Kafoa v Interclean Group of Companies [2013] FJET 33; ERT 159.2011 (8 October 2013)

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Ms L Ratumaitavuki (Labour Officer) for the Grievor
Ms. M Muir for the Employer

Date of Hearing: 15th & 16th August 2012
Date of Judgment: 08th October 2013

EMPLOYMENT LAW – EMPLOYER FIRST RELIES ON PROBATIONARY PERIOD TO JUSTIFY ON-SPOT TERMINATION OF THE GRIEVOR – ERT TO DETERMINE WHETHER THIS APPLIED IN THE ABSENCE OF EXPRESS PROVISION IN A CONTRACT OF SERVICE - IF NOT, THE SECOND GROUND RELIED UPON WAS SUMMARY DISMISSAL UNDER S33 OF THE ERP – ERT TO DETERMINE WHETHER LAWFUL CAUSE WAS ESTABLISHED UNDER S33 AND WHETHER PROCEDURE FOR TERMINATION WAS JUSTIFIED BY THE EMPLOYER – IF NOT, WHAT IS THE APPROPRIATE REMEDY FOR UNLAWFUL AND UNFAIR SUMMARY DISMISSAL CLAIM.

This grievance was registered with Ministry of Labour on 1st April 2011. Mediation was attempted on 25th May 2011 but was not successful. The mediator referred the grievance to the Employment Relations Tribunal (or “the ERT”) on 29th June 2011in 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 grievance was referred as being on unfair dismissal of the worker Felix Kafoa from 25th March 2011 by the employer Inter Clean Group of Companies. The worker is seeking compensation of unfair dismissal”

[2] When the matter was called before me, I had given directions to the parties to file their respective Preliminary Submissions on 12th August 2011. It seems that after a series of non-appearance and subsequently an attempt to settle the matter with the grievor, the Employer had filed their Preliminary Submissions on 7th February 2012 and the grievor through the Labour Officer had filed his Preliminary Submissions on 1st March 2012.

[3] The hearing was set down for 15th and 16th August 2012. On that day, the employer called one witness, Ms Michele Muller and the Labour Officer on behalf of the grievor called two witnesses, the grievor himself and Ms Josephine Govind to give oral evidence. The following documents were adduced at the hearing-proper:-

Exhibit 1	Letter of application for position dated 15 February 2011;
Exhibit 2	Curriculum Vitae for Felix Randolf Kafoa;
Exhibit 3	Letter of Appointment dated 14th March 2011;
Exhibit 4	2011 Staff Record for Felix Kafoa;
Exhibit 5	Email dated 25 May 2011 from Isabella Tarai to Interclean;
Exhibit 6	Wages Record for Interclean dated 20/03/11;
Exhibit 7	Wages Record for Interclean dated27/03/11;
Exhibit 8	Pay slip for Felix Kafoa for period ending 30/03/11;
Exhibit 9	Daily Time Card for Felix Kafoe for week ending 20/03/11;
Exhibit 10	Daily Time Card for Felix Kafoa for week ending 27/03/11; and
Exhibit 11	Interclean Daily Workscope for Rupeni, Sailasa and Tamani.

[4] Let me briefly set out the background facts and the claim of the grievor. The grievor was employed by Interclean (Fiji) Limited [or “Interclean”] when he had applied for the position of pump technician/mechanic through Exhibit 1 and 2. Upon hiring, the employer had issued a Letter of Appointment dated 14th March 2011 (Exhibit 3) where he was appointed to the position of Works Supervisor – Mechanic with a commencement date of 15th March 2011. He was however, dismissed on 25th March 2011, only ten days after commencing work. The employer maintained that they had informed the grievor of the reasons of his termination through an email dated 25th March 2011 (Exhibit 5). The grievor denied this.

[5] Mr Felix Kafoa’s grievance claim pertains to unfair termination from his former employer, Interclean. He is claiming that he has suffered humiliation from the manner in which his termination was effected and that he has suffered damages as he has not been able to secure other employment since being terminated. Therefore, the grievor’s entire claim hinges on the allegation of employer’s failure to carry out summary dismissal fairly, in procedure and law.

[6] Interclean as the Employer, is justifying their actions in terms of terminating Mr Kafoa on twofold grounds: first, they are asserting that Mr Kafoa was a probationary employee employed on a trial basis, henceforth he was lawfully and properly terminated during the probationary period in accordance with the terms and conditions of the contract of service. Second, they are asserting that Mr Kafoa’s termination even whilst on probationary period is that of a summary dismissal for a good cause.

[7] In response, the grievor has claimed that he was never informed of the probationary period either within an express or implied contract of service with the employer. The employer thereby has submitted that should the Tribunal find that the Grievor’s employment was not probationary, then they should be entitled to rely on the grievor’s misconduct and disobedience of orders in respect of overtime and company vehicles being misused, which they have regarded as serious misconduct justifying summary dismissal under section 33 of the ERP. They are saying that on this basis the grievor’s summary dismissal was lawful and fair. The employer is further justifying that neither Mr Kafoa was humiliated by the manner in which his termination took place nor he is entitled to damages for the claim that he has been unable to find other employment. They have submitted if this is the case, then it is not a fault of Interclean. In turn, Interclean is claiming against Mr Kafoa that he had neglected to return certain safety equipment upon his termination, which was given to him at the time he was employed.

