Fiji Public Service Association v Public Service Commission [2004] FJAT 35; Award 29 of 2004 (29 July 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 29 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBIC SERVICE ASSOCIATION

AND

PUBLIC SERVICE COMMISSION

FPSA: Mr R Singh with Mrs E Dass
PSC: Mr S Chandra with Mr J Mainavukea

DECISION

This is a dispute between the Fiji Public Service Association (the Association) and the Public Service Commission (the Commission) concerning the refusal by the Ministry of Education to pay the merit increase for 2002 to Mrs Gyan Mati Singh.

A trade dispute was reported by the Association in December 2003. The report was accepted by the Permanent Secretary and subsequently referred to a Disputes Committee. As a consensus decision could not be reached the Minister authorized the Permanent Secretary to refer the trade dispute to an Arbitration Tribunal for settlement pursuant to section 5 A (5) (a) of the Trade Disputes Act Cap. 97.

The Dispute was referred to the Permanent Arbitrator on 6 April 2004 with the following terms of reference:

"...........for settlement over the refusal of Ministry of Education to pay merit payment for 2002 to Mrs Gyan Mati Singh, which was paid in April, on the alleged unsatisfactory report by her supervisor. This is contrary to the basis for the payment of merit increment because Mrs Gyan M Singh did not receive any advice from her supervisor that her performance was not up to par."

The dispute was listed for a preliminary hearing on 12 May 2004. On that day the parties were directed to file preliminary submissions by 2 June and the hearing of the Dispute was set down for 12 July 2004. The parties filed their preliminary submissions in due course.

At the hearing on 12 July 2004 the Association called the Grievor to give evidence and the Commission called Dr P Puamau, the Acting Principal of Fiji College of Advanced Education. At the conclusion of the evidence both parties made final oral submissions.

The arrangements concerning the payment of Merit pay for 2002 were originally set out in a Memorandum of Agreement dated 15 January 2002 between the Public Service Unions, of which the Association is one, and the Commission. Clause 3 of the Agreement states:

"That for 2002 the parties are to jointly modify the current Annual Confidential Report (ACR) by 31 March 2002 to be used to assess performance for the purpose of Merit Pay 2002."

In PSC Circular No 13 of 2002 dated 19 June, 2002, the Commission informed Permanent Secretaries and Heads of Department about the detailed arrangements concerning the 2002 Special ACR which was to be modified for the purpose of promotion and merit increase in salary/merit pay.

In paragraph 1.3 of the Circular it is stated that the Commission and the Unions agreed on 29 May 2002 on a modified Special ACR in the form of an additional page to the back of the existing ACR to assess eligibility for merit increase/merit pay.

In paragraph 3.2 the Circular states that the 2002 ACR in its modified version is special in the sense that all reporting will be for the period ending 31 August and should be submitted to management by 20 September 2002 to assess performance and to facilitate the processing of merit increase in salary.

Paragraph 7.1 of the Circular confirms that the purpose of the additional page to the current ACR is for the grant of merit increase for Year 2002. The additional page was in a special form designed to be used to assess an officer’s 2002 merit increase eligibility.

Paragraph 7.2 is important because it advises that the ACR ratings of "satisfactory" and above would constitute the grant of merit increase.

Paragraphs 2.1 and 2.2 refer to the General Orders 214 – 221 and emphasize that officers should not be shown their reports as they are confidential documents.

The Circular included three Appendices. Appendix A set out guidance notes for reporting officers and countersigning officers. Appendix B set out the additional page to the ACR which had been agreed upon by the parties for the purpose of determining whether an officer was to be paid merit pay for 2002. Appendix C set out the conditions pertaining to the grant of merit increase for 2002.

In section III of the ACR the reporting officer is required to give an overall grading for qualities and performance of duties during the period covered by the report. The grading should reflect the markings given in the 15 qualities to be assessed in section II.

There were five categories listed in section III. The reporting officer was required to select one of the five categories as the appropriate overall grading. The five categories were outstanding, good, satisfactory, fair and unsatisfactory.

Note 2 in Appendix B to PSC Circular No 13 of 2002 confirms that the eligibility criteria that constitutes grant of an increment is "satisfactory" and above.

In Appendix A of the same Circular at paragraph 3(1) it is stated that

"Management must assess as objectively as possible the performance, capabilities and attitudes of an employee and having done so should communicate, as appropriate, its findings to the employee as a necessary part of management and in the career interests of the worker. At the same time the employee should be given the opportunity to state his or her views on factors in the organization that may be having an adverse effect on his or her performance."

Confirmation of the arrangements for the payment of the 2002 merit increase was set out in the Commission’s Circular No 3 of 2003 dated 28 February 2003. In that Circular it is confirmed that by agreement between the Commission and the Unions the grant of the 2002 merit increase is to be based on the Modified/Special Annual Confidential Report (ACR) to assess performance. It also indicates that for the year 2002 the Special ACR was to serve the dual purposes of assessment for promotion and the payment of merit increase. More importantly in paragraph 1.4 it is stated:

"The Special ACR is also different in the sense that assessment is for the period from 1 January to 31 December 2002 and there was a directive that all ACRs were to be submitted to Management by 30 September for processing of Merit pay."

The merit increase pay for 2002 was paid to those officers who received an overall grading of satisfactory or above in April 2003. The Grievor did not receive a merit increase for 2002. It would appear that she was the only member of the administrative staff at the College of Advanced Education who did not qualify for the 2002 merit increase.

As soon as she discovered that the merit increase was not included in her first pay slip for April 2003, she met with Mr Matairavula at the Ministry of Education Head Office. He obtained the Grievor’s file. She was told by Mr Matairavula that the reporting officer, Ms Mata Ajomi, had indicated in the ACR that the grievor’s attitude was a problem and that as a result she had been graded as unsatisfactory.

The Grievor then wrote two letters dated 14 April 2003. One was to the Permanent Secretary for Education and the other to the Secretary of the Public Service Commission.

The contents of both letters were similar. In the letters the Grievor referred to her recent discussion with Mr Matairavula and the allegation that she had an attitude problem. In the letter to the Association the grievor confirmed that she had "been recommended as unsatisfactory."

It should be noted that in correspondence dated 14 May 2003, 4 July 2003 and 21 November 2003 from the Ministry of Education to the Grievor and/or to the Association, reference is made to the grievor having received an unsatisfactory report.

In the absence of any material to the contrary the Tribunal accepts that those references to the Grievor having received an unsatisfactory report means that the Grievor received an overall grading of unsatisfactory by her reporting officer which was subsequently endorsed by the countersigning officer.

However in its preliminary submissions the Commission maintains in paragraphs 1.3, 1.5 and 4.4 that the Grievor was assessed as "Fair" which is above unsatisfactory and below satisfactory in the ranking of the overall gradings. Whilst in theory, this discrepancy would not otherwise have any significant bearing on the Grievor’s entitlement to be paid the 2002 merit increase, it is another aspect of the unsatisfactory manner in which the Ministry and the Commission have dealt with the Grievor and handled her grievance.

The ACR upon which the assessment of the Grievor was made for the purposes of determining eligibility for a merit increase for 2002 was not tendered in evidence but was shown to the Grievor during cross-examination. It purported to be for the period 1 May 2001 to 30 April 2002. It was completed by the Grievor’s supervisor/reporting officer who signed and dated Section VI. The date was shown as 27 March 2002. The countersigning officer signed and dated section VII. The date was shown as 25 April 2002. The additional page to the ACR was countersigned by the same person and dated 2 September 2002. The countersigning officer in both cases was the Acting Principal Dr Puamau.

The Grievor gave evidence that she had not placed any dates on page one of the ACR as she had been instructed to leave the reporting period blank. She also gave evidence that she had completed the balance of the first page of the ACR in May or June of 2003. It must be stated by the Tribunal that the Grievor was not able to state with certainty either the month or the year when she completed the front
page of the ACR. It was acknowledged by both parties that there was no other ACR subsequently completed by or for the Grievor .

Even allowing for the lack of certainty in the evidence given by the Grievor, it is clear from the evidence and the material placed before the Tribunal that the Grievor has not been assessed in accordance with the procedure set out by the Commission in its Circulars.

The correspondence from the Education Ministry acknowledges that "coaching and counseling had not been conducted to the fullest."

The Grievor’s evidence was to the effect that she had received no feedback nor any indication from her supervisor/reporting officer nor any other person concerning her performance during the assessment period.

There was no material before the Tribunal to suggest that the Ministry of Education through its officers at the College of Advanced Education had made any attempt in relation to the Grievor to implement any aspect of the performance improvement measures outlined in section 26 of the Public Service Act 1999.

Furthermore, there is no material before the Tribunal to suggest that the officers within the Education Ministry have complied with General Order No. 215 in respect of the Grievor.

The Tribunal concludes that the Grievor was assessed for less than three months of the designated reporting period in determining her eligibility for a merit increase in pay. During that time she was not given any feedback or counselling which may have enabled her to address the issues of concern to her reporting officer/supervisor thereby enabling her to reach a satisfactory standard by the end of the designated reporting period.

In addition the Tribunal notes that the Grievor has been employed in the civil service for 30 years, the last 20 of which have been served in the Ministry of
Education. There was no material placed before the Tribunal which reflected poorly on the Grievor over that period of time.

The Tribunal notes paragraph 4.2 of the Commission’s submission which states:

"Mrs Gyan Mati Singh is a long serving officer in the civil service, a mature individual who definitely knows that she is not performing and she herself should take remedial actions and improve her work performance first before claiming merit payment."

The evidence from the Grievor was that she considered that her work performance was satisfactory and that she had never received any indication from any of her supervisors that this was not the position. The Public Service Act and the General Orders clearly place the onus of feedback on the shoulders of Management.

The Association tendered into evidence a copy of a letter (GM 23) dated 24 May 1999 signed by the then Principal of the College, Mr A Cawanibuka. In the letter, which was apparently written as a reference, the author states that the Grievor has responded very well to the demands of the College since her appointment as a permanent member of the College Staff. The author states that she is a mature and dedicated worker who is always prepared to carry out additional responsibilities with great enthusiasm. The author states that the Grievor had developed a very good working relationship with administrative staff, academic staff as well as students. The last paragraph of the letter states:

"Mrs Gyan Singh has done well as a typist and she has great potential to excel in her own area of specialization. I have found her to be self-reliant and she has the ability to work independently with less supervision. She is a quiet and friendly person who possess good pleasant qualities.

The Grievor stated in evidence that so far as she was concerned nothing had changed in the workplace since the Reference was written.

The Commission was not in a position to call the reporting officer Mrs Ajomi and no satisfactory explanation was provided which would have justified an adjournment.

After careful consideration of all the material placed before it during the hearing, the Tribunal concludes that there does not appear to be any basis upon which an assessment could reasonably have been made which would have deprived the Grievor of a merit increase for 2002.

AWARD

The Grievor, Ms Gyan Mati Singh is entitled to receive a merit increase in pay for 2002 to be paid in accordance with the relevant PSC Circulars backdated to 1 January 2002.

DATED at Suva this 29^th day of July 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL