IN THE EMPLOYMENT RELATIONS COURT
AT SUVA

ERCA 18 of 2020

BETWEEN:

SHAVINA DEO

PLAINTIFF

AND:

BIO SECURITY AUTHORITY OF FIJI

DEFENDANT

BEFORE:
M. Javed Mansoor, J

COUNSEL:
Ms. S. Narayan for the Plaintiff
Mr. F. Hanif with Mr. P. Suguturaga for the Defendant

Date of Hearing:
18 & 19 July, 28 August and 25 September 2023

Date of Judgment:
7 February 2024
JUDGMENT
EMPLOYMENT 			Breach of contract – Dismissal – Misconduct – Failure to conduct inquiry in terms of internal policy – Humiliation and injury to feelings – Employment Relations Act 2007  

1.	The plaintiff filed action for wrongful and unfair dismissal, and sought reinstatement to the position of senior human resource officer of the defendant, with back wages from 14 July 2020 until reinstatement. In the alternative, the plaintiff sought $40,333.33 for loss of wages from 14 July 2020 to 11 June 2021 and $6,416.47 for loss of difference in wages for serving dual roles of senior human resources officer and human resources manager from 20 August 2018 to 17 March 2019. She also asked for damages for humiliation, loss of dignity and injury to feelings. The defendant’s position is that the plaintiff was summarily dismissed for misconduct and, therefore, she is not entitled to any relief.   

2.	In her statement of claim, the plaintiff stated that she commenced employment on 11 June 2018 as senior human resources officer. On 7 July 2018, the defendant advertised the position of human resources manager, for which the plaintiff applied and was interviewed. The plaintiff stated she commenced the new role on 20 August 2018 after receiving an offer letter on 15 August 2018. On 28 August 2018, the plaintiff was verbally told by the chief executive officer not to resume her position as the defendant was reconsidering its decision. However, the letter of appointment was not withdrawn. On 1 June 2020, the plaintiff was suspended from the role of senior human resources officer, and issued a letter dated 30 June 2020 containing allegations. The allegation letter was issued when she was at home and going through a matrimonial separation period. Although the plaintiff disputed the allegations, she was summarily terminated on 14 July 2020. The plaintiff pleaded that the defendant did not provide evidence of the allegations, and had wrongfully investigated a personal matter concerning the defendant. The plaintiff says she filed an employment grievance with mediation services, which was withdrawn on or about 15 October 2020 to be pursued in this court in view of the jurisdictional limit on the Employment Relations Tribunal. The plaintiff stated that her contract as human resources manager was to expire on 11 June 2021, and claimed a sum of $40,333.33 being the balance gross annual salary from the date of dismissal until the expiry of the contract. She stated that although she continued to work as senior human resources officer while performing the duties of the human resources manager from 20 August 2018 until 17 March 2019, she was paid the salary of the senior human resources officer.

3.	In its statement of defence, the defendant denied the plaintiff’s claims and stated that her contract would have expired on 10 June 2021 if she was not summarily dismissed. The plaintiff filed a brief reply to defence. Thereafter, a summons to strike out was filed on 4 March 2022, but was withdrawn, and the matter was set down for trial. The action initially came before another judge. The matter was listed before this court after concern was expressed over an incident after action was filed. 

4.	When trial commenced on 18 July 2023 and was proceeding, court gave the plaintiff the option to amend the statement of claim so as to be within the court’s jurisdiction. The amended statement of claim was filed on 19 September 2023. The defendant filed its amended statement of defence on 21 September 2023. 

5.	The amended statement of claim states the action is for wrongful and unfair dismissal. The original pleadings were reiterated. In addition, the plaintiff pleaded that it was an express term of the employment contract that the defendant must resolve employment grievances and disputes through procedural fairness and in accordance with the Employment Relations Act 2007, the internal grievance and disputes procedures stipulated in its internal policies and other processes of procedural fairness. The plaintiff sought special damages of $40,333.33 for loss of wages from 14 July 2020 to 11 June 2021 and $6,416.47 for loss of difference in wages for serving dual roles of senior human resources officer and human resources manager from 20 August 2018 to 17 March 2019, lost FNPF entitlements, damages for humiliation, loss of dignity and injury to feelings and general damages together with costs.

6.	In its amended statement of defence, the defendant stated that the plaintiff was among four people to be short listed to be interviewed for the role of manager, human resources. The defendant states it has no record of having offered the plaintiff the position of human resources manager, and that the plaintiff’s role was as senior human resources officer. The defendant denied that the plaintiff was appointed to act as human resources manager. The defendant concedes that the employment contract provides for resolution of “personal grievance and disputes” in accordance with the Employment Relations Act, but says it followed its internal procedure in the case of the plaintiff. The defendant says that it is deemed an essential service and industry and, therefore, the claim is statute barred. 

7.	The plaintiff was summarily dismissed for gross misconduct by letter dated 14 July 2020, and the defendant says clause 11.2 makes provision for summary dismissal. The allegation against the plaintiff is that she prevailed upon another employee, Leba Mafi, to give false evidence on her behalf in the plaintiff’s personal case in the Magistrates’ Court. The case concerned an assault charge against the plaintiff. She pleaded not guilty, but did not give evidence. The plaintiff summoned Leba Mafi to give evidence on her behalf. The plaintiff was acquitted in the criminal proceeding. 

8.	In her evidence, the plaintiff denies the allegation and says that she was not Leba Mafi’s superior, and was in no position to influence her. Leba gave evidence on behalf of the defendant and said that she was spoken to by the plaintiff to state certain things in evidence in the Magistrates Court case. Leba said she gave false evidence in fear of losing her attachment with the defendant, and that she informed the management as she was unhappy with having given false evidence. Leba said that after she informed the management, the matter was investigated and she lost her attachment. The plaintiff says the evidence given in court by Leba is false.

9.	The defendant took the incident seriously. The acting chief executive officer, Surend Pratap, wrote to the commissioner of police on 30 June 2020 giving details of Leba Mafi’s false testimony upon being influenced by the plaintiff. There is no evidence of the police investigating and providing a report on the matter. 
10.	The plaintiff submitted that the defendant was in breach of several provisions of the employment contract. She states the defendant failed to establish gross misconduct and that it did not comply with paragraph 12 of the contract, which concerns personal grievance and disputes, and requires the observance of procedural fairness. The plaintiff said that she was not provided evidence in support of the allegations even though she had requested details of the investigation. 

11.	The defendant’s human resources policy provides that it is not a strict policy and is implemented to guide the Authority in ensuring the rules of procedural fairness are adhered to when determining employee disciplinary matters. The policy states, “A deviation from this policy does not render the disciplinary process null and void if the process is consistent with and advances the rules of procedural fairness”. The general guidelines include providing the employee with the allegations and the evidence in support, providing the employee a fair opportunity to respond and the impartiality of the decision maker. 

12.	The defendant’s witness, Surend Pratap, said there was sufficient detail of facts in the letter of allegation issued to the plaintiff, although she was not provided any other documentation. According to the plaintiff, the insufficiency of the evidence meant the defendant did not establish her guilt. The plaintiff was compelled to respond to the allegations, it was submitted, without a fair opportunity to consider the material against her. 

13.	The plaintiff states that the defendant was in breach of paragraph 13.1 of the contract by failing to give notice either personally or by post at her last known residential or postal address. The plaintiff claimed that the letter of allegations and the notice of summary dismissal were issued to the plaintiff by email, and that this did not comply with the contract. The defendant’s evidence is that it used email as a means of communication within the organisation, and followed the practice of emailing the letter. 

14.	The plaintiff claims the balance sum payable under the contract on the basis that the defendant was in breach of the employment contract. An action founded on a contract is open to an employee in terms of section 220 (1) of the Act. In the event, there is a breach the plaintiff would be entitled to relief in terms of the contract. She could be placed in the position she would be if not for the defendant’s breach. The plaintiff’s testimony mainly centered on her dismissal for gross misconduct for allegedly inducing another employee to give false evidence in her favour, a charge denied by the plaintiff. The defendant claims it was entitled to dismiss the plaintiff for gross misconduct in terms of section 33 of the Act and the contract of employment, and that it did so by holding an investigation and following its internal disciplinary policy. Upon a consideration of the evidence, the court does not find the defendant to have acted in breach of the contract of employment in terminating the plaintiff’s employment. The method of communicating the dismissal may not have been fully compliant with the contractual requirement, but this did not invalidate the dismissal. For all intents and purpose, the plaintiff was dismissed for misconduct and would not be entitled to the balance sum under the contract. 

15.	The plaintiff’s claims regarding her dismissal, the disciplinary process, the acts of humiliation and injury to feelings at various stages refer to an employment grievance as defined by section 4 of the Employment Relations Act. The definition of employment grievance, covers numerous situations and includes dismissal. The parties say the matter was initially before mediation services. The grievance was then referred to the Employment Relations Tribunal, following which it was withdrawn by the plaintiff in view of the limit on the tribunal to award compensation. The withdrawal of the grievance is unfortunate. The tribunal is expressly conferred with jurisdiction to adjudicate an employment grievance under section 211 (1) (a) of the Act. 

16.	The plaintiff claims she did the work of the human resources manager from 20 August 2018 until 17 March 2019, while continuing with her substantive role as senior human resources officer. She claims to have been entitled to an acting allowance of 95% of the manager’s gross salary, amounting to $5,950.69. The plaintiff’s evidence is that she was offered the position of human resources manager on 15 August 2018. She says she accepted the position on 20 August 2018. According to her, the position was verbally revoked on 28 August 2018. The offer letter signed by the chief executive officer states that the plaintiff is required to sign an employment contract with the defendant. Such a contract is not in evidence. The plaintiff says the position was not revoked in writing. The plaintiff’s complaint is that she worked as acting human resources manager. There is no evidence to corroborate the plaintiff’s claim of having acted as the human resources manager.  

17.	The plaintiff said that she was not provided a certificate of service at the time of dismissal. Section 30 (6) of the Employment Relations Act requires the employer to provide the worker upon termination of the contract or dismissal with a certificate stating the nature of work and the period of service. The plaintiff states that the certificate was provided on 25 September 2023, more than three years after her dismissal, although it is dated 10 September 2020. The defendant claims that this was given at the time it was dated. During proceedings, the defendant’s counsel made arrangements to provide the certificate to the plaintiff. The plaintiff says she was also not provided the final pay slip showing a breakdown of the payments made to her, and that she is unable to verify whether her dues have been fully settled. If the employer has not settled wages or other money, an application could be made to the tribunal under section 211 (1) (d) for the recovery of such sums.

18.	This action will not succeed for the reasons stated above. 

ORDER            

A.	The plaintiff’s action is dismissed.

B.	Parties will bear their costs. 

Delivered at Suva this 7th day of February, 2024.

M. Javed Mansoor
Judge