[8] As I have understood the Closing Submissions of both parties, the issues pertaining to this grievance are twofold:

[9] The employer in support of their submissions has presented two case authorities for my consideration: Richard Cameron Cross v Speedy Hero Development Ltd t/a The Pearl South Pacific, Civil Action No. HBC 29 of 2008 (2 August 2012) on the issue of probationary period to be applied and justified in this instance; and Chandra v National Union of Factory and Commercial Workers [2011] FJHC 816; ERCA 9 of 2009 (29 September 2011) on the issue of summary dismissal of the grievor being lawful and fair.

[10] The grievor has submitted one case worthy of mention: Waqa Rokotunisau v Automart Limited ERT Grievance No. 23 of 2009. In this case the Honorable Chief Tribunal, Sainivalati Kurududua (presiding over the Employment Relations Tribunal) had applied the New Zealand case of Food Processing, IUOW v Unilever INZILR 35 [1990] and had ruled that the “Tribunal is satisfied that the employer had made no attempt to accord WR all the fair procedures as stipulated in the leading case...it says that the employee must be given:-

[11] The grievor has submitted (at paragraph 3.1 of the closing submissions filed on 3rd October 2012) that under the ERP, the basis of the employee and employer relationship is good faith and this extends to the time of dismissal in that the worker should exit the workplace with his or her dignity intact. Clearly the grievor believes that his entire grievance claim has been subjected to bad faith practice, particularly when any issues relating to probationary period was not addressed with him although he is denying knowing that such provision within the contract of service (implied or express) ever existed. He is further claiming that his on-spot termination on the tenth day of his employment period was unlawful and unfair in terms of the allegations of serious misconduct and willful disobedience of orders by the employer. He has claimed that as with the probationary period, he was not aware of the procedures for overtime work as he was not explained this during his induction into the employment. From the evidence, which I shall come to shortly, it appears that grievor’s main contention was relation to being denied procedural fairness where he is alleging that the employer did not accord him a right to hearing. If the grievance is found in his favour, in terms of remedies sought, the grievor has requested the Tribunal to make orders as it sees fit, including seeking orders for compensation in view of humiliation he has allegedly suffered.

[12] Employer’s Evidence through Ms Michelle Muller
She gave evidence that she is the Office and Finance Manager at Interclean. She admitted that she was not with the employer at the time the grievor was employed and when his grievance was raised. She was giving evidence, best to her knowledge as she had access to the grievor’s personnel file maintained by the employer. She adduced Exhibits 1, 2, 3, 4, 5, 6 and 7 which were part of the file records. She also attempted to explain the usual procedure when employees are hired where she had stated that normally they are taken on three months trial. When they have carried out their duties to the company’s satisfaction, the employees then are given permanent contracts. In terms of payment of wages, she explained that the employer has instilled a time card system which is a way to record worker’s hours of work done in a week. She had the knowledge that Josephine was the grievor’s supervisor at the time where Mr Anil Singh, the General Manager (now based in Auckland) was responsible for hiring employees at Interclean.
In cross-examination, she explained that the grievor was paid $4.00 an hour where he would work from Monday to Saturday. She said that usually Mr Kafoa would work from Monday to Thursday nine hours a day and on Fridays he would work for 8 hours. In sum total this was 44 hours a week. When asked to explain why the employer would pay gross income of $216.00 as per week as per the preliminary submissions of the employer (at paragraph 4) when the 44 hours a week at $4.00 rate would come to $178.00 gross income, she had stated that she was not sure why this was so. When asked if she knew the reason why the grievance had been raised to the Tribunal, she had responded that it was her understanding that Mr Kafoa had raised a complaint around 25th March because he was not paid for his overtime he had done. For this he had a telephone discussion with Mr Anil Singh who was in New Zealand at the time and as such, there was some argument. She said that the discussion was about Mr Kafoa’s contract where he was to be paid $4.00 an hour. In her understating the heated discussion over the phone resulted in Mr Singh telling Mr Kafoa that he would receive pay as per their agreement or that he could leave. When asked whether this was the way the company usually resolved its grievances and whether there was an internal system to deal with such issues, she had explained that the internal system was there but she did not know how this issue was handled by Mr Singh then. She said that Mr Singh had control over the company at the time and so, she could not comment on how this issue was handled by him. When asked whether she was not the proper person in terms of being aware of this issue, she agreed to this. In her re-examination, she explained that the heated argument between Mr Singh and the grievor resulted in the grievor choosing to leave around midday. On that day he had worked for 4 hours only.

