no reason why it could not later be deemed authorized when the employer discovered that loan was obtained under IOU system. After all the employer is entitled to set the standard on these matters, if not, employees will take money in however manner they wish. As such I found the employer was neither mistaken nor unaware of their own rules and policies although I agree that for a financial institution, not to have any double checks and balances in place where the FC was mostly unaware what was happening in his department is indeed, a frightening fact. But, a wrong is a wrong and if staff wanted to properly obtain loans they had the policy to their aid and grievor had used this in the past successfully. There is thus, no excuse for deceiving an employer in any context.
6.12 I agree that while there were sufficient grounds to establish the grievance in substance, the grevior is still entitled to be fairly treated in procedure and here the procedures were missing, particularly to allow the grievor to explain or tell his story prior to establishing his guilt (not after as per Isoa's case).
6.13 Yet I am of the view that it would not have made a significant difference in this particular grievance matter. How can the grievor disregard a written policy and still demand procedures to be in writing or implemented by the employer. Both are mutually exclusive for purpose of good faith and fairness in that special employment relationship that binds both parties equally and culpably.
6.14 And here I do not believe that the employer even if they had heard the grievor's version of the story, he would have easily escaped the penalty given out by the employer eventually in a form of summary dismissal. In Keli's case, it was her first offence and she too took only $288.00 which she had paid to the employer upon demand and yet, she also received the same penalty.
6.15 The case of Dunning (A.J.) & Sons (Shoplifters) Ltd v Jacomb (1973) IRLR 206 is of assistance here, where the Court said:-
"...the approach developed that a procedural defect would only make the dismissal unfair if the decision might have been different at the end of the day. The trend is to see procedural matters as issues of substance to be weighted in the scales of the overall merits of the case".
6.13 It is then my opinion that the dismissal was not procedurally unlawful or unfair.
7.0 Was there Unfair Discrimination?
7.1 Unfair discrimination is something the grievor has stated also persisted when his termination was carried out. This allegation, as I understand is on the basis that some staff were given harsher penalty such as summary dismissal (including himself) whilst others have been retained in their employment who subsequent to grievor's termination were also allegedly found to be engaging in the same IOU practice but not terminated.
7.2 In the Closing Submission, the grievor has stated that "it is inescapable that the employer's conduct in this manner has been discriminatory, heavy-handed and the manner in which the grevior was terminated amounted to unfair dismissal" (at page 8).
7.3 This is not a simple allegation to make loosely within the ambit of Part 9 of the ERP particularly pursuant to the prohibited grounds therein for unfair discrimination under sections 75 and 77 respectively. The grievor neither in his preliminary nor closing submissions has specifically pointed out which part of the law has been breached and what are the facts ensuing from that breach.
7.4 Nonetheless, from the evidence I have gathered some insight into what might be grievor's real concerns regarding this issue which I will put in perspective using the employer's elaborate submission to defend this allegation.
7.5 I must comment that ERP gives very little guidance how to deal with unfair discrimination particularly at the time when a termination for gross misconduct under s33 of the ERP takes place.
7.6 Other than classing it into a category of prohibited grounds as stated in s75 of the ERP which clearly alludes to discrimination that can occur at every stage of employment: such as recruitment, selecting employees for training or promotion, applying disciplinary procedures, dismissal and redundancy, there is very little direction once a discrimination is identified, how do you assess its legality or unfairness. Overall principle would be that to avoid illegal and unfair discrimination, the employer needs to ensure that procedures and policies are objective, focusing on work performance and the requirements of the job.
7.7 In my view, then s77(1) (c) of the ERP has no relevance to this case as undoubtedly termination had nothing to do with unfairly treating the worker in terms of his qualification and job description being comparable to another similar position. Here the allegation pertains to termination on a ground of misconduct and not incapacity or non-performance of the employee.
7.8 I cannot, like I said earlier, simply rely and regard the grievor's words and allegations alone that some staff were given harsher penalty whilst others not to be a basis for unfair discrimination; if that was the case, than evidence did indicate that the employer had in the past also terminated two cashiers for allegedly engaging in IOU practice, and this alone would have established a fair basis for termination. After all, I have no reason to doubt this fact when there was no evidence to negate the employer's assertion.
7.9 In this case, my main task is to assess at what point the allegation of unfair discrimination also made the grievor's termination unfair when he was summarily dismissed for gross misconduct.
7.10 Do I keep my assessment within the strict boundaries of the termination period, which was 30th September 2010 or any subsequent allegations of similar offences can also give a basis to allege that the grevior was unfairly treated here. Notably, I have accepted that substantially and procedurally the termination was lawful at the time it was carried out.
7.11 Keeping an objective overview, it is hard to condemn or blame an employer for an offence allegedly reported at a later stage that had no bearing on the penalty imposed at the time the termination was executed against the grievor. If for example, 3 subsequent allegations were highlighted at the time of the 8 termination took place on 30 September 2010 and yet the employer accorded preferential or better treatment to the 3 staff only and gave summarily dismissal to the other 8 staff, then there is evidence of direct discrimination.
7.12 Indirect discrimination is often subtle and not easily detectable which must be then assessed from the overall merits of the case. It would require examining the employer's process for investigation and motive behind the initial eight terminations to understand why they took the initial path (summary dismissal) but subsequent allegations was viewed differently.
