Fiji Electricity Workers Association v Fiji Electricity Authority [2005] FJAT 21; Award 39 of 2005 (12 July 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO.39 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI ELECTRICITY WORKERS ASSOCIATION

AND

FIJI ELECTRICITY AUTHORITY

FEWA: Mr W Kaufuti
FEA: Ms S Sen

DECISION

This is a dispute between the Fiji Electricity Workers Association (the "Association") and Fiji Electricity Authority (the "Authority") concerning the refusal to pay a Voluntary Redundancy Package (VRP) to Mumtaz Shah (the "Grievor")

A dispute was reported by the Association on 16 April 2004. The report was accepted on 28 May 2004 by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As a consensus decision was not reached, the Minister authorized the Chief Executive Officer 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 Arbitration on 29 July 2004 with the following terms of reference:

"...... (for settlement) over the Authority’s refusal to pay Mumtaz Shah the Voluntary Redundancy Package after his position of Training Officer Mechanical was made redundant. The Union contends that the Authority’s refusal to pay voluntary redundancy package to be unfair and unreasonable as the position of Training Officer Mechanical was made redundant on 27 August 2002 and that Mr Shah was not offered any new position by the Authority for 18 months until he showed intention to take Voluntary Redundancy".

The Dispute was listed for a preliminary hearing on 11 August 2004. As there was no appearance by or on behalf of the Association, the Dispute was listed for mention on 15 September 2004. On that day the parties were directed to file preliminary submissions by 6 October 2004 and the Dispute was fixed for hearing on 9 December 2004.

The Association filed its preliminary submissions on 12 October and the Authority did likewise on 15 October 2004.

The hearing of the Dispute commenced on 9 December 2004 and continued on 10, 13, 14 and 15 December2004. The Association called two witnesses whilst the Authority adduced evidence from five witnesses.

At the conclusion of the evidence the parties sought and were granted leave to file final written submissions. The Association filed final submissions on 4 February 2005. The Authority filed answering submissions on 14 March and the Association filed reply submissions on 29 April 2005.

The Grievor commenced employment with the Authority in October 1982 as a Mechanical Technician Trainee in the Generation Department at Navutu. He was eventually promoted to Training Officer Mechanical in November 1992 and was based at the Training Centre.

A Voluntary Redundancy Package was offered to employees by way of a memorandum dated 10 June 2002. This offer was made as a result of the restructure which the Authority was undergoing at the time.

The memorandum clearly stated that employees must respond by indicating their option by 30 June 2002. More importantly, it was clearly stated that any name received after that date would not be considered for the voluntary package.

The Grievor gave evidence that during that period he was on leave. He had commenced 129 days of leave on 11 February 2002 and did not return to work until 16 August 2002. He saw a copy of the memorandum when he returned to work. He was not able to say whether his wife had received a copy of the memorandum in June 2002 when he was on leave alone in Australia and New Zealand.

It would appear that the Grievor did not make any follow-up enquiries as to whether the offer might still be open when he returned from his leave in August 2002.

By memorandum dated 27 August 2002 from the Authority’s Personal Officer Western, the Grievor was informed that he was to be transferred to the Production Division at Navutu. Omitting formal and irrelevant parts, the memorandum stated:

"The Training Department operations have been streamlined in accordance with the Green Field report and in conjunction with the decisions made by the SBU team. The exercise has resulted in your position being made redundant and thus we have no other options but to transfer you where your expertise could be fully utilized.

In this regard, the following conditions apply.

1. You are to report to the Acting Manager Production Navutu Depot on Monday 2 September 2002 at your normal starting time as mutually agreed as per our telephone conversation on Monday 26 August 2002.

2. In the meantime your job description and salary will be personal to you until further advised while your other terms and conditions of service remain unchanged:

3. ---".

In his evidence the Grievor admitted that the contents of the memorandum reflected the arrangements which had been discussed during the course of the telephone conversation between the Grievor and the Personal Officer on the previous Monday.

The Grievor reported to Navutu on 2 September 2002 as agreed. The Grievor admitted that Mr Tawake was aware of the transfer.

It should be noted that the transfer memorandum was also addressed to TM, A/MP, PM, BA,the Union and a file copy as cc addresses.

It was not disputed that the Grievor did not receive any other correspondence concerning his transfer. It was also not disputed that the Grievor did not receive any written position description upon his transfer to Navutu. The Grievor continued to receive the same salary which he had been receiving as Training Officer Mechanical.

There was a considerable amount of evidence given concerning what exactly it was that the Grievor did whilst he was at Navutu. There was also a considerable amount of evidence concerning which member of the management staff was responsible for overseeing and supervising the Grievor. The Tribunal accepts that the transfer could have been implemented in a more professional manner and that there was a great deal of uncertainty concerning the precise nature of the Grievor’s duties and responsibilities. The Grievor and Mr Pal gave evidence as to the type of work the Grievor performed between September 2002 and July 2003. Although the work was related to the skills possessed by the Grievor it would appear that it was only on rare occasions that his expertise was utilized in a meaningful manner.

During the period in which the Grievor was based at Navutu he applied for the position of Power Station Manager at Labasa on three separate occasions. On each occasion he was unsuccessful and the Grievor stated that it was his belief that he was unsuccessful because he did not possess the necessary experience.

Is would also appear that the Grievor did not receive any formal training whilst he was at Navutu.

Despite all this, the Grievor did not at any stage between September 2002 and July 2003 approach any member of the management staff to have his position clarified or to obtain a position description. He did not complain about the lack of training or the lack of meaningful work requiring the use of his expertise. On his own evidence he did not even approach the Association about the circumstances of his employment. It would appear that he was quite content to
allow the position to continue and made no effort to demonstrate his unhappiness or disappointment at the way his skills and expertise were being utilized.

In July 2003 the Grievor went on leave for a period of six months (part annual and part long service) and did not return to work until 6 January 2004. Most of that time was spent in New Zealand with his family. The Grievor gave evidence that he had made up his mind to migrate to New Zealand well before he made an application for permanent residency in late August early September 2002. The Grievor was granted New Zealand PR status in December 2002 after which time he started selling assets which the family owned in Fiji.

Shortly after the Grievor returned to work in January 2004 he applied for a voluntary redundancy package by email, the hard copy of which was dated 27 January 2004. The text of the email stated:

"I wish to apply for a voluntary redundancy package since my position as Training Officer Mechanical was made redundant and I was posted to the Production section Navutu and until now with no defined position, duties and responsibilities since September 18 2002".

It should be noted that as at the date of this email almost 17 months had passed since his position had been made redundant. Furthermore he had allowed the status quo to continue from September 2002 to July 2003 without making any effort to rectify the position. He then proceeded on leave for six months.

On the same day the General Manager Human Relations informed the grievor by e-mail that his application had been declined.

On 9 February 2004 the Grievor and the General manager Human Relations (GMHR) met to discuss a number of issues. The GMHR wrote a letter dated 10 February 2004 confirming the matters discussed during the meeting. In the letter the GMHR confirmed that:

"...... your request to apply for Voluntary Redundancy has been declined due to the continued demand of your expertise and competency with the Generation Department".

It has to be noted that in the same letter the Grievor was informed that he will be formally advised about his accountability and authorities.

By email dated 11 February 2004 the Grievor sought a reconsideration of the decision to decline voluntary redundancy. This request for reconsideration was rejected.

By email dated 12 February 2004 the Grievor informed management that he was applying for early retirement from the Authority with effect from 27 February 2004. By memorandum dated the same day the Authority informed the Grievor that his notice of early retirement was accepted with regret. On about 16 February 2004 the Grievor received a final pay out amount of $28,758.94 in respect of the early retirement scheme offered by the Authority.

Generally speaking a redundancy occurs when an employee fills a job that no longer needs to be done. Furthermore that employee will be entitled to an agreed redundancy payment unless the employer offers suitable alternative employment.

In this case the job that the Grievor filled, namely the Training Officer Mechanical, no longer needed to be done and was made redundant.

The Grievor accepted alternative employment at Navutu. It was not until some 17 months later that the Grievor raised the issue of its suitability and the utilization of his expertise and this was at the same time as he applied for a voluntary redundancy package.

It is the Tribunal’s conclusion that the Grievor’s inaction amounted to an acceptance of the arrangements, or lack of, which existed from November 2002 to July 2003. He sat on his rights as it were. He must be taken to have accepted the arrangements and for whatever reason regarded the alternative employment as suitable.

Under the circumstances the Tribunal has concluded that the refusal by the Authority to pay to the Grievor a Voluntary Redundancy Package was neither unfair nor unreasonable.

AWARD

The decision taken by the Authority not to pay to the Grievor a Voluntary Redundancy Package was neither unfair nor unreasonable.

DATED at Suva this 12 day of July 2005.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL