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Ram v Life Insurance Corporation of India (LICI) [2019] FJET 16; ERT Grievance 94 of 2018 (9 May 2019)

KEYWORDS: Summary Dismissal arising out of employment; Section 211 Employment Relations Act 2007; Ongoing absenteeism and illness; Breach of Trust and Confidence.

CASES CONSIDERED

Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014)

Kumar v Nanuku Auberge Resort Fiji [2017] FJET 2; ERT Grievance 122.2016 (10 February 2017)
Peni Koro Lagi v Calm Fire Professionals [2018] FJET 4; ERT Grievance 183 of 2017 (4 January 2018)
Malik & Anor v Bank of Credit and Commerce International SA (in liquidation) [1997] 3ALL ER 1
Yanuca Island Limited trading angri La FiLa Fiji Resort and Spa v Vani Vatuinaruku [2017] 2 ERCA 9 of 2014 2014 (8 February 2017)

Background

[1] The Grievor was summarily dismissed in his employment as a Messenger with the Respondent Employer, by letter dated 12 February 2018. The reasons provided by the Employer within its dismissal letter, state that the Grievor had demonstrated gross misconduct and gross negligence during the course of his employment. The grievance has been referred to this Tribunal in accordance with Section 194(5) of the Employment Relations Act 2007.

Case of the Employer

[2] In matters of this type, the practice is to allow the Employer to present its case in the first instance. The advantage of doing this, is that it gives the Tribunal an understanding as to what is claimed is the justification for the dismissal decision.

Anand Kaur

[3] The first witness to give evidence on behalf of the Respondent Employer was Ms Anand Kaur, who at the relevant time was the Human Resource Manager at LICI. Ms Kaur told the Tribunal that one of the incidents that gave rise to the claim of dishonesty against the former employee, was as a result of the fact that Mr Ram had returned to work following the taking of two days sick leave and provided a medical certificate indicating that he should have still remained off work, as he was unfit for duties^[1]. In response to this early return to work, the Employer by letter dated 31 January 2018, inquired of Mr Ram as to why he had returned to work before the date of expiration of his certificate^[2]. The Grievor stated in his handwritten response of that same date^[3], that “only my left side of neck and left shoulder is paining....I am able to do table work.” In a subsequent letter prepared by Ms Kaur, dated 2 February 2018, she advised the Grievor that he would be required to produce a proper fitness certificate before he could resume his duties^[4].

[4] Ms Kaur told the Tribunal that the Grievor had a long history of absenteeism due to illness and through Counsel for the Employer, identified various documents that supported that fact. For example, in January and February 2018 alone, the Grievor had taken 13 days leave due to apparent absence for illness^[5]. In the six months between May 2009 and September 2009, the Grievor had been absent from work for 25 days. In the two months of May and June 2012, the Grievor had taken eight days leave, despite having been counselled for a pattern of absenteeism only 12 months earlier. In the period January 2016 to March 2016, the Grievor appeared to be absent other than for annual leave, in the order of 30 days^[6] and for the period May to July 2016, a further 24 days^[7].

[5] During cross examination, Ms Kaur was shown photographs of the file storage room, in which the Grievor claimed to be filing approximately 300 paper based files per day^[8]. It was put to the witness by Mr Ram, that the workplace was hazardous to his health due to airborne dust arising out of the confined area in which he was to file papers as part of his duties. Ms Kaur referred the Tribunal to the findings of an OHS Committee Meeting held on 25 September 2017, in which it found no substance to the claim that the working conditions of the Employer, were hazardous to the health of the Grievor^[9].

Ms Daina Dalakubu

[6] The next witness to give evidence was Ms Daina Dalakubu who is the Assistant Manager, Human Resources. During the course of her evidence, Ms Dalakubu stated that the Grievor:

• Had a significant period of absenteeism over the past five years;
• Had exhausted annual leave and sick leave on many occasions and would thereafter take leave with a loss of pay; and
• Was given counselling and warning letters in relation to his absenteeism.
  

[7] In response to the complaints that the Grievor had been making regarding his inability to undertake his work without pain, the Witness claimed that these were new inventions and was of the view that Mr Ram had feigned the presentation of his disability in this regard.

Mr Rakesh Chand

[8] The final witness for the Employer, was Mr Rakesh Chand, an Insurance Officer employed at LICI. Mr Chand gave the following evidence:-

• He had been a colleague of the Grievor;
• Was the Union Representative for the workers engaged at LICI; and
• Did not consider the condition of the Filing Store Room as being dusty nor hazardous to Mr Ram’s health.
  

The Case of the Grievor

[9] According to Mr Ram, when he returned to work on 31 January 2018, initially he was not challenged by anyone as to his fitness for work. The Grievor stated that the following day on 1 February 2019, he had been approached by Ms Kaur, who had recognised that his medical certificate dated 30 January 2018, indicated that he was not fit for duties until 1 February 2018 and so had issued a written request that Mr Ram return to the issuing medical practitioner, in order to ensure that the certificate aligned with his attendance.

Letters dated 31 January 2018 and 2 February 2018

[10] Mr Ram gave evidence that he was concerned that he was provided with the letter dated 31 January 2018 on the following day and believed that it was misleading insofar as it appeared to give the impression that the Employer had taken issue with the Grievors attendance at work on that same day, whereas in fact one full day had passed before the issue was raised. The letter provided to the Grievor, stated in part:

After going through the said medical certificates it is noted that in medical certificate dated 30.01.2018 it is mentioned that you will / should be fit to resume duty on 01.02.2018. You were well aware of this and still signed the attendance register today

You are hereby required to give your written explanation in writing why you have signed the attendance register today when the doctor has given the Medical Certificate for your fitness to resume duty on 01.02.2018

[11] On 2 February 2018, the Grievor received a second letter from his Employer, in the following terms:

It has been observed that full medical clearance has not yet been produced by you till date You are advised to produce a proper fitness certificate before your resume your duties certifying that you are fit to be able to perform your duties and responsibilities as mentioned in our letter dated 31.03.2008.

[12] It was in response to that second request that Mr Ram met with Ms Kaur on 5 February 2018 and recorded the discussion that was later transcribed as follows^[10]:-

Joseph: Good Morning Madam, Sorry I’m here, Madam I want you to change this date to make it 1^st of Feb coz this was wrong I didn’t receive on 31^st

Madam: It will be 31^st only receive on that 31^st only

Joseph: Madam you gave me on 1^st Feb its wrong. I don’t want to do anything wrong.

Madam: You have taken on 31^st and you have given a letter on 31^st

Joseph: But Madam you have, also I took the letter outside and you have changed your word now.

Madam: 31^st will be 31^st.

Joseph: Madam you have changed your words

Madam: You have taken that letter on 31^st and the one you replied on 31^st

Joseph: Ok can I have the copy of the three letters

Madam: Afterwards that is with.........

Joseph: Because I’m going somewhere

Madam: You will get the letters later.

Joseph: Madam you are lying

Madam: On 31^st you have given me this letter

Joseph: But this letter when you gave me?

Madam: Dated 31^st and its 31^st

Joseph: Madam you are lying. How come big lady like you

Madam: It’s not about lying

Joseph: You printed the letter and issued on hand 01^st February not on 31^st that’s lying.

Madam: What I am trying to say the letter will be dated 31^st January.

Joseph: But I received on 01^st February.

Madam: When did you reply?

Joseph: Three letters I reply on 31^st January.

Madam: You didn’t reply three letters on 31^st only two letters you gave me on 31^st . Joseph sometimes

I ‘m telling you think on that part.

Joseph & Madam: Arguing about letter.

Madam: How can you reply the letter on 31^st

Joseph: Because you told me to put the date 31^st.

Madam: Nothing like that

Joseph: Madam you changed your word you said you are like my big sister.

Madam: It’s not about big sister. Some things you have to do on your own also where you taking my

point you twisting it follow everywhere.

Joseph: You told me to get false sick sheet, if I would have done that what would have happen to me

now. General Manager said in front of you that I want compensation I didn’t say that

anytime.

Madam: The reason I tell you to change the sicksheet because you joined on the 31^st January I only said

to bring the 31^st sick sheet.

Joseph: But you told me to go and get it from any doctor.

Madam: I told you to go to the same doctor and change it.

Joseph: The doctor said no and you said go and get it from any doctor, remember you also called me

6-7 night time.

Madam: Yes I wanted ...........Don’t you trap me. You are trying to catch my words that’s the place I

want to save you. Joseph listen where I want to save you that’s the place where you trying to

trap me.

Joseph: Madam remember that day when General Manager saying things to me you heard it.

Madam: I heard it.

Joseph: He said he’s against me and he got eye on me. What wrong did I do to him? I’m sick now
what I do.

Madam: He also yells at me.

Joseph: But that’s wrong.

Madam: Everyone got different ways I ‘m telling you nicely. If it was someone else wouldn’t explain. I
also said that day to give it to me on 31t. I said or no. for whom did I say to bring on 31^st.

Joseph: For me.

Madam: You trying to catch me on my own words. Its clearly that I cannot explain you the reason.

Joseph: Madam I don’t know how long it will take for my medical because I think I won’t get paid for
that.

Madam: You will get paid for that day.

Joseph: Ok have a nice day

Madam: Joseph what you going to do think properly.

Joseph: I will do everything correctly. But this is wrong. Date of the letter should be 01^st , I want to do
everything correctly I don’t want to lie about anything because it’s regarding my health. The
pain I’m going through Madam.

Madam: You came to the office on 31^st

Joseph: I came to the office on 31^st but I didn’t receive this letter on 31^st

Madam: When did you reply me?

Joseph: I gave it on the 01^st of February but you told me to date it 31^st Januray.

Madam: When I gave you 31^st dated than it will be 31^st dated.

Joseph: There was two separate letters for 31^st.

Madam: Think why I told you that day I won’t say much more or else you will catch me.

Joseph: but this is wrong.

Madam: You gave me on 31^st than it will remain 31^st.

Joseph: But I receive on 1^st February but you make me sign on the wrong date.

Madam: No wrong date.

Joseph: Madam the letter I received and read on 01^st February not on 31^st That’s what I’m telling you.

Madam: You will change the date.

Joseph: I have to Madam because when I took this letter I let other people see you gave me letter on

that day I’m telling you.

Request to Produce Comprehensive Medical Report

[13] Mr Ram acknowledged that by letter from his employer dated 8 February 2018, he had been required to produce a comprehensive medical report from a specialist medical practitioner, prior to returning to work^[11]. The Grievor told the Tribunal that he had sent a further text message to the Human Resource Manager in response to that correspondence^[12], although received no further reply.

[14] On 9 February 2018, the Grievor wrote to the General Manager to report what he says was the wrongdoing of the Human Resource Manager. The letter stated inter alia:-

I Joseph Vinesh Ram would like to know why this was done to me

Madam Gurpreet asked me to sign a letter dated 31.01.18 which I received on 01.02.18 at 8.30am. She told me to reply also dated 31.01.18. I took the letter to my Union Rep Rakesh and told him on 01.02.18 at 8.40am.

When I gave my reply on 01.02.18 at 9am Madam Taina was also present with Miss Gurpreet’s office, Why was I told to write two letters on 31.01.18. Total of 3 letter were written by me.

Madam Gurpreet forced me to go and get a new or changed the date of my sick sheet which was from 30.01.18 to 01.02.18. On 31.01.18 around 2.30pm working hours to go to Raiwaqa Health Centre to change the date or get a new sick sheet 31.01.18. Doctor said no and I returned back to the office at 3.30pm. Later in the afternoon around 6-7 pm on 31.01.18 Madam Gurpreet called and asked me to get a sick sheet anyhow for 31.01.18.

I informed Rakesh and Taina regarding this matter.

Sir I got all my evidence and I’m not lying.

Hope to get a reply from you.

[15] It was several days after receiving that letter, that the Grievor received a dismissal letter. For the sake of completeness, the dismissal letter is reproduced in part as follows:-

This has reference to your letter dated 9^th February,2018 thourhg which you have made serious allegations against Manager HR, Ms Anand Gurpreeet Kaur. The matter was investigated and it was revealed that you have made false allegations against her.

On several other occasions you have been given the opportunity to rectify the issue regarding your sickness and fitness to resume your duties. However , your recent actions has demonstrated breach of trust and confidence that was bestowed upon you as an employee.

This also has reference to your letters dated 31^st January 2018 through which you tried to falsify the medical certificate issued by Medical Officer, RHC Hospital. You have not only tried to tamper with the official records but it also amounts to misrepresentation of the facts.

Due to your gross misconduct and gross negligence, you are hereby summary dismissed from your employment with immediate effect, under Section 33 1(a) and (e) of the Employment Relations Act.

Was the Dismissal Decision Justified ?

[16] The question at the end of the day is whether or not the Employer was justified in dismissing the Grievor. This Tribunal in Kumar v Nanuku Auberge Resort Fiji^[13] has previously addressed the considerations that are relevant when determining whether or not a dismissal is justified, in this way:

“As a starting point, at least in the context of ‘unjustifiable dismissal’, the question needs to be asked, having regard to the Statement of ns providrovided, whether a termination based on those reasons was justified. The question post Central Manufacturing v Kant, wh new regulatory regime isme is installed, must be, Can the dismissal be justified? Theial question to ask is not not how the dismissal takes place, or what is relied on as part of that process, but whether the reasons for giving rise to the decision to terminate are justifiable. The concept of whether or not a termination or dismissal at work is jusd or not, has, has been enshrined in international labour law for many years. The Termination ofoyment Convenonvention, 1980;(No. 158) adopted at the 68^th International Labour Conve tion session in n in Geneva, sets out within Part II, DiviA, a framework for assessing whether or not a dismissal is l is justified. Article 4 for example, provides that “The employment worker shall not be terminerminated unless there is a valid reason for such termination concerned with the capacity of conduct of the worker or based on the operational requirements of the undertaking, establishment or service. Articles 5 and 6 thereafter provides additional illustrations of circumstances that would not constitute a valid reason for termination. These include union membership, filing a complaint or participating in proceedings against an employer, discriminatory grounds based on attribute, absence due to maternity leave or temporary absence from work because of illness or injury.

Northrop J op J in Selvachandran v Peteron Plastics,[25 ped the following clarificaification when a compacomparable question was being asked as to whether a termination decision was a one. In that case, his Honour stated:

Subsection 170DE(1) refers to "a vali valid reason, or valid reasons", but the Act does not give a meaninghosethose phrases or the adjective “valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is " Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason."

In its context in subsection 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, when Considering the construction and application of section 170DC.

A comparable set of criteria for setting out the “test for justification” is located within Section 103A of the Employment Relations Ac0;2060;2000 (NZ), that provides:-

103ATest of justification

(1)For the purposes of section 103(1)(a) and (b), the quesof whetherether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2).

(2) The test is whether the employer&#s actions, and how the empl employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

(3) In applying the test in subsection (2), the Authority or the court must consider—

(a) whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and

(b) whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and

(c) whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and

(d) whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.

(4) In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate.

(5) The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were—

(a) minor; and

(b) did not result in the employee being treated unfairly.

As can be seen in the New Zealand case, issues of procedural fairness are intertwined within the notion of whether or not the decision to terminate, is justifiable^[14]. Be that as it may, the concept of what constitutes a justifiable decision within the meaning of Section 230(2) of the Promulgation, could well canvas such concepts as to whether the dismissal decision was sound, defensible or well founded; not capricious, fanciful, spiteful or prejudiced.”

> Reasons for the Dismissal Decision