7.13 On 30th September 2010, the employer terminated in sum total or a group made up of eight staff members including the grievor for the same offence (at least in Leo and Keli's case). It was established in evidence that once the allegations of the offence came to employer's attention, to prove its foundation, the employer carried out two-tier investigation:-
- First was initial fact-finding through the cashier (Ms Paul) who established and furnished the names of all the staff she purportedly had given out loans to; and
- Second, when these names were furnished, interviews were conducted and all eight staff named in cashier's list appeared before the FC. It was FC's evidence that they all admitted that they had obtained the money from the cashier.
7.14 Clearly when both Keli's and this grievance matters were heard, no other names were highlighted or given by the cashier or any other seven staff who were allegedly involved and subsequently terminated collectively on 30th September 2010, either prior to termination or on the day of termination.
7.15 The employer, through the MD gave evidence that after the eight terminations, sometime on 06 October 2010, three more names came to his attention via one of the terminated employees, Mohini who sent him an email.
7.16 The email was not put in evidence and the provider of the names (Mohini) never came forward to give further evidence in support of the grievor's allegation how this additional names had come to her knowledge; when the alleged incident took place and why these names were not in the cashier's list or indeed why these names were not provided at the time the eight terminations took place on 30th September 2010. The grievor himself did not provide any names to his knowledge to support his allegation.
7.17 Such evidence would have crucial in understanding the overall basis of the allegation of unfair discrimination which goes to objectively testing whether at the time when the 8 termination occurred (that is on 30th September 2010), the employer had any foreseeable knowledge and/or direct or indirect intention to unfairly discriminate the grevior.
7.18 In cross examination, the MD admitted that when the three additional names was brought to his attention, attempts were made to investigate and establish whether they had also taken loans in the similar manner under IOU system. The MD further testified that these loans taken by the staff were repaid immediately on the same or following day of receiving the money without any intention on the part of the recipients to falsify any records or deceive the employer. Unlike the grievor' s case, where the repayment was only made after demand of the employer, in these instances loans were repaid immediately which the employer gave evidence that they were taken for emergency use. Therefore they did not perceive these loans in the same light as the griveor's or his seven other colleagues who were caught and terminated on 30th September 2010.
7.19 Here, it appears the employer did not find that the staff colluded with the cashier in an attempt to deceive the employer. According to the employer, "...their motive was quite different from that of the grevior. The grievor did not repay until an investigation was carried out and he was questioned" (Clause 3.05 in Closing Submissions of the Employer).
7.20 Ms Khatoon's evidence was that she was not aware of IOU practice per se when she was questioned by Mr Nandan that she ought to have known it was a common practice where she had obtained a loan in a similar manner. Apparently, when a subpoena was served on Ms Khatoon to appear before the Tribunal, this is when it came to light to the employer that she had taken a loan for an hour only and returned the money on the same day. MD's evidence confirmed that these loans were taken from the cashier for short time and emergency basis and returned same or following day.
7.21 With limited evidence to properly assess the exact nature of the allegation, the time and circumstances when the three staff sought these loans, absence of any cashier's evidence when and how these 3 loans were sought from her and why their names were not in the cashier's list provided to the FC, I cannot easily and fairly link unfair discrimination or unequal treatment being accorded to the eight staff where the grevior was also a part of the collective summary dismissal that took place on 30th September 2010.
7.22 But, one thing that was clear was that the employer did not have knowledge of Ms Khatoon's loan (or the subsequent 3 loans) when the eight staff were terminated on 30th September 2010.
7.23 In my mind, whatever information was provided by the cashier in both the grievances (Keli and Leo), at the time eight staff including the grievor was terminated, these three staff was not mentioned therein so it is reasonable to assume that it did not form part of that (eight) group.
7.24 Subsequent allegations (after 30th September 2010) with ensuing investigation and penalty imposed (or not) on the three staff thus had no bearing to the previous eight terminations as there is no evidence that can reliably prove:-
- That the employer directly or indirectly intended to treat these staff differently knowing that they had also breached their policy;
- That at the initial time this offence was apprehended and the 8 staff were terminated on 30th September 2010, the employer had knowledge of the 3 staff and thus had given them a better treatment; and
- That employer failed or simply disregarded the new allegations completely.
7.11 Investigation of some sort was carried out as confirmed by MD, however, there was very little evidence to show what transpired at the investigation process to understand why the facts were different from the previous eight terminations. The cashier was also not available to give any information why she felt these staff were given a different or better treatment when she also gave them loan that would be comparably same as the ones given to the eight staff.
7.12 That said, I cannot discount the fact that the staff loan policy was breached even by these three staff regardless of the fact that they had repaid the loan immediately without the employer discovering their role in the IOU practice and reason behind it. This rule ought to be applied consistently by the employer as they did with all the previous eight terminations that occurred on 30th September 2010 and prior to that when two cashiers were terminated in the past. Here, clearly, the employer has fallen short of upholding their own rule and standard when they failed to also terminate these 3 staff subsequently.
7.13 But this alone is not enough to prove that unfair discrimination was directly or indirectly intended by the employer at the time the grievor's termination occurred. At the material time there was no evidence of him being unfairly treated in any respect, least that the employer intended to deny him equal and fair footing in comparison to his seven other colleagues who all received the same fate.
7.14 I am relying on the case Shell Fiji limited and Another V Benjamin Johnson, Supreme Court Fiji, CBV No: 008 of 2010 (19 October 2011) which makes it clear that in a context of unfair termination vis-a-viz unfair discrimination it has to be determined at the "time of dismissal"; and not what happened subsequently or what the employer's preferred penalty was in the past.
7.15 It is then my final assessment that unfair discrimination was not proved in this case.
9.0 Decision & Orders:-
Dated at Suva this 14th day of March, 2012.
LEGAL TRIBUNAL
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