This was the grievor himself. In examination-in-chief, he had testified that he was a Class 2 mechanic. He came to work for Interclean by applying for a position advertised in newspaper although he was offered a supervisor position which he had accepted. He was interviewed by Mr Singh about his skills and knowledge including the salary he was to be paid. He said when he commenced his job on 15th March 2011, he had only received an appointment letter but never an employment contract. He further stated that he was never informed about the probation period. In terms of his hours of work to perform, he stated that he was supposed to work nine hours a day from Monday to Saturday and this was in accordance to his letter of appointment. He started at 7.00am each morning. He was terminated after working for ten days on 25th March 2011. He testified that the day of his termination happened so fast which had started at 10’oclock with Josephine informing him that his salary query would be resolved by Mr Singh. He said when nothing happened he resorted to asking Josephine again who referred him to Mr Singh. He said the first thing Mr. Singh did was to verbally abuse him and then he slammed the phone on him. By this, he was shocked and hurt but within 20 minutes, Josephine walked to him and told him to leave the premises. He said that he was forcefully removed otherwise the security would have thrown him out. Because this entire event transpired so suddenly, he said that he wore a pair of safety boots which was the only shoes he had on at the time. Since he had a shirt under his dust coat, he removed the coat and handed it over to the employer except for the boots.

He said that this was the only thing he was allowed to change within the time before he was thrown out by the security. In terms of overtime pay, he had testified that he had worked on 17th till 8.30 pm and on the 18th till midnight and this was the reason he had gone to Josephine to enquire about his overtime pay. Josephine had told him that she was following the agreement and for any verbal agreement, there was no overtime pay. According to the grievor it was Josephine who had terminated him on-spot. He said since his termination he has not been able to find any other job, for almost a year now.

In cross-examination, he admitted driving a taxi before and after termination although he stated he was a mechanic by trade. When referred to Exhibit 6 and questioned that the total hours of work done by him was 44.05 as per the wages records, he had disagreed stating that he worked for 54 hours. He was then referred to Exhibit 9, time card showing 48hours of work done for week ending 20/03/11. He agreed that was what the card had indicated. Exhibit 10, time card for week ending 27/03/11 was also tendered in. He said the company was involved in ship cleaning business and cleaning was done during the time when a ship reaches port and before it leaves again. Exhibit 8 being the pay slip of the grievor was then referred to – he was asked whether it was in relation to this that he had questioned Mr Anil Singh for overtime pay and he had responded, “yes”. He said that his understanding of the law required each employee who is employed after normal hours to be paid a time a half rate.

When asked to explain how he interacted with Josephine about his issue for overtime pay he said that he was asked to speak to Anil directly. When he spoke on the phone, Mr Anil Singh had hurled abuse to him. When asked whether or not he had checked with anyone prior to talking to Anil regarding whether he had any entitlement to overtime pay, including the Department of Labour, he had responded that since Josephine was his supervisor, so he had rightly spoken to her first, who had then told him to speak to Mr Singh. When probed about his role as a supervisor where the employer had alleged that there were complaints against him, he replied that he did not know anything regarding any such complains. When asked whether Isabella had sent him any email (Exhibit 5) giving him a letter containing the reasons for termination, he stated, “No”. He further disagreed as to the contents of the email therein. When asked to elaborate why he did not return the boots he was wearing at the time of termination, he said that he was told to leave the premises immediately where he was forcefully removed so there was no time for this. He said he had returned the following week on Monday to collect his pay and returned the boot at the gate as he was not allowed to enter the employer’s premises. When asked about his understanding of what was the humiliation that was caused to him, he said that he was verbally abused over the phone. He was also embarrassed with the termination that followed after the phone call particularly by being terminated within ten days of employment with Intercelan. He said because of his qualification and experience this was humiliating. Since then he admitted only doing odd jobs, driving taxis. The counsel then probed him that he did these odd jobs prior to joining Intercelan and so the termination was not unusual. He disagreed. He also disagreed that he was not qualified for the job as alleged by the employer.

In re-examination, he confirmed that the security forcefully removed him. This was the reason he had to leave his job on that day.

The witness stated that she was working for interclean for three and half years as the Accounts and Admin Officer. She confirmed that the grievor stayed with Interclean for less than three weeks. She said that the grievor was in a supervisory role managing the cleaning of vessels and she would be in charge of issuing safety gears and equipment, including receiving reports from the supervisors as per scope of works given to them. When asked (as per Exhibit 9), the time card showing the grievor had worked on Thursday uptil 5pm on a ship called Tui Tai, she responded that he was not entitled for any overtime. She then clarified that he was not allowed to do any overtime until his three months probation had passed. She further confirmed and I quote directly:- “...the time he did overtime was I remember... was the dispute ... was the reason for dispute... for his termination because he worked overtime and which the General Manager refused to pay. And Felix was like demanding for his overtime pay...” She further stated that Mr Kafoa had continuously raised the issue with the girls in the office which the General Manager had refused to pay and this is when she referred him to speak to the GM directly. She confirmed that Mr Singh had placed a call on the office line and he exchanged a discussion with the grievor. She further stated that after this call, when the grievor walked out, Mr Singh had called again and told her that Mr Kafoa must leave the office straight away. She was advised not to let him take away anything with him and she was supposed to inform the security straight away. She said since the director and GM of the company had instructed this, she was acting for a superior director to carry out instructions. She also stated that on the day the grievor was terminated she was not directed to give Felix any reason why he was terminated, although she added that another staff was told to give him a letter or send him an email. She was not sure if an email was sent or copy given to the grievor. She confirmed that at the time the grievor received his on-spot termination, he was not given reasons other than what he was told on the phone by Mr Singh. She said that the grievor left angrily after the conversation.

In cross-examination, she was asked to explain the procedure for supervising work after hours. She said that if any staff was required to work after 5pm the name list has to be sent to the office before 4.30pm frorm thereon the approval is sought from New Zealand and the GM is informed of the same. The name list was a responsibility of the supervisors and she stated that Felix brought in his list and his name was not on the list. According to her, the grievor was supposed to delegate the work and leave where she confirmed that she had never asked Mr Kafoa to work overtime. When asked about the email excerpt sent to the grievor by Isalbella giving reason for termination she said that her understanding was that unacceptable behavior was the grievor pushing for overtime, was told not to do overtime and also taking company vehicle home. When asked about the telephone conversation, she stated that Felix left angrily from the office because as he had stated, Mr Anil Singh was swearing at him on the phone which is the reason why Felix got angry. Hereafter she stated that she had called Felix back into the office and told him that he was to leave all his things except the boot and he would be called again one day to return the things so that he can receive his wages too. She confirmed that he returned everything including the boots the following week. She also confirmed that the wages were paid to him. She also stated that although she had issued a letter to the security, he was not forcefully removed.

[13] Let me begin with the issue of probationary period. Indeed the ERP 2007 is silent on this. In their preliminary submissions, the employer had alluded the Tribunal to sections 68(1) and 69 of the ERP to illustrate that it was implied in the statute to facilitate a worker’s entitlement to sick and bereavement leaves after assessment of the worker’s continuous service of at least three months (at paragraphs 19, 20 and 21). Maybe so, but this alone cannot be a basis to imply a probationary period. The fact that the ERP has not specifically provided for this in the legislation can be interpreted to mean that it is left entirely on the contracting parties to decide. Therefore, when there is a written contract of service or an intention to impose such on the worker, it is my view that a probationary period will not be a problem within the employment terms and conditions if the employment contract has been executed in good faith by the parties. Good faith is the fundamental requirement of the ERP throughout the legislation. It begins to come into play from the moment a worker is hired, in whatever capacity.

[14] Hence, any written contract of service must clearly spell out such provisions therein if that is the intention of the parties at the inception of an employment relationship. The ERP while being silent on this issue, always looks towards a good faith understanding between the parties where say, a trial period is maintained to assess and determine the suitability of an employee to the position for which he/she has been hired. This is often seen as a “with cause’ probationary period where suitability is assessed on the criterion for performance, skills and qualification and/or simply by testing the employee’s conduct within that agreed period – for example, if any conduct is so detrimental that it constitutes a breach of the contract of service on grounds of say, misconduct or willful disobedience of the employer’s orders or violates the employer’s rules and policies, this is no doubt a way to judge the worker’s long-term suitability with the employer. Often section 33 of the ERP gives the guideline as to which conduct may attract summary dismissal, even if it is within the probationary period. Accordingly, it assists both parties to lay out the grounds on which probationary period for cause (fair and lawful) can be invoked for a dismissal, with or without notice. Of course, then there are instance where probationary period can be for no cause. If so, then the employer must also state this clearly within the contract of service and terminate the employment in accordance with the “with or without notice period” provisions therein including any payment in lieu of notice.

[15] Going back to the ERP, a contract of service is defined at section 4 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). Indeed, the first point of reference for termination or dismissal on the premise of good faith relationship (see: the decision of the Supreme Court of Canada in Wallace v United Grain Growers Ltd., 1997 CanLII 332 (SCC); [1997] 3 S.C.R. 701) is always the contract of service between the parties. In the statute, this goes to the definition of an employment; employer; and worker (under s4 of the ERP) which all make reference to a ‘contract of service’ being a basis of an employment.

[16] In this case we have no written contract of service per se. There is though the letter of appointment under which the employer is stating that the grievor was on a three-month probation. It states and I quote:-

The contract will be for a period of initial three months and will be renewed thereafter highly based on the performance level and ability to work in a team environment”.

[17] A ‘contract of service’ in the ERP recognizes both, express and implied contracts. The letter of appointment while does not present the usual format and likeliness of a normal employment contract, it does make reference to a contract provision expressly anticipated by both parties under the clause “6. Contract” which gives a guideline as to how this was to be applied. The question to determine is whether this implied a probationary period.

[18] The grievor had testified that he was not aware of the probationary period, even under the clause 6 provision. Exclusion of any mention of the term ‘probationary period’ or any indication that the first three months will be deemed a probation, literally or naturally could mean only one thing. The employer had intended for a short-term contract and this was for a fixed, definite period of three months. Under the ERP, there can be two forms of contract of service as per the definition: for a fixed or indefinite period. Nowhere in the letter of appointment it stipulates that it was to be regarded or implied to be a probationary period, but instead clearly states that “...the contract will be for a period of initial three months”. If there was a probationary period, the question to overcome would be whether this was a working arrangement intended to be a contract of indefinite period or a fixed period. The answer to this would have been addressed if the employer had formulated a proper employment contract to inculcate clause 6 to be properly interpreted therein. This was not done.

