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Namudu (as Administratix in the Estate of Maika Namudu) v Fijian Teachers Association [2023] FJHC 529; ERCC 02 of 2015 (4 August 2023)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCC 02 of 2015

BETWEEN:

JENI KAITANI NAMUDU as Administratix in the Estate of MAIKA NAMUDU
PLAINTIFF

AND:

FIJIAN TEACHERS ASSOCIATION
DEFENDANT

Appearances: Mr. I. Fa for the Plaintiff.
Mr. S. Valenitabua for the Defendant.

Date/Place of Judgment: Friday 04 August 2023 at Suva.
Coram: Hon. Madam Justice Anjala Wati.

JUDGMENT

1. Catchwords:

Employment Law – claim for compensation for unlawful and unfair dismissal of employment – whether the employer had valid and justifiable reasons to terminate the employment of the worker and whether it did so according to the prescribed procedures – whether the conduct of the employer in terminating the worker was such that it caused the worker humiliation, loss of dignity and injury to the feelings of the worker.

2. Legislation:

1. Employment Relations Act 2007 (“ERA”): ss. 30, 33 and 34.

_________________________________

Cause

1. The plaintiff Maika Namudu was employed as the General Secretary of the defendant since 1997. His final contract of service with the employer was on 3 May 2013, to commence for a period of 3 years with effect from 27 May 2013.
   
2. The plaintiff was terminated from his employment on 24 January 2015. He has brought this action claiming damages for unlawful and unfair dismissal.
   
3. During the pendency of the proceedings Maika Namudu died. His wife Jeni Kaitani Namudu took over the proceedings as the administratix in his estate. She was granted the letters of administration on 27 June 2019 appointing her as the personal representative in the Estate of her husband.
   
4. Before Maika Namudu was terminated, he was given a letter dated 15 January 2015 and informed to proceed to full paid annual leave for a month to allow the employer to look into certain allegations that were levelled against him. The letter did not identify the allegations at that stage.
   
5. Within 10 days he was terminated as the employer was of the view that amongst other allegations that existed against Maika Namudu, he was going against the directions in the letter and that he was going ahead to cause disrepute to the Executive Members and the Institution as a whole.
   
6. The letter of termination of 24 January 2015 contains several allegations based on which Maika Namudu was terminated. I will cite from the letter of termination the allegations:

“ (i) Unsatisfactory performance contrary to clause 13.0 (a) (i) of your contract in failing to efficiently manage the Secretariat’s financial affairs leading to mismanagement and theft of FTA funds by staffs that were later terminated. However, post-termination, nothing has changed or no effective theft preventative measures put in place, or effective financial safeguards employed, to stop theft.

(ii) Unsatisfactorily performed duties and deliberate acts of interference not in the interests of FTA pursuant to clause 13.0 (a) (v) of GS’s contract in failing to disclose or declare your conflict of interest in Taukei Results whom your SNQ Board appointed as property manager for Navakananumi Apartments which has as its Directors, your wife and daughter. If Joji Nakaora had not raised this allegation, then Taukei Results would not have terminated its contract with FTA.

(iii) You have failed to provide proof or satisfactory full medical report to FTAEC that you are in a good bill of health contrary to clause 2.0 (b) and (c) of GS’s contract.

(iv) Derogatory and defamatory email to Pio Tabaiwalu of SODELPA against the President and to COPE/EI against President among others, after you were sent on leave with pay. You conducted yourself in a manner that brings disrepute to the FTA, FTAEC, the President and members of FTA contrary to clause 4.0 (a) and (b) and pursuant to clause 13.0 (a) (ii) and (v) of GS’s contract.

(v) Insubordination of FTAEC in contacting Nemani Davui and Naomi Tagilala despite President’s letter to you requesting you not to contact staff during the one month period. Your acts and omissions are unbecoming of a FTA General Secretary and member”.

7. The defendant says that Maika Namudu’s contract of employment was terminated lawfully and fairly and as such he is not entitled to any damages.

Issues

8. The plaintiff’s claim requires me to determine the following:
   • (i) Was the plaintiff’s employment unlawfully terminated? and
   • (ii) Was the plaintiff’s employment unfairly terminated?
     
9. In order to determine whether Maika Namudu was lawfully terminated from his work, I need to examine the reasons and the procedure for termination. If the reasons are justified and the prescribed procedure observed and followed by the employer, the termination is lawful.
   
10. I will also have to examine the manner of dismissal to determine the fairness of the same. If the conduct of the employer is such that causes the worker humiliation, loss of dignity and injury to his feelings then the termination is unfair. Humiliation, loss of dignity and injury to the feelings of the worker arising from the dismissal or the fact of the dismissal itself is not compensable.

Evidence Law and Determination

11. I will deal with the issue of unlawful dismissal first.
    1. Unlawful Dismissal
       • (i) Were the reasons for the dismissal valid?
12. I will go through each allegation and determine whether the employer has, on the evidence before me, established the said allegation. The onus to establish that the allegations are justified and that there were valid reasons to terminate the work of the worker rests on the employer.
    
13. The first allegation is that the worker’s performance was unsatisfactory thereby breaching clause 13.0 (a) (i) of the employment contract. The specific allegation is that the worker failed “to efficiently manage the Secretariat’s financial affairs leading to mismanagement and theft of FTA funds by staff that were later terminated. It is alleged that post the termination of these staff nothing had changed or no effective theft preventative measures put in place, or effective financial safeguards employed, to stop theft”.
    
14. Clause 13 .0 (a) (i) of the contract of employment states that:

“The appointment may be terminated by the Executive Committee on the following grounds:-

(i) Unsatisfactory performance...”

15. No evidence was led on this 1^st allegation nor was any allegation put to Ms. Jeni Kaitani Namudu that Maika Namudu’s performance of his contract was unsatisfactory. There ought to have been evidence of mismanagement and theft, the nature and particulars of mismanagement and theft, which staff were involved and who all were terminated, what mismanagement and theft occurred after the alleged termination of staff, what was the requirement that the General Secretary was asked to implement to preclude future mismanagement and theft and how the General Secretary failed to preclude the mischief alleged. This ground was not established in evidence.
    
16. The second allegation is breach of clause 13.0 (a) (v) of the employment contract in that the worker failed to disclose or declare his conflict of interest in Taukei Results. It is alleged that the SNQ Board of FTA appointed Taukei Results as Property Managers for Navakananumi Apartments in which FTA has shares. It is alleged that Maika Namudu’s wife and daughter are directors of Taukei Results. It is further alleged that if Joji Nakaora had not raised this allegation then Taukei Results would not have terminated its contract with FTA.
    
17. To start off, I must say that it is admitted that Maika Namudu’s wife and daughter formed a limited liability company by the name of Taukei Results. The Director and Shareholders of this Company were the wife and daughter of Maika Namudu. The Company started carrying on the business as Property Managers.
    
18. There is a lot of work involved as Property Managers. The Property Managers are required to look after the property, do landscaping, cleaning it, finding tenants, arranging the flats for the tenants, handling vacant possession when the tenants move out and so forth. In return for managing the property, the Property Managers get paid.
    
19. The defendant FTA has shares in Navakananumi Apartments which has 21 apartments 14 of which is owned by the defendant. The evidence of the employer is uncontroverted that to select the property managers, a tender process is called. The tender process is handled by the General Secretary. When the tender process is complete, the General Secretary makes the decision on which Company is selected to run their properties and then he puts his recommendations to the Executive Committee. The final decision is with the Executives to make as to who should be selected.
    
20. Clause 11.0 of the employment contract states that the General Secretary which means Maika Namudu sits in the Executive Committee meetings as Ex-Officio Officer.
    
21. When Taukei Results tendered to be the Property Managers of the defendant’s property, it was the duty of the General Secretary to inform the defendant that he had a conflict of interest in the matter in that Taukei Results had his wife and daughter as its Directors and Shareholders. In its position as the General Secretary who was handling tenders and making recommendations as to which tender should be selected and then sitting in the Executive Committee meetings, there was actual conflict of interest.
    
22. Even if there was no actual conflict of interest, there was always potential conflict of interest. The General Secretary’s position was a very influential and powerful position. He can always influence the tender process and the extent to which he could do it always existed. Even in determining the kind of work that Taukei results should do and the amount of payments that ought to be made remained throughout the period of engagement. There would therefore always be a chance that conflict would arise with Maika Namudu. He ought to have then declared his conflict of interest. There is no evidence that he did. His family company was gaining financial advantage from the defendant and in working for the defendant, it was expected that there would be transparency and independence.
    
23. I find that the worker had deliberately not disclosed his conflict of interest. I further find that this non-disclosure by the worker was not in the interest of FTA and the conduct of the worker interfered with the efficient and effective administration of the FTA’s business and service to the Executive.
    
24. Plaintiff’s Exhibit 12 is the defendant’s Employee Manual 2010. Policy No. 13 covers the aspect of conflicts of interest. It reads:

“Policy Statement

1. General Guidelines (applicable also to all office members and consultants).
   

1. No employee is allowed to participate in, or influence, the purchase of goods or services from any company in which that employee has a direct or indirect financial interest.

2. Confidential information concerning the association’s/company’s activities may not be divulged to others without the approval of the General Secretary.
   
3. No employee shall use confidential information about the association/company for personal gain.
   
4. Other than a reasonable lunch or sales handouts such as pens, calendars etc, and employees shall not accept gifts from firms which supply or are interested in supplying products or services to the association/company. Under no circumstances may employees accept gifts of money amounting to no more than $20.00 from such firms. Employees uncertain about what constitutes a “reasonable lunch” or an acceptable gift should discuss the matter with the General Secretary.
   

2. Reporting Procedures
   

If it is determined that a certain employee is in a position where a conflict of interest may arise, the supervisor or manager is to discuss the matter with the employee and ensure that the employee is aware of this policy.

In such cases, the employee will be removed from the particular action or otherwise sheltered so that he or she is not in a position to influence any decisions to be made. Any employee who misrepresents information to the association/company in this area shall be subject to dismissal.”

25. The first paragraph under “Reporting Procedures” clearly covers potential conflicts of interest. If the worker had declared his conflict of interest, then the employer would have decided who will deal with the tenders, and if Taukei Results was selected as the Property Managers, who would deal with it on day to day basis.
    
26. I repeat that there are so many ways in which the worker can exert his influence for the benefit of his family company to the detriment of the employer. Some can be apparent and some can be hidden. That is why the worker had to disclose his conflict of interest and by not doing so, he has gone against the policies of the employer which is gross misconduct on his part.
    
27. The third allegation is that the worker had failed to provide proof or satisfactory full medical report to FTAEC that he was in good health which failure breached clause 2.0 (b) and (c) of his contract. Clause 2.0(b) and (c) of the contract of employment reads as follows:

“(b) Employment beyond the age of 60 shall be subject to satisfactory full medical report on his 60^th birth date and every year after.

(c) The medical examination shall be performed by an approved medical officer.”

28. The onus to submit the medical report on his health was on the worker. It is the worker who had to submit himself to an approved medical officer and provide a report to the employer. As the General Secretary, the worker ought to have known who was the approved medical provider and if there was none, to seek the directions of the Executive Committee.
    
29. There is no dispute that the worker was over 60 when he was continued to be engaged on 3 May 2013. There was a mandatory requirement that Maika Namudu submits a medical certificate every year on his birth date, that is clearly expressed in clause 2.0 (b) above. The contract started on 27 May 2013. In 2014 whenever it was the worker’s birth date he had to provide a satisfactory medical report. The worker did not provide the report. If there was any report in the file, the employer would have had it in its possession.
    
30. The worker breached a mandatory provision of his contract. The contract of the worker would lapse if he did not fulfill the mandatory conditions of his employment. Since this was an important matter that affected the continuity of his employment, the worker ought to have complied with the provisions of the contract. I do not find that the employer was wrong to find that the worker had acted in contravention of his contract.
    
31. The fourth allegation is that the worker wrote derogatory and defamatory email to Pio Tabaiwalu, the General Secretary of SODELPA Party against the President and to COPE/EI against the President and members of the FTA contrary to clause 4.0 (a) and (b) and pursuant to clause 13.0 (a) (ii) and (v) of the employment contract.
    
32. The above clauses which are alleged to have been breached reads as follows:
    

“4.0 Action to Bring Disrepute

(a) The Officer must conduct himself and his affairs in a manner, which does not bring and is not likely to bring disrepute to the Association and its members and the Executive. This includes avoiding the possibility of bankruptcy or other insolvency proceedings and civil or criminal proceedings, which may call into question his fitness to be employed by the Association whether generally or in the position to which this contract relates.

(b) If the Officer considers that there is a risk of any issue arising which may put him in breach of this clause, he shall immediately disclose all relevant circumstances in writing to the President to allow the Executive to determine [at its sole discretion] whether or not steps need to be taken [including the termination of this contract to preserve the interest of the Executive and of the Association and its members.

13.0 Termination of Appointment

(a) The appointment may be terminated by the Executive Committee on the following grounds:

(ii) Repeated absence from work without authority or satisfactory explanation/report;

(v) Any deliberate acts taken that may be construed by the President, Executive Committee or its designate not to be in the interest of FTA or interfering with the efficient and effective administration of the FTA Office and service to the Executive.”

33. Pio Tabaiwalu had on 19 January 2015 written to the worker enquiring about atenancy agreement. SODELPA Party is one of the tenants of FTA. The email by Pio Tabaiwalu reads:
    

“Ni Bula vinaka Turaga Naita ka vakanuinui vinaka ni Yabaki vou vei kemudrau na veiwekani.

Just following up on the new tenancy agreement for premises at 66 McGregor Road. Kindly request if this could prepared. I am sending Tudovi our office staff to pick it up today if possible. I need the agreement to done before our Party executive meeting on Wednesday.

Vinaka.”

34. At the time Pio Tabaiwalu wrote the email, he did not know that the worker had been sent on leave with full pay with effect from 15 January 2015. The worker then writes back and replies to the email and says:
    

“Naita

Au kerekere mo drau vetalanoa kei Leawere. E sa tukuni wei au meu se vakacagicagi mada I vale me Vula dua. E so beka n aka erau raica o Gauna Halofaki kei Joji Nakaora niu vakayagataka vakatawadodonu. This is the problem with the tunneled vision, good for nothing and inexperienced leaders. E rau vinakata meu se tei vaqaqai mada

Ni kalougata tiko

Vinaka”.

35. Pio Tabaiwalu is not an employee of FTA but a General Secretary of a political party SODELPA. The email to a SODELPA member indeed is an email that reflects negatively on the institution as it is alleged to have useless leaders who are not able to manage the institution. There was no need for Maika Namudu to have written that in the email. All he needed to do was to inform Pio Tabaiwalu (if anything) that he was sent on leave by FTA and that he cannot attend to the request. He could have also directed Pio Tabaiwalu on whom to contact for the tenancy agreement. The worker could have also directed the email to the President or someone else in charge without responding.
    
36. I find that that was a breach of clauses 4.0 (a) and 13.0 (v) of the contract of employment. The worker had conducted himself in a manner which was likely to bring disrepute to the Association and its members and the Executive. The actions of the worker was not in the interest of FTA as it was alleged to have incompetent people to run its affairs.
    
37. If the worker established any one of its allegations that what he said was the truth then I would not arrive at the finding that the employer was brought to disrepute. There was no evidence by the plaintiff that the leaders of FTA were useless and good for nothing. In that way, his allegations were improper, unfair and unnecessary.
    
38. I now turn to the plaintiff’s email to COPE/EI. The new General Secretary of FTA Mr. Paula Manuma Nunitoga who gave evidence on behalf of FTA explained what COPE and EI is and what are its roles. COPE means Council of Pacific Education. EI means Education International. COPE is a parent body for all the Teachers Union. FTA is affiliated to this Council. COPE is made of Council of Educators in Pacific. It organizes workshops and conferences where all Educators come together. The Educators update themselves on International standards regarding curriculum development, teaching strategies and so forth. COPE affiliates itself to Education International which is a world body.
    
