Fiji Electricity Workers Association v Fiji Electricity Authority [2004] FJAT 38; Award 32 of 2004 (31 August 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 32 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI ELECTRICITY WORKERS ASSOCIATION

AND

FIJI ELECTRICITY AUTHORITY

FEWA: Mr D Urai
FEA: Mr P Vunituraga

DECISION

This is a dispute between the Fiji Electricity Workers Association (the Association) and the Fiji Electricity Authority (the Employer) concerning the reduction by the Employer of merit increment points in respect of 11 workers who were specified by name in the reference.

A trade dispute was reported by the Association on 30 June 2003. The report was accepted by the Permanent Secretary who referred the dispute to a Disputes Committee on 28 August 2003. 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 5 November 2003 with the following terms of reference:

"............for settlement over the Authority reducing the merit incremental points without consulting and informing the members namely Collin Ho, Sesenieli Bulou, Abdul Shahid Dean, Lilian Namoumou, Satya Mudaliar, Ravinesh Prakash, Usha Kumar, Ken Lanyon, Akuila Likuloa, Herald Ramlu and Apisaki Lomani,. The Association claims that the Authority was unfair, unreasonable and unjustified in reducing the merit incremental points and should pay their workers the rate that was initially assessed by their supervisor prior to the unauthorized reduction back dated to January 1st 2001."

The Dispute was listed for a preliminary hearing on 21 November 2003. On that day the parties were directed to file preliminary submissions by 27 February 2004 and the Dispute was fixed for hearing on 4 March 2004. This date was subsequently vacated and the Dispute was heard in Lautoka on 27 and 28 May 2004.

During the course of the hearing the Association applied for the dispute to be withdrawn in respect of Abdul Shahid Dean, Herald Ramlu and Apisaki Lomani and the proceedings in respect of those three workers to be discontinued. The Employer did not object to the application and accordingly a consent award to that effect was made at the time and confirmed in this decision.

The remaining eight workers who were specified in the Reference gave evidence and Ms Nalini Khan gave evidence on behalf of the Employer at the hearing. Although Mr A Laweloa was called to give evidence, the Association objected on medical grounds which were subsequently confirmed by the treating doctor. The Tribunal accordingly did not allow Mr Laweloa to give evidence. The Tribunal also did not allow Mr J Anise to give evidence as he was being called to comment on matters which were solely for the Tribunal.

At the conclusion of the evidence the parties requested and were granted leave to file final written submissions. The last of these was filed by the end of July 2004.

The evidence was to the effect that each of the eight workers had received an assessment score of either 91 or 92 from their respective supervisors. This assessment had entitled each worker to be awarded 4 merit incremental steps with a corresponding increase in salary.

Upon review by the Manager Sales and Services, the scores were reduced. The effect of the review was that the scores of three of the workers were reduced to levels which meant that they were not awarded any merit incremental steps. The scores of four other workers were reduced to levels which meant that they received a merit increment of one step. The eighth worker’s score was reduced to a score which entitled her to be awarded a merit increment of 2 steps.

It would appear that the two supervisors had disclosed either the points scored and/or the merit increment increase to each of the workers during the course of the required discussion following the completion of the assessment proforma.

The eight workers were not aware of the review or the reduction until each received a memorandum advising of the (revised) merit increase to their wages.

Most of the workers made written complaints to management to the effect that they had not been consulted or informed. There had not been any discussions prior to the reductions.

A management decision was subsequently taken that each of the eight workers would receive a further merit incremental increase of one step for the year 2001 payable from 1 January 2002.

The arrangements for the 2001 appraisals were set out in a memorandum dated 22 January 2002 from the Personnel Manager and addressed to Executive Officers, Senior Staff and Staff. It was titled "Guidelines for Completing Appraisal Forms 01/01/01 – 31/12/01."

The Tribunal is satisfied that a copy of this memorandum was received by each staff member when they were handed a copy of the appraisal form for them to complete Sections A & B. The Tribunal is also satisfied that the two relevant supervisors also received copies of the memorandum.

The memorandum contains instructions for staff/senior staff being assessed and also instructions for the Supervisors. The following relevant clauses of the Supervisor’s instructions state:

"3. SectionC (1 to 13) is to be completed by the Supervisor in consultation with the Department Head.

4. After completing Section C, the Supervisor is to outline on Point 13 of the form, a summary of the employee’s general performance.

5. The Supervisor must have discussions with the employee and address areas that need improving.

9. As this is a confidential report, no copies are to be made or distributed other than as directed above.

NOTE: Scores given are confidential and are not to be made known to the employee appraised."

The evidence indicated that a Mr Andrew Naicker was the Supervisor for four of the workers and Mr K Lanyon was the Supervisor for the other four.

The Tribunal is satisfied that neither Supervisor complied with instruction number three concerning the requirement for consultation with the Department Head when completing Section C (1-13) of the appraisal form.

The Tribunal is satisfied that Mrs Khan did meet with Mr Naicker and Mr Lanyon in January 2002 to discuss the appraisal process.

It is the opinion of the Tribunal that this failure by the two Supervisors to consult with the Department Head has led to the review of the appraisals and the subsequent reduction in points scored and merit steps awarded.

The Tribunal notes that the 2001 appraisal process was different from that which had applied in previous years.

The Tribunal accepts that scores of 91 out of 100 for seven of the eight workers and 92 out of 100 for the eighth worker are unusually high. According to Section F of the Appraisal form each worker is graded as having received an outstanding and exceptional report.

It would appear that most of these workers had received similar scores and gradings from the same supervisors for at least the preceding two years.

Having assessed the evidence and after reading the documentary material tendered, the Tribunal is satisfied that neither Supervisor has completed the Section C assessment in an objective and considered manner. For example, a consideration of Section C of the appraisal forms for Ms Namoumou and Mr Likuloa which were completed by Mr Lanyon shows that each worker received exactly the same score for each of the 12 qualities which required assessment. Similarly, a consideration of the appraisal forms for Ms Kumar and Ms Wati which were completed by Mr Naicker shows that each worker received exactly the same score for each of the 12 qualities required to be assessed.

Although the evidence established that point 13 had been completed by the two Supervisors, it must be concluded that the summary of the worker’s general performance which is required to be completed pursuant to instructions 3 and 4 could not be considered as a reliable indication of performance in view of the flawed scores awarded in respect of the 12 qualities assessed in the first part of section C. A perusal of point 13 in each appraisal form shows that the initial comments reflected the high scores initially awarded.

Similarly, the evidence given concerning the discussions which were required by instruction 5 showed that the Supervisors were tailoring their comments in accordance with their assessments. All of this would have been quite proper had the assessments been valid in the first place.

Under the circumstances the Tribunal considers that it was proper for the assessments to be reviewed and subsequently reduced. It was reasonable in the circumstances for the Employer’s Department Head to undertake this process.

The Tribunal accepts that there was no explanation given to the workers or any consultation with them following the review and the reduction in points. As observed earlier, it would appear, rightly or wrongly, that each worker had at least been informed by the Supervisor concerned that they would be receiving a merit incremental increase of 4 steps.

It would appear that Mrs Khan did have some discussions with Mr Naicker concerning the review and the reduced scores. Her evidence was that she had asked him to inform the staff. Mr Naicker is no longer employed with the Employer and was not called to give evidence. In any event, the eight workers concerned were not aware that their scores and steps had been reduced until they were subsequently advised in writing, without any explanation.

It is the Tribunal’s opinion that when a decision is taken which so directly affects an individual worker, as in this case, then an explanation should be given as soon as possible. The fact that instruction 5 mandates a discussion between the Supervisor and the employee concerning the assessment suggests that a similar discussion should also take place if and when there is any significant subsequent re-appraisal in respect of the worker’s performance or score by management. This did not take place.

However it is the Tribunal’s opinion that such a failure does not invalidate the assessment procedure in this case. The Tribunal considers that there was an element of unfairness in the manner in which the whole process was handled. The failure to explain the decision to reduce both the score and the steps amounts to a failure by management to comply with its own constructions. The eight workers are entitled to some compensation for this failure. The workers were left in the dark as it were. A payment of 2 months’ salary is appropriate in the circumstances.

The decision to award all eight workers a further merit incremental increase of one step for the year 2001 would appear to be based on a view that Mrs Khan may have been a little too severe in her review of each of the eight workers.

In the memorandum dated 18 December 2002 from the General Manager Human Relations, a copy of which was addressed to each of the eight workers, reference is made in the second paragraph to:

"............the need to reward our employees for their contribution in 2001 based on a fair and equitable assessment concerning all the factors in the merit increment form."

The Tribunal considers that the Employer has acted reasonably in awarding each of the 8 workers a further merit incremental increase of 1 step as an acknowledgement that the revised assessment may not have represented an appropriate reward for performance in 2001.

The Tribunal is of the opinion that the end result achieved by the Employer was neither unreasonable nor unjustified.

There is one further matter that requires comment. During the course of the evidence it was suggested that Mrs Khan had favoured another employee by awarding a merit increment of three steps for 2001. This worker’s name was Mr Abi Manu. His appraisal form was completed by Mrs Khan in the absence of the relevant supervisor. Mrs Khan agreed that she had awarded a 3 step incremental increase. It would appear that Mr Manu was away from work for about six months in 2001, most of which was spent in hospital. During this time he continued to perform most of his supervisory duties. Mrs Khan indicated that both his performance and his positive attitude were such as to warrant the 3 step increase. This assessment had the approval of her superior, General Manager Retail.

The Tribunal accepts the explanation and considers the assessment to be that of a reasonable employer. The evidence does not support the allegation of favouritism or unequal treatment.

AWARD

By consent the dispute is withdrawn in respect of Abdul Shahid Dean, Herald Ramlu and Apisaki Lomani. The proceedings in respect of those three workers are by consent discontinued.

The reduction in the assessed score and increment steps of each of the remaining eight workers was neither unjust nor unreasonable.

The manner in which the reduction was communicated to the eight workers was inappropriate and unfair in the sense that no explanation was given at the time.

There is no evidence to suggest that the eight workers did not receive equal treatment from Mrs Khan.

There is an award of two (2) months’ wages to each of the eight workers for the failure to explain in a timely manner the revised appraisals and scores.

DATED at Suva this 31^st day of August 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL