Fiji's employment law, like that of other common law jurisdictions, is a mix of statutory rights and common law principles. Fiji's Employment Relations Act, provides every employee with clear minimum standards in relation to conditions like leave, hours of work and minimum contract terms that an employer may exceed but cannot fall below.

However, when it comes to dismissing an employee for misconduct an employer must not only consider the Act but also the employee's contract of employment and what the common law sets out an employer must do to accord the employee with a fair process and decision before the dismissal. In situations of employee misconduct this can be difficult to do as emotions may be running high but the employer must still apply the law and often the best course of conduct is not to rush to a final decision.

In this update we consider a recent judgment from the Employment Relations Tribunal that sets out the tests that the employer must meet when terminating an employee for cause. A good understanding of these legal tests and what the Employment Relations Tribunal wants in terms of a fair disciplinary process will assist the employer to reach the right decision, as well as minimise legal risk and the chances of an employee being unfairly dismissed.

Employee misconduct presents an employer with a uniquely difficult situation. Apart from anything else the employer may be concerned about its own legal exposure from its employee's actions. Depending on the misconduct it may also be difficult to determine what is sufficient misconduct to justify in law a dismissal for cause.

The employer must also consider whether the employee's misconduct is so serious to warrant a summary (on the spot) dismissal or a more considered investigation leading to a determination on whether to dismiss for misconduct or take other less severe disciplinary action.

In terms of a summary dismissal, section 33 of the Employment Relations Promulgation provides 5 grounds that may lead to a summary dismissal and these are:

1. Gross misconduct
2. Wilful disobedience
3. Lack of skills or qualification
4. Habitual or substantial neglect
5. Continual or habitual absence.

In all but the most serious cases of misconduct, it is difficult for an employer to be certain that the particular conduct of the employee will definitely meet one of these tests. Unfortunately the law cannot provide a definitive answer in every situation. Lawyers will frequently explain that every case must be considered on its own facts and merits.

The law can, however, provide some general tests that may assist an employer to determine when misconduct may warrant summary dismissal or dismissal for cause. This test was discussed in the recent Employment Relations Tribunal judgment of Claire Diane Giraldeau v Projects Abroad Organisation Ltd, 12 January 2018, determined by Resident Magistrate, Mr Ropate Green.

The Honourable Magistrate pointed to and applied the test in Bebe v Telecom Fiji Ltd (2007) HCA 494 of 2002 stating:

the key question is whether the employee's misconduct was of such a grave and weighty character as to undermine the relationship of trust and confidence which is central to the employer-employee relationship.

The Honourable Magistrate also pointed to the guidance provided by Mr Justice Gates (as he then was) in the case of Philips Thomas v Fiji Electricity Authority HBC243 of 1996L where the following was stated:

the employer must show that he believed that there had been misconduct by the employee; that there were reasonable grounds for that belief; that he had carried out as much investigation into the matter as reasonable in all the circumstances; and that the decision to dismiss him for that conduct was within the range of reasonable responses of a reasonable employer.

While the above tests will assist an employer to identify what may constitute serious misconduct, the Employment Tribunal may also want the employer to show that it undertook an investigation into the employee's misconduct that was reasonable in all the circumstances. The Honourable Magistrate set out what the Employment Tribunal will consider reasonable in all the circumstances as follows:

A fair and reasonable process of investigation would involve the following:

a. Written Notice to be given to the Griever outlining the allegation and the likely consequences if it is established;

b. The Employee should have an opportunity to refute the allegation or to explain or mitigate their conduct; and

c. The employer should give an unbiased consideration of the employee's explanation.

In the case of Claire Diane Giraldeau v Projects Abroad Organisation Ltd, it was a series of negative reports from the volunteers and clients of the employer regarding the employee that the Honourable Magistrate decided had resulted in damage to the employer's business and did amount to misconduct sufficiently serious to warrant dismissal. The Tribunal also considered the employer's investigation into the volunteer reports and found the investigation was reasonable in all the circumstances of the matter. Further the Honourable Magistrate found that the decision to dismiss the the employee was proportionate to the employee's misconduct and that at all times the employer had treated the employee with fairness and respect including in the manner of the dismissal. For all of these reasons the employee's claim against the employer was dismissed.

Conclusions

In the face of employee misconduct the employer should remain calm and assess the misconduct objectively and fairly. Wherever possible, time for objective consideration should be taken because the Employment Relations Tribunal will expect the employer to be able to justify any decision to dismiss an employee either summarily or for cause and this means showing an investigation that is reasonable in all the circumstances.

Some useful general rules to remember that are based on our experience include using the term "investigation" and not "interrogation", and sharing information with the employee is correct while attempting to surprise the employee with information is wrong. Further, treatment of the employee is important, and employers should refrain from using anything that looks heavy handed like security marching them out of the premises and finally, photos in the paper seem popular but unless there is a good reason to disclaim the employee then they are best avoided.

The employer must also consider and follow the requirements of the Employment Relations Act and any relevant terms of the employee's contract of employment/collective agreement/employee handbook. If at all possible, the employer should bring in a 3rd person, and preferably a HR professional or an experienced lawyer to provide objective assessment of what has occurred and ensure that regardless of what the employee has done, his or her rights related to a reasonable (in the circumstances) and fair investigation and disciplinary process are followed. 

However, as a lawyer once said, ultimately, each case must be considered on its own facts and merits, and where time and a reasonable investigation is undertaken then the employer may decide that the misconduct is not sufficiently serious to have irreparably damaged the employment relationship. In this situation dismissal may be avoided with other disciplinary action open to the employer including a written warning.

If you would like a soft copy of Claire Diane Giraldeau v Projects Abroad Organisation Ltd please email: james@sas.com.fj

This update is provided by way of general information only and it should not be relied on as specific legal advice in any particular matter.