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Prasad v Nasinu Town Council [2013] FJET 22; ERT Grievance 58.2010 (17 January 2013)

IN THE EMPLOYMENT RELATIONS TRIBUNAL

AT SUVA

ERT Grievance No. 58 of 2010

BETWEEN:

RAVIN PRASAD
Grievor

AND:

NASINU TOWN COUNCIL
Employer

Appearances:
Mr Lesi, Labour Officer for the Grievor
Mrs Waqa Varea for the Employer

Date of Hearing: 15th February 2012
Date of Judgment: 17th January 2013

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 19th January 2010. Mediation was attempted on 26th February 2010 but was not successful. The mediator referred the grievance to the ERT on 3rd March 2010 in accordance with s194 (5) of the Employment Relations Promulgation (or "the ERP") outlining the nature of unsettled employment grievance with the following terms of reference:-

"The decision by the Council to terminate the services of the grievor on 11/01/10 which he claimed was unfair and unjustified. The grievor therefore seeks reinstatement without loss of pay and/or benefits".

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 whereby the Employer, Nasinu Town Council (or "NTC") filed its Preliminary Written Submissions on 23rd April 2010 and the Grievor filed his Preliminary Written Submissions on 14th May 2010. Employer also filed further Submissions In Reply on 31st May 2010.

2.2 Hearing of the substantive matter was set down for 2nd July 2011 but at the request of the employer the date was vacated due to the employer's reason being, unavailability of witnesses. Noting cost in the cause, a new hearing date allocated which was duly carried out on 15th & 16th February 2012. Parties thereafter opt to file their respective written closing submissions within 21 days of the hearing. Neither party filed any closing submissions.

2.4 The employer called two witnesses:-

• Mr Kama, the Special Administrator/CEO of NTC.
• Mr Vesikula, a customer of the employer at the material time.
  

2.5 The grievor gave evidence as the only witness from his side. He had consented to give evidence on the first day of hearing without hearing the evidence of Mr Vesikula who did not appear on 15th February 2012. The Tribunal had heard the employer's application and thus given them a final opportunity to present the second witness on following day at 2.15pm but in the interim the grievor had chosen to give his evidence. The employer was not granted any further application to add third or fourth witnesses except to present Mr Vesikula as they had alluded the Tribunal initially.

3.0 Issue(s) before the ERT

3.1 The general nature of allegations pertaining to unjustified and unfair dismissal of the Grievor by the Employer requires the ERT in this instance to determine:-

1. Whether or not the employer had justification for gross misconduct in substance to invoke summary dismissal against the Grievor pursuant to section 33(1) of the ERP. The Tribunal will assess this in accordance with the employment relationship that existed through a contract of service (express or implied) between the parties and whether or not this was in compliance with the relevant provisions of the ERP;
   
2. Whether or not the employer was required to accord procedural fairness at the time when summary dismissal was effected; and
   

100. Whether or not the grievor was discharged with dignity at the time of his dismissal without any humiliation, in that he was treated fairly and with appropriate respect and dignity [as applied in the case of Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002) and followed by the Employment Relations Court in the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011].
     

3.2 In other words, this ERT will determine whether or not the purported summary dismissal was unlawful (or wrong) and unfair as alleged by the Grievor. If so, should relief (or remedies) sought by the Grievor including reinstatement, compensation and costs be awarded?

4.0 Facts & Evidence

4.1 A written contract of service dated 25th November 2008 (Exhibit "G') indicated that the grievor was appointed to a position of Manager Engineering on 1st December 2008. He was summarily dismissed on 11th January 2010 as contained in his letter of termination (Exhibit "F") where the employer had stated:"..This is to inform you that your appointment as Manager Engineering Town Planner is hereby terminated from Monday 11th January 2010 under the relevant section of your contract of employment you signed on 1st December 2008 and section 33(1)(a) of the Employment Relations Promulgation 2007".

