Fiji Bank and Finance Sector Employees Union v Colonial National Bank [2005] FJAT 25; Award 42 of 2005 (1 August 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 42 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION

AND

COLONIAL NATIONAL BANK

FBFSEU: Mr P Rae
Colonial: Mr H Nagin

DECISION

This is a dispute between the Fiji Bank and Finance Sector Employees Union (the "Union") and Colonial National Bank (the "Employer") concerning the termination of employment of Ms Artika Chand (the "Grievor").

A trade dispute was reported by the Union on 23 April 2004. The Report was accepted on 11 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 Arbitrator on 17 June 2004 with the following terms of reference:

"...... for settlement over the termination (of employment) of Ms Artika Chand on 1 March 2004 and the short payment of two weeks notice pay upon termination. The Union views the Bank’s action as harsh, unreasonable, unjust and unfair and seeks her re-instatement without loss of pay or benefits".

The Dispute was listed for a preliminary hearing on 14 July 2004. On that day the parties were directed to file their preliminary submissions within 21 days and the Dispute was listed for hearing on 27 September 2004.

The Union filed its preliminary submissions on 5 August and the Employer did so on 10 August 2004.

When the Dispute was called for hearing Counsel for the Employer informed the Tribunal that the Employer’s witness was not able to give evidence and that as a result the Employer was forced to make an application for the hearing date to be vacated. The application was not opposed by the Union.

The Tribunal directed that the hearing date be vacated and that the Dispute be listed for mention on 13 October 2004. The Tribunal also directed the Employer to pay $20.00 out of pocket expenses to the Grievor as a result of the short notice of the application.

On 13 October 2004 the Tribunal indicated that the Dispute would be fixed for hearing on 1 March 2005.

At the hearing each party called one witness. At the conclusion of the evidence the parties sought and were granted leave to file final written submissions. The Employer filed its final submissions on 29 March 2005. The Union filed answering submissions on 21 April and the Employer filed reply submissions on 14 July 2005.

The Grievor was employed as a teller with the Employer at its Sigatoka Branch on probation for six months from 3 November 2003. The terms and conditions of employment are set out in the Grievor’s Letter of Appointment dated 27 October 2003, in a Trainees’ Declaration which was apparently signed on 9 September 2003 and the Collective Agreement. The Letter of Appointment and the Trainee’s Declaration both contained undertakings concerning non-disclosure and confidentiality.

By a letter dated 28 January 2004 which was addressed to the Sigatoka Branch Manager, one of the Branch’s customers made a complaint which, omitting formal and irrelevant parts, stated:

"I would like to lodge a complaint against one of your staff because he/she has referred our bank balance to a public member.

Please, Sir, It is my request if you can consider this matter and solve it".

The customer’s name was Mr Sanjoe Reddy. The evidence given during the course of the hearing would suggest that the Grievor’s brother and Mr Reddy were in a tenancy relationship.

However, it should be noted that the letter of complaint does not specifically refer to the Grievor. In fact Mr Reddy refers to the offending staff member as "he/she". Furthermore, it would appear that the written complaint was made 15 days after the disclosure. The Branch Manager gave evidence that Mr Reddy had come to see him personally prior to writing. The Manager could not remember the date. During the course of their discussion the customer produced a bank deposit slip dated 13 January 2004 with the Grievor’s initials and with the account balance of $2648 written on the back of the slip. The initial transaction involved only $20.00. As it turned out the information had been given to the Grievor’s sister-in-law.

There was only one other teller working at the Sigatoka Branch at the time, a male by the name of Richard. The Manager stated in evidence that when interviewed Richard denied that any of the writing on the slip was his and he denied any knowledge of the incident. Neither the evidence nor the submissions suggest that the teller Richard had anything to do with the incident.

The Branch Manager conducted an investigation into the incident and concluded that it was the Grievor who wrote the customer’s bank balance on the slip.

The Tribunal accepts that the Branch Manager spoke to the Grievor on at least two occasions concerning the incident and on both occasions the Grievor denied that the bank balance was in her handwriting.

The Tribunal also accepts that when the Grievor spoke to the Area Manager she admitted to the Area Manager that she had made a mistake by giving the account balance to a third party. The Tribunal accepts that the Branch Manager heard this telephone conversation which took place in his office.

At the request of management, the Grievor wrote a letter on 28 January 2004. In the letter the Grievor states, amongst other things, that:

"..... I really can’t recall if I had written the balance at the back of the deposit slip".

At the request of management the Grievor wrote a second letter dated 29 January 2004 in which she stated:

"I .... would like to apologise on the complaint made by the client i.e. writing the account balance and giving to the third party".

The Grievor stated in her evidence that she only made the admissions to save her job. During the course of her evidence the Grievor denied that she had made the disclosures.

The Branch Manager sent his report dated 29 January 2004 and the material to the Area Manager. His recommendation was that the Grievor be given a warning and that the period of probation be extended.

On Sunday 29 February 2004 the Grievor, her sister, her father and the customer Mr Reddy went to the Branch Manager’s residence to inform him that the issue between the families had been resolved and the customer was withdrawing his complaint. The Manager requested that they attend at his office the next day (Monday) to discuss the matter.

The Grievor, her father and the customer Mr Reddy attended at the Manager’s Office to withdraw the complaint. Mr Reddy handed the Manager a letter dated 1 March 2004 which, omitting formal and irrelevant parts, stated:

"I Sanjoe Reddy as a customer of Colonial National Bank Sigatoka would like to withdraw my complaint against your staff "Artika Devi Chand" which was lodged by me.

As the problem has been solved and both the parties have agreed for a better settlement result......"

The Branch Manager gave evidence that he faxed a copy to the Suva Office. He also stated that the spoke to Mr K J Sokosoko the Peoples Relations Manager concerning the matter.

By letter also dated 1 March 2004, the Grievor’s employment was terminated. Omitting formal and irrelevant parts, this letter stated:

"Termination of Probationary Appointment

1.0 We refer to your letter of appointment with Colonial dated 27 October 2003 and most recently Branch Management’s formal concern dated 29/01/2004 pertaining to your work performance and conduct. We refer particularly to breaches you deliberately committed contrary to the Bank’s Non-Disclosure and Confidentiality Policy which we regard as very serious and fundamental to banking.

2.0 We are satisfied that Management’s findings and recommendation on your performance and conduct is conclusive in terms of your future employment with Colonial.

You are hereby advised that your Probationary Appointment is terminated with effect from today (close of business) Monday, 1 March 2004.

3.0 As this is a Probationary Termination you are entitled to only those salary and leave payment owing to you as at the date of your termination – i.e. cob 1/3/2004 plus a two weeks pay in lieu of notice".

There are three comments that need to be made about this letter. First, there was no evidence given at the Tribunal on behalf of the Employer concerning the Grievor’s performance. Furthermore the Branch Manager did not at any stage say that his report to the Area Manager contained any comments on the Grievor’s work performance.

Secondly, the evidence given at the Tribunal concerned one disclosure of information which amounted to a single breach of the Employer’s policy. There was no evidence that the Grievor had been accused of "breaches"

Thirdly, on page 1 of the Grievor’s letter of Appointment, under the heading "Probation", the following clause states:

"If during your probationary period, you do not attain the standard of performance expected of you, your employment may be terminated. Termination of your service whilst on probation shall be in accordance with the termination clause provided".

At the bottom of page 2, under the heading "Termination", the following is stated:

"During your period of probation, upon and after confirmation, employment may be terminated by either party giving four weeks’ notice in writing or by the payment of four weeks salary in lieu of notice".

The Branch Manager also gave evidence that about three days later he received a telephone call from the customer Mr Reddy who said that he (Mr Reddy) had been approached by the Grievor and her father to sign a letter of complaint against the manager.

The Tribunal accepts the evidence of the Branch Manager and has concluded on the balance of probabilities that the Grievor did disclose the customer’s account balance to her sister-in-law by writing the amount on the reverse side of a bank deposit slip dated 13 January 2004. This conclusion is based on the fact that it was the Grievor who processed the $20.00 cash deposit and initialled the slip. There was no evidence or suggestion that any other staff member handled the deposit slip. There is no other way that the account balance could have found its way on to the slip. The Grievor’s sister in law would not know what the balance was and it was not suggested that the complainant had written the figure himself.

In additional there was an oral admission overheard by the Manager followed by an admission in writing.

Although the Grievor had initially made at least two oral denials, both the Branch Manager and the Area manager were prepared to give the Grievor a second chance and recommended that she be given a warning and an extended period of probation.

However, in the Tribunal hearing, the Grievor stated that she did not disclose the balance to her sister-in-law. She also stated that she only made the admissions to save her job. However, apart from the matters referred to above, the weight of the evidence is against the Grievor. The Tribunal has no hesitation in concluding that she did disclose the customer’s account balance and that in doing so she has committed what is rightly regarded as a serious breach of policy.

Under the circumstances the tribunal has concluded that the decision by the Employer to exercise its right of termination was a reasonable decision. The issue was not just about the disclosure of confidential information to an unauthorised person, it was also about credibility and trust. The Tribunal is left with the conclusion that the Grievor did not initially tell the truth to her Employer.

Furthermore the Tribunal does not accept the Grievor’s evidence as to denial of her role nor the reasons which she gave in her evidence for making the admissions.

For these reasons the Tribunal does not consider that re-instatement is an appropriate remedy.

However, the Tribunal is also satisfied that the Grievor was not afforded procedural fairness. As a probationary employee the Grievor’s knowledge of what should happen in terms of disciplinary procedure would be virtually non-existent. She should have been given an indication that disciplinary action may follow when she wrote the two letters. She should have been given an opportunity to explain and to mitigate with Union representation if appropriate.

Under the circumstances the Tribunal has concluded that the Grievor should be paid two months salary in respect of the unfair nature of the procedure adopted by the Employer.

Finally, if the Grievor was not paid four weeks wages in lieu of notice then she should receive whatever balance is still outstanding.

AWARD

The termination of the Grievor’s probationary employment was not unreasonable. The Grievor was not afforded procedural fairness.

Re-instatement is not appropriate. The Grievor is to be paid 2 months wages in respect of the unfair procedure.

The Grievor is entitled to be paid four (4) weeks wages in lieu of notice as set out in her Letter of Appointment.

DATED at Suva this 1 day of August 2005

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL