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.