4.2 As the grievor did not present his closing legal submissions despite the Tribunal had directed both parties to file their respective submissions simultaneously, what I gather from the evidence put forward at the hearing-proper is that the grievor's main allegations pertains to him being unfairly, summarily dismissed as he was not given an opportunity to come before a Disciplinary Committee who Mr. Prasad alleges should have investigated and taken action if there was any truth in the allegations put forward by the employer. He, thus contests that he was not given a fair opportunity to respond and mitigate against those allegations before any punitive action or decision to summarily dismissal was taken by NTC. He further alleges that even when the decision was taken to invoke summary dismissal against him, he was yet again not accorded procedural fairness in terms of his right to be heard. He was simply dismissed without notice on-spot without justification or lawful reasons.

4.3 Let me shed some light on the evidence which I summarize for the employer as follows:-

Witness One: Mr Kama

• He stated that the grievor was directly reporting to him as he acted in both the CEO and Special Administrator position at the material time.
  
• He was aware of the current grievance matter as he had counseled the grievor in the past and events following his summary dismissal given that there were various complaints from the ratepayers, NTC customers and staff members against Mr Prasad's rude conduct. He said he had already warned Mr. Prasad regarding his bad-mannered behavior when two customers went to the line Minister to complain about Mr Prasad's conduct when engaging with the general public. Through Exhibit "A", the employer attempted to prove that staff were sending Memorandum to Mr Prasad as to his rude conduct where one staff, Shalendra Shashi Prasad stated that "...you were shouting and pointing fingers to me in front of the staff. Hope this scenario is not repeated which may affect our team work..."
  
• Also through Exhibits "C, D & E", the employer tendered various letters written by a number of people complaining against Mr Prasad's "rude" or "rough" behaviour.
  
• Exhibit "E" in fact alludes to an email dated 17th December 2009 sent to Mr Prasad at his NTC email address by the Manager Human Resource, Ms Malani with a subject matter "Inappropriate Behaviour". The email largely details how Mr Parasd would conduct himself with certain staff members including questioning authority bestowed on the HR Manager to investigate any activities considered inappropriate by the CEO. It seems that he would insult staff with names in the vernacular language and resort to other unprofessional conduct in the presence of the staff and public members that would have the potential to cause distress and humiliation to, say, a female staff (Ms Malani) as was the case in this particular incident. In the email correspondence, Ms Malani had stated "...I had to physically remove myself from the scene to avoid any further harsh words from you in the presence of staff and market vendors..." The email was copied to Roshan Singh, whom Ms Malani had stated was a witness to the incident.
  
• In addition, Exhibit "B" was a compilation of report via a Memorandum from the Office of the Prime Minister dated 27th October 2009 where again reference was made to Mr. Prasad's apportioning baseless allegations against staff, his rude and unprofessional conduct in delivering his service for the employer and of interest was Part 16 of the Memorandum where it contained:- "while on duty for a inspection of a complain, dealing with Janil Timber, he was very unprofessional, rude, abusive and intimidating. As a result, he was locked up by the police officers at Narere".
  
• The above Exhibits were also part of the employer's Preliminary Submissions and none of these matters were addressed as to whether or not the facts were correct or not. The grevior did not deny these allegations nor framed a response as to the actual facts that had transpired other than admitting that he was aware of some of the complains. It appears that after emerging complaints at different periods against the grievor, where the employer received Exhibits "A-E" (that is, complaints between 16/10/09; 27/10/09; 17/12/09; 23/12/09; and again on /7/01/10) Mr Kama testified the letters were self-explanatory that Mr Prasad was "...disrespectful, rude and impolite..." to people. He said there was a strong ground to justify his summary dismissal and thus the employer invoked s33 of the ERP with their reason that Mr Prasad had breached his employment contract. While Mr Kama alluded to a code of conduct clearly stipulating the said breaches, this document was not presented to the Tribunal.
  
• In cross examination, Mr Kama confirmed that he had the authority to determine the guilt of the grievor after assessing the evidence in the form of complaints he had received against Mr Prasad. Hence he could unilaterally take a decision to terminate any staff summarily without going through the Disciplinary Committee deliberation, action and process. He also told the Labour Officer that he had called Mr Prasad into his office and counseled him in order to allow him to improve on his rude behaviour. However, Mr. Prasad showed no improvement. Thus Mr Kama said he was firm that he was guilty of misconduct when he continued to receive "repeated incidents" or complaints.
  

Witness Two: Mr Vesikula

• He stated that he was a customer of NTC since 2006. He was engaged in an incident with the grievor when he had approached NTC for formalization of his taxi base that fell under the jurisdiction of NTC in order for him to obtain taxi permit from LTA. When he sought assistance of the clerk, he was advised that he could not get a letter which he had expected would not take more than 3hrs to receive given his past dealings. Yet he was advised that the matter would now go before the Sub-Committee of NTC before he could receive the same. Instantly he had asked to see the Manager in charge and this is when Mr Prasad engaged with him.
  
• After the witness had explained his need and request for the letter, it appears there was an exchange of heated words between him and Mr Prasad. Mr Vesikula said that Mr Prasad roared at me in-front of the office staff saying "who do you think you are. You think you are a millionaire to dictate..."
  
• The witness, given his age and seniority, was clearly embarrassed and perturbed with the exchange between him and Mr Prasad where his further evidence was that Mr Prasad had ordered the witness to be removed from NTC when "he asked the security officer to throw me out..." that boy did not throw me out. I left..."
  
• While he did not lodge any complaint with the police or NTC against the grievor for his unruly conduct towards him, Mr Vesikula stated in his re-examination that he felt sorry for tax-payers, a reason that made him angry regarding the incident.
  

4.4 In his preliminary submission and later in his oral testimony, the grievor gave the following evidence:

• That he was working for the employer under the contract of service tendered in evidence by the employer as "Exhibit G".
  
• He denied being counseled or called for any wrongdoing by the CEO, Mr Kama at any point in time during his employment.
  
• He denied receiving any documents in terms of disciplinary procedures, but was aware that NTC had a Disciplinary Committee to look into disciplinary matters of the staff members.
  
• Where the series of complaints against the grievor put forward in evidence by the employer is concerned, he only admitted receiving one letter of complaint from Mr Tahir Hussein, which he said had come from the Minister. He further stated that no investigation was carried out in terms of this complaint. In counter-response, the grievor told the Tribunal that he had written to the Minister to explain himself but the said letter was not adduced in evidence by the grievor.
  
• In his cross-examination he said that he was never given the letters received in the form of complaints against him by NTC such as Exhibit "D".
  
• He also denied knowledge of Exhibit "C" saying "I did not utter those exact words".
  
• He confirmed that he did not respond to the email sent by the Manager Human Resource (Exhibit "E").
  
• Where his behaviour deemed to be rude/impolite/offensive by the employer, when he was put that his rude behavior was done in front of the staff, he responded that "...my behavior was not rude... as part of my role, as Manager, I had to speak with them in stern manner..."
  
• In re-examination, he stated that he was not counseled or warned, verbally or in written form. He further stated that he had no opportunity to respond or reply to several complaints lodged against him.
  

5.0 Summary Dismissal under the ERP 2007

5.1 The law on summary dismissal has been codified in the ERP 2007. This was indeed confirmed by the Court of Appeal in the case of Shell Fiji Ltd v Johnson [2010] FJCA 54; ABU0012/2009 (23 September 2010) at paragraph 30 and 31 (and which was also upheld by the Supreme Court[1] at paragraphs 26 and 27). His Lordships, Byrne and Callanchini J have stated that:-

"The right of an employer to summarily dismiss an employee at common law has been modified in Fiji by statute. At the relevant time, section 28 of the Employment Act Cap 92 (now repealed) stated:

"28 An employer shall not dismiss an employee summarily except in the following circumstances:

(a) where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of service;

(b) for willful disobedience to lawful orders given by the employer;

(c) – (e)...."

5.2 In the same Court of Appeal case, his Lordships went further and stated that:

"In the absence of a more generous term in an employee's contract of service, the summary dismissal of an employee will be wrong if it is inconsistent with the provisions of section 28."

5.3 Here, the Lordships considered the case of Fiji Public Service Association and Satish Kumar –v- the Arbitration Tribunal and Another (unreported Civil Appeal No. 13 of 1999 delivered on 19 February 2002) where the Fiji Court of Appeal had said (approving the comments made by the judge at the first instance) at page 10:

"Section 28 provided that an employer should not dismiss an employee summarily except in the circumstances specified therein. .... His Lordship said that the section did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (e) applied. He added that if any of the paragraphs applied, the common law right continued and there was not statutory or other objection to that right being fettered by an agreement between the employer and its employees...."

