IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SAVUSAVU

ERT Grievance Case No. 127 of 2020

BETWEEN:
KAMLESH PRASAD MAHARAJ
GRIEVOR

AND:
CARPENTERS FIJI LIMITED T/A MORRIS HEDSTROM
EMPLOYER

Appearances:
Ms M Naco for the Grievor 
Ms P Nand for the Employer

Date of Determination: 28th May 2025

DETERMINATION BY THE EMPLOYMENT RELATIONS TRIBUNAL

CATCHWORDS:
EMPLOYMENT LAW - UNFAIR DISMISSAL

LEGISLATION:
THE EMPLOYMENT RELATIONS ACT 2007 ("ERA").

1.0 Employment Relations Grievance

1.1 Background to the Grievance

This grievance was registered with the Ministry of Employment on 16th August 2019. Mediation was attempted on 17 September and 4th November 2019 respectively but was not successful.

The mediator had referred the grievance to the Employment Relations Tribunal (or "ERT") in accordance with s194 (5) of the Employment Relations Act 2007 (or the "ERA 2007'') on 24th March 2020 outlining the nature of unsettled employment grievance with the following terms of: -

"Unfair Dismissal - (Remedy - Reinstatement and Compensation)"

2.0 Cause before the ERT

2.1 At first call on 27th July 2020 in the Employment Relations Tribunal (or "the ERT"), the grievor was present however, the employer was not and NOAH was issued to the employer to appear. The same occurred on 8th September 2020. On 18th November 2020, a discussion to settle was made with the parties however, this was unsuccessful and both parties had endeavoured to proceed by way of preliminary submissions to hear the substantive matter. COVID restrictions did not allow the matter to proceed for some time. A formal proof was conducted on 15th August 2022 since the employer had once again not attended and the grievor had requested for formal proof, which was granted. On 22nd November 2022, the employer had filed a Notice of Motion to set aside the Formal Proof heard on 15th August 2022 and a Hearing be assigned in this matter. This was granted on 26th February 2024. and a hearing was conducted on 26th August 2024.

2.2 The Tribunal finally fixed the hearing on 26th August 2024. The case proceeded to a defended hearing on that day. The grievor gave sworn testimony in support of his claim and the employer called two witnesses.

3.0 Background to the Claim

3.1 In the preliminary submission, the employer submitted that it denies the grievor's claim of unfair dismissal since the grievor was guilty of gross misconduct. The employer submits that the grievor's dismissal was both lawful and justified. The employer further submits that on multiple occasions, the grievor had demonstrated gross negligence in performing his duties resulting in severe financial losses and operational disruptions. Despite several warnings, the employer stated that the grievor failed to improve his performance leading to his eventual dismissal. The employer further submits that the primary grounds of dismissal were:

	i) A stock loss of $34,000, which the grievor failed to account for despite having managerial responsibility for stock management;
	ii) Failure to maintain store standards and proper stock scanning procedures; and
	iii) Unjustified absences from the store during operating hours.

The employer therefore argues that the grievor's dismissal was executed in compliance with legal requirements, particularly of the Act.

3.2 In the preliminary submission, the grievor maintains that he was unfairly terminated by the employer. The grievor submits that he was not given natural justice or an opportunity to have a thorough investigation into the allegations by the employer but rather the employer dismissed the grievor without proper redress. The grievor firmly believes that he was unfairly treated given that he had worked with the employer for six years, which depicts his dedication, faithfulness and loyalty to the employer. The grievor further submits that the manner in which he was summarily dismissed in the first place was a blatant breach of the Employment Act and that all-internal procedures had not been adhered to or followed.

4.0 Essentially then the issues for determination by the Tribunal are:

	a) Whether the termination is fair as claimed by the Employer?
	b) If not, is the Grievor entitled to the relief sought by him?

5.0 Evidence on behalf of the Employer (People Management)

Witness 1 - Mr Saihail K Chand

5.1 In his testimony, Mr Chand stated that the employer had given four warning letters to the grievor and therefore his dismissal was therefore fair. The witness mentioned four warnings as follows:

	i) 1st warning was given on September 2018 for stock in and stock out not being properly recorded and that proper housekeeping was not being followed in the bulk area. The grievor had received this warning letter and he had acknowledged it;
	ii) 2nd warning was issued on January 2019 for stock not being entered into the system which led to negative quantity on hand, on-going housekeeping issues, liquor not being priced properly and general stock operation and compliance not being adhered to. The grievor had received this warning letter and he had acknowledged it;
	iii) 3rd warning letter given to the grievor on 22nd May 2019, which was a second and stern final warning on the $7,000 loss in liquor and a general loss of $20,000. The grievor had received this warning letter and he had acknowledged it; and
	iv) 4th warning was issued in June 2019 for not conducting daily stock take reports, not updating the stock on the system including not conducting stock ticketing. The witness was not aware whether this was acknowledge by the grievor.

5.2 The witness stated that after the fourth warning, the employer had then issued the grievor with a termination letter. The witness explained that the termination was a result of the grievor's lack of proper management of staff and stock, the stock loss of $30,000 and the grievor being missing from work during office hours.

5.3 The witness also stated that after the grievor was terminated the company improved.

5.4 The witness added that the grievor, upon dismissal was provided his certificate of service, was paid two weeks' pay of $5,600, all accrued leave and one month's notice pay which was paid by the employer in good faith.

5.5 In cross-examination, the witness explained that the grievor did have a contract and that during induction the employer also provided their policy on disciplinary procedures, which allows for both 1st and 2nd warnings before a staff is terminated.

5.6 The witness also confirmed that there was an investigation conducted and a report was made. He also stated that the grievor had worked from 2002 and that there was a service break before he resumed again in 2013. Due to the length of his service period, the employer had been lenient with the grievor however due to the $34,000 as well as the $7,000 losses, which occurred during the grievor's employment, the employer was unable to tolerate that.

5.7 During re-examination, the witness confirmed that they were unable to provide the grievor's contract as the fire, which burnt down the headquarters at Walu Bay where the employer's records including contracts, were kept, had destroyed all these records.

Witness 2 - Ms Kamini Devi Prasad (Operations Manager North)

5.8 Ms Prasad stated that the grievor 's dismissal was fair and that the grievor had been given at least three warnings for not doing his work, not improving when told and missing from work during office hours even though he was fully aware of his duties.

5.9 The witness stated that from 2018 she had been giving the grievor verbal warnings and reminders including counselling him. She insists that despite this, the grievor continued to be lax, not providing reports and if he found any discrepancies, he was to have informed her immediately which he did not do. Additionally, the witness said that there were several occasions she had to look for him and could not find him during office hours.

5.10 The witness therefore argued that the grievor's termination was justified as he was given ample time to improve but he continued to be negligent which therefore led to his termination.

5.11 In cross-examination, the witness said that the grievor was not required to take stock to other stores as only the driver was supposed to do that. He was also given four chances to improve which he did not do. The witness also mentioned that the grievor was supposed to ensure that the people working under him were to do their job. She added, that as a result of the grievor not complying to his duties, she as her supervisor was also given a warning letter.

5.12 During re-examination, the witness said that the store manager was responsible for his staff. She had also reminded him during her visits to the store that the grievor needed to improve and to attend to his duties. She also mentioned that when she had asked him of his whereabouts on those occasions he was missing, he would reply that he was either here or there however the staff at the store would say that the grievor was not present at the store on those times.

The employer concluded its case marking the following documents as exhibits:

E1: 	Written warning dated 19/09/2018;	
E2: 	Stern and Final Written Warning dated 25/01/2019; 	
E3: 	Stern and Final Written Warning dated 22/05/2019; 	
E4: 	Stern and Final Written Warning dated 28/06/2019; 	
E5:	Termination Letter dated 30/07/2019;	
E6: 	Final Pay dated 30/07/2019;	
E7:	Certificate of Service dated 30/09/2019;	
E8:	Employee Counselling Form dated 10/09/2018; and	
E9:	Credit Exchange Note Report dated 30/06/2019.	

6.0 Evidence on behalf of the Grievor

Grievor - Mr Kamlesh Prasad Maharaj

6.1 In his testimony, the grievor stated that he was the Store Manager of Morris Hedstrom Savusavu from 2013 to 2019. He said that his role included looking after the entire store, sales and the stores' staffing and he was also responsible for Premium and Paradise Stores. He also added that he was also working with the Driver for delivery to other stores the approval for which was given by Ms Kamini Prasad through email.

6.2 The grievor confirmed that he had received three warnings from his employer however; he insists that he did not receive the final warning dated 28th June 2019. He also argues that the first warning he received was the required duty of his Clerk and was not his job.

6.3 The grievor explained that although it was found that there was a loss of $34,000 under his supervision, he insists that he runs a good exchange report and that it may have occurred when customers return the goods.

6.4 The grievor also stated that their headquarters was informed of the loss and the whole staff had collected to pay this off since the actual staff responsible for this loss had only paid $500 and did not return from his Suva trip.

6.5 The grievor also mentioned that the allegations that he was absent and not in office was false since he was doing delivery and therefore was out of the office. In addition, he said that none of the warning letters received mentioned that he was often absent from work.

6.6 Due to his years of service, the grievor says that he had worked for more than 10 years and that he could have been demoted rather than dismissed which would have been an equal penalty to if he had stolen.

6.7 The grievor said that he was married with two children and that his wife is a domestic worker. This means that his family depends on him as a breadwinner and because of his termination his family is suffering.

6.8 In cross-examination, the grievor acknowledged that he had received three warning letters and that he insists that a staff who left for the funeral in Suva but never returned committed the variance that occurred for the loss of $7,000. He also argued that the employer had done nothing to this particular employee. Nevertheless, the grievor explained that when he had informed headquarters about this loss, he was informed by a Mr Amrit to ask the staff to collect the remainder of the money.

6.9 In re-examination, the grievor insists that even though the staff were responsible for their own duties, he believes that he was the only one taken to task and terminated on the decision of the Operations Manager.

The grievor concluded its case marking the following documents as exhibits:

G1:	Email approval for grievor to drive dated 19/07/2019;	
G2:	Staff Listing dated 23/02/2019;	
G3:	Staff Listing for Paradise Savusavu dated June 2019; and	
E4:	Credit Exchange Note Report 30/06/2019.	

7.0 Analysis and Law

7.1 Section 33(1) of the Employment Relations Act 2007 (ERA) sets out the grounds for summary dismissal. Section 33(2) of the ERA mandates that the Employer must provide written reasons for the dismissal at the time the Employee is dismissed as per below:

(1) "No employer may dismiss a worker without notice except in the following circumstances -
(a) where a worker is guilty of gross misconduct;
(b) for wilful disobedience to lawful order given by the employer;
(c) for lack of skill or qualification which the worker expressly or by implication warrants to possess;
(d) for habitual or substantial neglect of the worker's duties; or
(e) for continual or habitual absence from work without the permission of the employer and without other reasonable excuse.
(2) The employer must, provide the worker with reasons, in writing, for the summary dismissal at the time he or she is dismissed"

7.2 The issue before the Tribunal is whether the dismissal was justified, whether the procedures followed by the Morris Hedstrom were proper and whether the grievor was accorded natural justice.

7.3 The grievor's Termination Letter dated 24 June 2020 states as follows:

	Mr Kamlesh Prasad 
	C/- Morris Hedstrom 
	Savusavu Paradise
	
	Dear Kamlesh,
	
	RE: TERMINATION
	
	As you are aware the company has been carrying out a review of your performance over the last few months. During these discussions you have been given numerous opportunities to improve your performance; however no improvement is seen forthcoming.
	
	We draw your attention to the letter dated 19th September 2018 which clearly specified discrepancies in your performance and you were given a warning to bring about immediate improvements. The issues highlighted had been stock related, housekeeping and operational price tickets etc. which is attached for your reference.
	
	Further to that on 22nd May 2019 you were accorded a meeting with our Director Retail and Marketing who expressed his utter disappointment in your conduct whereby the company suffered a loss of $34,000. In this meeting given the seriousness of the offense you were still given a last chance via a Final warning letter which you accepted.
	
	Both of these letters are attached for your perusal.
	
	A recent review of your performance shows that you have various lapses in your performance whereby you have been insubordinate to your operations manager, this includes not listening to her instructions in maintaining the store at acceptable levels and letting the store get to a deplorable condition causing complaints from customers. Your inability to manage your store in an efficient manner has led to not being physically present in the store during operating hours on numerous occasions has led to these discrepancies and has shown failure in your part as a store manager to safeguard the store.
	
	In light of the above and in line with your disciplinary grievance procedure you are now terminated. Should you be agreed by this decision, you shall be paid one month's salary and all statutory dues up to and until 30th July 2019.
	
	We thank you for your services. 
	
	Yours faithfully,

	Sandhaya Singh
	Human Resources Manager
	Cc Staff Salaries Clerk

7.4 The employer in their termination letter as per requirements of Section 33(1)(b), (d) and (e) as well as Section 33(2)had complied with the Act and specifically outlined the actions of the grievor which were considered gross misconduct as follows:

a) for wilful disobedience to lawful order given by the employer;
b) for habitual or substantial neglect of the worker's duties; and
c) for continual or habitual absence from work without the permission of the employer and without other reasonable excuse

7.5 The grievor was warned three times on 19th September 2018, 20th January 2019 and 2nd May 2019. The employer had submitted a fourth warning 28th June 2019 which was not acknowledged by the grievor. Yet the initial three warnings prior to this all mentioned that the grievor had failed to ensure that he follows work procedures as a supervisor and the need for him to improve. Despite these warnings, he had failed to improve his performance which finally resulted in a huge loss to the company to the amount of $34,000. There were several reminders given to him not only by his immediate supervisor but also that of upper management. He readily admitted to these warnings however, he still refused to adhere until he was dismissed and begs for a second chance.

7.6 In Danielle H Keli v Credit Corporation (Fiji) Ltd [2012] FJET 67; Grievance 36/2011, Madam Justice Wati cited the four pronged Foley test for dismissal in X v Y [2004] EWCA Civ 662 is that:-

	i. "the employer must show that he believed that there had been misconduct by the employee;
	ii. that there were reasonable grounds for that belief;
	iii. that he had carried out as much investigation into the matter as reasonable in all the circumstance; and
	iv. that the decision to dismiss him for that conduct reason was within the range of reasonable responses of a reasonable employer.
	
	Under s33 of the ERP, it is my view that prior to arriving at a guilty verdict, facts and evidence gathered by the employer will need to be reasonably and fairly assessed where at least the employee's views and objections have to be noted in line with the purported breach of the rules, polices and standards of the employer. This would be, in my humble opinion the prerequisite investigation process prior to arriving at the guilty verdict." (my emphasis)

The investigation was conducted. At least three warnings was given to the grievor which he acknowledged and yet he did not improve nor adhere to the instructions. He was clearly aware of his work requirements and yet chose not to follow despite being repeatedly reminded to improve. The Tribunal therefore agrees with the employer of finding the grievor's actions in this instance tantamount to gross misconduct.

7.7 The Legal Tribunal in Pillay v Carpenters Fiji Ltd [2013] FJET 12; ERT Grievance 84.2011 (16 January 2013) further explains that;

	"Isoa's case is perhaps not so clear whether or not any procedures are required to ascertain the guilt of the grievor (and what sort of procedures should be used) prior to declaring the alleged conduct "serious", but it is quite clear that once a serious (or gross) misconduct is established in substance, then procedural fairness is not required for purposes of a summary dismissal. To that end, the employer could immediately proceed to terminate the grievor."

7.8 In this matter, the summary dismissal clause (in relation to s33 of the ERA 2007) was invoked by the employer, the cause was justified on the basis of being a serious misconduct. In that regard, the situation is similar to what is held in Isoa's case on the position of the procedure for hearing.

7.9 Section 30(4) of the ERA states that:

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

7.10 In Kafoa v lnterclean Group of Companies [2013] FJET 33; ERT 159.2011 (8 October 2013), the Legal Tribunal had explained that:

	"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"

7.11 Here the employer had submitted that the grievor's gross misconduct was his substantial neglect of responsibility as well as not adhering to instructions by his supervisor which gave them grounds to invoke section 33(1) (a) of the ERA.

7.12 The Legal Tribunal explained in Danielle Keli v. Credit Corporation (Fiji) Limited 36/2011 that,

	... in order to discipline and probably 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
	
	(i) That the rule was a valid or reasonable rule or standard;
	
	(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard; and
	
	(iii) The rule of standard has been consistently applied by the employer.

7.13 The grievor was provided a written contract of service however the Tribunal was not able to assess the contract as it had been destroyed in the fire that burnt the records kept at the employer's headquarters in Walu Bay. Nevertheless, the employer had paid the grievor one month's pay in lieu of notice as per the law in Section 29 (d). At the end of the day, the special good faith relationship is dependent on both, the worker and employee in their understanding of their respective obligations towards each other and this is usually expressly contained in a contract of service.

The Tribunal therefore finds the employer reasonable in its action.

7.14 In Sachindra Karan v NZPTC [200/2010], the Tribunal stated,

	"By and large, it is my opinion that s33 of the ERP being generally invoked without any specific reference being made to any of grounds contained under s33(1) (a)-(e) as the "lawful" ground(s) of the employer, does not automatically contradict or fall foul of s33(2) of the ERP (in terms of providing the exact reasons) for termination. The employer should be able to assert and allege any of the grounds for summary dismissal, say, in relation to a gross misconduct [s33(1)(a)] if in the body of the termination letter there was implication that the alleged (mis)conduct was considered to be a serious breach of the contract of service (implied or express) and/or code of conduct imposed by the employer; and where, of course, they found the grievor also guilty of the alleged gross misconduct. "

7.15 In this regard and in the absence of how gross misconduct is established in the Employment Relations Act, there is no doubt after analysing the evidence in this case that, the employer was indeed not harsh in terminating the grievor.

7.16 In this matter, the employer did not arbitrary terminate the grievor. There was a justifiable cause. Justice Laing in Caudle v. Louisville Sales & Service Inc., 1999 SKOB 276 also explained as follows:-

	"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. "

7.17 I find that the employer was reasonable and justified in terminating the grievor after finding that the grievor's action tantamount to gross misconduct.

7.18 The certificate of service is necessary by law and which is intended to be used by most employees who are dismissed to seek employment in other places. The employer failed in its statutory duty to provide the certificate of service until the grievance was filed with the Ministry of Employment which was almost a month after the grievor's termination. Section 30 (6) of the Employment Relations Act 2007 states that:

	"Upon termination of a worker's contract or dismissal of a worker, the employer must provide a certificate to the worker stating the nature of employment and the period of service"

The employer had infringed law when a certificate of service being a mandatory requirement of the ER Act 2007 under section 30(6) was not provided to the grievor when he was facing termination.

7.19 Since I have found that the dismissal was only unlawful for want of provision of a certificate of service at the time of termination, the employee is entitled to some remedy.

8.0 Determination

8.1 In the final analysis, I find that the grievor's dismissal was only unlawful in that the certificate of service was not provided to the grievor at the time of the dismissal;

8.2 I find that the dismissal although unlawful for the above reason, was fair;

8.3 For the unlawful dismissal, the employee is awarded remedy for $200.00;

8.4 The employer to pay the grievor within 21 days hereof; and

8.5 Each party will bear their own costs.

Dated at Labasa this 28th day of May, 2025.

Ms. SHANNON C TOUTOU
ER TRIBUNAL MEMBER - NON-LEGAL