Fiji Public Service Association v Airports Fiji Ltd [2005] FJAT 23; Award 40 of 2005 (1 August 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 40 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

AIRPORTS FIJI LIMITED

FPSA: Mr N G Singh
AFL: Mr K Qoro

DECISION

This is a dispute between the Fiji Public Service Association (the "Association") and Airports Fiji Limited (the "Employer") concerning the dismissal of Mr Prem Surgan Singh (the "Grievor").

A dispute was reported by the Association on 19 September 2002. The report was accepted on 21 October 2002 by the Permanent Secretary who referred the Dispute to a Disputes Committee. As the Employer failed to nominate a representative to the Committee, the Permanent Secretary was subsequently authorized by the Minister 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 20 November 2002 with the following terms of reference:

"..... for settlement over the termination (of employment) of Mr Prem Surgan Singh, Aviation Secretary Patrol Officer with effect from 9 November 2001 which action the Association claims as unfair, unjustified, harsh and amounts to denial of natural justice. Therefore, the Association seeks the re-instatement of Mr Singh without loss of salary and other benefits from the date of termination"

The Dispute was listed for a preliminary hearing on 2 December 2002. On that day the Tribunal directed that the parties file preliminary submissions by 30 March 2003. The Dispute was listed for hearing on 8 May 2003.

By letter dated 7 May 2003 the Association wrote to the Tribunal requesting that the hearing date be vacated as the parties were engaged in discussions with a view to settling the Dispute. The Tribunal directed that the hearing date be vacated.

However, the parties were not able to reach agreement and, as a result, the Dispute was listed for mention on 15 September 2004. On that day the Dispute was listed for further mention on 13 October 2004 when a schedule for submissions and a hearing date were to be determined.

As the Employer was not represented on 13 October 2004, the Dispute was relisted for mention on 19 November 2004.

On 19 November 2004 the Tribunal directed that preliminary submissions were to be filed within 28 days and the Dispute was listed for hearing on 14 February 2005.

The Association filed its preliminary submissions on 19 January 2005 and the Employer filed its submissions on 11 February 2005.

The hearing of the Dispute commenced on 14 February in Suva and continued on 15 and 16 February 2005. During the course of the hearing, a total of six witnesses gave evidence. At the conclusion of the evidence the parties sought and were granted leave to file written final submissions.

The Employer filed its final submissions on 29 March 2005. The Association filed answering submissions on 27 April and by letter dated 11 July 2005 the Employer informed the Tribunal that it did not intend to file any further submissions in reply.

There is one preliminary issue which must be mentioned before the merits of this Dispute are discussed. It would appear that the decision by the Permanent Secretary to accept the Report of the Trade Dispute was the subject of an application for Judicial Review in the High Court. This was by way of JR No.33 of 2002. Although copy correspondence forwarded to the Tribunal would suggest that the Employer had resolved to discontinue these proceedings, the necessary documentation was not filed with the High Court until 23 November 2004.

At the start of the hearing Counsel for the Employer gave an undertaking to provide the Tribunal with copies of the appropriate documents indicating that the High Court proceedings had been discontinued. A copy of the sealed Notice of Discontinuance was made available to the Tribunal on 29 July 2005.

The Grievor commenced employment as an Aviation Security Patrol Officer with the Employer on 26 May 1999 as a result of a Ministerial Directive set out in Legal Notice No.75 of 1999. Prior to that he had been employed by the Civil Aviation Authority of Fiji (CAAF) as a Security Patrol Officer since 1976.

The Fiji Court of Appeal in a judgement delivered on 19 March 2004 in Fiji Public Service Association –v- Arbitration Tribunal and Airports Fiji Limited (Civil Appeal No. 10 of 2003) concluded that the terms and conditions of employment set out in a Collective Agreement dated 7 August 1998 between the Association and CAAF applied to those former CAAF employees (including the Grievor) who were members of the Association and who had been employed by the Employer as a result of the Ministerial Directive.

Counsel for the Employer informed the Tribunal that this same issue is again the subject of proceedings in the Fiji Court of Appeal.

