IN THE EMPLOYMENT RELATIONS COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ERCA No. 10 of 2019

BETWEEN:

ARTIKA DEVI

APPELLANT

AND:

PACIFIC PIPELINES AND GEOSYNTHETIC LIMITED

RESPONDENT

BEFORE:
M. Javed Mansoor, J

COUNSEL:
Mr. D. Nair for the Appellant
Mr. F. Haniff for the Respondent

Date of Hearing:
29 November 2019

Date of Judgment:
23 December 2021
JUDGMENT

EMPLOYMENT LAW		Termination of employment - Dismissal related to incompetence – Dispute related to dismissal date – Maternity leave – Dismissal during maternity – Whether dismissal related to maternity – Assessment of evidence – Section 104 Employment Relations Promulgation 2007 

1.	This is an appeal by the appellant against the decision of the Employment Relations Tribunal (tribunal) of Suva dated 5 July 2018. The tribunal held that the respondent’s dismissal of the appellant’s employment was fair and dismissed the application for compensation.

2.	The appellant was employed by the respondent as its accountant. The parties differed considerably as to the date of termination. According to the appellant she was informed of her dismissal on 14 November 2016 while she was on maternity leave. She contended that the dismissal was a result of her pregnancy. The respondent claimed that her employment was terminated by letter dated 5 July 2016. The dismissal letter stated that the appellant was dismissed due to poor performance and incompetence. 

3.	In its order, the tribunal stated that the appellant commenced employment on 27 July 2015 as the company’s accountant, and that there were allegations that the employee was not performing and company accounts were not prepared on time. The tribunal made the finding that there were several email correspondences that were sent to the appellant pertaining to the late submission of vital information for the preparation of accounts. The tribunal concluded that the appellant’s employment was terminated following a meeting between the appellant and Mr. Sahai, the director, during which the employee had become abusive and walked out. 

4.	The tribunal noted that the appellant had denied receiving some of the emails which the respondent had sent her, that the employee’s relationship with her employer could not be salvaged, that she had verbally abused her employer not once but twice, that her performances contributed to the delay in filing the employer’s tax returns and that concerns regarding such delays were initially raised by Mr. Sahai and, thereafter, by the external accountant. The tribunal concluded that the timely preparation of accounts was an essential term of the appellant’s contract of employment and that the employer was justified in terminating the employee’s employment.  

5.	The appellant raised eight grounds of appeal. In summary, these state that the tribunal erred in the findings that were made when it failed to take cognizance of the following matters: the restriction imposed on an employer, in terms of section 104 of the Employment Relations Promulgation 2007 (the Promulgation), in dismissing an employee, the respondent’s failure to give written reasons for the dismissal, the employer’s failure to issue a certificate of service, rendering the dismissal unfair, the unjust treatment of the employee when her wages were ceased on grounds of pregnancy, that the appellant commenced employment on 11 May 2005, whereas the tribunal’s finding was that it was on 27 July 2015, that the appellant was entitled to 84 days maternity leave and there was no basis to hold that the employee was dismissed on 5 July 2016. 

6.	On behalf of the respondent, its director, Mr. Ashwin Sahai and an accountant attached to the respondent’s external accountants, Mr. Ashwin Kumar, gave evidence. The appellant and a former employee of the respondent who was attached to the accounts division, Priyashni Devi Singh, gave evidence on behalf of the appellant.

7.	The parties were at odds not only in regard to the dismissal date, but also concerning the appellant’s commencement of employment. The appellant claimed that she commenced employment on 11 May 2005. In his evidence, the respondent’s managing director stated that the appellant commenced employment in 2015. This matter can conveniently be disposed of before examining the other grounds. 

When did the appellant commence employment?
8.	A finding made by the tribunal is that the appellant commenced employment with the respondent on 27 July 2015. This finding is contrary to the evidence that was before the tribunal.   

9.	The finding may have been based on the brief of evidence dated 14 September 2017 provided by Mr. Ashwin Sahai and his oral testimony to the tribunal. The appellant stated in her evidence that she was employed for a period of 11 years by the respondent, which appears to have been known as Pacific Pipelines & Roadcare Equip Ltd prior to a name change. The 11 year period is also to be found in the appellant’s statement contained in the referral of this grievance to mediation. 

10.	The employee’s contract, dated 27 July 2015, tendered as evidence by the respondent, confirms that “the director in his meeting on 11 May 2005 has appointed you as the accountant with effect from 11 May 2005”. In an email dated 4 August 2016 produced on behalf of the respondent, Mr. Sahai states that the “last 11 years of his teaching has earned nothing”. 

11.	The record contains a letterhead of Pacific Pipelines & Geosynthetics Ltd dated August 2005. In it, Mr. Aswin Sahai, the managing director, confirmed that the period of probation had ended and her employment was made permanent. A handwritten note at the bottom of the letter states that the actual date of the letter was 22 July 2016. It is unclear as to who wrote this note. The year is possibly erroneously stated as 2016. The contract refers to the year 2015.

12.	Presumably, the employee was without a written contract of employment from 2005 to 2015. The appellant was not challenged on her claim that she was employed since 2005. The error raises the point whether the correct finding on the matter could have yielded a different conclusion by the tribunal.

Dismissal date
13.	The manner and, in particular, the appellant’s date of dismissal are matters of controversy between the parties. 

14.	The appellant denied receiving the letter dated 5 July 2016. She said she learnt of her dismissal when Mr. Sahai called her husband on 14 November 2016 ((the reference to grievance gives the date as 14 October 2016). She said that the dismissal letter was first produced before mediation services. There is no evidence of acknowledgment of the letter by the appellant. Material circumstances related to communicating the dismissal to the appellant are not found in the record. Evidence as to how the termination letter was handed over, where it was handed over and whether the appellant declined to sign and acknowledge receipt of the letter would have been useful to the tribunal as well as to this court in properly adjudicating the matter. The tribunal held that the appellant’s service was terminated by the letter dated 5 July 2016. However, the tribunal’s reasons for reaching this conclusion are not stated in its order. 

15.	In regard to the appellant’s dismissal, Mr. Sahai insisted that he terminated the appellant’s employment on 5 July 2016 following a meeting on that day. At the meeting, he said, the appellant was abusive towards him. Mr. Sahai stated that the dismissal letter was prepared by his secretary. The letter stated that termination of employment was due to her poor performance and incompetence at work, and that it was the directors’ decision to terminate employees whose performance is poor. The letter stated that she had not shown any improvement in her accounts work as a finance officer for Pacific Pipelines & Geosynthetics Ltd. The letter continued, “This is in immediate effect please do your necessary handing over and vacate this office as soon as possible”. The termination letter makes no reference to the employee’s abuse of her managing director. The appellant’s contract stipulated a notice period of one month. However, the letter seems to suggest that the employee was dismissed without notice, and expected to vacate the office soon after handing over tasks.  

16.	The appellant’s evidence was that though she reported to work on 5 July 2016, she did not have a meeting with Mr. Sahai on that day. She continued to work in July and a meeting was held on 22 July, after an employee of the accounts division left the company. Her evidence was that during that period she was teaching Mrs. Sahai, who also worked for the respondent, certain aspects of accounting work. She said she was admitted to the CWM hospital for her confinement on the following day by the respondent’s general manager. Her admission to hospital is supported by a medical certificate, and was not challenged by the respondent. 

17.	By letter dated 25 July 2016, sent by email to the managing director (with attention drawn to the general manager/ director) titled “Re: Application for Maternity Leave”. The appellant stated that she was writing to inform of her pregnancy and her intention to go on maternity leave for 84 consecutive days, and that she intended to start her maternity leave on 1 September 2016 and return to the office on 16 September 2016. Stating that she was advised by doctors that her pregnancy was high risk, the appellant indicated that her application could fluctuate and she may be admitted earlier than the due date. She thanked the management in advance for allowing her time and undertook to present the doctor’s sick sheet for her maternity leave. This leave application was sent nearly three weeks after the employee is said to have been dismissed by letter dated 5 July 2016. 

18.	In his email response of 4 August 2016 at 8.09 pm to the appellant’s leave application of 25 July 2016, Mr. Ashwin Sahai stated:

“Artika, 
I am not interested in your leave letter. I have advised Prenita and you better need to discuss this with her. 

Your performance as the team leader has bought lot of draw back in my company and thus this has prompted me to take the full control of the accounts dept. to have thing under my supervision which is now hindering my part of work as well. 

You are paid to perform with the responsibility but this has fallen over. I am sorry to say that based on your behavior two weeks ago and last 11 years of my teaching has earned nothing.

You must understand my position as I have no interest to deal any further”

19.	The managing director’s response sent nearly 10 days later did not question the basis on which the dismissed worker sent in an application for maternity leave. Leave, post dismissal, is not a matter that could ordinarily have arisen after 5 July 2016 from the respondent’s point of view. The appellant was told to discuss with Prenita. It appears that Prenita is another employee of the respondent. Prenita is Mr. Sahai’s wife. The evidence disclosed that Prenita and the appellant are sisters. The tone of the letter, though expressing anger, gives no indication that the appellant’s employment had ended by the time the leave application was sent or even at the time of Mr. Sahai’s response.

20.	The following day, on 5 August 2016, the appellant wrote by email:

“Hi Boss

My apologies what happen on Friday last week. I was depressed and may have said something to you in anger which shouldn’t have happen. 

Can we meet tomorrow and discuss about handing over and my last week pay.

I hope you understand my situation and once again I apologise”   

21.	There was no reply to the appellant’s email dated 5 August 2016.

22.	Mr. Sahai made reference to an incident concerning the appellant. In his evidence he said that the appellant abused him. The tribunal accepted this evidence and has noted that the appellant abused Mr. Sahai not once but twice.  In his email of 4 August 2016, Mr. Sahai alludes to the appellant’s behaviour two weeks previously. It is possible that these refer to the same incident. Two weeks prior to 4 August is about 20 July 2016. This is well past the letter dated 5 July 2016. 

23.	In her testimony, the appellant referred to a meeting on 22 July 2016. She said that the meeting related to the resignation of an accounts division employee and the allocation of her work. This was corroborated by the witness, Ms. Priyashni Devi. In cross examination, Mr. Sahai conceded that he held a meeting with the appellant on 22 July 2016. The meeting is indicative that the appellant reported to work on that day. Following the meeting on 22 July, the appellant said she was not paid her wages for two weeks. Payment was made, she said, after she apologised to him.

24.	Mr. Sahai conceded paying the appellant a salary on 2 August 2016. However, his evidence is that she was paid only for the purpose of completing the handover of work, and that her employment was terminated on 5 July 2016. In other words, the appellant has continued in employment for quite some time, even though she was dismissed with immediate effect. 

25.	The evidence is not clear on the type of work done by the appellant from 5 July 2016 stretching for several weeks when the letter stated it was “with immediate effect” and she was asked to “vacate the office as soon as possible”. Mr. Sahai explained that she was handing over work and that she took her time in doing so. If that is the case, the employer has shown much restraint. The dismissal letter relied upon by the respondent does not suggest that the appellant could take her own time to hand over responsibilities, overstay her welcome by four weeks and be paid for that period.

26.	The appellant stated that the attendance book would attest to the fact she worked until 17 August. She said that she reported to office from 1 to 11 August and the period 12 to 17 August was covered by a sick sheet, which were handed over to Mrs. Sahai. In the face of the appellant’s denial of dismissal on 5 July 2016 and her claim that she continued to work until August 17, it was open to the employer to tender the attendance register as evidence and establish the factual position. This was not done by the respondent. The appellant’s evidence concerning her leave application, pregnancy and admission to hospital by the respondent’s general manager were not challenged by the respondent. 

27.	I am inclined, therefore, to accept the appellant’s position in regard to the letter dated 5 July 2016. Even if a draft letter was prepared, as stated in Mr. Sahai’s testimony, there is no evidence that the dismissal letter was communicated to the appellant. The surrounding circumstances lead to the inference that the appellant’s employment was not terminated on 5 July 2016.

28.	The appellant’s evidence is that Mr. Sahai called her husband on 14 November 2016, and told him that she need not report to work. She claimed she heard their conversation as the phone’s speaker was turned on. 

29.	In regard to the disputed date of dismissal, a brief reference to section 28 (3) of the Promulgation is not out of place. Neither party made reference to this section.

30.	The appellant’s contract of employment dated 27 July 2015 contains a clause on termination. Paragraph (I) states that in all cases, other than gross misconduct, the employee would be entitled to written notice of termination or a payment in lieu. The clause states that the contract may be terminated at any time by either party by giving a month’s notice. The termination clause also made provision for termination by the employer without giving notice in certain situations. In this case, the appellant was not given notice.

