Fiji Bank and Finance Sector Employees Union v ANZ Banking Group Ltd [2004] FJAT 61; Award 40 of 2004 (7 October 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 40 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION

AND

ANZ BANKING GROUP LIMITED

FBFSEU: Mr. P Rae
ANZ: Mr. I Razak with Ms S Buadromo

DECISION

This is a dispute between the Fiji Bank and Finance Sector Employees Union (the Union) and the ANZ Banking Group Limited (the Employer) concerning the termination of employment of Milika Leweniqila (the Grievor).

A trade dispute was reported by the Union. The Report was accepted by the Permanent Secretary who referred the dispute to a Disputes Committee. As a consensus decision could not be reached, the Minister authorized the Permanent Secretary to refer the 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 16 April 2003 with the following terms of reference:

"............for settlement over the termination of Milika Leweniqila.

The Union views the Bank’s action as unjust, harsh and unfair and seeks Milika Leweniqila’s re-instatement without loss of benefits"

The Dispute was listed for preliminary hearing on 5 May 2003. On that day the parties were directed to file preliminary submissions by 29 August 2003 and the Dispute was listed for final hearing on 10 September 2003.

The hearing of this Dispute commenced on 19 September 2003. The second sitting day was 24 October 2003 and then it resumed on 7 November 2003. 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 re-list the Dispute for mention on 19 January and 3 March 2004.

The re- hearing of the dispute commenced on 24 May and continued on 26 May and 28 July 2004. The employer called five witnesses and the Union called the Grievor to give evidence. At the conclusion of the hearing, the parties requested and were granted leave to file final submissions. The Employer filed final submissions on 18 August and the Union filed its final submissions on 6 September 2004.

The Grievor was dismissed from her employment as a teller at the Employer’s Nadi Branch on 19 December 2002. The Grievor was originally an employee of the Bank of New Zealand which she joined on 27 May 1980. She became an employee of ANZ when it took over the Bank of New Zealand’s operations in Fiji on 2 April 1990.

The alleged misconduct occurred on 6 December 2002. The Grievor wanted to transfer cash to the Head Teller. There were three separate amounts of $83,000.00, $20,000.00 and $13,000.00 in various denominations. There was some uncertainty as to the number of bags involved. It may have been three, four or five. It was not disputed that the bags were calico and were not sealed or secured.

The Tribunal accepts that the Grievor performed the necessary computer transaction to alert the Head Teller (Ms E Henry) that she wished to effect a transfer of cash. The calico bags containing the cash were placed behind the Head Teller by the Grievor. The Head Teller did not sign the transfer slips or count (verify) the cash at the time when the bags were placed behind her, nor did she accept the transfer on the computer. Some time later the Relieving Teller’s Supervisor (Ms M Sahay) was handed the calico bags by the Head Teller for verification. The Supervisor obtained the transfer slips. Once again the cash was not verified when the bags were handed to the Supervisor by the Head Teller. The Supervisor verified the cash in another part of the Bank by herself and reported that $5000 was missing form the bag or bags which were meant to contain $83,000.00

The Employer conducted interviews on 11 and 13 December 2002, with the Grievor, the Head Teller and the Relieving Teller’s Supervisor.

The Grievor’s employment was terminated by letter dated 19 December 2002 from the Nadi Branch Manager. The relevant part of the letter states:

"On 6/12/02 you had taken $83,000.00 in various denominations and left if at the back of the Head Teller, Eileen Henry. The cash was unattended and was left in open calico bags. According to you, Eileen had verbally acknowledged and taken the transfer slip which Eileen has denied. You had sent a teller’s transfer on the system but this was not accepted by Eileen. You had failed to find out why Eileen did not accept the teller’s transfer. You also failed to retrieve your cash when the transfer was not accepted by Eileen. Following this you had left further two tellers transfers in open calico bags on the back of the Head Teller in the same manner. You have admitted that the cash was left unattended for more than 10 minutes. The cash was then taken by Tellers Supervisor, Manju, and she counted the cash on her own when the discrepancy of $5000.00 in $50 denominations was highlighted. $5000.00 was short in the first transfer of $83,000.00. As a bank officer you have seriously breached the cash and telling procedures and you have admitted this in your interview.

