National Union of Municipal Workers v Suva City Council [2004] FJAT 31; Award 25 of 2004 (20 July 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 25 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIONAL UNION OF MUNICIPAL WORKERS

AND

SUVA CITY COUNCIL

NUMW: Mr P Rae
SCC: Ms T Waqanika/Mr P Prasad

DECISION

This is a dispute between the National Union of Municipal Workers (the Union) and the Suva City Council (the Council) concerning the termination of employment of Mr Noa Sokota (the Grievor).

On 30 July 2003 the Union reported a trade dispute to the Permanent Secretary. The report was accepted and the dispute was referred to a Disputes Committee by the Permanent Secretary on 28 August 2003. As a consensus resolution could not be reached the Minister authorized the Permanent Secretary to refer the trade dispute to an

Arbitration Tribunal for settlement pursuant to section 5A (5) (a) of the Trade Disputes Act Cap. 97.

The Dispute was referred to the Permanent Arbitrator on 27 October 2003 with the following terms of reference:

".............for settlement over the termination of employment of Noa Sokota by Suva City Council effective from 28 July 2003. The Union views the Council’s action as harsh, unreasonable, unjust and unfair, a breach of the provisions of the grievance procedure, and a breach of the implied employment contract conditions of its obligations as a good and reasonable employer and to act with trust and confidence towards the employee and the Union. The Union seeks Noa Sokota’s re-instatement without any loss of pay and benefits."

The Dispute was listed for preliminary hearing on 21 November 2003. On that day the parties were directed to file preliminary submissions by 27 February 2004 and the hearing of the Dispute was fixed for 11 March 2004.

The Council filed its preliminary submission on 27 February and the Union did likewise on 8 March 2004.

The hearing commenced on 11 March and continued in to a second day. At the conclusion of the evidence the parties requested and were granted leave to file final written submissions. The Council filed its final submission on 1 April and the Union on 23 June 2004.

During the course of the hearing, the Council called three witnesses. The first witness was Mr T Bulisuva, a Council Employee who was present when the incident took place. The second witness was Mr Maika Turagabeci who was the victim in the incident and then Mr P Prasad, the Council’s Human Resources Manager. The Union called two witnesses. The first was Mr A Raicabecabe who had been involved in a previous assault incident whilst a Council employee. The second witness was Mr Noa Sokota the grievor in the present dispute.

Mr Sokota was summarily dismissed for assaulting a fellow worker on 30 June 2003 during the course of their employment. The two were engaged in collecting household garbage at the time.

The incident arose out of a disagreement between the two men concerning carrying rubbish to the rubbish truck. It would appear that some words were exchanged and a short time later Mr Sokota assaulted Mr Turagabeci by jumping on him and punching him in the face. Mr Turagabeci fell to the ground knocking his head which caused bleeding. Mr Turagabeci remained conscious and proceeded to the Council Offices to report the incident and was later conveyed to the Raiwaqa Health Centre by transport arranged by the Council’s Director Health Services.

During the course of his evidence Mr Turagabeci stated that he also suffered some back pain as a result of falling to the ground following the assault. He was prescribed some tablets by the treating doctor who advised him to take one week’s sick leave. There were no other side effects as a result of the assault and nor was Mr Turagabeci left with any disability.

A short time after the incident a traditional reconciliation occurred. Mr Sokota accompanied by members of the Union attended at Mr Turagabeci’s home with yaqona seeking forgiveness. Forgiveness was accepted by Mr Turagabeci.

Mr Raicabecabe gave evidence to the effect that after assaulting a fellow Council employee he sought a reconciliation with the victim and attended at his home to seek forgiveness in the traditional manner with a tabua and yaqona. This was accepted by the victim. Apart from being sent home for three weeks, the Council took no further action in relation to that incident.

It should be noted in the present dispute that neither the circumstances of the assault nor the fact that traditional reconciliation had taken place were in dispute.

The grievor was summarily dismissed by letter dated 28 July 2003 from the Town Clerk/Chief Executive Officer (the Town Clerk). The last two paragraphs of the correspondence state:

"Accordingly, I have no other recourse but to regretfully terminate your employment with Council in accordance with section 1X clause 19 (d) (vi) of the Agreement between Council and the Union for ‘assaulting a fellow workman during working hours provided that an employee is guilty of the offence’.

In this regard the termination of your employment will be immediately effective at the close of business on 28 July 2003 and as such all which is due to you in terms of your employment conditions, will be paid to you".

Clause 19 (d) (vi) of the Agreement provides that:

"The employer may summarily dismiss an employee in the following circumstances:

For assaulting a fellow workman during working hours provided an employee is guilty of the offence".

There are two comments which need to be made about this clause. The first is that the grounds for summary dismissal set out in clause 19 are consistent with section 28 of the Employment Act Cap. 92. The parties to an agreement cannot make provision for summary dismissal on grounds which are in addition to those set out in section 28 of the Employment Act. Although summary dismissal for assaulting a fellow employee is listed as a separate ground in clause 19, it is the Tribunal’s opinion that it also falls under either ground (a) or (b) of section 28 of the Act.

The second comment concerning clause 19 is that it confers a discretion on the employer by the use of the word "may". It is not mandatory for summary dismissal to be imposed in the event that one of the six grounds is established.

It is clear from the termination correspondence that the basis of the Council’s decision to summarily dismiss the grievor was the assault on Mr Turagabeci. There is no reference in the correspondence to any other matter having been taken into account by the Council apart from Mr Sokota’s written statement of 1 July and his written response dated 4 July 2003.

This is significant because of the contents of a memorandum dated 24 July 2003 from the Council’s Director Health Services to the Human Resources Manager. In the third paragraph it is stated that Mr Turagabeci had told the Director Health Services that "this was not the first of similar incidence in which Noa was involved. There were other unreported cases."