39. On 19 January 2015, COPE/EI had sent to the plaintiff and others an email informing about the upcoming Conference on Educational Leadership in Amsterdam, Netherlands on 3 to 4 March 2015. The plaintiff responds on the same day in the following manner:

“I am sorry I have been sent home on leave by the current inexperienced leadership for some unfounded allegations levelled at me. I need COPE/EI to conduct an immediate investigation on FTA current leadership with their allegations and in the meantime FTA should not be given opportunities to attend any EI Conventions and Workshops until the outcome of your investigation.”

40. COPE/EI of course did not know that the General Secretary had been sent on leave pending investigations against him. It need not be told as it had nothing to do with the internal workings of the FTA. When Maika Namudu received that email, he ought not to have responded to that email as it did not require response Even if it did, all that needed to be done was that the next person in charge be forwarded the email. Maika Namudu unnecessarily goes ahead and asks for something with interferes with the workings of the Institution. He asks for an investigation against FTA leaders and also acts against its effective management by requesting that it not be allowed to attend conferences and workshops. This is a request to interfere in the workings of the employer which was unnecessary and in breach of clause 13.0 (a) (v) of the contract of employment.
    
41. I now turn to the fifth and the final allegation in the letter of termination. The allegation is the act of insubordination to FTAEC. This is in reference to plaintiff’s Exhibit 2. Plaintiff’s Exhibit 2 is a letter by the FTA of 15 January 2015 when it had sent Mr. Maika Namudu on one month full pay leave to investigate all allegations against him.
    
42. In that letter Mr. Maika Namudu was requested to “keep away from all FTA premises and not to communicate to any worker during the period”.
    
43. Defendant’s Exhibit 1 is an email from Maika Namudu to Nemani Davui and Naomi Tagilala. Nemani Davui is an Accountant at FTA and Naomi Tagilala is an FTA employee. That was agreed in evidence.
    
44. Maika Namudu writes to both of them and says:

“Since I have been sent home for a month you are now left with the biggest responsibility and that is to protect FTA’s finance. Do not hesitate to point out what’s wrong and stand firm oj (sic) your good decision. The current standoff will be short lived. Take note of all anomalies by GH#JH.”

45. The evidence of the employer is that GH stands for Gauna Halofaki who was the President of the FTA and JH stands for Joji Nakaora who was the Treasurer of FTA.
    
46. The plaintiff’s counsel insisted in his cross examination evidence that the email is only words of encouragement to the fellow remaining employees and nothing adverse.
    
47. I find that there is a misreading of the email. The email not only is sent in contravention of the directions of the President of 15 January 2015 not to contact any staff of FTA but is also derogatory and implies misconduct on the part of the President and Treasurer. The email is also inciting another staff to collect evidence against the President and the Treasurer. What does the words “take note of all anomalies by GH# JH” otherwise means.
    
48. Maika Namudu’s action amounted to insubordination and disobedience of lawful directions. I say that the directions by the President of 15 January 2015 was lawful because every employer who sends an employee home pending investigation does not wish any of its remaining employees to be biased, interfered with and affected by the process so that an independent examination of the allegation is carried out. The employee who has been given such directions can make requests to the employer for further materials to address the allegations made against it. It can contact the employer but only for reasonable and necessary purposes.
    
49. Any contact to express frustration and to malign other officers or to interfere, impede or direct any staff to do any other work is going against lawful directions and an impediment to effective management of the employer’s work. I find that the worker had breached clause 13.0 (a) (iii) and (v) of the employment contract.
    
50. Having analysed all the allegations, I find that the employer had valid reasons to terminate the worker’s contract of employment for all the reasons set out in the termination letter except for the first reason.
    

ii. Procedure for Dismissal

51. I now proceed to look at whether there was procedural compliance to terminate the worker. This was a case for summary dismissal. Let me first address the procedure that the law requires that should be invoked in cases of summary dismissals.
    
52. S. 33 provides the circumstances in which an employee can be dismissed from work without notice. It outlines the following circumstances:
    
    • (a) Where a worker is guilty of gross misconduct.
    • (b) Where a worker willfully disobeys lawful orders of the employer.
    • (c) Where there is lack of skill or qualification which the worker expressly or by implication warrants to possess.
    • (d) Where the worker has substantially neglected his or her duties, or
    • (e) Where the worker is in habitual absence from work without the permission of the employer and without other reasonable excuse.
      
53. Succinctly, a worker can be terminated for all causes outlined in s. 33(1) (a)-(e) of the Employment Relations Act without notice. In this case the employer invoked s. 33(1) (a), (b) and (d) of the Employment Relations Act to carry out the summary dismissal. I therefore, find that under the law the worker was not entitled to notice.
    
54. The employee’s counsel is however relying on clause 13 of the employment contract which says that even for dismissal for causes such as those outlined in s.33 of the Employment Relations Act, the contract stipulates that one month’s notice would be provided or one month’s salary in lieu of notice would be paid. The evidence adduced through the plaintiff’s witnesses indicates that Maika Namudu had not been given the requisite notice or paid the 1 month’s salary in lieu of notice at the time of his dismissal but that he was paid afterwards.
    
55. I find that since the contract provided for notice to be given even in cases for termination for lawful causes, the provision of the contract must be followed as those are the terms on which the party contracted and the terms are better than that provided by the law. If the contract goes against the rights of the worker enshrined in the law, than those terms will not apply.
    
56. 30 of the Employment Relations Act is very a crucial provision in this case. It reads:
    

“30(1) Upon the termination of a contract of service, the employer must pay to the worker all wages and benefits then due to the worker by end of the following working day.

(2) The wages and benefits due to a worker under subsection (1) must, in the case of a worker who is entitled to receive notice form the employer in accordance with this Act or the worker’s contract (the terms of which relating to notice are not less beneficial than this Act), include wages and benefits payable in respect of services rendered during the period of notice or payable in lieu of the notice.

(3) If payment is made in lieu of notice the payment must include the wages and benefits that would have been payable to the worker if the worker had worked during the period of notice.

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

(5) The termination of a contract of service under this Act must be without prejudice to any accrued rights or liabilities of either party under the contract or section 28.

(6) 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.”

57. Nothing precluded the employer from carrying out the summary dismissal which means to terminate the contract forthwith. Since the employer had contracted to provide notice whilst terminating for lawful causes, what it could have done was to make payment in lieu of notice. In that way, it could exercise its rights to summarily dismiss the worker and also fulfill its obligation under the contract. The time for payment of the one month’s pay in lieu of notice is at the time of dismissal under s. 34 of the ERA which states that “If a worker is summarily dismissed for lawful cause, the worker must be paid on dismissal the wages due up to the time of the worker’s dismissal.” I am using s. 34 to work out the time for payment because 1 month’s pay in lieu of notice is remuneration for one month’s work.
    
58. It is uncontroverted that the employer did not comply with the contractual requirement to pay the notice period on time. The letter by Fa and Company challenging the termination even mentions that the 1 month’s pay in lieu of notice had not been made. If it was, Maika Namudu would not have instructed his counsel accordingly. The evidence of Jeni Kaitani Namudu also indicates that payment of the 1 months’ notice period was not at the time of dismissal but afterwards.
    
59. Even the termination letter does not mention anything about the payment in lieu of notice. I therefore, accept that Maika Namudu was not paid the one month notice period at the time of the dismissal as required by law.
    
60. The law also requires that a worker be paid wages due up to the time of the worker’s dismissal. Mr. Maika Namudu was on a month’s leave on full pay since 15 January 2015. He was terminated on 24 January 2015. There is no evidence led on whether his up to date wages was paid to him at the time of the dismissal. I therefore, cannot make a finding that s.34 was breached in respect of payment of up to date wages.
    
61. The termination letter is silent on the aspect of payment of up to date wages but since the plaintiff has not made an issue about this, I cannot make a finding on this aspect.
    
62. The worker was also entitled to a certificate of service at the time of the dismissal as required by s. 30(6) of the Employment Relations Act. Whether that was provided or not had not been addressed by the plaintiff’s witnesses.
    
63. I now turn to the worker’s contention that the termination process required that his appeal be heard by the employer which was not done making the procedure for dismissal improper. The evidence is that when the worker’s counsel wrote a letter to the employer to consider the unlawfulness and the unfairness of the termination, the employer did not respond thus breaching the provisions of the right of appeal that a worker has under the clause 13(v) (iii) of the contract of employment.
    
64. The letter by the plaintiff’s counsel was written on 13 February 2015 by which he exercised his right of appeal provided for in clause 13 (v) (iii) of the employment contract. The contract provides that “if aggrieved by any aspect of such termination of appointment the officer may appeal to the Executive Committee or its delegate whose decision shall be final”.
    
65. I find that since the employer had contracted to provide an appeal hearing to the worker, it should have fulfilled its part of the bargain. In not complying with the procedure the employer did not complete the process of termination. In this case, allowing an appeal to the worker was his contractual right and part of the process of termination. One may argue that it is outside the process of termination because termination has already occurred. In my view, it is a process to decide whether the decision to terminate will remain or will be retracted. There is always a possibility that a decision to terminate can be retracted that is why the appeal is a process within the termination process. It should be provided to the employee who is aggrieved.
    
66. The employer’s argument is that the worker did not appeal to the Annual or to an Extra Ordinary General Meeting about his dismissal as required for by s. 37 (1) of the FTA’s Constitution which was tendered in evidence. All the plaintiff could do was to file his appeal and then it was for the employer to decide when to hold a meeting to determine the appeal. I find that the employee complied with the provisions of exercising his right to appeal which was not considered by the employer.
    
67. The worker has also raised that he was entitled to sufficient notice of the allegations and an opportunity to respond to the allegations. In summary dismissal cases this is not a mandatory requirement. The employer can carry out its own investigation to determine the strength of the allegations. In the process, it may ask the worker to respond to the allegations to arrive at its findings on the allegations. There may be instances where a response from the worker is not necessary to arrive at a finding on whether the allegations are established. If the employer can come to a finding without hearing the worker, it can proceed to carry out the termination. If the worker feels that the allegations are unfounded, he or she can challenge the employer’s finding by filing a claim.
    
68. Since the burden and onus to prove lawful causes to terminate the worker is on the employer, it is considered prudent by some employers to hear the worker too to establish a conclusive view on the allegations but the process of hearing the worker is not mandatory under the law.
    
69. I also turn to the contention of the worker that when the employer had sent him home on leave with full pay for a month on 15 January 2015, that amounted to suspension, which powers are not provided to the employer. Plaintiff’s exhibit 12 is the FTA’s Constitution which the worker should be aware of as the former General Secretary. Section 37 of that Constitution allows for the Executive to suspend any officer of the FTA for a period not exceeding 3 months. In this case, the suspension was for a period of one month only. I do not find that the suspension was done without powers.
    
70. The worker also complained about breaches of Policy Number 16 and Policy Number 41 of the defendant’s Employee Manual 2010. My reading of Policy Number 16 is that it applies to internal grievances. The Policy Statement clearly states that “the association has established a structured grievance system to ensure fair treatment of our employees, to deal with employee complaints and to resolve problems”. This provision does not apply to those employees who have been dismissed.
    
71. Policy Number 41 states what the employer should do when an employee is terminated. This outlines what notes and information should be kept in the employee’s files for better management of information with the employer. This is not a policy which gives the worker any right or benefit of procedure at the time of termination. I do not find that the policy was breached by the employer.
    
72. I find that the termination of the worker was only unlawful for want of compliance with the procedure in that:
    • (i) The worker was not paid his 1 month’s wages in lieu of 1 months’ notice on time, and
    • (ii) That he was not granted his right to be heard on his appeal.
      
73. I now turn to the issue of unfair dismissal.
    

B. Unfair Dismissal

74. Maika Namudu pleaded that the following conduct of the employer caused him humiliation, loss of dignity and injury to his feelings.

“(a) Having a former policeman to unlawfully prevent the Plaintiff from entering his apartment where he resides with his family at 68 Knolly Street, Suva,

(b) Having a former policeman to unlawfully prevent the Plaintiff form entering the FTA Hall to meet friends and colleagues in a social environment.

(c) The Defendant, through an executive by the name of Sotia, accompanied by a former policeman and security officer making false accusations of theft against the Plaintiff and verbally abusing him at the FTA Hall, in the presence of teachers who had known the Plaintiff for his 17 (seventeen) years of service to the Defendants.

(d) Hacking into the Plaintiff’s email account without the authority and approval of the Plaintiff.

(e) Making public announcements in the news media via newspaper and TV concerning the termination of the Plaintiff’s employment with the Defendant and bringing disrepute and ridicule to the Defendant (should be plaintiff)”.

75. Maika Namudu’s wife gave evidence of each incident particularized in the Statement of Claim. In respect of the first 3 allegations in (a) – (c) above, the wife testified that on Friday 23 January 2015 around 4pm, she went with her husband to the FTA compound. They parked their car and came out. They wanted to enter the premises through the side gate which they used all the time. By that gate was a senior police officer who was then working for a security company. That officer is known to them. His name was Mr. Tabakau.
    
76. Mr. Tabakau stopped them at the gate and told them not to enter the premises. The wife testified that her husband asked for the reasons and also told him that they were living there and wanted to go to their home.
    
77. Jeni Kaitani Namudu said that Mr. Tabakau then told them politely to go and enquire from those in the office. Mr. Tabakau did not name anyone. However, he did allow them to enter the premises. She accompanied Maika Namudu and entered into the office of the defendant.
    
78. They went in and Maika Namudu walked straight in the office of Mika Leawere, the Principal Admin Officer/ Manager Human Resources. Present in the office was the then Public Relations Officer, Mr. Uluinaceva and Mr. Sotia. Mr. Sotia was a school teacher and a member of the defendant.
    
79. The wife said that Maika Namudu asked Mika Leawere of the reasons for being restrained from entering his home. Mr. Leawere said that he did not know anything and that they had to enquire it from the President.
    
80. They then walked out of the office with the security officer Mr. Tabakau following them closely behind. At that time there were some teachers in the Hall and some FTA employees as well.
    
81. Maika Namudu decided to check in the Hall whether the President and Treasurer were in there. He looked down and saw a colleague, a former executive member of the FTA seated at the hall. His name is Amani Namesimalua. Maika Namudu said to her that he was going to say “hi” to Amani Namesimalua and also to give him his taxi fare.
    
82. Amani Namesimalua is a stroke patient and he comes to FTA on certain days to join his colleagues. She then excused herself and told Maika Namudu that she was going up to the flat. She reached the flat and saw her daughter waiting outside as she had the keys to the door.
    
83. She quickly explained to the daughter what transpired with them. Before she could finish, it may have been only 5 minutes, she heard loud voices from the Hall. They leaned over to listen carefully. They heard Namudu’s voice in an argumentative tone. She heard the word “butako” which means “thief”. She heard that not too clearly. She ran down with her daughter to see what was happening. When they got near, they heard a different voice saying “thief, thief”. They went down to check who it was. She saw her husband standing there with the security officer. At a distance Sotia was standing. She cannot confirm whether Sotia was an executive.
    
84. Maika Namudu quickly told her that Sotia had said that he was a thief. He looked towards Sotia. She dashed towards Sotia and confronted him because she fell for her husband. She said she asked Sotia as to who is the thief and what is it that he stole. Her daughter did the same. By then his son had also arrived and came down to where the commotion was. Sotia kept quiet and stood there firmly. He never said a word.
    
85. The wife said that she was angry. She was also humiliated. She rushed forward to Sotia and one of the FTA employees pulled her back. None of the teachers there said anything or intervened when all of this was going on. She felt that the employees were also stunned as they stood there and watched quietly.
    
86. Jeni Kaitani Namudu said that after the commotion, when she saw Maika Namudu standing on top of the stairs with Mr. Tabakau, she joined him with her children. That day’s event scarred her life. The effect is still with her. They were all so hurt, humiliated and embarrassed. The family stood by Maika Namudu who had stood by the organization all the time. She could not believe what had transpired. The children saw what happened to their father who had stood by the institution and served it.
    
87. From that day they could never face anyone. Wherever they go they are asked about the incident. No words of wisdom, goodness and money can take away the shame. After that incident, they went to their farm and never returned. Her family had been blocked from entering the residence which was home to them for 17 years even before the termination letter. The next day they were delivered the termination letter.
    
88. In cross-examination, Jeni Kaitani Namudu testified that it was only Sotia who made the allegations on the day the commotion broke out at the FTA Hall and it was not the President or the FTA executives making the allegations. She also clarified in cross examination that no one from FTA stopped them from going to the flat when they decided to go to the flat.
    
89. Mr. Valenitabua brought to the attention of Jeni Kaitaini Namudu, plaintiff’s Exhibit 2 which is a letter by FTA to Maika Namudu dated 15 January 2015. It reads:
    

“Dear Sir
Re: Allegations

The Full Executives in its deliberations today regarding the above, has decided that you be requested to proceed on leave with pay for a month with effect from 15/01/2015.

This is to allow an independent team to investigate all allegations being levelled against you.

You are requested to keep away from all FTA premises and you are not to communicate to any worker during this period.

You will be contacted after the investigation made.”

90. Arising from that letter, Mr. Valenitabua asked Jeni Kaitaini Namudu why they went to FTA premises when the third paragraph of that letter clearly stipulated that Maika Namudu was to keep away from FTA premises and not to communicate to any worker during that period. Jeni Kaitani Namudu responded that the security officer allowed them to go into the premises (office) to clarify the issue although the security officer was informed by FTA not to let them in.
    
91. When questioned in cross examination that no one stopped them from going to their home, she said that the home is within the premises of the FTA. The security officer politely told them that they were not allowed to enter.
    
92. I do not find that the FTA had engaged a security to preclude Maika Namudu and his family from accessing their residential home. All they were precluded from was entering the official place of business of the employer and there were good reasons for it. The worker was in a powerful position to hinder the work of the employer. He had control of the assets and staff of the employer. Prudency required that he did not access the official premises.
    
93. I do not believe the evidence of Jeni Kaitaini Namudu that the security officer let them in to go to the office only to question the authorities why they were precluded from entering their premises. The security officer let them in to get to their residence but what the worker did was what he was precluded from doing, that is, to go to the office and the Hall where the commotion broke out. This is one reason why the employer also may not have wanted the worker in the FTA’s official premises. Maika Namudu ought not to have accessed the office and the Hall. He was in breach of the directions of the employer.
    
94. What fortifies my finding is that after the commotion, Maika Namudu and his family went to his residence. If the employer had stopped them access to their home, they would not be able to gain access at all. In between the time of the alleged preclusion by the security to enter their home and the commotion in the Hall, there is no evidence that the Executives gave the directives to the security to allow Maika Namudu and his family to enter their home. How did the security then allow them to enter their residence when he initially refused them the same privilege? I firmly find that there were no instructions by the employer to the security to preclude Mr. Maika Namudu and his family from gaining access to their home.
    
95. The letter of 15 January 2015 which asks Maika Namudu to keep away from FTA premises did not preclude him from gaining access to his home as Maika and his family still lived in that premises from 15 January 2015 until 23 January 2015 when the commotion broke out. The alleged date of preclusion by the security officer is also 23 January 2015. It is therefore, understood that FTA premises meant the official working place of FTA that is why Maika Namudu and his family continued to access their home. Maika Namudu and his family is turning the commotion incident to seek advantage from the employer which I find to be a dishonest and an unfair act on their part.
    
96. To add to that, there is evidence that Maika Namudu occupied the house until April. Plaintiff’s Exhibit 10 is a letter by the worker’s counsel Mr. Fa to FTA. It is dated 31 March 2015 and is in response to the notice to vacate by the employer of 10 March 2015.
    
97. The plaintiff’s Exhibit 10 clearly demonstrates that Maika Namudu and his family continuously occupied the premises and that Maika Namudu, his wife and grandchildren did not leave for the farm the next day of the commotion at the FTA Hall. I do not believe the evidence of Jeni Kaitaini Namudu that they left for the farm the next day. If they did, there was no reason to oppose the notice to vacate.
    
98. I now turn to the evidence of the commotion allegedly caused by one Sotia. It was clear from the evidence that Sotia is not an executive or employee of FTA. There is no evidence that the employer or his agents caused the commotion on 23 January 2015. It is Maika Namudu who should accept the responsibility for making himself available at a place where he was forbidden by the employer. He caused the humiliation upon himself and his family members.
    
99. Further it is clear from the evidence of the plaintiff’s witnesses that the worker’s wife and daughter intensified the commotion by confronting and physically barging at Sotia. The commotion is best descried as a personal fight between Maika Namudu and Sotia. The blame should not be laid at the employer’s door.
    
100. Jeni Kaitaini Namudu at one point said that when she charged at Sotia, one of the Executives pulled her back. At another point she says that no one from the Executive stopped the fight. The daughter’s evidence was different. She testified that one of the Executives told them to stop the fight as they were all related. I find that if the employer was behind the fight then it will not intervene to stop the fight. I see no reason why the plaintiff is blaming the employer for their personal fight. Jeni Kaitaini Namudu created her evidence of humiliation in order to blame the employer.
     
101. I will now address the allegation of email hacking. The plaintiff has alleged that the employer hacked his email. There is no evidence of that. All the emails produced in the exhibit during the trial by the defendant are emails forwarded to the employer by the recipients of Maika Namudu’s email. There is no question of deriving that email via hacking.
     
102. Jeni Kaitani Namudu also claims that the worker was humiliated due to the various publications that the employer made. She stated that the defendant had proceeded to announce the termination in the Fiji Sun. She testified that the termination letter and her husband’s photograph came on the front page of the Fiji Sun.
     
103. There was no evidence of any publication in the Fiji Sun. There was no evidence that the termination letter was published in the Fiji Sun. I therefore am not satisfied that the publication caused any embarrassment to the worker. I need to see the nature of the publication to determine the claim.
     
104. Jeni Kaitani Namudu also referred to plaintiff’s Exhibits 5, 6, and 7. These are evidences of publications by the defendant in the Fiji Broadcasting News. Plaintiff’s Exhibit 5 is the publication in FBC News on Wednesday January 28 2015, at 13.16. It reads:
     

“FTA says No Split among Members

Fiji Teachers Association President Gauna Halofaki.
Taken from/By: FBC News
Report by: Maggie Boyle

The Fijian Teachers Association says there is no SPLIT among its members.

As one of the biggest trade unions with more than 3800 members, work is now rolled out to inform members across the country on the change in management given the termination of their General Secretary Maika Namudu. Association President Gauna Halofaki admits the saga of sending Namudu on leave initially pending investigations into allegations of improper conduct has taken toll.

“No, no, it was a clear run, there’s no split I found out there’s a big change after the termination, as a newly incoming President, I work with him for a while before and now it’s after, I know there are different feelings that we have.”

Halofaki says now that the New Year already has began; the association will be going countrywide to inform their members about what has transpired.”

105. Plaintiff’s Exhibit 6 is the publication in FBC News on Wednesday 28 January 2015 at 7.50. It reads:

“FTA sacks executive

Taken from/By: FBC News
Report by: Maggie Boyle

The Fijian Teachers Association has terminated its General Secretary Maika Namudu

FTA President Gauna Halofaki says the termination was decided over the weekend based on legal advice they received.

“After the deliberations, we sent the result to our legal advisor who also came up with his opinion during the full executive meeting and from there, the group executive decided that we terminate him on those grounds yes.”

According to Halofaki, the writing was the wall, prior to his termination Namudu was suspended pending an investigation into allegations of improper conduct...

“And also something that also added onto that was the bad name that he made with our council of Pacific Education, the COPE, also went out to the COPE and stopped all affiliation from us, not to attend any of the seminars, the others, also Education International, that’s our parent body for all the teacher unions in the world, also he went right out there, this is quiet not good for FTA, especially gone out during the time he was on pay with leave, he was doing these damaging messages all around the place.”

Repeated attempts to contact Namudu were unsuccessful when this bulletin was prepared.

Halofaki says an interim general secretary has been appointed with the position to be advertised soon.

106. Plaintiff’s Exhibit 7 is the publication in FBC News on Tuesday 27 January 2015 at 9.41. It reads:

“Maika Namudu Terminated

Taken from/By: FBC News
Report by: Maggie Boyle

The Fijian Teachers Association has terminated its General Secretary of 17 years, Maika Namudu.

FTA President Gauna Halofaki has confirmed to FBC News that an executive council committee was convened over the weekend to deliberate on a raft of allegations against Namudu.

Halofaki says acting on legal advice, Namudu’s contract was terminated and a termination letter hand delivered to his residence.

The President says Namudu has been allocated a month’s salary and other outstanding allowances owed to him.

Namudu was initially suspended with pay for a month pending investigations into allegations against him.

However the FTA decided on termination after they say Namudu wrote to the Council of the Pacific Education – COPE and Education International expressing his dissatisfaction with FTA officials despite the ongoing investigation.

Attempts to contact Namudu were futile when this bulletin was prepared”.

107. I find that the publications relates to the fact of the dismissal and some of the reasons for the same. The information is part of the news that the employer published to inform the general public and its members about the status of Mr. Namudu. I do not find that it was to cause any humiliation or embarrassment but to reflect the true position of the employer. I find nothing untoward about it. There is no false information that is published.
     
108. I do not find that the worker was unfairly dismissed from his employment.
     

C. Remedies and Costs

109. In deciding the question of the appropriate remedy I bear in mind that Maika Namudu’s termination was substantially justified in that the employer had valid reasons to carry out the termination. The termination was procedurally improper. I may need to repeat that it was procedurally improper for two reasons. The first is that the employer had not paid the worker 1 month’s wages in lieu of notice at the time of the dismissal. However, the monies were paid later. Any award of damages for the late payment should be minimal as it is the delay for which the worker is going to be compensated. There was no actual loss of wages or benefits arising out of this non-compliance.
110. The second reason for the termination to be procedurally improper is that the procedure for termination under the contract required the decision to be revisited on appeal which procedure was ignored by the employer. Even for this, the compensation should be minimal. Even if the employer had considered the appeal, it was highly unlikely that there would be a change in the decision given the nature of the allegations against the worker. I must reinforce that there is no actual loss of wages arising out of this non-compliance.
     
111. I therefore find it prudent to award a sum of $5,000.00 for procedural breaches. Any amount greater than this will be unfair.
     
112. In respect of costs, I do not think that the employer should be blamed for not attempting to settle the matter. There was a reasonable attempt by the employer and given the worker’s strenuous stance this matter could not be settled. To that end, the costs to the worker should be at the lower end. I find that a sum of $3,000.00 in costs to the worker is justified.
     

Final Orders

113. In the final analysis, I find that the worker’s termination was substantially justified but procedurally improper making the termination unlawful. I award a sum of $5,000 against the employer in favour of the worker in damages for procedural breaches in carrying out the termination.
     
114. I find that the termination was fair.
     
115. I award costs to the worker in the sum of $3,000.00 to be paid by the employer.
     
116. All the monies should be paid to the worker within 21 days.
     

Hon. Madam Justice Anjala Wati

Judge

04. 08. 2023

____________________

To:

1. Messrs Fa & Company for the Plaintiff.
2. Toganivalu & Valenitabua Lawyers for the Defendant.
3. File: Suva ERCC 02 of 2015.