5.4 Section 33 (1) of the ERP 2007 repealing section 28 of the Employment Act is no doubt similar in various ways. It does not also confer an unfettered right to the employer to dismiss an employee except under those matters specified under s33(1)(a)-(e) where it clearly 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."

5.5 Under the old law (and certainly the position under the current law would be same), where there is legal confusion or lacuna in the statute, often common law position has guided the Tribunal and Courts for a clearer interpretation: however, now in the face of an explicit statutory provisions (ERP 2007), to better understand how to determine whether or not a summary dismissal is "wrong" in law (substantially and procedurally), other relevant and applicable provisions in the ERP must be read and considered in its totality. These provisions are:-

"Section 33 (2) stipulates:-

The employer must, provide the worker with reasons, in writing, for the summary dismissal at the time he or she is dismissed.

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.

Section 114 provides:

If a worker is dismissed, the employer must, when dismissing the worker provide to the worker with a written statement setting out the reasons for the dismissal.

Section 7 of Schedule 4 (Section 110) stipulates: If-

(a) the worker is dismissed; or

(b) the worker is not satisfied with the employer's written response; or

(c) the employer fails to provide, within 7 days after the day on which the employer receives the worker's written statement, a written response; or

(d) the employer and worker have agreed to waive the requirements for an exchange of written statements and the worker is not satisfied with the employer's response to the grievance,

the worker may refer the employment grievance to the Mediation Services in the prescribed manner."

(Bold and/or underlining is my emphasis)

5.6 In a normal cause, the grievor has a right to come before the ERT for redress and remedies for 'employment grievance' under sections 109, 110 and 111 of the ERP for any type of "dismissal" pursuant to section 7 of the Schedule 4. Under section 4 of the ERP:

"Dismissal" means "any termination of employment by an employer including those under section 33" (my emphasis).

5.7 In a similar manner, the drafters of ERP have generally intended Section 33 of the ERP as a presumption in favour of the employers where clearly the requirements for a "lawful summary dismissal", must be adhered to. This is confirmed by section 30(4) of the ERP where it is clearly stated that:-

"Nothing in this Promulgation precludes either party from summarily terminating a contract of service for lawful cause".

5.8 This was further clarified by your Ladyship, Wati J in her judgment of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011, where the Court had looked at how contract of service can be interpreted in view of termination methods. Here, the Court noted that there were two mutually exclusive dismissal regimes (in the worker's employment contract) where dismissal could occur either by a week's notice or payment in lieu, or summary dismissal for serious misconduct without notice or payment in lieu. Additionally, the Court noted in Isoa's case that the employer was entitled to dismiss summarily for gross misconduct pursuant to s33 of the ERP.

5.9 The Court went onto say and I quote:-

"...Indisputably the termination clause permits termination without cause....and also for summary dismissal, without notice for serious misconduct. Once the employer made serious misconduct the basis of termination, it is then correct for the Tribunal to make a finding as to whether the cause for termination was established by the employer as the onus to establish the ground is always on the employer. When the Tribunal made a finding that the lawful cause to terminate was not established, the termination became wrong and unlawful..." (unquote)

6.0 Final Determination

6.1 It was the employer's defence in this matter that they had invoked section 33(1)(a) of the ERP 2007 to carry out summary dismissal against the grievor. The facts in this grievance indicate that the Grievor was accused of mistreating people through his offensive, rude and unruly conduct, particularly some months preceding to his dismissal. This included his subordinate staff, other manager-level staff including the members of the public who sought assistance and service of NTC. A set of complaints was also investigated by the PM's Office in that respect.

6.2 I have noted that there were no other records of misconduct when the grievor had joined the employer on 1st December 2008. However, according to the employer's evidence, despite being counseled by the CEO, other complaints continued to pour in and these were mainly between the period, October 2009 up-til January 2010. Failing adherence to warning and counseling, the Employer pursuant to the provisions of the grievor's contract of service and section 33(1(a)) of the ERP 2007 summarily dismissed Mr. Prasad. He was seemingly found guilty of misconduct which obviously the employer had considered "serious" or "gross" to invoke s33(1)(a) of the ERP pursuant to their Code of Conduct.

6.3 While the employer did not produce a copy of the Code of Conduct to the Tribunal, the grievor did not reject its existence or denied knowledge of the same. Notably, the termination letter dated 11th January 2010 which was confirmed to have been received by the grievior when he was summarily dismissed detailed quite explicitly the reasons why he was being terminated without notice. These reasons predominately centered on various complaints that were received against the grievor for his allegedly rude, impolite and unprofessional conduct. He was alleged to have caused distress to at least six people's names listed therein, of which he admitted only being aware of Mr Tahir Mohammed and Mr Vesikula complaints. In conclusion, the employer had alluded that Mr Prasad had breached Council's CODE OF CONDUCT, stating that "your behavior can only be classified as SERIOUS MISCONDUCT" (at page 2).

6.4 Indeed, the first point of reference for termination or dismissal on the premise of good faith relationship is always the contract of service between the parties. This goes to the definition of an employment; employer; and worker in the ERP which all make reference to 'contract of service' being a basis for an employment. A contract of service is defined as: "...a written or oral contract, whether expressed or implied, to employ or to serve as a worker for fixed or indefinite period..." (Underlining is my emphasis).

6.5 In the grievance before me, clearly there is a written contract of service between the parties and it had a clause as to how the grievor as an employee of NTC should have conducted himself within the ambit of his contract of service: it states and I quote:-

"Conduct

You will agree to undertake all duties and responsibilities in a professional manner at all times, with a commitment to good relationship with persons, companies, clients and organizations with whom the Council has business relationships or potential relationships. All property of the Council shall be used with due care and diligence."

6.6 To any reasonable Tribunal this gives enough room to assume that the employer had high expectation of their employees when it came to employee-conduct with persons, companies and organizations. Clearly the staff members and customers of NTC whom the grievor interacted on daily basis fell in one of these categories.

6.7 I am not surprised that NTC was clear on what they expected of Mr Prasad in terms of his conduct with "persons" and/or other public members as NTC is a service provider and without their ratepayer clients, the existence of NTC as a local municipality to serve the needs of people living in that vicinity has no purpose or means. To that end, while being stern to staff members can be regarded a reasonable action of a manager in certain circumstances to keep control and a sense of clear direction to achieve deliverables set out for all the employees, where the Manager through his efficient and professional leadership steers the organizational goals and objectives to a positive completion, I do not think the grievor can easily escape accountability and responsibility working as a public servant to provide customer service in a professional manner at all times.

6.8 Public complaints against the grievor written to either the PM's office or NTC directly was an indication that he had overstepped his Managerial powers and capacity and he had no right to cause distress and humiliation to anyone, regardless of who they were. As the evidence stands, I have seriously noted one incident where he was even locked up by the police for misbehaving when attending to a complaint lodged by Janil Timber (as per Exhibit "B"). Mr Vesikula's evidence, despite his age and seniority showed he was upset and disturbed with Mr Prasad's rude behaviour especially when he was ordered by Mr Prasad to be thrown out by the security officer. This incident had occurred at an organization such as a local municipality where he was a customer even before Mr Prasad had joined in.

6.9 While I accept that Mr Vesikula took stand after Mr. Prasad had voluntarily given his evidence, his representative did not make any application to allow Mr Prasad to take stand again to refute this evidence which he was entitled to. This leaves me to believe there is truth in Mr Vesikula's evidence as Mr Prasad made no real effort to counter-prove that he was at all times conducting himself in a professional manner.

6.10 Further, I cannot overlook various complaints from the staff members who seem to constantly remind Mr Prasad to refrain from abusive and rude behavior, in particular one email that was sent by the Manager Human Resource. This should have put the grievor on adequate notice that he was conducting himself in a manner that was not acceptable by the staff of NTC. As an employee of NTC himself, Mr Prasad was also expected to be professional and courteous towards his work colleagues and the general public. Obviously, the evidence points to the fact that he was not in either context.

6.11 In the Court of Appeal case of Shell Fiji Ltd v Johnson his Lordships, Byrne and Callanchini J (in Full Court of Appeal) has stated that:

"...The termination of employment by summary dismissal in this case will be wrong unless (a) the Respondent's misconduct fell within one of the circumstances listed in section 28 and (b) was of sufficiently serious nature that it would entitle Shell to regard the contract of service as being at an end..."

6.12 Here the employer had specifically stated in the termination letter that they relied on the ground contained under section 33(1)(a) where, "no employer may dismiss a worker without notice except ...where a worker is guilty of gross misconduct..."

6.13 It is then my opinion that this grievance matter meets the requirement of s33(1) of the ERP when the employer has attempted to give their (lawful cause) or reasons for summary dismissal in the detailed termination letter provided to the grievor. This is perhaps, the most fundamental step in satisfying the requirement under section 33 (2) and section 114 of the ERP. The worker or employee must know what is the actual breach of law or contract of service that has given rise to the grievance or dispute in the first place.

6.14 The Labour Officer had raised a fundamental question as to who should determine the guilt of the worker. To a large extent, I agree that to leave this crucial issue entirely in the hands of the employer is not a fair one. That said, how else the employer would gauge that the employee is guilty of an offence or misconduct that is sufficiently serious or gross that it warrants dismissal without notice. Further, to class a misconduct on the scale of severity, being serious or gross, cannot be an easy task for any employer where that employer without deliberate intention has to become the first "judge" to assess whether or not it fits the gross misconduct category under section 33(1)(a) and further, whether or not it allows on the strength of evidence to declare the worker's conduct so gross in order to arrive at a guilty verdict.

6.15 For this reason alone, it usually assists to have in place an explicit nature of gross misconduct that may warrant summary dismissal made known to parties either in the employment contract or policies or even code of conduct of the employer.

6.16 Therefore, 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.
  

6.17 The above guideline or indeed any guidelines are not provided in the ERP to ensure that any type of dismissal is not without fair reasons or fair procedure.

6.18 Clearly various case-laws (State v Arbitration Tribunal & Ors, High Court Suva, Civil Action No. HBJ of 2007; Clouston & Co v Corry [1905] UKLawRpAC 66; (1906) A.C. 122 at 129; etc) have concluded that "gross misconduct" is not a concept capable of being defined. Therefore, gross misconduct is not a fixed concept and shall depend on the circumstance (as per the principle in State v Arbitration Tribunal & others, High Court, Suva, Civil Action No. HBJ of 2007).

6.19 In that sense, gross misconduct is naturally not defined by the ERP 2007, but looking at a "misconduct", this can be best described as the employee's failure to adhere to the rules and policies of the employer during working hours (and sometimes even after hours). Such behaviour is normally deliberate, intentional and not as a result of circumstances beyond the control of the employee. Gross misconduct is thus that conduct on the part of the employee which is so bad that it destroys the employer/employee relations completely, and merits instant dismissal without notice or pay in lieu of notice (as decided in the case of Lamb v The Commissioner of Police [2011] NZERA 72].

6.20 Therefore when establishing what were the employer's acceptable rules and policies in this grievance matter, I have perused and relied on the contract of service. There was no contention by the Labour Officer that the grievor was not aware of the expected conduct he was at all times required to maintain as an employee of NTC.

6.21 Accordingly, this ERT will not substitute its views for that of the employer in determining whether or not the employer acted reasonably. Rather the Tribunal has a task to test objectively whether or not the employer had acted reasonably when dismissing the grievor (as per the principle in Michael Strouthos v London Underground Limited, England and Wales Court of Appeal (Civil) Decisions, [2004] (18 March 2004). There is no doubt in my mind after analyzing the evidence in this case that the employer had a reasonable rule or policy in place which the grievor ought to have known by virtue of his terms and conditions of the employment contract, his senior position and time spent at NTC.

6.22 Failing adherence to employer's policy or rule, it thus provided the employer a basis to allege "gross misconduct" in terms of having a valid reason or cause. Here, the grievor's actions did not meet the employer's standard of conduct set down to engage in a professional and courteous manner, either with the staff members or the public who NTC served as customers or clients. In my opinion, the complaints from the staff members and customers of NTC were deemed serious in nature and therefore it is this ERT's finding that the employer's main reasons for dismissing the grievor was for a lawful cause which was duly established from the evidence.

