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Ralolo v Carpenters Fiji Ltd [2013] FJET 36; ERT Grevance 169.2010 (8 February 2013)

IN THE EMPLOYMENT RELATIONS
TRIBUNAL AT SUVA

ERT Grievance No. 169 of 2010

BETWEEN:

MERE RALOLO
GRIEVOR

AND:

CARPENTERS FIJI LIMITED
EMPLOYER

Appearances:
Mr. A. Shah for the Grievor
Ms. D. Prakash for the Employer

DETERMINATION OF THE TRIBUNAL

The Employment Relations Problem

1.1 Mere Ralolo started with Carpenters Fiji Limited on 17th January, 2005 as a Credit Accounts Officer until 1st September, 2010 when she was terminated. Ms. Ralolo is claiming that the decision by management to terminate her services was too harsh and unfair as the company had not followed the disciplinary procedure.

1.2 Ms. Ralolo's claim for a grievance was referred to the Mediation Unit on 27th September, 2010 and the mediation proceeding held on 20th October, 2010 could not resolve her claim for a grievance. In that regard, the matter was referred to the Tribunal for adjudication on 25th October, 2010.

The Hearing

2.1 The hearing was held on 11th August, 2011 and it was held together with a related matter titled ER Grievance No. 170 of 2010 between Viliame Diloi and Carpenters Fiji Limited which has the same claims for a grievance.

2.2 Both Ms. Ralolo and Mr. Diloi gave evidence and that is the reason why the Tribunal is treating the two cases separately in its decision.

The Evidence

3.1 The Supervisor Central, Carpenters Fiji Limited Mr. Rajeshwar Nand gave evidence for the employer that he was in charge of the Hire Purchase department of the employer and was responsible for coordinating and overseeing the operations of the Hire Purchase team for the Central Division. He advised that both Ms. Ralolo and Mr. Diloi reported directly to him through the team leaders.

3.2 In respect of the incident that led to the dismissal of Ms. Ralolo and Mr. Diloi, Mr. Nand advised the Tribunal that the grievors attended to a customer who wished to purchase building materials from Carpenters Hardware on credit facilities with Carpenters Finance. Once the application was assessed, certain conditions needed to be met by the customer in order for the application to be approved. Mr. Nand also advised the Tribunal that only Managers in the company had the authority to approve an application for building materials over $500.

3.3 Both Ms. Ralolo and Mr. Diloi by passed the system by amending the application and changing the goods code to Power Tools, for which Mr. Diloi had the authority to approve. Mr. Nand added that Ms. Ralolo only created the application and she did not have power to make decision as that was with Mr. Dilio. In this case Mr. Dilio exceeded his jurisdiction as he did the approval without the consent of Mr. Takala the Manager Collections.

3.4 Ms. Ralolo and Mr. Diloi were terminated with cause and paid one week wages in lieu of notice. Mr. Nand testified that although goods did not change hands, the company expects frontline officers to be trusted and diligent in their work.

3.5 On cross examination, Mr. Nand confirms that Ms. Ralolo creates and amends application and she is expected to be ethical by following the rules and code of conduct in the workplace.

3.6 Ms. Ralolo in her evidence stated that she began employment with Carpenters Fiji Limited from 1st September, 2005 as Credit Officer – HP/Accounts based at Nausori Town until 1st September, 2010 when she was terminated.

3.7 As Credit Officer – HP/Accounts, Ms. Ralolo was responsible for interviewing customers, filling out the application form and forwarding to the next person responsible for the assessment of the credit application. In this case she sent the application to Mr. Takala in Suva but he was in a meeting.

3.8 Apparently, Ms. Ralolo created the application that was the centre of this grievance on a Monday as in evidence she said that she did not work on Tuesday but resumed on Wednesday. She was reporting to Mr. Dilio at that time and he told her that he had spoken to Mr. Nand who had given his approval to go ahead as Mr. Nand would take the matter up with Mr. Takala. Ms. Ralolo told the Tribunal that subsequent to that Mr. Dilio told her to amend the goods code on the application to "electrical goods" to avoid head office approval.

3.9 On Thursday she was interviewed by the Auditor where she agreed to change the product code on the instruction of Mr. Diloi and she agreed that what she did was wrong and she should have contacted head office. She did that out of respect for Mr. Diloi.

3.10 On cross examination, Ms. Ralolo agreed that she was aware of the reporting structures and that she spoke to Mr. Nand who said that he would be talking to Mr. Takala. She agreed that no approval was given by Mr. Nand.

Analysis

4.1 The issues to be dealt with by the Tribunal are the following:

i] Whether the termination was justified? and

ii] Whether the termination was unfair?

Whether termination was Unjustified?

4.2 The grievor is claiming that the action of termination taken by the employer was harsh which means in her interpretation that it was unjustified. What the employer did was to terminate Ms. Ralolo with cause and that cause was being found guilty of gross misconduct. That being the case the Tribunal has to examine whether the claim for unjustified termination has any ground.

