LAW604: LABOUR LAW & ETHICSTrimester 2, 2015

MAJOR ASSIGNMENT

Mataiasi Seduadua 2013118030

Jonacani Tamanivalu 2012010475

Lesli Ray Vatucawaqa 2013118226

Mereani Qiokata 2013112932

Ageet Singh 2013118008

Introduction

This grievance was registered with Ministry of Labour on 19th July 2010. Mediation was attempted on 3rd, 6th, 10th, and 27th August 2010 and again on 3rd September 2010 but was not successful. The mediator referred the grievance to the ERT on 2nd February 2011 in accordance with s194 (5) of the Employment Relations Promulgation (or “the ERP”) outlining the nature of unsettled employment grievance with the following terms of reference:-

“The grievor Segran Nair was employed by Carpenters Motors as a Supervisor Tyres and Batteries when his employment was terminated summarily with effect from 16th July 2010. The reason for termination was the alleged buying and selling of vehicles which is in direct conflict with the core business of Carpenters Motors, failing to adequately control and manage staff which led to stock being unaccounted for and as a supervisor failed to take reasonable actions to safeguard or check to prevent staff from selling old tyre casings and pocketing the money without reasonable excuse. The grievor seeks reinstatement without any loss of salary. He was represented by Hira Lal – Manager Compliance Fletcher Pacific Steel”.

Nair v Carpenters Fiji Ltd [2012] FJET 40; ERT Grievance 163.2010 (6 November 2012)

IN THE EMPLOYMENT RELATIONS TRIBUNAL

AT SUVAERT Grievance No. 163 of 2010

 

BETWEEN:

 

SEGRAN NAIRGrievor

 

AND:

 

CARPENTERS FIJI LIMITED T/ACAPENTERS MOTORSEmployer

 

Appearances: Mr P Rae for the GrievorMs D Prakash for the Employer

 

Date of Hearing: 1st September 2011Date of Judgment: 6th November 2012

 

DETERMINATION OF THE EMPLOYMENT RELATIONS TRIBUNAL

Analysis

1] Describe the nature of termination or dismissal

The grievor was summarily dismissed with effect from 16th July 2010 for gross misconduct and substantial neglect of duties.It was the employer’s defence that they had invoked section 33(1) of the ERP 2007 as their statutory right to summarily dismiss an employee. They carried out summary dismissal against the grievor pursuant two grounds, being sections 33(1) (a) and (d) of the ERP. The employer has relied on the case of Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002 in support of their legal arguments as contained in their Closing Submissions filed on 7th November 2011. No opposing legal submissions with case-law authorities supporting the grievor’s position were submitted to this Tribunal.The general nature of allegations pertaining to unfair dismissal of the Grievor by the Employer that occurred on 16th July 2010 requires the ERT in this instance to determine whether or not the summary dismissal was substantially and procedurally unlawful (wrong) and unfair. Notably, while the Tribunal has the task to adjudicate grievance matters within the ambit of what is normally pleaded by the claimant in his or her original claim form (as per Form ER1) which serves as the terms of reference for any ensuing grievance for the ERT, and here that grievance matter is thus referred by the Mediation Unit pursuant to s211(1)(k) of the ERP 2007 invoking the jurisdiction of the Tribunal, in practical terms, such claims cannot be strictly kept within the confines of Form ER1 only. The Tribunal also has the duty to consider the preliminary submissions (and subsequent submissions) from both sides to better understand the particulars (or details) of the claim and it appears the claimant here is seeking the following issues to be remedied:-

a. Whether or not the employer had justification for gross misconduct and neglect of duties in substance to invoke summary dismissal against the Grievor pursuant to section 33(1) of the ERP. The Tribunal will assess this in accordance with the employment relationship that existed through a contract of service (express or implied) between the parties. That is, whether or not this was in

compliance with the relevant provisions of the ERP or was there really a breach of grievor’s employment contract as alleged by the grievor;b. Whether or not the employer was required to accord procedural fairness at the time when summary dismissal was effected. Here, the grievor is alleging that the employer failed to consider his prior unblemishedRecord of employment; had further failed to allow the grievor to be represented in his grievance; and also failed to allow for mitigation before his dismissal. Therefore, it is my task to determine whether or not the employer acted arbitrarily and denied the grievor due process by failing to conduct a fair inquiry and process leading to termination as alleged by the grievor; andc. Lastly but not least, while this is not a clear issue pleaded by the grevior, the Tribunal is still obligated to assess whether or not the grievor was discharged with dignity at the time of his dismissal without any humiliation, in that he was treated fairly and with appropriate respect and dignity [as applied in the case of Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002) and followed by the Employment Relations Court in the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011].3.2 In other words, the foremost issue that this ERT will determine will be whether or not the purported summary dismissal was unlawful (or wrong) and unfair as alleged by the Grievor. If so, should relief (or remedies) sought by the Grievor including reinstatement without loss of pay and benefits and/or compensation be awarded? On the other hand, the employer is asserting that if the dismissal is declared justified, should the employer be entitled to costs of this action.

2] Critically examine the circumstances surrounding the termination or dismissal

“The grievor Segran Nair was employed by Carpenters Motors as a Supervisor Tyres and Batteries when his employment was terminated summarily with effect from 16th July 2010. The reason for termination was the alleged buying and selling of vehicles which is in direct conflict with the core business of Carpenters Motors, failing to adequately control and manage staff which led to stock being unaccounted for and as a supervisor failed to take reasonable actions to safeguard or check to prevent staff from selling old tyre casings and pocketing the money without reasonable excuse. The grievor seeks reinstatement without any loss of salary. He was represented by Hira Lal – Manager Compliance Fletcher Pacific Steel”.

The facts in this grievance indicate that the Grievor was accused of threefold allegation:-

i. First allegation relates to allegedly buying and selling of vehicles (8 in 10-year period) which the employer purported was in direct conflict with the core business of Carpenters Motors. Because the grievor’s duties and responsibilities as a supervisor fell within the broader department of Carpenters Motors it is alleged by the employer that he was involved in purchase and sale of eight cars for personal profiteering intention which denied the company sale and profit in respect of its core business of selling vehicles to customers.ii. Second allegation related to failing to adequately control and manage staff which led to stock being unaccounted for where two tyres in stock were audited and found missing. Since there were no documents to support how the stock had moved and the employer had already put the grievor on notice of similar incidents in the past, the grivior was alleged to have neglected his duty to control and oversee operations as a supervisor of his Tryes and Batteries department.iii. The third allegation in terms of substantial neglect of duties arises when it is alleged by the employer that, as a supervisor, the grievor had failed to take reasonable action to safeguard or check to prevent his staff from selling old tyre casings and pocketing the money for personal use without reasonable excuse.

5.3 Hereafter, the Employer took steps to summarily dismissed Mr. Nair which they say was only done after Mr Nair was accorded due process of investigation in terms of an audit being conducted into the operations handled by the grievor. Subsequently, disciplinary action was invoked after three interviews were conducted before a letter of termination pertaining to summary dismissal was handed to Mr Nair.

5.4 It was proved that a termination letter dated 16th July 2010 was given to the grievor when he was summarily dismissed.

5.5 This letter was marked as Exhibit E as part of employer’s documents exhibited to the Tribunal which contained the three allegations clearly on page 1 and reference was made to meeting being conducted between the grievor and the Audit Team of Carpenters on 7th July 2010. In the same letter the employer stated and I quote:-

3] Do you reasonably believe the termination or dismissal was justified or unjustified? What would you do differently and why?

Definitely, the termination was reasonable and was done within the confines of the law hence its justification, which was clearly stated by the auditor Ms Prasad and her team.Ms PrasadShe gave the following evidence on oath:-• She possesses a Master’s Degree in Business Forensic and her length of service in the company has been for 11 years as the Manager Internal Audit for Carpenters Group Corporations. She described the various types of Audits which may be carried out in an organisation, being planned audit, special audit and surprise audits. She further gave evidence on what processes were followed during these various types of audit. • In regards to the current grievance matter, Ms. Prasad informed the Tribunal that the entire Carpenters division was audited in the year 2010 where the audit started in April and ended in October 2010. In that regard, the Tyres and Batteries division, being part of Carpenters Motors was also audited where Ms Prasad stated that she was responsible for allocating audit resources for this project as well as being personally involved in the audit process. • This is how an audit process into the operations of the Nabua Tyre Centre, where the Grievor was stationed as a Supervisor was initiated. Ms Prasad said that the Audit took place over a period of 2 months and several discrepancies were discovered such as that:-“1. We noted that old tyre casing left behind by the customers were being sold from our premises.

2. The discrepancy the auditor noted was that two ....tyres were missing during the general stock take and these tyres were received when transferred from Rakiraki Branch to Suva Tyres. The quote registered into the system in Suva Tyres means entry into the system so it becomes Suva Tyres stock and then these tyres were physically given out to Nabua Tire Centre without any document.

3. The internal audit noted during the audit was the acquisition and disposal of vehicles by the Supervisor Tyres and Batteries who was Segran Nair. Audit noted that from 2001 until the date of investigations Segran Nair had own the total of 8 vehicles and had disposed those vehicles. In one case it was noted that vehicle registration BU864 was sold in tender...”

• After the audit and its subsequent findings, the Grievor was interviewed by the audit team on three different occasions, being the 15th of June 2010 (Exhibit A); 29th June 2010 (Exhibit B); and 7th July 2010 (Exhibit D). • In fact, Exhibit A was a written statement given by the Grievor to the employer dated 15th June 2010 and this was also signed by the griveor on page 2. Ms Prasad told the Tribunal that the said statement obtained from the grievor “...was about Suva Tire Centre Activities. What the activities of the Supervisor was. How the performance was, issues relating to stocks, the moving stock and also on how the old tyre casing are disposed...” • Exhibit B was also a written statement obtained by the employer dated 29th June 2010 and was signed on page 4 by the grievor. Ms Prasad told the ERT that “this statement was about the selling of old tyre casing and pocketing the money and the job responsibility of the Supervisor of tyres and batteries. How well the job is done and also the statement was about the missing tyre stock when the two tyres went missing and we could not find any documentary evidence....”• When asked whether or not Mr. Nair made any declaration after giving these statements she replied:- Yes he did...” And I noted that she quoted the following: “...I, Segran Nair hereby declare that the above statement is true and given to my best knowledge then on free will....”• When Ms Prasad was asked by her counsel whether or not Mr. Nair was accorded any procedure in terms of being given a chance for explanation, Ms Prasad relied:- “Yes, he was and I can read out the question that was forward to him. We asked.....him anything else he wants to state. Anything else you want to say that was the question put forward by the audit...”• To this end, Ms. Prasad further clarified to the Tribunal and stated that during the various stages of their audit and/or subsequent investigation, all the allegations were presented to the Grievor by the investigating team and this was virtually recorded in the written statements obtained by the employer where specifics of the allegations are clearly contained.

4) Do you reasonably believe whether a fair and proper investigation into the allegation was carried out? What would you do differently and why.

Absolutely, fair and proper investigations were carried out; Mr Narain was asked,Segran you have been alleged of being buying and selling vehicles while you were employed with Carpenters Motors. You understand this allegation?The Answer was recorded – “yes”.

• Ms Prasad tendered in evidence the Investigation Report for Nabua Tyre Centre (Exhibit C) which was prepared by her and which outlined the findings of the audit conducted by her team. • Where the findings of audit report is concerned, she maintained that various discrepancies were found as she has stated above and the personnel implicated from the Tyre Centre headed or supervised by the grievor, including Mr. Nair was subsequently interviewed. Hereafter the investigation report was submitted to the Head Office, whereby the Grievor was called again and interviewed in the presence of the Group Human Resources Manager. Ms. Prasad also stated that the allegations were once again laid against the grievor during that interview where various documents as evidence pertaining to car ownership obtained from LTA were shown to the Grievor.• While during cross examination it was put to Ms Prasad that the Grievor was not represented at any of the interviews conducted by the employer, Ms Prasad attempted to explain that during the internal audit process no witnesses are allowed. When a final interview happens, this is when the Carpenters Group Human Resources Manager sits in and the ensuing allegations are finally put to the employee who has been under scrutiny or investigation. She also stated that all information given by other staff of Carpenters as part of their audit investigation was made known to the Grievor in the form of allegations put to him in the interview process.• In her cross examination, I noted that she admitted that Mr Nair did not sell the old tyre casing himself left by the customers on the company premises or that he was aware what was happening to these left-over casings which in effect was sold by other staff members under Mr Nair’s supervision. • She also admitted that these old casings belonged to the customers and not the company.

• In the same breath, she clarified that the company practice was to dispose the same to a piggery farm as per the authorization of Mr. Roger Powell, the Director in the company and this was clearly not done under Mr Nair’s supervision. • The second allegation relating to the sale of 8 vehicles that seemed suspicious transaction to Ms Prasad in terms of the acquisition and disposal period or time of these vehicles (8 within a 10 year period), Ms Prasad was initially unable to explain what was suspicious in terms of any company policy being breached where buying and selling of vehicles by the employees was concerned. She admitted that the company did not have any written policy on these matters although she said that it was suspicious on the basis that the department under which the grievor was working fell under the umbrella management of Carpenters Motors which also dealt in same business. Ms Prasad stated that “....Segran Nair was Supervisor Tires and Batteries .....he has a lot of contact with the clients....So, he could have used his contact for his own benefit...”• The third allegation pertaining to shortfall of stock of two tyres that was send to Nabua branch from Rakiraki, that according to Ms Prasad had no documentation to prove where it had disappeared, Ms Prasad in cross examination stated that:- “...the person or supervisor of the particular department is responsible ... to ensure that stock are guaranteed in the premises...”.4.4 The evidence of the grievor, Mr Nair given on oath is summed as following:-• He was employed by Carpenters for nineteen and half years where he was in position of the Supervisor Tyres and Batteries at the time of his dismissal . He said that he was in-charge of Suva Tyre Centre, general supervision of Tyre Department and also performed other duties assigned by the Management such as general sales and marketing. He had 13 staff working under him, all of whom were based in Suva. He was out of office frequently as he had to check on the other branches and do sales.• He confirmed that he was aware of the audit conducted by the company/employer which also involved an audit of the area under Mr Nair’s supervision of Tyres and Batteries department, when he was asked about the evidence he had heard in the Tribunal earlier given by Ms Prasad.• While he was aware of the audit conducted by the employer, he told the Tribunal that he was not provided a copy of the Investigation Report although he

agreed that he was interviewed by the audit team and during those interviews he became aware of the Report and findings therein.• To him, this was like a “regular audit” that happened every quarter and any variances in stock were adjusted and where there was any discrepancies or shortfall, staff had to pay for it. Such regular audit, according to Mr Nair was in fact done by the Accounts department and not the Audit department.• He stated that during the regular audit conducted every quarter, if there was any variation in stock, the action taken by the employer would be to identify the person-in-charge such as the store-man and recover money or give a warning letter. Normally, as the supervisor he was tasked to take such disciplinary action.• He agreed that he was interviewed first time in relation to buying and selling of cars and the last interview was about a week (or two) before his dismissal. In the same interview,• He admitted that he was put other two allegations by the employer such as matters relating to the management of his staff and selling of old tyre casings. He also admitted that he had signed written statements obtained by the employer in the course of their interviews although he never saw or was given the Audit Report that led to all the interviews and thereafter statements being recorded from him.• In respect of the allegations of buying and selling vehicles, when shown an extract retrieved from LTA (Exhibit F), the Grievor agreed that in his last interview with the employer he was shown the same. He agreed that he had bought and sold 8 vehicles over a period of 10 years. He also stated that most of these vehicles were actually bought for his in-laws but registered under his name in all the circumstances. He then went on to give evidence on the financial aspects of the purchase and the subsequent sale of the vehicles. For example, he told the ERT that:-

1. BU 864 was bought from one of the Carpenters staff for $1,000.00. The car needed some repairs and when he could not fix it because he could not get the parts; he sold the vehicle to his staff at the same price. The “LTA Vehicles Previously Owned by Client Extract” showed that he acquired the said car on 11/01/2001 and then disposed off on 22/01/2001. He maintained that he did not make any profit.

