Suva City Council Staff Association v Suva City Council [2004] FJAT 16; Award 09 of 2004 (22 March 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 9 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") concerning an unsuccessful application by Mrs Mereoni Nasedra for the position of Secretary to the Director Administration/Operations.

On 16 December 2002 a trade dispute was reported to the Permanent Secretary. The Permanent Secretary accepted the report on 20 January 2003 and referred the dispute to a Dispute Committee. The Committee was unable to arrive at a consensus decision and consequently the Minister authorized the Permanent Secretary to refer the dispute to the Arbitration Tribunal for settlement pursuant to section 5A(5) (a) of the Trade Disputes Act Cap.97.

The Dispute was referred to the Permanent Arbitration on 28 March 2003 with the following terms of reference:

".... for settlement over the Association’s claim that the Council is not adequately considering Mrs Mereoni Nasedra for promotion to the vacant position of Secretary to the Director Administration/Operations which is a breach of Section VIII clause 27 of the Master Agreement".

The Dispute was listed for preliminary hearing on 1 October 2003. On that day the parties concluded that a hearing would not be necessary. As a result the parties were directed to file final submissions within fourteen (14) days and thereafter award on notice.

Due to the appointment of a new Permanent Arbitrator it became necessary to re list the Dispute for mention on 19 January 3 and 9 March. By March 2004 the parties had changed their position and indicated that each would be calling one witness. The Dispute was listed for hearing on 15 March.

When the dispute came on for hearing, the Union called Ms Elisapeci Cawanibuka to give evidence and the Employer called the Director Administration/Operations

Mr Ranjit Singh (the "Director"). At the conclusion of the evidence the parties informed the Tribunal that they did not intend to file further written submissions but would be relying on those previously filed.

The terms of reference require the Tribunal to consider clause 27 of the Master Agreement. The Tribunal is also required to determine whether the Employer has adequately considered Mrs Nasedra for promotion in the manner prescribed by clause 27. The Tribunal does not have jurisdiction to assess the witness of the Employer under any other clause of the Master Agreement.

The Association claims that the Council is in breach of clause 27 of the Master Agreement in that it did not adequately consider Mrs Nasedra for promotion to his vacant position of Secretary to the Director Administration/Operations.

Clause 27 of the Master Agreement deals with vacancies within the Council and states:

"(a) It is Council Policy to encourage suitably qualified serving officers to develop their careers and seek promotion. Council undertakes to give such officers prior consideration when they apply for a vacancy within its service. Council accepts the obligation to advise the Association and serving officers of any vacancy which may arise as set out below".

(b) Whenever a vacancy occurs, council shall first determine whether there is a need to advertise it externally at the same time as it complies with its obligation to advise serving officers of the opening. A copy of the advertisement for the filling of any vacancy shall be sent to the Association and also placed on the Notice Board in each Department. Whenever external advertising takes place, notice to the Association and serving officers must be given at the same time as the advertisement is sent for publication in any local or overseas newspaper".

The present clause 27 was agreed to on 13 April 2000 and is the result of a redrafting of clause 27 as it appeared in the 1979 Master Agreement and a subsequent amendment made by the 1982 Collective Agreement.

In Award No. 2 of 1985 at page 16 the Tribunal (Professor F Young) considered that a reasonable interpretation of the parties’ intentions in relation to the amalgamated version of the clause would be:

"1. The Council has a commitment to provide opportunities for the development and promotion of suitably qualified serving officers whenever that is possible.

2. For reasons of administrative efficiency there is a need for the council to be able to choose to advertise a vacancy externally at the same time as it complies with its obligation to advise serving officers of that opening.

3. A copy of an advertisement for the filling of any vacancy must be sent to SCCSA and also placed on the Notice Board in each Department. When external advertising takes place, notice to the Association and Serving Officers must be given at the same time as the advertisement is sent for publication in any local or overseas newspaper.

4. When selecting an applicant for a vacancy, applications from serving officers are to be given consideration before those from external applicants".

In that Dispute, the Tribunal considered that simultaneous advertisement did not present internal applicants from being candidates for the post. The Tribunal concluded that the Council had not breached clause 27 by advertising the vacant post of Market Master externally when there were suitably qualified officers within the Council’s service.

Both parties have referred to this Award by Professor Young presumably on the basis that it adds weight to their submissions. It is interesting to note that at the conclusion of the Award, Professor Young provides a recommended draft for Clause 27. The present clause 27 is reproduced in those exact terms. The interpretation provided by Professor Young is therefore of considerable assistance to this Tribunal.

The position of Secretary to the Director Administration/Operations became vacant upon the early retirement of the incumbent. The position was advertised both internally and externally simultaneously. A copy of the advertisement was sent to the Association and placed on the Notice Board and each Department at the same time as it was sent for publication in the local newspapers.

When applications closed on 16 July, 2002, a total of 19 applications had been received. Three were from serving employees and 16 were external candidates. The applications were screened and a short list of five were selected for interview. All three serving employees were included in the short list for interview but one withdrew her application leaving a total of four to face the interview panel.

It would appear from the material submitted by the Council that the two serving officers were interviewed before the two external candidates Mrs Nasedra was the second of the two internal applicants to be interviewed.

The internal advertisement indicated that applicants should possess a Diploma in Secretarial Studies with five (5) years experience in a related specific area of work coupled with good typing and shorthand skills and an ability to work on word processor, computer and other office machines. The successful candidate must have a pleasant personality with a good command of English and the ability to abide by the rules of discipline and confidentiality.

The witness called by the Union Mrs Cawanibuka, gave evidence to the effect that she had forwarded a recommendation by e mail that Mrs Nasedra should be appointed to the position. She told the Tribunal that she considered that Mrs Nasedra possessed the experience and skills to become a Secretary to any of the Directors. She also explained that Mrs Nasedra was presently a substantive senior stenographer and was acting as Secretary to the Council’s Solicitor.

The witness called by the Council was Mr Ranjit Singh who has been the Director of Administration and Operations for the past two years. He gave evidence that although Mrs Nasedra did hold the necessary Diploma, she did not have the required five years experience at the appropriate level. Nevertheless, in keeping with the Employer’s obligation under clause 27, she was included in the short list for interview. Mr Singh gave evidence that the problem facing Mrs Nasedra was her punctuality. The material provided by the Council in its submissions and the evidence given by Mr Singh indicated that Mrs Nasedra is habitually late for work. She has a problem with punctuality. Mr Singh indicated that although there may be personal problems which would explain this, Mrs Nasedra was not selected because amongst other things, punctuality was an important ingredient of the position.

Based on skills and personal attitudes, the interview panel decided that the most suitable candidate was one of the external applicants.

It is the Tribunal’s opinion that the Association’s claim that the Council has not adequately considered Mrs Nasedra for promotion to the vacant position of Secretary to the Director must be rejected. As a result the Tribunal does not accept that the Employer has breached clause 27 of the Master Agreement. The fact that the advertisement was simultaneously advertised internally and externally did not deny Mrs Nasedra the opportunity to pursue promotion by applying as an internal applicant, although she was not technically suitably qualified.

The requirement in respect of concurrent notice to employees and the Association was apparently satisfied as the Union did not challenge the submission on that point. Prior consideration was given to the serving employees as the two of them were interviewed ahead of the external candidates. There was no evidence nor any allegation of procedural unfairness in the selection process. The interview panel considered the applications from the two serving employees but rejected them in favor of an external applicant. Mrs Nasedra was rejected for two reasons. She did not have the requisite five years experience at the applicable level and more importantly because of her inability to arrive punctually at work. Her application was considered in accordance with the steps contemplated by clause 27. She has been adequately considered and the Employer has not breached clause 27.

It should be noted that the approach taken by Council is consistent with its obligation under section 35 of the Local Government Act Cap.125 which states:

"Every Council shall appoint fit and proper persons to be Town Clerk, Health Inspector and Building Survey and many appoint such other officers and servants as the Council considers necessary for the efficient discharge of its duties".

Although the Council has raised in its submission the exclusion from recognition order issued by the Permanent Secretary under section 11 of the Trade Unions (Recognition) Act 1998, there was no objection to the Union’s involvement in the Dispute. Under those circumstances it is not necessary to make any comment on the effect of the order in relation to the dispute.

AWARD

The claim by the Association that the Council has not adequately considered Mrs Nasedra for promotion to the vacant position of Secretary to the Director Administration/Operations is rejected.

The Council has complied with clause 27 by advertising the vacant post externally and internally and at the same time and in the prescribed manner.

Although not qualified Mrs Nasedra’s application was adequately considered in the manner contemplated by clause 27.

DATED at Suva this 22^nd day of March 2004.

Mr W D Calanchini
ARBITRATION TRIBUNAL