4.3 The Tribunal believes that Ms. Ralolo did not expect to be terminated as she was acting on the instructions of her superior and that the disciplinary and grievance procedure were not exhausted. The Tribunal takes those as her reasons for maintaining that the decision to terminate her was harsh and unfair. In the same vein Ms. Ralolo sought refuge in the employment contract which provides procedures for attaining natural justice as provided for in Section 110 (1) (a) of the Employment Relations Promulgation 2007. There is no such provision in her employment contract tendered to the Tribunal during the hearing but it could be provided for in the Master Agreement and Company Policies. The point Ms. Ralolo is arguing is the non exhaustion of the disciplinary and grievance procedure and that is the reason why she said in evidence that she was surprised to receive the termination letter. The Tribunal understands the position of Ms. Ralolo as the employer alone cannot determine the guilt of any worker and in Carpenters Fiji Limited there is a procedure which accords natural justice to the worker. As far as she was concerned, she was terminated after a one sided inquiry.

4.4 From the evidence there was no natural justice; as there was only an inquiry and an investigation done by the Auditor.

4.5 The test for justification which applies to claims of unjustifiable dismissal is the following:

...The question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

The employer must show that a dismissal was justified substantially and procedurally and this was where Carpenters Fiji Limited fell short. All the circumstances at the time the dismissal occurred would include the type, resource and size of the organization.

4.6 This is a big employer dealing with wholesale and retail and the cartage and transportation industries compared to Ms. Ralolo a simple worker, from Naila Village in Tailevu and who had been in employment for precisely 5 years when she was terminated. From the evidence the Tribunal is satisfied that the employer has made no attempt to accord Ms. Ralolo all the fair procedures as stipulated in the leading case of NZ Food Processing, IUOW v Unilever 1NZILR 35;[1990]. It says that the employee must be given:

• Notice of the specific allegation and its gravity and possible outcome
  
• An opportunity to refute the allegations (with an opportunity to have a representative, not simply a witness, present)
  
• Unbiased consideration of the employee's explanation.
  

4.7 However, the Courts in New Zealand have recognized that most employers will not be able to provide perfectly fair procedures for dismissing employees. In BP Oil v NDU [1992] 3 ERNZ 483 (CA): the Court of Appeal said - "The question is essentially whether it was open to a reasonable and fair employer to do so in the circumstances."....

4.8 In the earlier Unilever's case the Court also said that... "the employer's conduct of the disciplinary processes is not to be put under a microscope and subjected to pedantic scrutiny." This means that minor procedural inadequacies should not render a disciplinary action unjustified.

4.9 In this case there was a procedure but it was not exhausted at all; Carpenters Fiji Limited Limited went ahead with the termination as it is provided for in the contract. In fact it assumed that Ms. Ralolo was guilty of gross misconduct. That should not be the case as guilt must be proven on the balance of probabilities. The employer should have done the following:

(i) Conduct a proper investigation into the alleged wrongdoing.

(ii) Invite the employee to a disciplinary meeting. The employee should be told –

• All the information that was uncovered in the investigation
  
• To bring information of their own
  
• That he can bring a representative or a support person
  
• That the outcome of the disciplinary process may be dismissal.
  

(iii) At the meeting, the employer should properly explain their information and give the employee a chance to respond to it and present their own information.

(iv) After the meeting, the employer should properly consider all the information with an open mind and inform the worker of the decision.

4.10 The right to be heard in person is very important and it is the cornerstone of our justice system. On the right to be heard before a person's livelihood is adversely affected, the Fiji Court of Appeal in the matter of PSC v Lepani Matea (CA 16/98) held that. "The requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely is so fundamental to any civilized legal system that it is presumed that the legislative body intended that a failure to observe it would render the decision null and void."

4.11 From the foregoing reasons, the Tribunal makes the determination that Ms. Ralolo's termination was unjustified.

Whether the Ms. Ralolo was Unfairly Terminated?

4.12 In Carpenters Fiji Limited v. Isoa Latianara [2011] FJET3; ERCA Wati J. explained what constitutes fairness to be the following:

"that it is the manner of treating the employee in carrying out the dismissal that must be considered. The employer's action must be assessed to ascertain whether the employee was treated with fairness, respect and dignity in the carrying out of the dismissal."

4.13 In Central Manufacturing v. Kant [2003] FJSC5 the Supreme Court held the following:

"there is an implied term in the modern contract of employment that requires an employer to deal fairly with an employee, even in the context of dismissal."

Specifically, the Court held that while the common law implication,

"...plainly does not extend to a requirement that reasons be given, or that a hearing be afforded at least where the employer has the right to dismiss without cause and to make a payment in lieu of notice. It does extend, however, to treating the employee fairly, and with appropriate respect and dignity, in carrying out the dismissal."

4.14 From the evidence Ms. Ralolo was given her termination letter as she was preparing to leave for home and that came as a surprise to her as she was expecting to be given the due process. The Tribunal sees her as challenging the termination with her dignity intact as she knew at that point in time that the action was wrong.

4.15 From the foregoing reasons, the Tribunal makes the determination that Ms. Ralolo was not unfairly dismissed.

Remedies

5.1 Under Section 230 (1)(a) of the Employment Relations Promulgation 2007, the Tribunal Orders the reinstatement of Ms. Ralolo to a position no less advantageous to her;

5.2 Under Section 230 (1) (b) of the Employment Relations Promulgation 2007, the Tribunal Orders the reimbursement to Ms. Ralolo of 12 months' wages lost by her as a result of the grievance; and

5.3 Under Section 230 (2) (a) & (b) of the Employment Relations Promulgation 2007 Orders that the remedy in clause 5.2 above be reduced by 6 months worth of wages.

DATED at Suva this 8th day of February, 2013

[S. KURUDUADUA]
Chief Tribunal