6.23 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". This gives the employer a statutory right to invoke summary dismissal after conducting a "guilty" assessment of the alleged offence(s) and notifying the grievor of the same, which they did via a letter of termination. Thereafter the employer will be required to immediately terminate the grievor where procedures are concerned for summary dismissal (as per the principle in Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011]. Notably, the Employment Relations Court in Isoa's case has provided the following dicta to be followed 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).

6.24 Isoa's case is clear that once gross misconduct is established by the employer there is prerogative of the employer to waive that right and proceed to immediate termination. Further, where the allegation of unfair dismissal is concerned, the Court in Isoa's case has made it abundantly clear that:-

"...it is not the aspect of right to be heard that leads to unfair dismissal. It is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's actions must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in carrying out the dismissal..." (emphasis added).

6.25 The Full Supreme Court when Johnson's case was appealed [see: Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011)], also echoed this by adding that:-

"...For a claim of this category to survive, there has to be a cause of action, evidence and causation shown. Simply, the employee has to plead that the manner of dismissal was unfair, evidence must be tendered on what constituted unfair treatment, together with the evidence that the said treatment caused the employee distress or humiliation or physical and psychological harm. That is the legal parameter on which such a claim operates and survives..."

6.26 This is a case where the Supreme Court looked at the principles set out in the Yashni Kant's case in terms of unfair termination allegations and where it observed that:-

"...Yashni Kant's case even made it clear that there has to be evidence that the manner of dismissal caused the humiliation. There has to be the link in the unfair treatment leading to humiliation without which the Court cannot speculate such breach of an implied term otherwise every dismissal case would succeed a claim based on the manner of dismissal because dismissal naturally leads to distress and humiliation..."

6.27 In this instance, the original claim of the grievor pertains to unfair termination. The mediator gave the following terms of reference to the ERT: "The decision by the Council to terminate the services of the grievor on 11/01/10 which he claimed was unfair and unjustified. The grievor therefore seeks reinstatement without loss of pay and/or benefits". There was no evidence in this matter to lead the Tribunal to the fact that the termination was unfair in the manner it was accorded to the grevior other than the grievance procedure of according natural justice as deemed to be any grievor's right to be heard and respond (including being given an appeal procedure against the employer's decision) was the foremost contention pleaded by the grievor as unfair treatment. In that sense, I found no evidence of unfair termination in terms of Wati J's finding in Isoa's case: that "...it is not the aspect of right to be heard that leads to unfair dismissal. It is the manner of treating the employee in carrying out the dismissal that must be considered...".

6.28 In that regard, the employer was entitled to invoke s33 of the ERP immediately as per Wati J's ruling in Isoa's case (supra) – that is, proceed to summary dismissal immediately without any right to procedures for hearing. Hence, s230 (2) (a) and (b) of the ERP does not apply in this instance.

7.0 Decision & Orders:-

1. The Employer had lawful cause to invoke summary dismissal on the grounds of gross misconduct under s33(1)(a) of the ERP 2007. The Employer has thus carried out summary dismissal lawfully and fairly (substantially and procedurally).
   
2. The Employer has also fairly carried out summary dismissal by according respect and dignity to the grievor at the time of his dismissal in that the employer did not cause humiliation or injury to the grievor's feelings by clearly providing to satisfaction of this ERT, valid and proper reasons in writing pursuant to s33(2) of the ERP.
   
3. Accordingly the allegation of unfair (summary) dismissal is dismissed forthwith.
   
4. Given that the Employer had vacated the hearing date initially set down which could not commence due to the employer's inability to conduct the hearing, where cost was to be determined in the cause for wasted hearing, I thus am ordering $200.00 cost to be paid to Ministry of Labour by NTC. This must be paid within 30 days of this decision.
   

Dated at Suva this 17th day of January, 2013.

LEGAL TRIBUNAL

^[1] Shell Fiji Limited And Fereti Filipe v Benjamin Joshson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011).