Fiji Electricity Workers Association v Fiji Electricity Authority [2004] FJAT 59; Award 37 of 2004 (1 October 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 37 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 J O’Connor

DECISION

This is a dispute between the Fiji Electricity Workers Association (the "Association") and the Fiji Electricity Authority (the "Employer") concerning the termination of employment of Jitendra Kumar (the "Grievor").

A trade dispute was reported by the Union on 4 February 2003. The report was accepted by the Permanent Secretary on 17 February 2003 and the dispute was 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 5A(5) (a) of the Trade Disputes Act Cap.97.

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

"...... for settlement over the termination of Jitendra Kumar

The Association contends that the Authority’s decision was unfair, unreasonable and unjustified based on the following factors:

(vi) The Authority refused to give copies of the investigation report to the Association during the 28 days suspension period despite request.

(vii) The Authority refused to give the Association permission to obtain requisition order copies from Kinoya stores despite request.

(viii) Security Officer’s reports were inconsistent.

(ix) Mr Jitendra Kumar did not direct the truck driver or anyone for that matter to sell conductors.

(x) The authority breached clause 17 (I) (e) of the disciplinary proceedings outlined in the Collective Agreement.

The Association further contends that Mr Jitendra Kumar must be re-instated to his former position from the date of termination with no loss of salary or benefits."

The Dispute was listed for a preliminary hearing on 15 April 2003. On that day the parties were directed to file preliminary submissions by 29 August 2003 and the Dispute was listed for hearing on 9 September 2003. The hearing date was subsequently vacated and the Dispute was refixed for hearing on 21 October 2003.

The hearing of the Dispute commenced on 21 October 2003 with the employer calling four witnesses and the Union five witnesses. At the conclusion of the hearing the parties were directed to file final submissions within 21 days.

Due to the appointment of a new Permanent Arbitrator it became necessary to relist the dispute for mention on 19 January and 3 March 2004. The re-hearing of the Dispute commenced on 17 May and continued through to 21 May 2004. The Employer called five witnesses and the Union four witnesses. At the conclusion of the evidence the parties requested and were granted leave to file final submissions. The last of these was filed on 7 September 2004.

The terms of reference determines the limits of the Tribunal’s jurisdiction in respect of the issues requiring determination in this Dispute.

The Dispute has been referred to the Tribunal for settlement over the termination of employment of Jitendra Kumar which the Association contends was unfair unreasonable and unjustified. However, the terms of reference then proceed to specify the issues upon which the Association’s contention is based.

It should be noted that the issues identified in the Reference form part of a larger list of issues set out in the report of the trade dispute. The issues are numbered (vi) to (x).

Of the five issues specified, two of them may be said to be concerned with the question of justification and the remaining three relate to procedural fairness.

The facts leading to this Dispute may be stated briefly. An unidentified person informed the Employer that one of the Employer’s trucks had dropped off two drums of aluminum conductor cable at Wailoku. It was subsequently determined that later on the same day (19 December 2002) a vehicle belonging to Waste

Scrap Metals, a business based in Lami, collected the two drums of conductor cable. The Police were subsequently notified by the Employer. The Police proceeded to the scrap metal premises in Lami and confiscated the drums. It was not in dispute that two drums had left the Employer’s Kinoya Stores Depot on the morning of 19 December 2002.

The Employer commenced an internal investigation and obtained written statements from a number of persons based at the Kinoya Stores Depot.

By memorandum dated 24 December 2002 from the Employer’s General Manager, Human Relations, the Grievor was informed that:

"Further to the alleged theft of the conductors on Thursday 19 December 2002 and our face to face interview/investigations undertaken on 24 December 2002 on this allegation, your statement was considered against those others who had been implicated.

To assist us in completing the investigation, Management has decided that you be suspended for 28 days without pay pending dismissal with effect from 6.00pm Tuesday 24 December 2002".