[19] To that end, the only rationale to be deduced here is that the contract from the start was intended to be a fixed, short-term contract of three months. I believe the employer had intended to use this as a barometer to gauge the employee’s suitability for the position he was eventually hired for, as a Works Supervisor-Mechanic as opposed to Pump Technician/Mechanic as originally advertised. Without a question the contracted period alludes to a possibility of renewal if the worker fared favourably against the evaluation process for performance and team-playing. Renewal of the contract of service was, however so ambiguous that it neither spelt out whether it was the same contract of service to continue running (if so, it would be a contract of indefinite period) or whether an entirely new contract would be drafted and executed after the employer had declared the worker fit for the position in terms of their assessing criteria. Further the duties and responsibilities were not presented to the Tribunal which forms a critical part of any contract of service although it was mentioned under clause 3 of the letter of appointment. I will come to this very shortly as this aspect is crucial to assess the employer’s allegations against the grievor to justify their grounds for summary dismissal under s33 of the ERP. The onus lies with the employer in matters of employment grievances and disputes.

[20] I must say further that I have another basis to say that the contract did not have any probationary period. To me, this was a short-term, fixed contract of service.

[21] This is on the basis that when the employer had submitted that the grievance was to be either assessed as a termination within a probationary period, and/or a termination under s33 of the ERP, and that I should take a pick depending on the justification of the termination, substantially and procedurally, this is not how an employment relationship on good faith works. Indeed such “hybrid” method of termination was not condoned by the Employment Relations Court (or “the ERC”) in the appeal matter of Carpenters Fiji Limited v Isoa Latianara ERCA No. 7 of 2011. Here, the Court had pronounced 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. The Court went onto say and I quote for 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. The employer cannot then go back and rely on its giving of one week’s wages in lieu of notice to say that it relied on the termination clause. That clause could only be relied on, if termination was done “without cause”. In this case, the termination was for a cause and I no better way to put it than Mr. Rae has that in circumstances of this “there could not be a hybrid or combination of termination methods...”

[22] As I have said, probationary period can be treated as a normal working day and that can also attract s33 of the ERP penalties if the five grounds therein are proven satisfactorily. But, often employers harbour the fallacy that since there is a probationary period, it is a legitimate basis to send someone home as the worker can be easily justified to be unsuitable for the job. I reiterate that while the probation or any trial period is to be assessed periodically or as agreed by the parties, and this is for a cause, any kind of termination still must be carried out with care and utmost caution to comply with all the labour standards and fair practice. Even while it is a precarious time for the worker anticipating that his/her contract of service may not be extended or made permanent, he/she still deserves to be treated with respect and dignity until the time the termination is considered, conveyed and effected against the worker. The onus is on the employer to have in place proper mechanisms to evaluate and monitor the worker for whatever grounds that suffice for suitability such as performance, conduct, qualification, etc. If there was no cause, then the worker still needs to be discharged with dignity by being given adequate notice albeit in the clear terms of the contract wordings upon its signing and execution. These matters cannot be implied in any fair and ordinary circumstances.

[23] In that regard, I find that the worker in this grievance was not under any trial or probationary period. This then leaves the employer’s second justification, for summary dismissal for a lawful cause under s33 of the ERP. Because the employer has relied on this, they have opened up the issue of whether the termination was both, lawful and fair, substantially and procedurally.

[24] I believe the ERC and ERT in its numerous judgments have outlined in detail the law on summary dismissal that is now codified in the ERP 2007. For ease of reference, I state that this was 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:

[25] 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.”

[26] 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....”

[27] 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 –

(Bold is my emphasis for purposes of highlighting two grounds invoked by the employer)

[28] 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 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:-

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

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.

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

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.

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

[29] 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).

[30] 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”.

[31] Where lawful cause for summary dismissal is concerned, this goes to establishing and proving that the employer’s main reasons for termination were justified in substance and law. I must say that section 34 of the ERP makes only a reference but does not elaborate what really constitutes a “lawful cause”. Courts have attempted to define “lawful” or “just” cause as seen in the case of Davis -v- Unemployment Insurance Review Board of the Indiana Department of Workforce Development, 900 NE 2d 488 (2009), where Justice Ezra Friedlander of the Court of Appeals of Indiana wrote:

"Fault or just cause for discharge, in the unemployment context, means failure or volition, and does not mean something blameworthy, culpable, or worthy of censure. This includes, among other things, a carelessness or negligence of such a degree or recurrence as to show an intentional or substantial disregard of the employer's interest, or of the employee's duties or obligation to his employer."

[32] In McIntyre v Hockin 16 O.A.R. 498 (1889), Justice Jill Parrish of the Supreme Court of Utah declared that:

"The term just cause connotes a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. Additionally, a just cause reason for termination is not "trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual."

[33] Further, Justice Laing in Caudle v. Louisville Sales & Service Inc., 1999 SKQB 276 adopted these words:

"Just cause is conduct on the part of the employee incompatible with his or her duties, conduct which goes to the root of the contract with the result that the employment relationship is too fractured to expect the employer to provide a second chance."

