Fiji Bank and Finance Sector Employees Union v Colonial [2005] FJAT 26; Award 43 of 2005 (2 August 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO.43 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI BANK & FINANCE SECTOR EMPLOYEES UNION

AND

COLONIAL

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 (the "Employer") over a range of disciplinary actions in respect of a number of staff.

A trade dispute was initially reported by the Union on 17 August 2003 and then again on 7 September 2003. The Report was accepted by the Permanent Secretary who referred the Dispute to a Disputes Committee on 20 October 2003. As a consensus decision was not 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 5 November 2003 with the following terms of reference:

"..... for settlement over the range of disciplinary actions taken by Colonial in its Bank, Life and Health operations in early June 2003 on a number of staff (13 named employees). The Union views this action as unreasonable, harsh, unjust and unfair and seeks the removal of all disciplinary actions imposed and proposed and the re-instatement of all lost benefits to the employees concerned".

The Dispute was listed for mention on 21 November 2003. On that day the Tribunal directed that the Dispute be relisted for mention on 8 December 2003. At the request of the parties the Dispute was by consent listed for further mention on 19 January 2004.

On that day the parties were directed to file preliminary submissions by 10 June 2004. The Employer filed its preliminary submissions on 9 June whilst the Union filed its submissions on 16 June 2005.

The Dispute was set down for a two day hearing commencing on 25 October 2004. Due to unforeseen circumstances, the Tribunal was unable to proceed with the hearing of the Dispute on 25 October and the matter was listed for mention on 19 November 2004. On that day the Dispute was fixed for hearing on 2 March 2005.

The hearing of the Dispute commenced on 2 March in Suva and continued on 3 March 2005. The Employer called two witnesses and the Union called three witnesses.

It should be noted that the hearing of the Dispute proceeded in relation to three Grievors only. They were Mr Saimoni Camaitoga, Ms Naomi Waqa and Mr Lawrence Wara. As the fourth Grievor did not attend the hearing, the Union requested that the Dispute involving Mr V Nabola be withdrawn and the proceedings discontinued. This Award will record that the Disputes in relation to ten of the thirteen Grievors initially listed in the reference were withdrawn and the proceedings discontinued.

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 13 May 2005 and the Employer filed reply submissions on 29 June 2005.

In December 2002 the Employer carried out an internal audit of the storage and conveyance of prohibited material on staff computers. The report was prepared by Ashik Lal who was Manager Audit and Compliance. The report was issued on 11 February 2003.

It would appear that the audit investigation was conducted by a random check on what could be described as a sample of the more than 450 personal computers available to staff. However, the Tribunal accepts that it would have been prohibitive in terms of time and cost to conduct an audit on all 450 computers. It was not an unreasonable approach and the Tribunal does not consider the methodology to be unfair or sinister.

The report dealt specifically with findings against, amongst others, the three Grievors.

In relation to Saimoni Camaitoga, the report stated that he had received a warning (not necessarily final) on 21 June 2002. The Report stated that on 15 October and 18 October 2002 this Grievor sent/forwarded material which was considered pornographic in nature to other staff employed by the Employer. In addition material sent by another staff member on 29 November 2002 was located in his email on the day of the audit.

In relation to Lawrence Wara, the report stated that he also had received a warning (not necessarily final) on 21 June 2002. The report stated on 11 July, 25, 26 and 28 November and on 4 December 2002 this Grievor forwarded pornographic material to other staff employed by the Employer.

In relation to Ms Naomi Waqa, the Report did not allege any prior warning or any other disciplinary matter against her. The Report stated that she forwarded on 21 November 2002 to three staff by way of an email attachment material which was "not that offensive or pornographic".

Following the Report, the Employer conducted two sets of interviews with each of the Grievors. The Tribunal is satisfied on the evidence given at the Tribunal and on the written material tendered that the interviews were conducted in substantial compliance with the Collective Agreements and that none of the Grievors was prejudiced or denied procedural fairness in the course of those interviews.

At the conclusion of the interviews each of the Grievors was handed a two week suspension without pay.

Having considered the evidence carefully the Tribunal is satisfied that each of the Grievors did send the material as alleged in the Audit Report. Furthermore the Tribunal accepts the evidence given that the material was, in relation to the Grievors Camaitoga and Wara, either pornographic and/or offensive. Finally the Tribunal also accepts that each of the Grievors knew or ought to have known that their actions were contrary to the policy and guidelines which had been appropriately promulgated by the Employer. There simply was ample opportunity for the Grievors to have ascertained the necessary information concerning the Employer’s attitude to the storage and dissemination of such material.

The Tribunal accepts that so far as the Grievors Camaitoga and Wara are concerned, their actions placed them in the position where they could have been dealt with under the dismissal provisions of either clause 3 B(11) of the Agreement with the Union or clause 4B (11) of the Agreement with the Fiji Bank Employers Union. The Tribunal does not consider that these matters fall within the category of incidents which would normally be dealt with under the system of warnings provided for in the disciplinary clause of each agreement.

The fact that the Employer chose to impose a penalty less severe than dismissal only serves to re-inforce the Tribunal’s conclusion that in relation to the two
Grievors Camaitoga and Wara the Employer has acted reasonably in all the circumstances.

However, the Tribunal has reached a different conclusion in relation to Ms N Waqa. Although there was some reference to her involvement in an earlier but totally unrelated matter, the Tribunal has concluded that the Employer did not establish that the Grievor was involved in that incident. There was no other allegation in relation to prior misconduct. In view of the fact that the material was described as "not that offensive or pornographic", the Tribunal has concluded that the decision to suspend Ms Grievor for two weeks was unreasonable. On the basis of fairness and parity the Tribunal has concluded that a reasonable employer would have taken the view that a formal warning was the appropriate penalty.

AWARD

The decision to impose a penalty of two weeks suspension on the Grievors S. Camaitoga and L. Wara was not unreasonable nor was it unfair.

The penalty of two weeks suspension imposed by the Employer on the Grievor N Waqa was unreasonable. She is to be given a formal warning to be effective for 12 months from the date of its issue.

The Dispute in relation to the remaining ten Grievors listed in the Reference, namely: V Nabola, R Goundar, R A Ali, A Mateo, N Ali, F Shah, S Sharma, K Turagavuli, M Korosaya and D Khana are withdrawn and the proceedings discontinued.

DATED at Suva this 2 day of August 2005

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL