Commercial Law Updates

Taking disciplinary action against an employee is perhaps the most challenging task for an employer. This is because in most cases of employee wrongdoing the employer must assume the technical roles of investigator, prosecutor and judge while owing an overriding duty to treat the employee fairly. The body of employment law in Fiji shows that employers can pay a high price for getting any of these stages wrong.

In this commercial law update, we consider the first stage of the disciplinary process - being the investigation to establish the facts of the matter. While in Fiji this stage is usually conducted by the employer, in other jurisdictions, like Australia, NZ, and Malaysia, an employer may seek a qualified third party to undertake an investigation.

In January 2019, the Fiji Law Society organised and hosted the LawAsia Employment Law Forum during which a senior employment lawyer, Mr Brian C Willamson distilled his many years of expert knowledge into a presentation about how to conduct disciplinary investigations to be “effective and fair”. While, it is likely that most employers due to limited resources and qualified investigators will still have to undertake their own investigations, Mr. Williamson’s detailed and expert knowledge provides valuable insights into this process.

This commercial law update discusses a recent decision from Fiji’s Employment Relations Tribunal (“Tribunal”) which outlines important issues on jurisdictional limits and international labour contracting. The case of Daniel Sanchez v Sheraton Resort Fiji was decided by the Tribunal on 16 January 2019, and involved an expatriate chef employed by a large resort.

The Tribunal in awarding $37,670.00 to a Mexican national, Mr. Sanchez, set out important principles regarding:

• the fair treatment of workers recruited from outside the Fiji jurisdiction
• applied the same standards of Fiji law to Mr. Sanchez regardless of his nationality and
• set an important precedent for the Tribunal's own jurisdictional limits.

In our Commercial Law update issued on 28 January, 2018 we provided an update on the policy changes made by the Immigration Department regarding work permits which can be found here

This further update specifically addresses recent policy changes by the Immigration Department to the 14 days business permit that may, once issued, be extended up to 3 months. This policy change by Fiji's Immigration Department means that it has now reverted to its original policy that enables 14 days business permits be extended for a period of up to 3 months by operation of section 9 (2) (c) of the Immigration Act 2003. 

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.