Pursuant to Fiji law, in situations of serious employee misconduct the employer has two choices, either:

• a summary dismissal for cause (as set out in section 33 of the Employment Relations Act) when the employer is certain of the facts and those facts warrant immediate termination of employment; or
• to undertake a disciplinary inquiry to ascertain all the facts and then, if those facts are proven, take appropriate disciplinary action that may include termination of employment, suspension from employment or written warning.

In both situations, the employer is acting “for cause” and, if the employer terminates the employee’s employment, must provide the employee with written reasons for the termination of employment at the time of termination.

In this employment law update we consider summary dismissal (on the spot termination without a disciplinary inquiry process) and note that a recent judgement of Sanjay Lal v Carpenters Fiji Limited (Sanjay Lal v Carpenters) issued from the Employment Relations Court (“ERC”) on 10 August 2018 provides some useful guidance from the ERC in relation to summary dismissal.

In a previous commercial legal update we provided some general information regarding the employer's duties relating to dismissing an employee for misconduct. This update can be found: here

Where to commence a grievance relating to summary dismissal

For employees who may feel aggrieved by their summary dismissal it is important to note that the Employment Relations Tribunal may only hear claims up to $40,000. For claims above $40,000 a claim must be commenced in the Employment Relations Court which is a division of the High Court of Fiji and therefore has an unlimited civil jurisdiction

Madam Justice Wati, who presided in Sanjay Lal v Carpenters confirmed this by explaining:

• The Employment Relations Tribunal has jurisdiction to hear employment grievances, however these are only for claims that are less than $40,000
• The Employment Relations Court has powers to hear actions based on employment contract and any other laws relating to contracts
• Claims for damages of more than $40,000 may be heard before the Employment Relations Court
• It is not compulsory for a grievance that has been filed as an action before the Employment Relations Court to be referred to the mediation unit before proceeding before the Court.

For claims below $40,000 commenced before the Employment Relations Tribunal, the claim will be subject to a compulsory process of mediation and it is only if mediation does not result in agreement that the case will proceed before the Employment Relations Tribunal, if the parties do not reach a settlement beforehand.

Who has the onus of proof before the Employment Court or Tribunal?

The Employment Relations Act does not explicitly state whether the employer or employee bears the onus of proving any termination of an employee was justified. However Madam Justice Wati in Sanjay Lal v Carpenters determined that in accordance with Article 9 of Termination of Employment Convention, 1982 (“Convention”) the employer has the onus of proving that a valid reason exists for the termination of an employee. While the Convention is international law and therefore not directly binding on Fiji nationals, Justice Wati found the principle to be persuasive and relied on the Fiji Constitution in the application of international legal standards to employment disputes.

It should be noted that, in the hearing in the Employment Relations Court, the employer’s witness didn’t have the documents with him in court to prove the employer’s allegations of misconduct, and this was commented on in the Court’s judgment as reason to disbelieve the witness and the employer. Because the onus of proof is on the employer, the employer must properly document all its allegations of misconduct and bring that proof to court.

Requirements for summary dismissal

The judgement Sanjay Lal v Carpenters provides that if an employer is considering the summary dismissal of an employee, they are under no obligation to provide that employee with a hearing. This accords with the view that summary dismissal cases must be sufficiently clear and warranted that no hearing is required to establish the facts. Of course each case will be different, depending on its facts, but an employer should be aware that in accordance with Sanjay Lal v Carpenters it is the employer that has the burden of being able to show that the facts were clear and justified a summary dismissal.

Madam Justice Wati also set out that the employer’s obligations to an employee upon summary dismissal are that the employee must be:

• provided with reasons, in writing, for the summary dismissal
• paid on dismissal the wages due up to the time of dismissal
• provided with a certificate of service stating the nature of employment and the period of service

An employer may carry out its own internal investigations in order to determine as to whether an employee has committed a misconduct, however an employer is under no obligation to afford an employee a hearing based on its findings. The case Sanjay Lal v Carpenters further notes that if an employee, who has been summarily dismissed, is not happy with the reasons for their summary dismissal they may have the opportunity to re-dress this through court proceedings in the ERT or the ERC.

It was further noted that even though an Employer is not required to afford an employee an opportunity to address the result of an internal investigation

“it would assist the employer in making an informed decision and justifying its findings when the decision is under scrutiny in proceedings before the tribunal or court.”

Dangers of overstepping the mark in terms of humiliating the employee in the manner of the summary dismissal

It has long been established law in Fiji that an employer must be careful in the manner that it treats employees and must not humiliate an employee in the manner of the dismissal. This includes, but is not limited to: acting in bad faith towards an employee, bullying an employee, making personal attacks against an employee, discriminating against an employee, or relying on non-work related issues in undertaking disciplinary action against an employee. The manner of dismissal should also not be personally humiliating to the employee which means that employers should avoid marching employees out of the business premises in front of others, or otherwise physically intimidating the employee.

While the above is a non-exhaustive list of ways that an employer could cross the line and humiliate or otherwise bully or discriminate against an employee, every case must be considered on its own facts. However, the Court in the case of Sanjay Lal v Carpenters, after considering all the evidence before it, found a number of ways that the employer had breached a duty to the employee in the manner of the employee’s dismissal and how the employee was treated during employment. Amongst other things, the Court found:

• The employee had been humiliated during a disciplinary hearing with the executive management team of the employer when one of the directors present made remarks accusing the employee’s wife of having extramarital affairs, for being a thief and further remarking that she will serve prison time.

• Employers should, when undertaking disciplinary hearings, stick to ascertaining facts relating to the employee’s conduct, and whether or not an employee complied with the employer’s policies. The court found that the employee was unnecessarily humiliated under the circumstances.

• The employer had apparently managed to obtain a stop order from Fiji’s department of Immigration that prevented the employee from travelling abroad with his children and denied all requests by the employee to the employer to seek the removal of the stop order.

• The court noted that the employer did not have the authority to issue a stop order and that the employee suffered humiliation as a result of the above and unnecessary legal cost to have the stop order removed.

• The employee was further asked to resign when his termination letter was delivered to him by one of his former employees. The court notes that the witness who had given evidence stating that he had delivered the termination letter to the employee, stated that he did not recall asking the employee to resign. However, the Court noted that this (the request for resignation) was not done with any good motive but to avoid the Employer from being blamed for the termination and to have a clean slate.

It was further noted that the above instances of bad faith led to the loss of employment for the employee making the termination unfair.

In awarding damages to the employee the Court noted that the employee was unemployed for about 14 months, before he started up another business. He was also not given a certificate of service which could have helped him find employment sooner. The employee was awarded 12 months’ worth of wages amounting to $55,000.

The employee was also awarded interest on the sum of $55,000, at 6% for the 3 years beginning from when the writ was filed and upon completing the hearing, this came to a total of $12, 316.96.

The employee was also awarded $5,500 for his FNPF pension with an additional interest award of $571.60 (calculated based on the 3 years that it took the case to conclude)

The employee was awarded a further $11,500 for humiliation and injury to feelings and $6,500 in solicitors’ cost.

Total damages awarded to the employee came to the amount of $91,388.56

Please note:

This commercial law update is provided for general information purposes only and it is not, and should not be relied on as, legal advice.

For more information, please contact our employment law team:

Mary@sas.com.fj

Ana@sas.com.fj

Ronlyn@sas.com.fj

Seini@sas.com.fj