The bank views your actions as a serious breach of your employment and collective agreement.

Accordingly, in terms of the Collective Agreement Clause 4B(ii) (a)& (b) and clause 12 d (1) of you Service Agreement, you are hereby dismissed from bank services with immediate effect".

It was not disputed that the Grievor had been summarily dismissed. There was no evidence that her final pay included any payment in lieu of notice.

Clause 4B (ii) (a) & (b) of the Collective Agreement provide for termination by summary dismissal in terms which are consistent with the provisions of section 28 of the Employment Act Cap 92. Clause 4 B (ii) (a) relates to misconduct inconsistent with the fulfillment of any express on implied conditions of the contract of employment. Clause 4 B (ii) (b) allows summary dismissal for willful disobedience to lawful orders given by the Employer.

Clause 12 (d) (i) of the Service Agreement allows for dismissal for dishonesty, wilful insubordination, neglect of duties, or wilful breach of any of the Bank’s regulations in force at the time. The dismissal may be with or without notice or without any payment in lieu of notice. Of course any summary dismissal under clause 12 d (i) would need to be in accordance with section 28 of the Employment Act Cap 92.

It is clear from the termination letter that the Grievor was dismissed summarily on account of her failure to follow procedures which the Bank regarded as sufficiently serious to amount to willful disobedience.

There was conflicting evidence given in the course of the hearing concerning what notice, if any, the Head Teller was given by the Grievor concerning the attempt to transfer the cash. In her interview on 11 December 2002, the Head Teller said she could not recall if the transfer was done on beam. This is a reference to the letter "C" appearing on the screen when a teller wants to transfer cash to the Head Teller. In the same interview the Head Teller said that she did not remember whether she knew that the Grievor had left her cash there. Again, in the same interview, the Head Teller said that she recalled that the Grievor was telling her that she was wanting to transfer bulk cash. The Head Teller said that she was not sure whether she said "OK" or not.

In the second interview on 13 December 2002 the Head Teller stated that after lunch the Grievor notified her by word of the transfers. She confirmed that she could not recall whether the Transfer was done on beam.

As indicated, the Tribunal accepts the evidence of the Grievor that she effected a beam and thereby caused the letter "C" to appear on the Head Teller’s computer screen. This had the effect of alerting the Head Teller that a teller wanted to effect a cash transfer.

The Tribunal also accepts that the Head Teller was made aware by the Grievor, after lunch on the 6 December 2002 by word of mouth that she wanted to transfer bulk cash. The Tribunal also accepts the evidence of the Grievor and the Supervisor that the Head Teller was aware that calico bags containing the cash were placed behind her by the Grievor.

However the Tribunal finds that the Head Teller did not accept the transfer and did not action the beam signal on her computer screen. It is apparent that the cash was not verified when the Grievor placed if behind the Head Teller.

Another conflicting issue concerned the location of the transfer slips. The Tribunal is satisfied that when the Head Teller handed the calico bags to the Supervisor, there were three transfer slips in the bags. These slips had not been signed by the Head Teller as the Receiving Teller.

After carefully considering the evidence and the material placed before it, the Tribunal has concluded that a transfer of the cash had not been effected.

The allegation put to the Grievor in both interviews was that she had breached cash handling procedures.

However the Tribunal notes that both the Head Teller and the Supervisor may also, have breached the same cash handling procedures. The Head Teller should not have handed the calico bags to the Supervisor as the transfer to her had not been effected. Furthermore the Head Teller should have verified the cash in the presence of the Grievor at the time when the bags were handed to the Supervisor.

Finally, the Supervisor received the bags from the Head Teller without insisting upon verification and then proceeded to count the cash by herself in another part of the Bank.

