COURT JUDGMENT SHOWS THAT WORKERS’ RIGHTS IN THIS COUNTRY ARE INTACT
WHEN THEY ARE NOT HAPPY WITH THE WAY THE EMPLOYMENT LAW IS APPLIED IN THE WORKPLACE, THEY CAN SEEK REDRESS IN COURT They do not have to resort to militant protests to express their grievances
Ajudgment in a Nadi court yesterday, ordering the reinstatement of a dismissed employee, shows that workers’ rights are intact.
It’s the latest in several judgments delivered in favour of workers against employers under the Employment Relations Promulgation Act.
They and their trade unions do not have to resort to militant tactics like public demonstrations, strikes and marches, to express their grievances and get what they want.
These tactics are disruptive, damaging to the industries they represent, and counter-productive. Many are politically motivated anyway, backed by overseas cohorts who sit in their ivory towers and take pot shots at our employment law, Government and the justice system. Sadly, the losers in this modus operandi are the workers. In this latest case, a Mahen Jaswin
Nair, had gone to court with his lawyer, Damodaran Nair, helped by his union, the Construction Energy and Timber Workers Union.
Yvonne Fatiaki represented the Authority.
Mahen Jaswin Nair claimed that he was unlawfully and unfairly terminated by the then Fiji Electricity Authority (now called Energy Fiji Limited) and sought compensation.
The events that led to his dismissal occurred during the restoration period immediately after Tropical Cyclone Winston in 2016.
Senior resident magistrate Ropate Green, who presided in the tribunal, ruled that Nair be reinstated without any loss of benefits. Mr Green said the parties were to bear their own costs.
Court records
Court records said Nair worked for the Authority for about 15 years and 11 months.
The Authority relied on internal policies to carry out disciplinary proceedings against Nair.
He was terminated because he assisted a consumer by reconnecting his power without the Authority’s permission after the aftermath of Winston. At the time, Nair’s wireman’s licence had already expired. It further aggravated his position.
Section 33 (2) of the Act requires the employer to provide reasons for the dismissal in writing and it must be given at the date if the dismissal. The employer submitted that section 33 (1) (a) and (b) of the Act applied in this case. It said Nair was guilty of gross misconduct and willful disobedience to lawful orders given by the employer.
Mr Green said: “Employment contracts are similar in nature to general contracts. Therefore the general principles of contractual law apply to Employment Contracts.”
He said power and water outage were the results of the aftermath of Cyclone Winston.
“It cannot be disputed that the Authority’s resources were stretched and all its employees were working overtime to restore power to the affected area,” he said.
“In some areas, families were facing difficulties in engaging qualified electrician to reconnect their power. “These were indeed dark and trying times.”
Interest
Mr Green said Nair “may have unwittingly and without self-serving interests assisted a consumer to help bring light to that particular family.” “There is no evidence that he benefitted from this act of kindness, nor is there any evidence that he solicited monetary gains. These actions were not repugnant or in conflict with the confidence of the Authority.
“On the issue of the expiry of his wireman’s licence, I find that the issuing authority is the employer. The employer ought to have known that his licence had expired and therefore renewed the same.
“In any event, we cannot discount the fact that the grievor was carrying his responsibilities in reconnecting power to affected areas.”
Evidence
“It came out during the evidence that they were working overtime. These were not the best of times. It would be unfair, inequitable and harsh to now penalize the grievor.
“Whilst the tribunal does not condone the failure of the grievor to renew his licence or the blatant disregard of the Authority’s policies, the circumstances surrounding the facts of this case were unusual.
“The country was under a state of Emergency. Restoration works were the priority of the State at that juncture.
“All the arms of the Government were working to bring a sense of normality. From this vantage point, it would be inequitable to now penalize the grievor for failure to comply with Authority’s policies.
“For these reasons, I find that the grievor has been unlawfully terminated. I find that the employer did not act inappropriately in the course of terminating the grievor. The grievor was given due process before he was terminated. Consequently, I dismissed this cause of action.”