2. DK149 was bought from Carpenters Used Cars by Mr Nair because his father-in-law had asked him to look for a car for his use and this is when he bought this car from Carpenters. According to Mr Nair, his father-in-law had sent him the money with his brother-in-law from which he had bought this car for his father-in law. The LTA extract showed that the car was acquired on 02/09/2003 and disposed off on 14/02/2005. Mr. Nair agreed that he did not transfer the car to his father-in-law’s name immediately and kept it under his name for 2 years although he had given the car to his father-in-law to use because the employer had provided him a company car for his personal use. It was not clear whether or not he had disclosed this information to the company at the time of purchase. There was no evidence to suggest this in affirmative apart from Mr Nair saying that Carpenters had asked him to retain the car in his name for 3 years. No evidence was given by his in-laws to support the same.

3. CN 205, he said was bought from Sakura Carz but financed by Carpenters Finance where this vehicle was to be used by his family in the village for the farm use. He bought it for $9,000.00 and made no profit on the vehicle. The LTA extract showed that the vehicle was acquired on 27/06/2002 and disposed off on 22/04/2006. It appears that this car was bought before the previous car (DK 149). This car was registered under Mr Nair’s name for 4 years.

4. DZ 320 was bought after selling the CN 205 where Mr Nair’s family had asked him to look for a four wheel drive. Hence, he tendered this vehicle from FDB. FDB had informed Mr Nair that he had been successful in his tender so he had asked his family to send the money so he could purchase the vehicle as he had already paid from his own pocket for the tender deposit. He said that if he was not able to buy this vehicle, he would have lost his deposit for the tender. To that effect, he had to ask one of his friends who worked for Fletcher Steel to buy and clear this vehicle as apparently his family did not raise the money for this vehicle. Undoubtedly he disposed off the vehicle on the same day of acquiring the same as per the LTA extract (08/08/2006). He told the ERT that because he had won the tender, once he had acquired the said vehicle under his name, he had transferred it to “... his name on the same day”. He admitted that he was referring to his friend from Fletcher Steel who had in fact paid for the vehicle. Evidence was crystal clear that Mr Nair nor his family had the funds to buy the vehicle despite he had told the Tribunal that the vehicle was for the farm use for his family.

5. EB 007 was bought for his brother-in-law who had seen the advertisement in the paper and gave him the money which Mr Nair said was actually his father-in-law’s money. He bought this vehicle because his brother-in-law knew that he was working for Carpenters Motors for last nineteen years and that he knew more about cars and therefore, he went to Nadi and bought the car. He said he made no profit on this. The LTA extract showed that the car was acquired on 07/11/2003 and disposed of on 02/11/2006. Clearly he acquired this car after buying CN205 and again under his name.

6. M007, he had bought from Credit Corporation on tender and finance under his own name. He maintained that he made no profit on this purchase. The LTA extract showed that the car was acquired on 25/11/2004 and disposed off on 07/10/2008. Again, it would seem that this car was acquired after buying CN205 and EB 007, which would practically suggest that he had three cars between the period 2002 -2004 which he disposed two in 2006 and one in 2008.

7. CQ 537 was bought from Carpenters Used Cars. The LTA extract showed that the car was acquired on 24/11/2008 and disposed off on 24/11/2008. It is clear he bought and sold this vehicle on the same day. When asked the reason how and when he disposed this, Mr Nair said he could not recall. He said he sold it to a “guy working for Golden Ocean Fish .... Subhash...”. This car is clearly bought one month after disposing off M007.

8. LT 435 was bought under a taxi permit. The LTA extract showed that the car was acquired on 25/04/2003 and disposed off on 05/06/2010. Given the disposal dates on the LTA records, again it would seem that he had this car under his name whilst he owned also CN 205 until disposed in 2006; EB 007 until disposed in 2006; and M007 until disposed in 2007. Mr Nair then went onto give evidence on the allegation of the missing tyres and tyre casings being sold from the Company premises. He told the Tribunal that “...actually these two tires were missing from my branch and I talked to auditors that two tyres were missing from my branch...”. He said that he had highlighted this to the auditors and continued to state that:-“...Actually these two tyres came from Rakiraki branch to Walu Bay Branch. And my store man received the tyres at Walu Bay and next morning Nabua Branch called and asked the Store man did he received two tyres from Rakiraki branch and the store man said YES. He said my branch ... took those tires. Why we couldn’t find the tires that came from Rakiraki Branch because Rakiraki branch don’t have

any computer there only have manual docket and my store man released any goods without any document...”

• When asked what action Mr Nair took in respect of the missing tires, he responded:-“...After that I went to see my boss who was Mr Davend Goundar and he said Segran Nair is new to this Tyres Department and you discuss with the Finance Controller and see what you can do. I discussed with the Finance Controller and he said the store man released the goods without any document and you ask him to pay for the tyres. So I got one form from Accounts Office to sign and get it back to Finance... Once he signs the forms than we cannot discipline again on the same matter...”

• When asked about the third allegation in terms of the staff under his supervision selling old tyre casings as he being the supervisor was responsible to safeguard or check on this stock, he said it was not part of the Company stock as it belonged to the customers. He said this was in the past disposed at the Lami Dump or dumped near the Delainavesi River as there was no policy put in place by the company as to how to dispose the same. He told the Tribunal that he never sold these old casings nor was he aware that his staffs were in such practice, which he only came to know during the audit. When he came to know, he proceeded to meet and inform his staff that whatever they were doing must stop or they will be fined on the spot.• In respect of the last interview with the Management, he said he was telephoned and informed to attend where there were at least four people present, including the Auditor Manager and HR Manager. He further stated that when he was called, he was not aware that the three allegations would be put to him or that disciplinary action would be taken. In cross-examination, the Grievor agreed that the allegations were laid against him by the employer and he was given an opportunity to answer to all the allegations. He also agreed that between the date of the first interview and the last interview, he had almost two months within which he was aware of the allegations apportioned against him. • In respect of the buying and selling of vehicle, the Grievor agreed that the vehicles he bought from Carpenters were brought at a discount. He also agreed that if his father-in-law had bought the vehicle he would not have received the discount

that the Grievor had received on the purchase. The Grievor stated that he sold one car to his friend who was a customer of Motors. He further agreed in cross-examination that by selling his own personal car to the customer, he denied the sale of a car to Carpenters Motors.• The Grievor also agreed in cross-examination that the LTA source documents were shown to him and he was questioned on the same. The Grievor agreed that he failed to provide any reason for the sale and disposal of the vehicle registration No. DZ320 at the time of the investigation but remembered the same at the hearing of the matter. The Grievor advised that he had the financial documents to prove the acquisition of the vehicles, but agreed that he had not produced the said documents at the hearing or during the course of the investigations.• In respect of the release of tyres, the Grievor agreed that there was a procedure for the release of goods. He agreed that the tyres were received at his store and that it was dispatched to another branch without proper documentation. The Grievor also agreed that he had been written to previously in respect of similar issues for release of goods without proper documentation whilst employed as a Supervisor.• Mr Nair also agreed that he had received the termination letter dated 16th July 2010 from the HR Manager issued in the Carpenters Motors Boardroom in the presence of the Carpenters Motors Admin Officer and Carpenters Training Officer.

5. Do you reasonably believe the person terminated or dismissed was dealt with fairly and within the bounds of the law? What would you do differently and why?

5.1 Yes definitely,it was the employer’s defence that they had invoked section 33(1) of the ERP 2007 as their statutory right to summarily dismiss an employee. They carried out summary dismissal against the grievor pursuant two grounds, being sections 33(1) (a) and (d) of the ERP. The employer has relied on the case of Central Manufacturing Company Limited v Yashni Kant (Unreported Fiji Supreme Court Case Number CBV 0010 of 2002 in support of their legal arguments as contained in their Closing Submissions filed on 7th November 2011. No opposing legal submissions with case-law authorities supporting the grievor’s position were submitted to this Tribunal.

5.2 The facts in this grievance indicate that the Grievor was accused of threefold allegation:-

i. First allegation relates to allegedly buying and selling of vehicles (8 in 10-year period) which the employer purported was in direct conflict with the core business of Carpenters Motors. Because the grievor’s duties and responsibilities as a supervisor fell within the broader department of Carpenters Motors it is alleged by the employer that he was involved in purchase and sale of eight cars for personal profiteering intention which denied the company sale and profit in respect of its core business of selling vehicles to customers.ii. Second allegation related to failing to adequately control and manage staff which led to stock being unaccounted for where two tyres in stock were audited and found missing. Since there were no documents to support how the stock had moved and the employer had already put the grievor on notice of similar incidents in the past, the grievor was alleged to have neglected his duty to control and oversee operations as a supervisor of his Tyres and Batteries department.iii. The third allegation in terms of substantial neglect of duties arises when it is alleged by the employer that, as a supervisor, the grievor had failed to take reasonable action to safeguard or check to prevent his staff from selling old tyre casings and pocketing the money for personal use without reasonable excuse.

5.3 Hereafter, the Employer took steps to summarily dismissed Mr. Nair which they say was only done after Mr Nair was accorded due process of investigation in terms of an audit being conducted into the operations handled by the grievor. Subsequently, disciplinary action was invoked after three interviews were conducted before a letter of termination pertaining to summary dismissal was handed to Mr Nair.

5.4 It was proved that a termination letter dated 16th July 2010 was given to the grveior when he was summarily dismissed.

5.5 This letter was marked as Exhibit E as part of employer’s documents exhibited to the Tribunal which contained the three allegations clearly on page 1 and reference was made to meeting being conducted between the grievor and the Audit Team of Carpenters on 7th July 2010. In the same letter the employer stated and I quote:-“...The Company has concluded that in all the circumstances and based on the foregoing reasons and particulars, you are guilty of gross misconduct and substantial neglect of duties as Supervisor Tyres and Batteries. Accordingly, and for the reasons set out herein, you are summarily dismissed without notice...” unquote. (Bold is my emphasis)

5.6 The grievor’s main contention or allegation of unfair and unjustified dismissal derives from the above action of the employer and which he has submitted in preliminary submission dated 27th April 2011 in the following manner:-• That the summary dismissal of Segran Nair is grossly disproportionate to allegations against him and which remain unsupported by any evidence from the Employer.• The Employer failed to produce any evidence of the allegation that the Worker had engaged in the business of buying and selling of cars. Indeed over the years he has acquired a few vehicles for his private family use and disposed of them for better options. There is nothing sinister in this.• The second allegation of failing to adequately control and manage staff is similarly unsupported with any specific and neither did the Employer demonstrate any negligence of the Worker’s part.

• The third allegation is also totally misplaced. Old tyre casings are of no value and are indeed the property of the customers. They are not part of the company’s stock in trade. Some customers leave them behind for disposal and it is common practice for staff to be allowed to take them away.• The company’s claim of loss and attempt to sell them is tantamount to cheating the customers.

5.7 The grievor further submitted that the Employer’s actions in making the allegations and summarily dismissing the Worker were unjustified and unfair on the grounds that it:• acted arbitrarily and denied the Worker due process by failing to conduct a fair inquiry and process leading to termination;• failed to consider his prior unblemished record of employment;• failed to allow the Worker to be represented in his grievance;• failed to allow for mitigation before dismissal;• acted in breach of the Worker’s employment contract; and• accorded the penalty of summary dismissal which was in the circumstances otherwise predetermined and disproportionate to the gravity of the allegation.

5.8 Indeed, the first point of reference for termination or dismissal on the premise of good faith relationship is always the contract of service between the parties. This goes to the definition of an employment; employer; and worker in the ERP which all make reference to ‘contract of service’ being a basis for an employment. A contract of service is defined as: “...a written or oral contract, whether expressed or implied, to employ or to serve as a worker for fixed or indefinite period...” (Underlining is my emphasis).

5.9 Here the worker submitted to the Tribunal that he was subject to an employment contract between himself and the Employer as a member of BP (SS) Co Ltd & W R Carpenters Group Salaried Staff Association under a collective agreement between the Union and the Employer which acted as the implied term of his employment. He was also subject various company policies from time to time.

5.10 None of these documents, either the collective agreement or policies were tendered in evidence but I take it that there was no contention that it existed.

5.11 It would have been helpful to peruse and assess the HR policies of the employer pertaining to the three allegations although during the hearing it was clear there was no written policy as to how the tyre casings would be disposed off that were left behind by the customers other than a directive from one of the directors of the company; and whether or not the employer had explicitly made known to the workers whether or not they could engage in the acquisition and sale of vehicles procured as an employee of Carpenters entitled to discount on the same.

5.12 The “good faith” relationship that I allude to in a contract of service was tested in the 1997 decision of the Supreme Court of Canada in Wallace v United Grain Growers Ltd [1997] 3 S.C.R. 701 where the Court injected into the employment relationship the requirement of “good faith conduct” at the time of termination, where in passing the Court spoke of “special relationship” which governs the parties to an employment relationship. Wallace is useful in considering “good faith and fair dealing” where the Court noted that:- “..., at minimum, ... in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive...” (at page 46).

5.13 What this means is that as long as the employer before proceeding to any punitive action (such as disciplinary action or even termination) as well as at the time of the dismissal is honest, upfront and makes the employee aware of the alleged misconduct which may potentially led to dismissal as per the contract of service (implied or express), for whatever reason (lawful cause or no cause) and which the employer is able to communicate to the worker in a dignified and fair manner without inflicting humiliation or misleading in terms of giving any false information, whether in writing or not, the requirement of “good faith” should suffice.

5.14 In the grievance before me, clearly there is a collective agreement binding the parties in a contract of service and for the most part, the allegation of unfair dismissal hinges on the grievance and disciplinary procedures of the employer that was accorded to Mr Nair: this is alleged to be unfair substantially and procedurally. While the grievor did not furnish any closing submissions in support of his legal arguments, as normally seen, in this case too, the grievor is seeking the Tribunal’s determination on the issue of whether or not the summary dismissal was first, substantially justified under s33 and second, was it procedurally fair in terms of the due process when the summary dismissal was accorded to him.

5.15 For ease of reference, this Tribunal will quite extensively rely on the decision of the Employment Relations Court (or “the ERC”) as held in the case of Carpenters Fiji Limited v Isoa Latianara ERC No. 7 of 2011, mainly in terms of the procedures for summary dismissal .Since this particular decision has been handed down by the ERC, I have set out in my subsequent decisions how this Tribunal now assesses the basis of “unfair dismissal ” allegations and at the risk of repeating myself, which is unavoidable at all times, I shall set out those principles once again.

5.16 First point to note is that the ERP 2007 is now is an established law of Fiji governing employment relationship between an employer and employee (or worker). Therefore the law on summary dismissal has been codified in the ERP 2007 and the employer’s counsel has rightly pointed out, which was indeed confirmed by the Court of Appeal in the case of Shell Fiji Ltd v Johnson [2010] FJCA 54; ABU0012/2009 (23 September 2010) at paragraph 30 and 31 (and which was also upheld by the Supreme Court[1] at paragraphs 26 and 27). His Lordships, Byrne and Callanchini J have stated that:-“The right of an employer to summarily dismiss an employee at common law has been modified in Fiji by statute. At the relevant time, section 28 of the Employment Act Cap 92 (now repealed) stated:

“28 An employer shall not dismiss an employee summarily except in the following circumstances:(a) Where an employee is guilty of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of service;

(b) Forwilful disobedience to lawful orders given by the employer;(c) – (e)

5.17 In the same Court of Appeal case, his Lordships went further and stated that:“In the absence of a more generous term in an employee’s contract of service, the summary dismissal of an employee will be wrong if it is inconsistent with the provisions of section 28.”

5.18 Here, the Lordships considered the case of Fiji Public Service Association and Satish Kumar –v- the Arbitration Tribunal and Another (unreported Civil Appeal No. 13 of 1999 delivered on 19 February 2002) where the Fiji Court of Appeal had said (approving the comments made by the judge at the first instance) at page 10:“Section 28 provided that an employer should not dismiss an employee summarily except in the circumstances specified therein. .... His Lordship said that the section did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (e) applied. He added that if any of the paragraphs applied, the common law right continued and there was not statutory or other objection to that right being fettered by an agreement between the employer and its employees ....”

5.19 Section 33 (1) of the ERP 2007 repealing section 28 of the Employment Act is no doubt similar in various ways. It does not also confer an unfettered right to the employer to dismiss an employee except under those matters specified under s33 (1) (a)-(e) where it clearly stipulates that:“No employer may dismiss a worker without notice except in the following circumstances –

(a) Where a worker is guilty of gross misconduct;(b) Forwilful disobedience to lawful orders given by employer;(c) For lack of skill or qualification which the worker expressly or by implication warrants to possess;(d) For habitual or substantial neglect of the worker’s duties; or(e) For continual or habitual absence from work without the permission of the employer and without other reasonable excuse.”

6. Do you reasonably believe the termination or dismissal was the best option available or otherwise? What would you do differently and why?

In this case it was the only reasonable thing to do because there was more than reasonable doubt and Evidence from the employer's witnesses indicating that the three allegations outlined above that the employer gave as their reasons for summary dismissal was established to this ERT as these acts or conduct was not authorized by the employer. Naturally, if it was authorized, then upon discovering that Mr Nair was in such practice that violated his fiduciary duty, the employer would not have reacted immediately in terms of initiating investigation (and interviews) and thereafter invoking the harshest of all the penalties, being summary dismissal of the grievor. In this regard, failing adherence to employer's policy or rule, it provided the employer a basis to allege "gross misconduct" in terms of having a valid reason or cause where the grievor's actions did not meet the employer's standard of conduct set down to buy and sell cars as an employee of Carpenters. Furthermore, the grievor is also found to be in substantial neglect of duties particularly where the stock in trade, the two tyres that could not be accounted for that was established to have been sent to his branch first, and then moved again under his supervision. The third allegation appears to a minor negligence; nevertheless Mr Nair's position was such that he cannot escape responsibility that easily. As a supervisor, he should have followed the employer's directive and disposed of the casings properly.In my opinion, at least two of the offences were serious in nature and therefore it is this ERT's finding that the employer's main reasons for dismissing the grievor was for a lawful cause which was duly established from the evidence. Once lawful cause(s) is established, it should thus suffice the criterion for s33 (1) (a) for "gross misconduct" or zs33 (1) (d) for "substantial neglect of duties". Here, the employer has made these two grounds as a basis for termination, where they have rightly invoked section 33(1) (a) after properly conducting a "guilty" assessment of the alleged offence and notifying the grievor of the same. They also invoked s33 (1) (d) and informed the grievor of the facts ensuing from that allegation which was also established to this ERT. Hereafter the employer will be required to immediately terminate the grievor where procedures are concerned for summary dismissal.

As a student, these are some best option that we will be implemented so that worker are not to be terminated.

Minimize the lunch hour so that the worker his/her action. Deduction of salaries

Authorised deduction of wages (ERP 2007)47.—(1) An employer may—(a) Deduct from the wages of a worker an amount due by the worker in respect of any tax or deductionimposed by law or ordered by a court;(b) With the written consent of the worker, deduct an amount due by the worker as a contribution to aprovident fund, school fund, pension fund, sports fund, superannuation scheme, life insurance ormedical scheme, credit union, trade union, co-operative society or other funds or schemes of whichthe worker is a member and must on behalf of the worker pay the amount so deducted to the personempowered to collect amount or entrusted with the management of the fund, scheme, trade union orcooperative society;(c) Make deductions from the wages of a worker to the extent of an over-payment made during theimmediately preceding 3 months by the employer to the worker by the employerʼs mistake; or(d) Make deductions at the request in writing of the worker—(i) In respect of articles or provisions purchased on credit by the worker from the employer;(ii) In respect of charges for the cost of accommodation, fuel or light supplied by the employer andused by the worker; or(iii) In respect of food or victuals cooked, prepared and eaten on the employerʼs premises.(2) The price or cost which the employer charges a worker for articles or provisions must not exceed the lowest

price at which the employer would sell articles or provisions retail to a member of the public.(3) The total deduction in respect of accommodation, boarding, fuel and light must not exceed 15% of theworkerʼs wages in respect of one wage period, and 5% for accommodation or board.(4) If—(a) An employer makes a loan to a worker;(b) The total amount of the loan has been paid by the employer to the worker in cash or by cheque; and(c) A memorandum of the transaction has been made and signed by or on behalf of both employer andworker providing for the repayment of the loan by one or more instalments,the employer may deduct from the wages due to the worker the instalments at the times set out in thememorandum.(5) Any deductions made under subsection (1) and other deductions permitted by this Promulgation must notbe, in a wage period, more than 50% of the wages due to the worker in respect of the wage period except for housingpurposes from an approved lender, where the deductions permitted may be up to 75%.

7. Do you agree or disagree with management’s decision? What would you do differently and why?

We agree with the management’s decision because Mr. Narain, being in the supervisory position, and that too doing the job for 15 years in the same department, Mr. Nair cannot say he was not aware of the employer's rules or directives. Secondly, there is compelling evidence that he had engaged in the buying and selling of cars, at least on two occasions by gaining advantage as an employee and benefitting his relatives in that regard which deprived Carpenters of their rightful sale and profit. He could have referred his in-laws directly to the Carpenters Motors and thereafter, sought by mutual agreement with the employer to provide a discount if they consented. When the audit findings revealed these facts including that two tyres were unaccounted from the stock, the employer was clearly perturbed and ordered further investigation where Mr. Nair was interviewed on various occasions. Evidence from the employer's witnesses indicated that the three allegations outlined above that the employer gave as their reasons for summary dismissal was established to this ERT as these acts or conduct was not authorized by the employer. Naturally, if it was authorized, then upon discovering that Mr. Nair was in such practice that violated his fiduciary duty, the employer would not have reacted immediately in terms of initiating investigation (and interviews) and thereafter invoking the harshest of all the penalties, being summary dismissal of the grievor. In this regard, failing adherence to employer's policy or rule, it provided the employer a basis to allege "gross misconduct" in terms of having a valid reason or cause where the grievor's actions did not meet the employer's standard of conduct set down to buy and sell cars as an employee of Carpenters. Furthermore, the grievor is also found to be in substantial neglect of duties particularly where the stock in trade, the two tyres that could not be accounted for that was established to have been sent to his branch first, and then moved again under his supervision. The third allegation appears to a minor negligence; nevertheless Mr. Nair's position was such that he cannot escape responsibility that easily. As a supervisor, he should have followed the employer's directive and disposed of the casings properly.

Recommendation

If the employer has concerns or a complaint about your work, they may decide to take disciplinary action against an employee.There are a number of reasons why the employer may decide to take disciplinary action against you. These include your:

Behaviour at work Absence from work Standard of work.The employer should try to sort out their concerns by talking to you informally, if at all possible.

However, employers may not sort out their concerns in this way and they may decide to start a disciplinary procedure. This could lead to disciplinary action and, in some cases, even dismissal.If the employer decides to a take disciplinary action or dismiss you, they should follow the procedures which are laid out in the Employment Regulation Promulgation under section 33 Summary Dismissal.

Summary dismissal33.—(1) No employer may dismiss a worker without notice except in the following circumstances-(a) Where a worker is guilty of gross misconduct;(b) For wilful disobedience to lawful orders given by the employer;(c) For lack of skill or qualification which the worker expressly or by implication warrants to possess;(d) For habitual or substantial neglect of the worker’s duties; or(e) For continual or habitual absence from work without the permission of the employer and without other reasonable excuse.(2) The employer must, provide the worker with reasons, in writing, for the summary dismissal at the time he or she is dismissed.Right to wages on dismissal for lawful cause

34. 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. Presumption as to oral contracts35.—(1) In the absence of any proof to the contrary and subject to subsection (4), an oral contract is deemed to be a contract for the period by reference to which wages are payable under the contract but in any case shall not extend for longer than one month from when it was made.(2) If wages are payable at intervals of less than a day, then in the absence of any proof to the contrary, an oral contract is deemed to be a daily contract.(3) Subject to subsection (4) and any proof to the contrary, an oral contract terminates on the last day of the contract period, or in the case of a daily contract at the end of the day.(4) Where an oral contract, deemed under subsection (1) to be a monthly if the employer does not follow these procedures, but if you decide to take your employer to an employment tribunal and you win your case, your employer could be ordered to pay you more compensation for not following the procedures.

Conclusion

No legal submissions was provided by the grievor and this Tribunal found that there was no evidence to establish that the termination was unfair in the manner it was accorded to the grevior other than the grievance procedure of according natural justice as deemed to be any grievor's right to be heard and respond (including being given an appeal procedure against the employer's decision and mitigation) was the foremost contention as pleaded above by the grievor to be the unfair/unjustified treatment. In that sense, I found no evidence of unfair termination in terms of Wati J's finding in Isoa's case: that "...it is not the aspect of right to be heard that leads to unfair dismissal . It is the manner of treating the employee in carrying out the dismissal that must be considered...".

To that end, s230 (2) (a) & (b) of the ERP where it provides for "Employment grievance remedies" does not apply in this matter. To better answer this, it is crucial to examine section 33 (2) of the ERP 2007, where it is mandatory that "the employer must provide the worker with reasons in writing for summary dismissal at the time he/she is dismissed" (my emphasis).

Here, time of dismissal is critical component to lawfully establishing "summary dismissal”. I am convinced that the employer discharged the grievor from his employment in compliance with s33 (2) of the ERP at the time they carried out summarily dismissal by providing reasons, both in writing and verbal communication (interviews). I am satisfied that employer had reasonably conveyed to the grievor the reasons for his summary dismissal where he appeared to have had all the details to properly understand the exact nature of the allegations and circumstances leading to his summary dismissal when the employer wrote a letter to him on the day of his dismissal, which letter was handed to him personally as was the evidence. There was no contention that his wages and dues were not paid by the employer up-til the day of his termination (see: s34 of ERP).

8.0 Decision & Orders:-

1. The Employer had lawful cause to invoke summary dismissal on the grounds of gross misconduct and substantial neglect of duties pursuant to s33 (1) (a) and (d) of the ERP 2007 respectively. The Employer has thus carried out summary dismissal lawfully and fairly (substantially and procedurally). 2. The Employer has also fairly carried out summary dismissal by according respect and dignity to the grievor at the time of his dismissal in that:-

(i) The employer had immediately proceeded to inform the grievor of their decision to summary dismiss Mr Nair after they had concluded their investigation and found him guilty of the allegations; and

(ii) The employer also provided to satisfaction of this ERT valid and proper reasons in writing pursuant to s33 (2) of the ERP.3. Accordingly the allegation of unfair (summary) dismissal is dismissed forthwith.4. The parties will bear their own cost in this matter.

Reference

FIJI. EMPLOYMENT RELATIONS TRIBUNAL. (2012) Fiji Employment Tribunal: Nair v Carpenters Fiji Ltd. Suva: Pacific Islands Legal Information Institute. [online] Available at: http://www.paclii.org/fj/cases/FJET/2012/40.html

FIJI. REPUBLIC OF FIJI ISLANDS GOVERNMENT GAZETTE. (2007) Employment Relations Promulgation. Suva: Authority of Fiji Government. (Page 39/ Section 47)

FIJI. REPUBLIC OF FIJI ISLANDS GOVERNMENT GAZETTE. (2007) Employment Relations Promulgation. Suva: Authority of Fiji Government. (Page 33/ Section 33)