Then by memorandum dated 23 January 2003 again from the Employer’s General Manager Human Relations, the Grievor was advised that:

"Further to our memorandum of 24 December 2002 informing on your suspension without pay for 28 days pending dismissal over the selling of conductors, the suspension period ceased on Thursday 23 January 2003. We write to confirm that your appointment as Storeman at Kinoya has been terminated with effect from Friday 24 January 2003. Please liase with the Pay Office for your final pay".

It would appear that the Grievor’s final pay included all his entitlements up until 24 December 2002 being the date on which his suspension pending dismissal took effect. It would also appear that the final pay did not include any payment in lieu of notice and as a result it can be concluded that the Grievor’s employment was terminated by way of summary dismissal.

This Tribunal has consistently taken the view that in the case of termination of employment by summary dismissal, the Employer is required to establish that it had acted as a reasonable employer in finding justification and that in so doing it had afforded procedural fairness to the Grievor.

The witnesses called by the parties gave evidence, sometimes conflicting, in relation to a number of events from 12 December 2002 until the end of January 2003.

It was not in dispute that the Employer’s vehicle was driven by a Mr Michael Joseph on both 12 and 19 December 2002. It was the allegations made by Mr Joseph during the course of the initial investigation which in part lead to the decision to suspend the Grievor. Mr Joseph’s employment was also terminated and he was not called as a witness to give evidence.

The Employer, in summary, urged the Tribunal to conclude that the Grievor had betrayed the Authority by his intention to steal and defraud the Authority. It was submitted by the Employer that requisition order 332656 dated 12 December 2002 was processed by the Grievor in accordance with the established procedure; that the Grievor also entered the correct figures into the computer system; that the Grievor entered the correct number of eight drums and two poles in the delivery book; that no amendments were made to requisition order 332656 on 12 December 2002; that the contractor Mr J Roko received eight drums and 2 poles at Vunidawa on 12 December 2002; that two additional drums
were taken out of the Kinoya stores depot on 19 December 2002 in a vehicle driven by Michael Joseph who dropped them off at Wailoku; and that after the anonymous report to the Employer, the Grievor started to make amendments to the copies of requisition order 332656 and gave instructions to a security officer, Sukulu Taubale, to make further amendments.

The Association’s position in relation to the disputed facts may be summarized in this manner. On 12 December 2002 an order 332656 for eight drums of aluminum conductor cable and two poles was submitted to the stores for line extension at Vunidawa. On 12 December 2002, only six drums of aluminum conductor cable and two poles were loaded onto the crane truck by the driver Michael Joseph and delivered to Vunidawa. On the morning of 19 December 2002 the contractor Mr J Roko visited the Kinoya stores depot and reminded the Assistant Storeman of the remaining two drums being the balance from requisition order 332656. Later the same morning Michael Joseph loaded his vehicle with the remaining two drums of aluminum conductor cable and took them out of the Kinoya stores depot. Later that morning an FEA truck was seen unloading two drums of aluminum conductor cable at Wailoku.

It was not really in dispute that the registration number of the vehicle seen at Wailoku was the same as that which left Kinoya with the two drums earlier on the same morning and was therefore the same vehicle as that which was driven by Mr Michael Joseph.

In essence the Employer’s position was that Michael Joseph took the two drums to Wailoku on 19 December 2002 on instructions from the Grievor and as part of a scam in which at least the two of them and possibly others were involved.

The Association’s position was that Michael Joseph acted on his own on that day or if not on his own certainly without any prior knowledge on the Grievor’s part that a scam was taking place.

Having observed the witnesses whilst they gave their evidence and having carefully considered all the evidence and the submissions filed on behalf of the parties, the Tribunal has determined that the Employer acted reasonably in coming to the conclusion that there was justification for terminating the Grievor’s employment by summary dismissal.

The Tribunal accepts the evidence of the contractor Mr J Roko. His evidence was given in a positive and certain manner. His memory of the events of 12 December 2002 appeared clear and reliable so far as relevant details were concerned. Although conflicting propositions were put to Mr Roko in cross examination, the Association did not call any evidence to substantiate those propositions except in relation to the load capacity of the vehicle concerned.

As a consequence of accepting Mr Roko’s evidence the Tribunal is in a position to conclude that the findings of fact made by the Employer were reasonable. Furthermore the Tribunal is satisfied that the involvement of the Grievor justified the decision to terminate his employment by summary dismissal.

The Tribunal accepts that the Grievor was involved with Michael Joseph in the events of 19 December 2002. Any inconsistency in the reports provided by the various security officers does not affect the Tribunal’s findings based as they are on the evidence of the contractor Mr Roko.

The Reference and the fact that this Dispute involved termination by summary dismissal require the Tribunal to examine the procedure adopted by the Employer to determine whether it complied with the relevant provisions of the

Agreement and the requirements of procedural fairness implied by the common law.

The first matter specified in the Reference concerns the Employer’s alleged refusal to give copies of the investigation report to the Union during the 28 days suspension period despite being requested to do so.

The investigation report was dated 31 December 2002. The only written request by the Association for material from the Employer was by way of letter dated 15 January 2003. Omitting formal parts, the letter stated:

"We request your approval for permission on files at Kinoya Stores to be given to our investigating team to scrutinize and make copies.

We also seek your permission to look through Edward Rounds and Michael Joseph’s file.

We have partly done our investigation and so far have received conflicting reports/views.

Further we request the release of William Kaufuti for Wednesday 15 January and Thursday 16 January to assist in the investigation.

We look forward to your approval and understanding on the matter".

Although there is no requirement in the Collective Agreement for the Association to be provided with a copy of the investigation report during the suspension period, the request was not unreasonable, especially when considered in the context of clause 17.1 of the Agreement.

There was some cross-examination of Mrs Naiveli by Mr Urai concerning this written request and the Employer’s response. Mrs Naiveli admitted that she could not recall whether the material sought was made available. She stated that permission to peruse files is not withheld. Although Mr Urai suggested that no permission was given, the Association did not call Mr Kaufuti or any other person
to confirm that permission had not been given. It is noted that no complaint was made at the meeting on 23 January 2003 concerning a refusal to allow the files to be perused.

In any event the Reference refers to the investigation report. There was no material before the Tribunal concerning a request for the report. The Association did not specifically address this issue in either its preliminary or final submissions. The employer addressed the Association’s request or page 7of its final submissions.

The Tribunal is satisfied that had Mr Kaufuti made a request to the Employer for permission to peruse files, such permission would have been given. The Tribunal is not satisfied that the Association requested a copy of the investigation report at any time during the 28 days suspension period.

The second issue raised by the Reference relates to the alleged refusal by the Employer to give the Association permission to obtain copies of the requisition orders from the Kinoya Stores Dept. The Tribunal is not satisfied that such a request was made by the Association. If however, such a request was made, the Tribunal is not satisfied that the request was refused. There was no material placed before the Tribunal to substantiate this complaint.

The third issue raised by the Reference relates to the alleged breach by the Employer of clause 17(1) (e) of the Collective Agreement. This clause states:

"No employee will be summarily dismissed until he has been suspended for a period of up to twenty eight (28) days to enable the Association to make representation on his behalf, should they so desire. This suspension will be without pay".

As has been already noted, the Grievor was handed a suspension letter dated 24 December 2002 which was copied to the Association. The letter was consistent with clause 17(1)(e).

Receipt by the Association was acknowledged in its letter dated 9 January 2003. In that letter the Association appeared to be primarily concerned with an issue
relating to the annual leave entitlement of the Grievor. On page 2 of the letter the Association concluded by stating that:

"We are also undertaking our investigation on the allegation and shall seek a meeting once we have completed. We look forward to your understanding and approval to our request"

The Association wrote two further letters dated 15 January 2003 to the Employer’s Chief Executive (Ex.17 and 18). Both were marked for the attention of the General Manager, Human Resources. One of the letters again deals with the question of annual leave entitlement. The other deals more specifically with the Association’s investigation into the incident. The contents of this letter have already been quoted in this decision.

