Home | Databases | WorldLII | Search | Feedback Fiji Employment Tribunal

  Download original PDF

Laweduanivanua v Fiji Sugar Corporation Ltd [2025] FJET 8; ERT Grievance 43 of 2023 (30 June 2025)

IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT LAUTOKA

ERT Grievance Case No.43/2023

BETWEEN
STOKOWAITAWA LAWEDUANIVANUA
Grievor

AND
FIJI SUGAR CORPORATION LIMITED
Employer

Appearances:
Mr. M. Anthony for the Grievor
Ms. D. Nair for the Employer

Date of Judgment: 30 June 2025

DECISION

KEYWORDS:
EMPLOYMENT LAW - GRIEVANCE OF UNJUSTIFIABLE AND UNFAIRLY DISMISSED ­ RELIEF SOUGHT FOR REINSTATMENT / COMPENSATION.

LEGISLATION:
THE EMPLOYMENT RELATIONS ACT 2007

Employment Relations Grievance

This is a grievance that has been referred to the Tribunal from the Mediation Service in accordance with Section 194 (5) of the Employment Relations Act 2007. The Grievor refuse to accept the short term contract.

"The griever claims that he was unjustifiably and unfairly dismissed from work therefore he is seeking reinstatement with no loss of pay and benefit. "

The Grievor, Tokowaitawa Leweduanivanua Saqatanaloaloakeivuravura registered his employment grievance against his former Employer, Fiji Sugar Corporation, with the Ministry of Employment on 1 June, 2023. The mediation sessions held on 15 June, 2023, was unsuccessful.

On 21 June, 2023 the employment grievance was referred to the Employment Relations Tribunal for adjudication.

The employment grievance was listed for mention on 29 September, 2023. On that day the Employer was not present in Tribunal and the matter was listed for mention on 25 October, 2023.

On 25 October, 2023, the parties seeking adjournment, reason being they are negotiating for settlement and the matter was listed for mention on 14 December, 2023.

On 14 December, 2023 the parties advise the Tribunal that the settlement is unsuccessful. Than the parties were directed to file their preliminary submissions within five weeks and the employment Grievance was listed for mention on 29 February, 2024

On 29 February, 2024 parties advise the Tribunal that they are ready to take a hearing date.. The matter was fixed for hearing on 4 April 2025 and the parties informed the Tribunal that they intended to call a total of 2 witnesses.

The Case of the Employer

The Employer stated in its preliminary submission that the Grievor's was employed by the Fiji Sugar Corporation as General Hand in the Packaging Plant Department from 28 March 2023 until 31 May 2023. The Employer further stated that the Grievor was given another extension of his employment contract till 30 June 2023. The Employer said that the Grievor refuse to sign and accept the extension.

The Employer also stated that the Grievor was a Union member and he was governed by the Fiji Sugar and General Workers Union Collective Agreement. According to the Employer the Greivor was not terminated but he refuse to accept the offer. As such the Employer had issued the Grievor with a certificate of service confirming his period of employment with the Employer and his position within the organisation.

Employer's Evidence

Mr .Sheik Aiyaz Ali, Human Resource Officer gave evidence for the Employer. In his evidence Mr. Ali stated that the Grievor was employed as a General Hand / overall Hand at the Packaging Plant and based in Lautoka. The witness·stated that the Grievor was given 3 months fixe term contract. And the contract was renewed after very 3 months. The witness further stated that the Employer decided to extend his employment contract term till 30 June 2023 and again on 30 May 2023 to provide an opportunity to work till 22 December, 2023 but the Grievor refuse to accept the offer. The witness stated that the Grievor was not terminated but he refuse to accept the offer of extension of his contract.

The Employer concluded the case making the following documents as exhibits

E1: Grievor employment contract dated 27 March 2023

E2: Grievors letter of extension of contract dated 1 May 2023

E3: Extension of employment contract letter dated 25 May 2023

E4: End of employment Contract dated 31 May 2023

The case of the Grievor

In his evidence the Grievor stated that he was employed by the Fiji Sugar Corporation Limited and he had worked for the employer since 2020 as a General Hand in packaging plant. The Grievor said that his employment was terminated in 2020 reason being he did not get Covid vaccine. The Grievor further stated that he was reemployed in 2023 and he was on 3 months contract. He said that his was contract was renewed every 3 months. The Grievor stated that since he was a Union member the Union advise him not to accept or sign a short term contract. As such he refuse to sign and accept the offer and left the employment.

Analysis and the law

The issue of summary dismissal is provided for in Part 5 of the ERA sections 33 as follow:

Summary dismissal

33. --- (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 orders 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 workers 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.

Based on the evidence, the Tribunal has to determine whether the dismissal was lawful. The Tribunal must consider whether the cause of termination and the process which led to termination was proper. Hence, the Tribunal must establish whether the Employer had accorded procedural fairness at the time of and leading to the termination.

During the cross examination the Grievor admitted that he had signed the employment contract. The Grievor also admitted that the contract was valid for 3 months and it was subjected for renewal depend on the work. The Grievor stated that his employment contract was renewed but he did not accept the offer, because he was advised by the Union not to accept a short term contract and he refuse to sign. (Exhibit 4).

RE: END OF EMPLOYEMENT CONTRACT

Reference is made to your employment letter dated 01 May 2023. As indicated in your employment extension, your employment will end on 31 May 2023.

We would like to reiterate that the Corporation had approached you twice in ensuring your service with the Corporation continues as per the business requirement without changing any terms and conditions of your employment contract dated above. The discussions took place on 25 May 2023 to extend your contract term till 30 June 2023 and again on 30 May 2023 to provide an opportunity to work until 22 December 2023.

However, you declined both this employment opportunity on your own will despite our several approaches.

Therefore, we have explored all the avenues and unfortunately cannot engage you any further due to oen decision thus, your last day of work is 31 May 2023.

The Corporation would like to thank you for your service of 2 months and 03 days and wish you well for the future. Any dues owing to you till this day shall be paid to you in the next pay- run provided all assets belonging to the Corporation is returned.

Yours faithfully

(Romit Prasad)

ACTING OPERATIONS MANAGER
PACKAGING PLANT

However, Mr. Ali confirmed that there was no changes on the terms and condition of the Grievor's employment, but only changes were made was that his terms has been extended. Mr. Ali also stated that the Union has to intervene when there are changes in the terms and condition of the Grievor's contract and in this case the terms and conditions of the employment contract remain same.

Furthermore, the Tribunal finds that there is no clause in the Collective Agreement that says that the term of employment for union members has to be indefinite. The Collective Agreement expressly states that employees can be employed on contractual terms of 12 months or less or 12 months or more. A fixed term employment contract is the true intention under the Collective Agreement.

In light of above the Employers and employees are entitled to enter into fixed term contracts is with a clause that allow for extension provided that the contract is freely entered without any coercion. Furthermore the Fiji Sugar Corporation is a statutory Authority and the employees cannot have an open-ended indefinite contract. Reason being the Fiji Sugar Corporation is bound by budgets and operational costs.

The Tribunal notes that the Employer's position is that if an employee becomes a union member then during the period of employment relevant terms of the Collective Agreement will become implied terms into that union members employment contracts. The Employer in this case stated that the Grievors contract came to an end and proper notification has been made to him. As a result the Employer had fully complied with the Collective Agreement.

In the case of Fiji Public Service Association vs Fiji Institute of Technology of Fiji (2008)Arbitration Tribunal Mr. W.D. Calanchini: stat that:

"When the employee has accepted his individual contract and commenced employment, as a worker, he has the right to join the trade union (in this case the Association) under section 33 (1) of the Constitution. Under section 33 (20 employee who have become union members have the right to bargain collectively. However the right to organize and bargain collectively are rights which accrue to workers once they have commenced employment i.e to workers. The right does not apply to the unemployed or those who have not commenced employment.

When an employee on an individual contract has joined a Union that is a party to a Collective Agreement, then the provisions of the Collective Agreement become an implied condition of the employee's contract of service (see 34(7) of the Trade Dispute Act). The Collective Agreement is not the contract of services but rather an implied condition of the contract of services".

The duty is cast upon this Tribunal to determine what is fair and equitable in all the circumstance of the case. That must include the Fiji Sugar Corporation position as an Employer dealing with several categories of employees.

The Grievor had stated in his Form ER1 that "I was employed by FSC in their packaging plant department on contract. During this period of employment, I had joined the National Union of Workers as a Union member. Since I had joined the Union my terms and conditions of employment is as per the Collective Agreement between NUW v FSC. FSC has alleged that there was a discussion on 25 May 2023 regarding my employment. However, this is false because I had already knocked off work and was home. I contend that FSC is in breach of the Collective Agreement by termination my employment.

I contend that my termination is unfair, unjust and wrong and I seek reinstatement with no loss of pay and benefits. "

"Employment grievance" means a grievance that a worker may have against the workers employer or former employer because of the workers claim that_

(a) The worker has been dismissed;

The Grievor admitted in his evidence in chief that he was not terminated but upon expiring of his contract with Fiji Sugar Corporation offered an extension but he refuse to accept the offer and left. The Tribunal finds that the Grievor was not terminated but he abundance his employment on his own will. As a result his claim for unfair termination is wrong.

The Tribunal finds that the Grievor has failed to establish an employment grievance based on unfair termination.

The Tribunal orders as follows:

1. The claim is therefore struck out.

2. The parties are to bear their own cost.

Dated at Lautoka this 30 June, 2025.

Aleem Shah
Legal Tribunal