Mr Turagabeci during the course of his evidence denied making this statement to the Director Health Services. Mr Prasad in his evidence told the Tribunal that to the best of his knowledge there were no other incidents of assault by Mr Sokota. Ms Waqanika informed the Tribunal at the conclusion of the evidence that the Director Health Services was not sure about the accuracy of the statement.

What the Tribunal is required to decide is whether the Council’s decision to summarily dismiss Mr Sokota was justified under the circumstances of this dispute. In other words has the Council acted reasonably in summarily dismissing Mr Sokota for assaulting Mr Turagabeci.

In Award No 4 of 2000 the Tribunal noted at the bottom of page 4:

"However in assessing whether in any particular case the action in question justifies a summary dismissal, employers and arbitrators and courts must still look at the actual circumstances to assess the real seriousness of the misconduct and to see if there are any extenuating circumstances."

The Tribunal then went on to discuss a number of factors which it considered to be relevant in assessing the seriousness of the misconduct.

The first factor considered was the identity of the employee and the victim. The Tribunal took the view that

"an altercation between 2 employees of the same level which does not challenge or undermine the management’s authority or its public image is sometimes treated by the courts or arbitrators as less serious than an assault or threat against someone with supervisory or management responsibilities."

In this dispute it would appear that Mr Sokota and Mr Turagabeci were both employees at about the same level.

Another factor considered relevant is the actual intention of the employee and the circumstances of the assault. It would appear that Mr Sokota was annoyed by what he perceived to be the lazy attitude of Mr Turagabeci towards collecting garbage. Mr Turagabeci on the other hand was of the opinion that Council instructions stated that garbage was not to be carried. There is no material to suggest that Mr Sokota intended to maim Mr Turagabeci. The incident appeared to be the spontaneous result of frustration and annoyance.

Another factor which is relevant is the work record of the employee. Mr Sokota had been employed with the Council for some 11 years. This was the first occasion of disciplinary action in what was otherwise an exemplary record. There was no evidence to the contrary before the Tribunal.

Another factor is the recognition by the grievor that his behavior was inappropriate. This recognition was demonstrated by Mr Sokota seeking forgiveness in the traditional manner by presenting yaqona to Mr Turagabeci at his home. This also demonstrated contrition or sorrow for what had occurred.

It is also noted that there was no serious injury to Mr Turagabeci, that no weapon was involved and criminal proceedings were not instituted.

Whilst the Tribunal acknowledges that the Council has an obligation to ensure a safe workplace for all its employees, it must be stressed that in exercising its discretion to summarily dismiss an employee the Council is also required to act reasonably in concluding that there is substantive justification for the dismissal.

In the Tribunal’s opinion, the summary dismissal of Mr Sokota was unreasonable and harsh under the circumstances. This conclusion is reached after considering all the evidence with particular reference to the extenuating circumstances.

There is an allegation by the Union that the dismissal was a breach of the grievance procedure. The grievance procedure is set out in clause 27 of the Agreement whilst the question of discipline is dealt with the clause 19 of the Agreement. This Agreement is between the Union and the Council. The provisions concerning discipline and grievance procedures are similar, but not identical, to the corresponding provisions in clauses 16 and 17 of the Agreement between the Suva City Council Staff Association and the Council.

The applicability of the grievance procedure to discipline cases was discussed in Award No. 7 of 2000 wherein the Tribunal observed at page 20:

"The Tribunal also finds no basis for the Association’s argument regarding the necessity for the Council to follow the grievance procedure in cases involving discipline. Nothing in the agreement or elsewhere supports such an interpretation. The grievance procedure exists to deal with grievances between the Association and the Council. A suspected or actual disciplinary offence by an individual employee is not a grievance between the Council and the Association......"

It is the Tribunal’s view that in exercising its discretion whether to summarily dismiss an employee under clause 19 (d) of the Agreement, there is no obligation on the Council to follow the grievance procedure set out in clause 27 of the same agreement. However the Council is always required to ensure that an employee has been afforded procedural fairness in any case of summary dismissal. After a careful consideration of the evidence and the documents tendered as exhibits, the Tribunal is of the view that there was an element of pre-determination in the process adopted by the Council which was sufficient to taint the decision with unfairness.

For these reasons the Tribunal finds that the dismissal was unjustified and unfair.

The final matter for the Tribunal is whether Mr Sokota should be re-instated. The principles which the Tribunal applies to re-instatement are discussed in the following passage from Award No. 46 of 1999:

"In broad terms, the test to be applied in deciding whether re-instatement is the appropriate remedy, should be whether objectively assessed, the employee can be said to have the ‘trust and confidence’ of his or her employer and ‘ would be a harmonious and effective member of his employer’s team’."

There was no material before the Tribunal which would suggest that Mr Sokota should not be re-instated on a proper application of these principles. In the circumstances of this dispute re-instatement is the appropriate remedy. The conduct of Mr Sokota was not so grave or serious as to render re-instatement inappropriate. Although the Grievor’s age is past retirement, it is noted that at the time his employment was terminated he was also past the retirement age.

The Council is directed to re-instate Mr Sokota with effect from the date of dismissal. However he is to be paid only 3 months arrears of salary and the balance of the period is to be deemed leave without pay.

AWARD

The Council’s decision to summarily dismiss Mr Sokota was unreasonable, harsh and unfair.

The Grievor is to be re-instated with effect from the date of dismissal.

The Grievor is to be paid 3 months arrears of salary whilst the balance of the period is deemed as leave without pay.

DATED at Suva this 20^th day of July 2004.

Mr W D Calanchini
ARBITRATION TRIBUNAL