[34] One would then assume that section 33(1) of ERP gives the prerequisite 'statutory lawful causes' upon which summary dismissal can be effected. Here the employer had submitted that the grievor's gross misconduct and willful disobedience of lawful orders given by the employer in respect of overtime policy, misuse of company vehicles and certain safety equipment being missing gave them grounds to invoke sections 33(1)(a) and (b) of the ERP.

[35] Let me start with 'gross misconduct'. 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). 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 consequently 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]. Some common forms of misconduct that come to the ERT as grievance are: theft, fraud, dishonesty, negligence, and insubordination.

[36] In my opinion, 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 second, whether it allows on the strength of the evidence (on the standard of balance of probabilities) to declare the worker's conduct so gross or serious, in order to arrive at a guilty verdict. 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 polices or even Code of Conduct of the employer. 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

[37] The above guideline or indeed any guidelines are not provided in the ERP 2007 to ensure that any type of dismissal is not without fair reasons or fair procedure. Furthermore, to establish whether or not the reasons provided by the employer are good enough to justify dismissal, there should be some means for assessing this, such as:-

[38] For example, when establishing what were the employer's acceptable rules and policies in this grievance matter, apart from a proper contract of service missing from the good faith employment equation other than what was contained in the letter of appointment, there was no evidence of codified duties and responsibilities that demonstrated the parameters of the worker's work required to be performed; his extent of entitlements regarding after hours work including policy for overtime pay for permanent or probationary workers; and/or any other policies regulating acceptable code of conduct, the types of offences pertaining to gross misconduct and appropriate penalties therein.

[39] Turning to the facts, clearly in this grievance matter, the Employer had within ten days of the grievor being hired, terminated him on-spot, without notice and pay at the time of dismissal (the latter being a mandatory requirement under s33(2) of the ERP). It was proven that he was not given his final dues or pay until the following week when he was asked to collect the same as per Ms Josephine Govind's evidence. Looking at the reason(s) for termination, again it was Ms Govind who had put in perspective the "cause" of the employer which is better understood when attempt is made to comprehend her evidence of the following:-

"...the time he did overtime was I remember... was the dispute ... was the reason for dispute... for his termination because he worked overtime and which the General Manager refused to pay. And Felix was like demanding for his overtime pay..." (Underlining is my emphasis)

[40] Employer's own witness, Ms Muller also confirmed this. Therefore, whole grievance centers on one particular conduct of the grievor. When he had received his pay, he was dissatisfied with the overtime pay not being included therein (it was not in dispute that he had done overtime, except that Ms Govind had stated that it was not authorized). He then made an attempt to clarify with the Management team starting with the "girls" in the office including Ms Govind, where he was finally referred to engage directly with the GM at the time in New Zealand. Following this he was terminated over a telephone discussion. At no point in time, in the ten days of working with Interclean, Mr Kafoa appears to be notified in writing not to engage in any work outside his contracted normal hours. Ms Govind's evidence was that she had attempted to explain when he had enquired for his overtime pay and he also was informed from the start of employment. I find this hard to believe. If such was the case, why was he not stopped if he was doing something outside the employer's rules and policy before he accumulated any pay? Even when he had enquired with the girls in the office and this included Ms Govind, he was not informed of the same in terms of the requirements under any probationary period (if this was a true) or pointed to the employer's policy on overtime. No evidence was provided to the ERT that the grievor was made aware of such policy (either in writing or not).

[41] I suspect that any worker in Mr Kafoa's position who was barely into two weeks of his new employment and who would want to sustain himself in the workforce given that this was a more permanent job allowing him to use his skills and trade training to a full potential (as opposed to doing odd job such as driving taxis), especially when he was offered a supervisory role, would not deliberately work against any policies (if there were any) to jeopardize the position he was entrusted. Any right thinking man would not work overtime if he was told that he would not be paid. But he was not told nor given any written policy on overtime. Since the onus is on the employer to prove that they had informed Mr Kafoa of their policies regarding overtime for new recruits including that applied for probationary staff, I have to say that the lack of evidence was very obvious. That said I add also that with Ms Govind's evidence being somewhat hostile towards the grievor is natural - she was the supervisor and person who fired Mr Kafoa and she was still employed with Intercelan at the time of the hearing. But to me it was clear that Mr Kafoa did not know any such policy existed until the time his overtime became payable.

[42] Clearly then the gross misconduct that is alleged by the employer stems from the grievor enquiring and demanding for overtime pay. And not at all from the fact that he had overstepped and offended the employer's policy or contracted terms and conditions, meaning that any overtime was unauthorized. The grievor's own evidence was that he was within his right under the laws of Fiji to enquire and demand payment. In my view, he was well-informed on his right to overtime pay. This does not give the employer a "lawful cause" to terminate anyone. Further s111 (1) and (2) of the ERP is clear that the grievor may utilize the grievance procedure and submit his employment related issues with the employer first. This is what he did. In turn, if the employer had presented to him (and this ERT) with the policy for overtime that was imposed on Mr Kafoa whether within any probationary period or under a policy for a new recruit, I would have found it easier to correlate this under s33(1)(a) for the ground of 'gross misconduct'. That being the case, I would still have to decide on the seriousness of the offence – is working overtime without permission a gross misconduct? To any reasonable Tribunal I believe it would be hard to accept that such an act can attract summary dismissal as the loss would be only of the worker. The second allegation of vehicle misuse was substantially unfounded: there was no iota of evidence to show merits in this claim by the employer. Again if the vehicle was misused, then the employer was obligated to inform the grievor of the correct policies and if necessary issue him a warning letter. Clearly here the only thorny issue of contention was overtime pay. Therefore, gross misconduct is not proven. Section 33(1)(a) of the ERP fails.

[43] The other allegation was in relation to the time cards. If these time cards did not reflect true picture of the employee's hours of work, again the worker is not to be blamed. My task is not to assess that the overtime was done as I see the employer is not disputing this other than justifying that as Mr Kafoa was not entitled or authorized for any overtime. Again, I have to repeat that there was no evidence to prove that the employer had given such instructions or orders, (expressly or otherwise) to the grievor that he was not to undertake any overtime work, and if he did on his own volition, he would not be paid. Further even when he had demanded overtime pay, this is not enough to simply terminate him. He should have been given a written explanation why the employer was refusing to pay and what was the contracted arrangement on this issue.

[44] Instead he was verbally abused on the phone and this was confirmed by Ms Govind who was in close proximity of the whole incident: she had testified that the grievor after his telephone conversation with Mr Singh had walked out angrily who had also told her that Mr. Singh had sworn at him. Who would not be angry? First, he was aggrieved by the overtime pay not being paid and instead of explaining the employer's policy on this, he received added stress to his mind and self-respect by being hurled abuse by the General Manager. Subsequently he was advised within a matter of less than an hour that he was terminated on-spot by Mr Singh who was away overseas at the time. He was asked to immediately leave the premises and a letter was issued by Ms Govind to the Security to advice this. Obviously to serve two purposes here: either escorting Mr Kafoa from the premises or using their authority to remove if necessary. Otherwise in a normal circumstance, why would the security be involved. In addition, the grievor testified that he barely had the time to collect his items and change into his own clothes. He left with a pair of boots belonging to the employer as he did not have his own pair of shoes at the time, and which he had duly taken steps to return the following week. Ms Govind confirmed this when she had asked him to come and collect his final pay although the employer is alleging some other items were not returned. Again, I believe that this allegation is without merits as the grievor gave credible evidence that he had returned everything that was given to him by the employer. He could have kept the pair of the boots but he also returned this. Further the employer when terminating Mr Kafoa should have ensured that this was done according to their hand-over policies such as by signing off all items returned and any items still with him. This was not done. Perhaps, this is due to the fact that the grievor was correct in stating that everything happened so fast that the employer did not undertake these matters on their own accord properly. Now to blame the grievor for this is not justified at all.

[45] In that regard I find that the employer's second ground for summary dismissal also fails under s33(1)(b) of the ERP.

[46] As far as ground for summary dismissal under s33(1)(a) of the ERP is concerned, what alarms me most is that the employer had unilaterally and arbitrarily decided to send Mr Kafoa home on-spot without a proper and fair assessment of casting guilt on him. Section 33(1)(a) of the ERP is clear that the employer has to be satisfied that the "...worker is guilty of gross misconduct..." The employer had no evidence whatsoever that there was policy for overtime and that it was breached. How did it then become a 'gross misconduct"? They also did not present any grievance or disciplinary procedures. Short maybe the stint with the employer for only ten days of employment, the worker is still bound by this as of his right to natural justice and fairness. This is in-built in the statute under s110(1)(a) of the ERP. There is, hence, no excuse for not instilling minimum standards or policies for fair process of fact finding when a worker is potentially at the door of a dismissal. It is more aggravated when a summary dismissal is involved.

[47] Therefore, for lawful cause to persist and be proven, this process is pivotal step by the employer on a lesser standard, on the balance of probabilities. There is no requirement for the right to hearing after the guilt is proven that shows lawful causes exists (see again the case of: Isoa Latianara): here the Employment Relations Court has provided that:-

"...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).

[48] I wish to inform the Labour Officer that this was also the position of the ERC in the appeal case of Automart Limited v Waqa Rokotuinasau ERCA No. 9 of 2012. The Court had overruled the ERT's findings and stated that when lawful cause was established then procedural fairness does not require right to hearing, rejecting thus the New Zealand position in the Unilever case (supra) where it entitled an opportunity to be heard and defend on the reasons. The Court had however, noted that the procedure mandated by the statute had to be followed otherwise the dismissal became procedurally unjustified. I will explain this when I shall address the claim of unfair dismissal below. Clearly when the Tribunal makes a finding that the lawful cause to terminate was not established, as I have found in this grievance matter, the termination thus becomes wrong and unlawful (see again: Isoa's case).

[49] In terms of whether there is any merits in the unfair dismissal claim here, Madam Justice Wati, in Isoa's case had relied on the case of Central Manufacturing Company Limited v Yashni Kant [Unreported Fiji Supreme Court Case Number CBV 0010 of 2002] to clarify the issue. In this case the Court had ruled that in carrying out the dismissal, the employer must treat the employee fairly and with appropriate respect and dignity. Ladyship Wati had additionally pronounced 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" (underlining is my emphasis).

[50] In another case of Shell Fiji Limited And Fereti Filipe v Benjamin Johnson Civil Appeal No. CBV No. 008 of 2010 (19 October 2011), the Full Supreme Court 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..."

[51] In the grievance matter before me, the issue of unfair dismissal largely centers on the grievor's denial to his right to due process such as not been accorded a proper fact finding process as per any grievance procedures, followed by his statutory right to be heard when he had raised a grievance with the employer under s111(1) and (2) of the ERP.

[52] Instead of listening to him and furnishing their basis to deny any payment of overtime as per the employer's terms and conditions under a contract of service or policy, which I found did not exist, without due consideration and responsibility, the harshest penalty of summary dismissal was imposed. No doubt, the penalty here is grossly disproportionate to the conduct alleged to have been committed to warrant summary dismissal, in particular for s33(1)(a). The worker was never put on notice as to the overtime policy or that he was under a probation and that it applied naturally. This in itself would have caused him emotional and psychological distress - not knowing how the employer had considered the act (or the alleged gross misconduct) on the scale of severity in regards to the employer's rules and policy and what sort of conduct warrants summary dismissal since no written contract of service had spelt this out is by any standards unfair procedures used by the employer in consideration for on-spot termination. Further, not to accord a fair process of fact-finding to establish the truth is one-sided way of delivering penalty. This cannot be a fair or a justifiable action.

[53] Finally, I have to say that the employer had offended s34 of the ERP when Mr Kafoa's final pay was not given to him at the time of dismissal. This was the procedure that the ERC had highlighted in the Automart Limited appeal case. While there is some relief as the final pay was provided the following week, there is no excuse for not giving Mr Kafoa a proper statement or reasons in writing as to why he was terminated (see: s33(2) and s114 of the ERP). Again as the ERC had pronounced, this is a mandatory, statutory requirement. On this issue, the evidence was very clear. Ms Govind had carried out the summary dismissal on the instructions of the GM, Mr Singh. She wrote a letter to the Security advising of Mr Kafoa's dismissal but had left it to another staff to write and inform him of the same. An email excerpt was presented to the ERT which was sent by Isabella Tarai from her personal gmail account to "Interclean" account. The employer did not explain how this account was intercepted by Mr Kafoa in his daily work and whether he had received the email before he was asked to leave the premises. Isabella Tarai did not come to the Tribunal to explain whether she had handed a copy of the same to the grievor. I am then left to believe what the grevior had said: that he did not receive the email at all. Even when he had visited the employer the following week to collect his wages, no email or letter of termination was given to him. This is grossly in violation of s33(2) of the ERP.

[54] Further to involve the security in the dismissal process when the grievor did not present any aggression or threat towards anyone is simply unwarranted conduct of the employer by any standards. This is humiliating and insensitive to one's emotions and dignity. While they may not have forcefully removed him, there is no way to say that this would have been the end result if Mr Kafoa had refused to leave. And this for what? Because he had wished that the additional hours of work he had put in regardless whether or not it was authorized, be paid. Seeking to uphold your rights and entitlements as a worker is no ground for termination. Here the employer had substantially failed to show any lawful cause(s) to the Tribunal for summary dismissal of Mr Kafoa. They have also procedurally denied the grievor his entitlement for reasons for termination under s33(2) of the ERP.

[55] The appropriate remedy under s230 of ERP for summary dismissal cannot be the power of the ERT to order written reasons to be subsequently given to the employee for any procedural non-compliance of the statute. In the Automart Limited case, the ERC had outlined certain factors (not exhaustive list) that can be considered such as:-

(b) the conduct of the parties in bringing and dealing with the proceeding;

(d) what was the employer's conduct which assisted or hindered the employee in mitigating his loss."

I have found that cause(s) were not established. The grievor had brought the case fairly quickly for redress, within one week of being terminated. The employer when the matter was called before the Tribunal made various non-appearances. The griever remained unemployed even at the hearing stage in August 2012. He said that this employer's unjustifiable actions to terminate him on-spot had caused him the inability to secure another employment. While employer is at fault for causing the unlawful and unfair termination to the grievor, if they did not directly or deliberately influence to damage the greivor's reputation or cause hindrance when seeking another job, then the fault is a moot issue. What the employer should have done though at the time of termination is provide a certificate of employment [see: section 30(6) of the ERP]. It seems that they did not comply with this statutory provision also. But overall, there was no evidence that they had any role in preventing the grievor in seeking another employment and to me it was strange that the grievor being a tradesperson has not been able to get another job since April 2011. As for his final dues, there was no issue really in terms of any outstanding pay except the contention surrounding overtime pay. Keeping all this issues in mind I make orders below accordingly.

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

Fiji Employment Tribunal

Kafoa v Interclean Group of Companies [2013] FJET 33; ERT 159.2011 (8 October 2013)