The Tribunal is not satisfied that the cash handling procedures which the Employer claims have been breached by the Grievor are clearly and sufficiently set out in the relevant part of the Bank’s Manual. Exhibit 7 was tendered by the Employer as the document which set out the prescribed cash handling procedures for internal cash transfers. However the relevant part of the Manual does not fully set out what the Employer claimed was expected from the teller wishing to transfer cash (i.e. the paying teller).

It would also appear from the evidence that the practice which was followed by employees and which was not always necessarily consistent with the express or implied procedures prescribed in the Manual was tolerated by management. The Tribunal was left with the view that had there not been a shortfall of $5,000.00 cash in this case, then no action would have been taken in respect of any aspect of the cash handling procedures adopted by either the Grievor, the Head Teller or the Supervisor on the day in question.

The Tribunal does not necessarily accept the Employer’s basis for deciding to dismiss the Grievor rather than issue a formal warning as was done in respect of the Supervisor and the Head Teller. If the Employer’s real concern was the potential for substantial loss then it surely should have been aware that its Manual was lacking in detail and that its employees were adopting cash handling procedures which exposed the Bank to such losses on a regular basis. This could have been determined by a programme of regular performance audits. The Tribunal accepts that staff at the Nadi Branch did not always follow what the Employer considered to be correct cash handling procedures.

Under the circumstances the Tribunal has concluded that an employer acting reasonably would have decided that it was not appropriate to summarily dismiss the Grievor. The relevant matters to be considered by a reasonable employer include the absence of any evidence of dishonest intent on the part of the Grievor, the absence of any evidence to support actual dishonesty by the Grievor, the lack of clear written instructions in the Manual, the tolerated variations in cash handling procedures at the Nadi Branch, the breaches in the cash handling procedures by the Supervisor and the Head Teller, the requirement to achieve some parity in imposing disciplinary sanctions and the Grievor’s previous 23 years unblemished service as an employee in the banking industry.

The Tribunal concludes that the termination of the Grievor’s employment by summary dismissal was unfair in the sense that it was unreasonable and harsh.

The Tribunal also has some concern about the issue of procedural fairness afforded to the Grievor. The Grievor was interviewed on 11 and 13 December 2002. It would appear that the material tendered in evidence represented a summary of each interview. The Grievor acknowledged the contents by signing and the Union raises no real issue in relation to the interviews.

However, there is no evidence of any further communication with the Grievor by the Employer between 13 and 19 December 2002. It is the Tribunal’s opinion that the Grievor should have been informed that the Employer, having considered all the material, was considering summary dismissal. The Grievor should then have been given an opportunity either personally or through a union representative, to mitigate both on the facts and as to penalty.

The Tribunal is of the view that had such an opportunity been given, a reasonable employer would have formed the view that summary dismissal was not appropriate.

In the circumstances of this Dispute the Tribunal is of the opinion that the Grievor was not afforded procedural fairness and as a result the dismissal was unfair.

On the question of an appropriate remedy, the Tribunal considers that re-instatement is appropriate in this case. The Tribunal considers that the mutual relationship and duties of confidence, trust and good faith which must exist in any employment relationship, still apply in this case.

There was no evidence of any "bad blood" between the Grievor and management. This was not a case where dismissal was the result of dishonest behaviour or fraudulent intent.

The Grievor is to be re-instated with effect from the date of dismissal. However she is to be paid only six months arrears of salary and the balance of the period is to be deemed leave without pay.

AWARD

The Grievor’s summary dismissal was unfair in the sense that it was unreasonable and harsh. It was also unfair in the sense that the Grievor was not afforded procedural fairness.

The Grievor is to be re-instated with effect from 19 December 2002. She is to be paid six months arrears of salary and the balance is to be deemed as leave without pay.

DATED at Suva this 7^th day of October 2004.

Mr W D Calanchini
ARBITRATION TRIBUNAL