On 27 October 2001 the Grievor was initially rostered for duty at the Control Tower. During the pre-shift briefing the Grievor indicated that he did not want to take the Tower posting for a number of reasons including the lack of toilet facilities, the lack of means of communication and the absence of shelter or wet weather clothing. It would appear that up until that night the Tower had not been protected by Airport Secretary. It would also appear that at the time this task was undertaken by the Military and/or the Police. A subsequent inspection of the Control Tower area shortly afterwards by the Grievor’s supervisor resulted in the Grievor ultimately being offered an alternative posting at the Main Gate to the Airport.

The Grievor took up his position at the Main Gate at about 1.00am on 28 October 2001. It should be noted that at the Main Gate there is shelter but no toilet facilities. When he arrived at the Main Gate there were two Police Constables on duty. These 2 policemen remained on duty for the duration of the shift.

The Grievor gave evidence that at about 3.00am he contacted the security office for permission to leave the Main Gate Post to go to the toilet. Permission was given and the Grievor returned about 15 minute later. This occurrence should have been entered in the Log Book at the Main Gate and in the Log Book in the Security Office. The Grievor gave evidence that at about 3.30am he made an entry in the Log Book at the Main Gate in relation to his absence for the purpose of going to the toilet.

The Grievor also stated that the Airport Manager (Mr P. Naivalu) drove through the Main Gate at about 3.00am and left shortly after the Grievor returned from the toilet. The Grievor stated that he was present at the Main Gate when the Airport Manager entered and left the Airport.

Although a statement signed by the Airport Manager and dated 11 February 2005 would appear to support the Grievor’s evidence on this point, the Airport Manager said in evidence that he could not recall the date to which reference was made in the letter. He said he had signed the statement after glancing through it, but did not read it. He said it had been prepared by the Grievor.

There was uncontradicted evidence by the Grievor that other staff spoke to him during the shift as they passed through the Main Gate.

The Grievor gave evidence that later in the morning he was called to the security office by the Chief Security Officer (CSO) Mr S Matakibau. This was at about 7.30am and the Grievor said that he also entered this occurrence in the Main Gate Log Book. Upon arrival at the Security Office, the CSO accused the Grievor of refusing to accept the posting at the Control Tower and for being absent from his post at the Main Gate for three hours. The Grievor stated in his evidence that the CSO seized his ID card and accused him of being a security threat.

The Grievor was directed to leave the Airport and go home. On his way out his vehicle was stopped at the main Gate and searched by policemen on duty. The policemen indicated that this was at the direction of the CSO. Later that day the Grievor made a written statement at the Namaka Police Station.

The Grievor remained at home till he received his dismissal letter on 12 November 2001. The letter was dated 8 November 2001 and, omitting formal and irrelevant parts, stated:

"On 27/10/01 you were directed to be on guard duty at the AFL Control Tower commencing from 0001 to 0800 hours. You however objected to this directive on the grounds that your health and safety was at risk as there was neither a toilet facility nor a guard house provided. This objection was unwarranted since there was a toilet facility and a fixed shelter available at the Tower and also at the Administration Block, adequate to protect you from any adverse weather conditions.

Nevertheless, you were re-assigned guard duties at the Airport Main Gate commencing from 0100 hours. Whilst on guard at the gate you excused yourself from duties to visit the toilet, nearest one being at the International Arrivals of the Terminal Building. You failed to return within reasonable time allowed but appeared at the duty post approximately three hours later. You arrogantly refused to tender any reasonable excuse for being away from your guard duties.

Whilst AFL with assistance from Police and private Security Services is investing most of its resources in maintaining the highest level of security and safety for every customer, your disobedience to lawful instructions and uncompromising behaviour coupled with your attitude towards your own duties and responsibilities at work cannot be accepted any further as our national and international obligations cannot be compromised at any cost.

I am therefore directed to advise you that your employment is terminated with effect from 9 November 2001 in accordance with section 28 of the Employment Act Cap.92".

The letter clearly indicates that this was a case where the Grievor’s employment was terminated by way of summary dismissal.

The Employer’s Manager Human Resources and Administration (MHRA), Mr Ashok Nath, gave evidence that he wrote the dismissal letter at the request of the Employer’s Chief Executive Officer (CEO). The request was received by MHRA by email. It would appear that the decision to summarily dismiss the Grievor was made by the CEO and was based on a report which had been prepared by CSO.

Neither a hard copy of the email sent by the CEO to the MHRA nor a copy of the report prepared by CSO was made available to the Tribunal. Counsel for the Employer informed the Tribunal that the material was not retained by the Employer.