31.	If the letter dated 5 July 2016 is to be relied upon, the appellant is asked to leave as soon as possible. Section 28 (3) states that if notice has been given in accordance with section 29 to terminate a contract for an indefinite period but the “employer permits the worker to remain or the worker, without the express dissent of the employer, continues in employment, then unless the contrary is shown, the notice is deemed to be withdrawn with the consent of both parties”. Section 28 (3) applies in respect of a dismissal with notice. The question whether the provision would apply in respect of a dismissal without notice was not raised at the hearing. I will refrain from considering this aspect of the law.

Was termination related to maternity?
32.	The tribunal concluded that termination was justified saying that the appellant neglected her work as the respondent’s accountant. 

33.	The appellant’s main assertion is that she was terminated during her pregnancy, after communicating her health condition to the employer and seeking leave for her confinement. This issue has not received attention in the appealed order. This was the appellant’s contention in the grievance referred to mediation. She gave evidence to this effect. The evidence on this matter has not been subjected to evaluation. The question whether dismissal was related to the appellant’s pregnancy or whether there was a breach of section 104 of the Promulgation was not considered by the tribunal.

34.	Section 104 of the Employment Relations Promulgation 2007 states:
(1)	“No woman must be terminated from employment on the ground of pregnancy.

(2)	Where a termination occurs where a woman is pregnant, the burden of disproving that the termination was related to that condition, rests with the employer. 

(3)	If, after three months of the expiration of her maternity leave, a woman remains absent work, as a result of illness (certified by a registered medical practitioner) arising out of her pregnancy or the birth of her child rendering her unfit for work, her employer may give her notice of termination. 

(4)	If a woman is terminated under sub section (3) she is deemed to have been employed up to and including her period of maternity leave for the purpose of computing her period of employment under this part”.

35.	The enactment is very similar to the wording of article 8 of the Maternity Protection Convention 2000. The convention is yet to be ratified by Fiji. The phrase “related to that condition” in sub section (2) would mean connected to the pregnancy. The employer has the burden of disproving that the termination was not related to the pregnancy. While section 104 does not prevent dismissal during pregnancy, it puts an employer on notice that it is for the employer to satisfy the tribunal that the worker was not dismissed for reasons related to her pregnancy.

36.	The appellant went on maternity leave on 18 August 2016. During her pregnancy, she said that Mr & Mrs. Sahai tried to get her to resign, and when she refused they discussed the termination of her employment. At that point her labour pains had commenced and she was taken to the CWM hospital and admitted by the company’s general manager. She told the tribunal that she had to discuss her maternity leave application with Mrs. Sahai as Mr. Sahai would not talk to her. She said that the respondent did not pay her wages for the period 4 to 17 August. 

37.	The medical report dated 30 September 2016 signed by Dr. Losalini Tabakei, surgical registrar of the CWM Hospital stated that the appellant was admitted to the hospital on 19 September 2016 and was in intensive care from 29 September following a caesarian section complication. The report stated that the appellant would not be able to return to work for a month to allow for full recovery from major surgery. The appellant submitted medical certificates dated 15 July 2016 (for the period 12 July to 18 July), 15 August 2016 (for the period 12 August to 15 August and for review on 18 August) and 18 August 2016. The appellant claimed that she was in service until 17 August and was admitted on 18 August 2016. It stands to reason, on the available evidence, that the medical certificates were obtained for the purpose of submitting them to her employer. 

38.	The appellant said that she gave birth on 12 September 2016, and that her employment was terminated by a telephone call Mr. Sahai made to her husband on 14 November 2016. She testified that her employment was terminated as a result of her pregnancy.

39.	The burden of disproving that termination of the appellant’s employment was not related to her pregnancy lay with the respondent. The required standard of proof was on a balance of probabilities. The tribunal did not make a finding on the matter. I am of the view that the employer failed to discharge the burden placed by section 104 (2) of the Promulgation. Therefore, the dismissal must be regarded as contrary to law. 

Findings related to the appellant’s performance 
40.	The court will not dwell at length on the findings and inferences concerning the appellant’s performance and conduct as the respondent’s accountant. However, the court deems that an observation is appropriate. 

41.	Mr. Sahai said in his testimony that he had asked the appellant to resign on 22 December 2015 because she had neglected her work. In cross examination, the appellant denied she was asked to resign. She also denied receiving a warning letter dated 6 April 2016. She denied receiving emails dated 21 August 2015 and 22 December 2015 which were claimed to have been sent by Mr. Sahai. Her denial was notwithstanding that the printed emails showed her email address as the recipient. In reaching a conclusion on the appellant’s performance, the tribunal has made a general reference to the emails. There is no evaluation of the evidence or weight given to the contested emails in reaching those findings. 

42.	Mr. Sahai and the external accountant stated in their testimony that the appellant failed on several occasions to prepare and submit timely financial statements and that as a result income tax, value added tax and other returns could not be filed on time. They testified that these issues were taken up with the appellant but there was no improvement in her performance. 

43.	In her evidence, the employee gave reasons for the delay in the preparation of accounts. Her evidence was to the effect that the accounts division was understaffed, and as a result had far too much work which they could not handle. She said that the accounts division staff constantly left the respondent’s employ. She attributed the accounts staff turnover to Mr. Sahai’s harsh and abusive treatment of the staff. 

44.	The appellant’s witness, Ms. Priyashni Devi, corroborated the appellant’s evidence. Ms. Devi told the tribunal that the delay in preparing accounts in 2015 and 2016 was due to a shortage of staff, and those shortfalls were not looked into by the management. Mr. Sahai denied that he was made aware of the shortfall in staff in the accounts department. The appellant and Ms. Priyashni Devi stated in their evidence that when the delayed entry of cash book entries was raised by the external accountants, the accounts staff had worked late at night to complete the financial statements. This evidence was contrary to the claims made by the respondent. The order did not make reference to the evidence explaining the delay in preparing the accounts.

45.	The tribunal accepted the evidence given on behalf of the respondent, though the reasons for doing so are not clearly stated. The evidence required a more detailed assessment in order to make findings that were germane to the material issues in this case. In that respect the tribunal has fallen short.

Conclusion
46.	Having perused the record of evidence, I am of the view that it would be just to set aside the decision of the tribunal. Overriding the findings of the tribunal is not a decision to be taken lightly. In this case, findings on some material issues are not to be found. The question whether termination related to the appellant’s pregnancy was not considered. The appellant’s period of service was wrongly taken as commencing in 2015, while the evidence before the tribunal is that she commenced employment in 2005. Importantly, this does not consider events during the employee’s previous years of employment, and the background in which the accounts prepared time. 

47.	It is important that an appellate court that is called upon to review findings of an original court be able to understand the basis upon which such findings are made. Clarity as to the evidence that is accepted on the one hand, and the evidence that is rejected by court is important. Competing evidence must be assessed and weighed. The tribunal’s decision must be based on an overall evaluation of the evidence. Findings of material primary facts and inferences are necessary to arrive at a just decision. 

48.	No evidence was led concerning the certificate of service. The appellant is entitled to a certificate of service from the employer. In the absence of evidence, an order will not be made on this ground of appeal. The appellant has substantially established the other grounds. 
 
49.	The appellant is entitled to recover lost wages and for some compensation for the manner in which her employment was terminated.  The appellant last drew wages on 2 August 2016. This is not in dispute. She claims to have worked until 17 August and there is evidence she was admitted to hospital on 18 August 2016. Her leave application dated 25 July is for the period 1 September 2016 to 15 December 2016. As a result of dismissal, her maternity leave was a reduced. The appellant was entitled for remuneration during maternity leave in terms of section 101 of the Promulgation. As her employment ceased on 14 November 2016, she will be paid her lost remuneration from 1 September to 14 November 2016. The appellant’s August 2016 remuneration is to be paid on the basis of the attendance register and for leave covered by sick sheets. Payment in lieu of unused leave is to be made in terms of the law. 

50.	In the overall context, compensation in a sum equivalent to six months remuneration would be just in addition to the sums recoverable as unpaid salaries together with statutory benefits that are due to the appellant. Compensation includes the period of a month lost as maternity leave as a result of the dismissal on 14 November 2016.   

ORDER
A.	The Employment Relations Tribunal’s order dated 5 July 2018 is set aside. 
B.	The appellant’s appeal is allowed.
C.	The respondent is to pay the appellant the following within 28 days of this judgment:
I.	Unpaid remuneration from 1 September to 14 November 2016;
II.	Unpaid remuneration for the month of August 2016;
III.	Unutilised annual leave;
IV.	Compensation equivalent to six months of remuneration. 

D.	The respondent is directed to pay the appellant costs in a sum of $1,500.00 within 28 days of this judgment.

E.	Either party may apply for directions related to these orders. 
Delivered at Suva this 23rd day of December, 2021

M. Javed Mansoor
Judge