By letter dated 21 January 2003 (originally dated 24 December 2002 in error) the Employer wrote to the Association in the following terms:

"Further to your verbal arrangements with the General Manager Human Relations last week on extension of suspension period by one week for Jitendra Kumar, we write to inform that we anticipate receiving your report on his case by Thursday 23 January 2003. Should this fail, we intend to terminate his appointment with effect from Friday 24 January 2003".

The Association responded by letter dated 22 January 2003 in the following terms:

"We acknowledge receipt of your correspondence wrongly dated 24 December 2002.

Your correspondence was received on 21 January 2003.

We thank you for giving us the opportunity to make our submission by Thursday 23 January 2003.

We have compiled a report and look forward to reaching an amicable solution".

It should be noted that there was no complaint by the Association that the Employer did not provide any of the material or assistance which had been requested by the Association in its earlier correspondence.

It should also be noted that the Employer did not respond to this letter.

As a result it may be concluded that the agreement between the parties was that the Association was to make a representation, either in writing or orally, on behalf of the Grievor by the end of 23 January 2003. Failure to do so would result in the Grievor’s employment being terminated on 24 January 2003.

A meeting was held on 23 January 2003 at 2.00 or 2.15pm in the Navutu Control Room between FEA Management and the Association. Each party produced a set of minutes which each claimed accurately reflected the discussions concerning the Grievor. It has to be said that there are a number of discrepancies in the Minutes and an objective observer might be excused for thinking that they related to two different meetings.

The Tribunal is of the opinion that the Minutes recorded by the Employer’s note taker are more likely to reflect what was determined at the meeting in relation to the Grievor. Item 9 of the Employer’s Minutes stated:

"28 days pending dismissal will end on Thursday 23 January 2003 and he will be terminated if nothing is submitted by the end of the day"

The Tribunal considers that this minute accurately reflects what was the agreed understanding of the parties at the commencement of the Meeting. The agreed understanding was set out in the correspondence already referred to in this decision.

In its preliminary submission, the Association, at paragraph 14, referred to a letter dated 28 January 2003 in which the Association raised an issue pertaining to dealing in bad faith and breach of the Collective Agreement. A copy of the letter was attached to the preliminary submissions and marked as "U6".

It should be noted that this letter was not tendered in evidence during the hearing of the Dispute. Mr Urai did not put any questions to Mrs Naiveli during his cross-examination and the Association did not lead any evidence in relation to this letter. Furthermore, the letter is not referred to in the Association’s closing submissions.

As a consequence the Tribunal finds that the Union did not make a presentation on or before the 23 January 2003 as required pursuant to both clause 17(i)(e) of the agreement and the confirmed understanding which had been reached between the parties. The Tribunal is satisfied that the termination letter was prepared after the meeting held on 23 January 2003 and when it became apparent that the Association was not going to make any written or oral representation on that day.

The Tribunal is satisfied that the Employer did not breach clause 17(i) (e) of the Agreement.

The Tribunal is also satisfied that on this occasion the Employer has acted reasonably in affording the Grievor procedural fairness. The investigation was fair and sufficiently thorough. The Grievor was given at least two opportunities to present his version of the facts. The Association failed to make a representation on the facts and failed to mitigate on behalf of the Grievor by the close of business on 23 January 2003.

Under the circumstances the Tribunal is satisfied that the termination of the Grievor’s employment by summary dismissal was not unreasonable, harsh or unfair.

AWARD

The Employer acted reasonably in relation to the Association’s requests for material and assistance during the 28 days suspension period.

Any inconsistency in the reports and statements of the security officers did not outweigh the probative value of the evidence of the contractor, Mr Jone Roko. The Grievor was involved in the removal of two drums of aluminum conductor cable from the Kinoya Stores Depot on 19 December 2002. Such removal was unauthorized and for fraudulent purposes.

The Employer has not breached clause 17(i)(e) of the Collective Agreement.

The termination of the Grievor’s employment was reasonable and the Grievor was afforded procedural fairness. The dismissal was justified and fair.

DATED at Suva this 1^st day of October 2004.

Mr W D Calanchini
ARBITRATION TRIBUNAL