Upon being recalled later in the hearing the MHRA informed the Tribunal that the Grievor’s employment was terminated by summary dismissal because of both the incidents referred to in the termination letter, i.e. disobeying an instruction to take up a position at the Control Tower and absenting himself from his post for three hours without permission.

The termination of the Grievor’s employment by summary dismissal is claimed to be in accordance with Section 28 of the Employment Act. Section 28, so far as is relevant states:-

"An employer shall not dismiss an employee summarily except in the following circumstances:

(a) Where an employee is guilty of misconduct, inconsistent with the fulfilment of the express on implied conditions of his contract of service;

(b) for wilful disobedience to lawful orders given by the employer;

(c) .................

(d) for habitual or substantial neglect on his duties;

(e) ..................

The effect of Section 28 is to remove the common law right to dismiss summarily except where paragraphs (a) to (e) are applicable. The section does not give an unfettered right to summarily dismiss an employee where any of the grounds specified in Section 28 are present. If any of the paragraphs are applicable, then the common law right to summarily dismiss remains.

At common law it has been the long held view that only serious or fundamental breaches of the contract of employment entitle the Employer to exercise the right.

Whether the employee’s conduct amounts to a breach of his contract of employment of sufficient magnitude to give the Employer the right to summarily dismiss should be determined on the facts of each case. (See: Award 38 of 1999 and Fiji Public Service Association & Anor –v- the Arbitration Tribunal and Fiji Islands Trade & Investment Board – Civil Appeal of 13 of 1999 delivered 19 January, 2002)

As for the instruction to take up a position at the Control Tower, the Tribunal is satisfied that the Grievor did refuse to guard the Control Tower. The Tribunal has also concluded that the refusal to do so did not amount to serious misconduct sufficient to warrant summary dismissal. It was not disputed that there was no Standard Operating Procedure (SOP) for the Control Tower Guard. There were SOPs in respect of all the other posts guarded by the Airport Security Staff. Prior to 27 October 2001 the Airport Security Staff had not mounted a guard at the Control Tower. It would appear that after the refusal by the Grievor to guard the Control Tower, no-one else was rostered to guard the Control Tower. The OHS concerns raised by the Grievor were valid in principle. It would appear that the Grievor’s supervisor accepted the stance taken by the Grievor following an inspection of the Tower vicinity, and posted the Grievor to the Main Gate as an alternative arrangement.

As for the allegation that the Grievor was absent from his post for three hours, the Tribunal accepts the evidence of the Grievor that he was away for no more than 15 minutes with the authorization of the Security Office. The Tribunal has concluded that the evidence adduced by the Employer during the course of the hearing does not establish, even on the balance of probabilities, that the Grievor was absent for three hours.

The only evidence offered by the Employer on this matter was given by the CSO. He stated that he received a briefing from the shift supervisor concerning both issues. He subsequently received a report from the shift supervisor, which formed the basis of his report to senior management. Put simply, the CSO was not on the premises at the time the alleged three-hour absence occurred. The Employer did not call the shift supervisor to give evidence nor any other person who may have been able to give direct evidence concerning the allegation. The report prepared by the shift supervisor was not produced at the hearing.

The Airport Manager produced the Main Gate Log Book for the relevant period. The pages covering the period between Thursday 4 October 2001 and 30 October 2001 have been removed. The only inference which the Tribunal can draw from that fact is not of any assistance to the Employer. The Employer did not produce the Security Office Log Book for the relevant period. Once again the only inference to be drawn from that, in the absence of a satisfactory explanation, is not favourable to the Employer.

The Tribunal is left with no choice but to accept the sworn evidence of the Grievor that he was absent for about 15 minutes with permission.

As a result the Tribunal concludes that the Employer did not act reasonably when it decided to summarily dismiss the Grievor for serious misconduct under section 28 of the Employment Act. Cap.92. The refusal to guard the Control Tower did not amount to serious misconduct in the circumstances of this case.

The conclusion that the Grievor was absent for three hours was not a reasonable finding of fact on the material available to the Employer at the time. It certainly was not a finding which could reasonably have been made by the Employer on the material presented to the Tribunal.

Apart from any procedural requirements contained in the Collective Agreement, the Tribunal is also satisfied that the Grievor was not afforded even the basic requirements of procedural fairness in relation to either guilt or penalty. Management did not formally interview him. He was not given an opportunity to present his version of the facts. He was not given an opportunity to explain with the Union’s assistance prior to termination and nor was he given an opportunity to mitigate in relation to penalty.

Under the circumstances the Tribunal has concluded that the decision to terminate the Grievor’s employment by summary dismissal was unreasonable and procedurally unfair.

The Tribunal does not accept the Employer’s submission that the security requirements of the time justified the decision to summarily dismiss the Grievor without affording him procedural fairness.

The Tribunal does not accept that the obligation of the Employer to act reasonably and to comply with the requirements of procedural fairness should be dispensed with or waived in the interests of current operational requirements with regard to airport security. The Tribunal is not entirely satisfied that all staff were aware of the security level applicable at the time nor that all staff were aware of the actions required under each security level. The evidence presented by the Employer on these matters was unconvincing and fell short of meeting the applicable standard of proof.

The final issue is the question of an appropriate remedy. The Association seeks the re-instatement of the Grievor without loss of salary or other benefits from the date of dismissal. The Employer submits that re-instatement is not an appropriate remedy "because the Company does not have any trust and confidence in Mr Singh. As such Mr Singh would not be a harmonious and effective member of AFL".

In Fiji Public Service Association –vs- Arbitration Tribunal and Airports Fiji Limited (Civil Appeal No. 10 of 2003 delivered 19 March 2004) the Fiji Court of Appeal at page 7 said:

"Counsel for Airports referred us to Award No.46 of 1999 in which the Permanent Arbitrator was required to determine whether dismissals were unjustified and if so, whether the Grievors should be re-instated. In his award that Arbitrator commented that in Fiji, re-instatement to the grievor’s previous position has been the primary remedy of the Tribunal, particularly in view of the absence of unemployment benefits coupled with the scarcity of alternative employment. But that Arbitrator went on to point out that the remedy was not automatic but rather it was discretionary. He referred to the decision of Northern Distribution Union – v – BP Oil (NZ) Limited (1992) 2 ERNZ which held that the test to be applied in deciding whether re-instatement is the appropriate remedy, should be whether, objectively assessed, the employee can be said to have the "trust and confidence" of his or her employer and "would be a harmonious and effective member of his employer’s team". We agree that this correctly describes the correct test, ......".

Having concluded that the decision to summarily dismiss the Grievor was unreasonable and in the absence of any evidence that the Grievor in this case does not have the trust and confidence of the Employer, objectively assessed, and would not continue to be a harmonious and effective member of his Employer’s team, the Tribunal is satisfied that re-instatement is the appropriate remedy. However, under the circumstances existing at the time the Grievor should have been prepared to compromise in relation to the instructions concerning his deployment to the Control Tower. Whilst his stance was proper in principle, the reality was that the circumstances in relation to airport security called for a degree of flexibility in relation to accepting deployment under less than ideal conditions.

The Tribunal has concluded that the Grievor should be re-instated from the date of his dismissal being 9 November 2001. However, he is to be paid only 18 months arrears of wages and the balance is deemed leave without pay. The delay in finalising this dispute has been substantially brought about by the failure of the Employer to effectively discontinue the aforementioned Judicial Review proceedings.

Before concluding, the Tribunal considers it appropriate to make one final comment. As stated earlier in this decision the Fiji Court of Appeal in Civil Appeal No. 10 of 2003 (supra) has effectively ruled that the Collective Agreement of August 1998 determined the terms and conditions of the Association’s members who were employed by the Employer as a result of the Ministerial Directive. However, Counsel for the Employer informed the Tribunal that the same issue is again before the Court of Appeal.

Under the circumstances the Tribunal has proceeded to decide this Dispute and make its award on general principles and without any reliance upon the provisions of the Collective Agreement.

It should also be noted that had the Tribunal taken into account and considered the relevant provisions of the Collective Agreement, then the outcome would not have been any different.

AWARD

The Grievor’s summary dismissal was unreasonable. The Grievor was not afforded procedural fairness.

The Grievor is to be re-instated from the date of his dismissal. He is to be paid 18 months arrears of wages and the balance is deemed leave without pay.

DATED at Suva this 1 day of August 2005

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL