Suva City Council Staff Association v Suva City Council [2004] FJAT 15; Award 08 of 2004 (22 March 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 8 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

SUVA CITY COUNCIL STAFF ASSOCIATION

AND

SUVA CITY COUNCIL

SCCSA: Mr J Toki
SCC: Mr P Prasad

DECISION

This is a dispute between the Suva City Council Staff Association (the "Association") and the Suva City Council (the "Employer") arising out of the unsuccessful application by Mr Subramani Goundar for the position of Property Officer.

A trade dispute was reported to the Permanent Secretary on 16 December 2002. The report was accepted on 20 January 2003 and the dispute was subsequently referred to a Disputes Committee. The Committee could not reach a consensus decision and as a result the Minister authorized the Permanent Secretary to refer the dispute to an Arbitration Tribunal for settlement pursuant to section 5A(5) (a) of the Trade Disputes Act Cap.97.

The trade dispute was referred to the Permanent Arbitrator on 28 March 2003 with the following terms of reference:

"..... for settlement over the claim by the Union that the Council is not adequately considering Mr Subramani Goundar’s application for the position of Property Officer of which the Union claimed was a breach of clause 25 of the Master Agreement. Furthermore the Union claimed that the actions of the Council were unfair, and wants the post in dispute to be put on hold in accordance with the preamble of the grievance procedure in Section VI of Clause 17 of the Master Agreement".

A preliminary hearing was held on 15 April 2003 when the parties were directed to file preliminary submissions on or before 30 September 2003 and the dispute was fixed for hearing on 1 October 2003.

On 1 October 2003 the parties informed the Tribunal that they did not intend to adduce evidence and that a hearing would not be necessary. The parties were directed to file final submissions by 15 October 2003 and the Award would be on notice.

As a result of the appointment of a new Permanent Arbitrator it became necessary to relist this dispute for mention on 19 January and 3 March 2004. The parties confirmed that they did not require a hearing and would rely on the submissions previously filed.

The dispute is about the appointment of Mr Ram ahead of Mr Goundar to the position of property officer at the Suva City Council.

The position of property officer is a new position. It would appear that the position was established following the removal by the Council of Mr Suresh Rattan from the position of Town Hall Supervisor to another newly established position of Senior Enforcement Officer. The material filed by the Association indicates that Mr Rattan’s removal was the subject of a reported trade dispute which had been referred to a Disputes Committee.

The consensus decision of that Disputes Committee dated 15 August 2002 states that the Council breached the preamble to clause 17 of the Master Agreement by transferring Mr Rattan after the Association had raised a grievance over the issue. However, the Committee’s decision also states that Mr Rattan is to continue in his new position of Senior Enforcement Officer.

The preamble to clause 17 of the Master Agreement states:

"Whenever any grievance, dispute or difference arise, either out of the application or interpretation of the Agreement, or from any other cause, all work shall continue normally and all concerned will make sincere attempt to settle the matter in accordance with the procedures laid down in the Agreement".

Although the reference requires the Tribunal to consider the preamble to clause 17 of the Master Agreement, the Association has not addressed the matter in its written submissions. It would appear from the Reference itself and from reading the correspondence which passed between the Association and the Permanent Secretary that the Association wanted the post "to be put on hold in accordance with the Preamble of the grievance procedure".

The Preamble states that "all work shall continue normally "whenever any grievance etc. arises. The Association appears to be suggesting that the Preamble requires the Council to leave the position of property officer vacant whilst the grievance procedure runs its course.

If this is the Association’s argument, then it must be rejected. The concept in the Preamble is that the status quo should remain whilst the grievances procedure takes place. The status quo in this case, according to the Association, is to leave the position vacant. This would be unworkable from the Employer’s point of view. The Council could not function in the best interests of the rate payers if the position of property officer were to be left vacant from July 2002 to the present time.

If the Preamble has any application to the present dispute, which is by no means certain, then it can only mean that the applicant preferred by the Employer should remain in the post and continue working normally until the dispute has been settled. This is consistent with the approach taken by the Disputes Committee in the case of Mr Suresh Rattan.

It is not in dispute that Mr Ram was appointed to the position of property officer by letter dated 26 September 2002 and commenced duties on 1 October 2002. The Association did not make any submission as to when a grievance, dispute or difference arises. The Council claims that it is when a trade dispute is reported. However clause 17 itself makes it clear that a grievance arises well before there is a report of a trade dispute to the Permanent Secretary. There is insufficient information in the material provided by the parties to determine whether the grievance arose before or after the date when Mr Ram was appointed and/or commenced duties as property officer.

The Reference from the Permanent Secretary suggests that the dispute is primarily concerned with compliance of clause 25 of the Master Agreement. Clause 25 deals with promotions and provides that:

"Promotion of staff would be determined by the following factors:

(i) Efficiency;

(ii) Experience;

(iii) Qualification;

(iv) Seniority

The Association shall be notified in writing of any promotion of staff members for its information only"

The position was advertised internally and externally. A total of 36 applicants responded, four of whom were internal applicants and the remaining 32 were external applicants. After a screening process, nine were shortlisted for interview. One of the nine subsequently withdrew his application leaving eight applicants to face the interview panel. A three member panel consisting of the Director Administration and Operations, Works Manager and HR Manager unanimously agreed that the most suitable candidate was Mr F O Rupeni who was at that time with Colonial. The panel indicated in its recommendation to the Town Clerk that in the event that Mr Rupeni declined the offer then it should be offered to the second best applicant Mr Sudesh Kumar Ram. Mr Rupeni did not accept the Council’s offer as he was enjoying better terms and conditions with Colonial. Consequently the second recommendation made to Council was appointed to the position.

Both Mr Ram and Mr Goundar were serving employees and responded to the internal advertisement. The advertisement made it clear that the prerequisites for the successful applicant included tertiary qualification in property management or related field or a business discipline; good public relations, interpersonal and organizational skills; analytical skills, commercial acumen with project and risk management skills; and excellent leadership, communication and people skills.

The curriculum vitae submitted by each applicant is contained in the Council’s submission. Both documents set out in considerable detail the qualifications and experience relied upon by each applicant in support of his application. This material has been summarized and tabulated in an analysis which is also included in the Council’s material.

The Association claims that the Council inadequately determined Mr Goundar’s application against Mr Ram and is therefore in breach of clause 25. The Association relies on the fact that Mr Ram held a substantive position of a level 9

Building Inspection and Mr Goundar held a level 7 position in the Engineering Services Department. The Association contends that Mr Goundar enjoys seniority over Mr Ram.

Although the Association has expressed some doubt as to whether Mr Ram was confirmed in the position of Building Inspector, the Council in its submission has indicated that Mr Ram had completed his probationary period at the time of his appointment as property officer.

The Council maintains that it has complied with clause 25 and has considered each of the four factors which are to be the bases of promotion.

Having read the prerequisites for the position as they appeared in the internal advertisement, the curricula vitae and the submissions, it is clear that Mr Ram is ahead of Mr Goundar in terms of efficiency, experience and qualifications. Mr Goundar does enjoy seniority over Mr Ram in terms of years employed by the Council. Mr Ram achieved a higher score in the interview.

The Reference limits the jurisdiction of the Tribunal to the question whether the Council has adequately considered Mr Goundar’s application in accordance with clause 25 of the Agreement. Essentially the dispute is about whether the Council has properly considered all the relevant aspects of Mr Goundar’s application. In other words has the Council acted reasonably in the circumstances. Put in the alternative, the issue is whether the decision by the Council to appoint Mr Ram is one which a reasonable employer could have reached in the light of the facts available.

Clause 25 does not specify the weight to be given to each of the four factors. If they are to be taken as deriving their importance from their numerical listing then seniority is to be given less weight than efficiency, experience or qualifications. From Mr Goundar’s point of view seniority could at best be said to be of equal weight with each of the other three factors.

Having carefully assessed the material and the submissions, the Tribunal has reached the conclusion that the Council has acted reasonably. In the Tribunal’s opinion, Mr Goundar’s application has been adequately considered by the Council and as a result there is no breach of clause 25.

AWARD

The Council has adequately considered Mr Goundar’s application for the position of Property Officer.

The Council is not in breach of clause 25 of the Master Agreement.

Mr Ram was entitled to remain in the position pending the resolution of the grievance.

DATED at Suva this 22^nd day of March 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL