National Union of Hospitality, Catering and Tourism Industries Employees v Sheraton Resorts Denarau Island [2005] FJAT 27; Award 44 of 2005 (2 August 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 44 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIONAL UNION OF HOSPITALITY, CATERING AND
TOURISM INDUSTRIES EMPLOYEES

AND

SHERATON RESORTS DENARAU ISLAND

NUHCTIE: Mr T Naivaluwaqa
Sheraton: Ms R Singh

DECISION

This is a dispute between the National Union of Hospitality, Catering and Tourism Industries Employees (the "Union") and Sheraton Resorts Denarau Island (the "Employer") concerning the termination of employment of Mohammed Tofiq (the "Grievor").

A trade dispute was reported by the Union on 15 March 2004. The Report was accepted 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 11 August 2004 with the following terms of reference:

".... For settlement over the allegations that Mr Tofiq had sexually harassed a female associate on 25 October 2003. The Union believes that the management had breached the trade dispute machinery required as per the Act in that it set aside a full panel without the employee’s representative. The Management had also issued out a letter from an unauthorized representative of the Managing Director of the Sheraton Resorts Denarau, which the Union claims is in breach of section 12.1 of the collective agreement.

The Union therefore submits that the management’s action is in breach of the Collective Agreement and is unjust and unfair and therefore Mr Tofiq should be re-instated without any loss of benefits".

The Dispute was listed for a preliminary hearing on 15 September 2004. On that day the parties were directed to file preliminary submissions within 28 days and the Dispute was listed for mention on 19 November 2004.

The Employer filed its preliminary submissions on 14 October and the Union filed on 16 November 2004. On 19 November 2004 the Tribunal listed the Dispute for hearing on 21 and 22 March 2005.

The hearing of the Dispute took in place in Suva on 21 and 22 March 2005. The Employer called four witnesses and the Union called the Grievor to give evidence. 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 12 April 2005. The Union filed answering submissions on 9 June and the Employer filed reply submissions on 23 June 2005.

The Grievor commenced employment with the Employer in January 2002 as a trainee in the kitchen. He became a temporary Commiss.III in May 2002 and permanent Commiss. III in October 2002.

This Dispute is primarily concerned with an allegation that the Grievor sexually harassed another employee by the name of Linieta Kaloutagitagi (the Complainant) on 25 October 2003. The Dispute is also concerned with some aspects of the procedure followed by the Employer including the proper signatory to the termination letter.

At the hearing the Complainant gave evidence that the Grievor sexually harassed her by touching both her breasts and following her around in the cool lader. She stated that the Grievor had been directed to assist her in the cool lader. Although the Complainant warned the Grievor to stop touching her, he apparently continued to do so.

The evidence given by the Complainant was corroborated by another employee Ms Aqela Rokotuivuna. This witness gave evidence that she saw the Grievor fondling the Complainant’s breast on a number of occasions on the day in question. She also heard the Complainant warn the Grievor to stop his behaviour. She stated that she herself warned the Grievor to stop. She also stated that another female employee by the name of Anna Scott also warned the Grievor to stop. Under cross-examination by Mr Rae, the witness stated that the Grievor’s only reaction to the warnings from each of the female employees was to laugh.

It would appear that the Complainant and the other two female employees discussed the incident on the night but did not report it to Management. It was only on 8 November 2003 that the Complainant made an oral complaint after she became aware of a similar incident which had taken place on 26 October 2003 involving the Grievor and another female employee by the name of Makereta Savai. It would appear that this latter incident was reported shortly after it occurred and was dealt with prior to the reporting of the first incident. In relation to the latter incident, the Grievor had been suspended, made an admission, issued with a formal warning and returned to work on 5 November 2003.

As a result of reporting the incident the Complainant was requested to make a written statement which she did. Her statement was dated 10 November 2003. The witness to the incident, Ms A Rokotuivuna also made a written statement also dated 10 November 2003. The contents of each statement and the evidence each witness gave at the hearing were consistent.

It would appear that the Grievor was again suspended, this time in relation to the incident which occurred on 25 October 2003. The suspension letter is not dated. However, the Grievor acknowledged during the course of his evidence that he had received this suspension letter. Omitting formal parts this letter stated:

"I refer to the alleged incidents on Saturday 25 October 2003 and Sunday 26 October 2003 where it is alleged you sexually harassed two separate female associates on two separate occasions.

I write to confirm that you are suspended without pay with effect from Saturday 8 November 2003. We will carry out the necessary investigation and inform you of the outcome.

You should note that alleged sexual harassment is a serious matter which could lead to dismissal".

It is clear that the decision by the Employer to suspend the Grievor in relation to the incident which occurred on 25 October 2003 was taken as a result of the verbal complaint by the complainant on 8 November 2003.

The decision to suspend the Grievor in relation to the incident which occurred on 26 October was conveyed to the Grievor by letter dated 28 October 2003 and the suspension was to be effective from that date.

The Security Manager, Mr A Marau, conducted the investigation including obtaining the two written statements dated 10 November 2003 to which reference has already been made.

By letter dated 13 November 2003, the Employer’s Human Resources Manager advised the Grievor that there would be a disciplinary hearing. Omitting formal parts this letter stated:

"As per our telephone conversation (Mohammed Tofiq/Uraia) today refers.

Do avail yourself for the disciplinary hearing on Monday 17 November 2003 at 11.00am at the Sheraton Royal Training Room.

The case will be heard by Mr Paul Barret, Director of Human Resources and Mr Uraia Rasake, Human Resources Manager whilst the investigation findings etc. would be presented by Mr Aminiasi Marau, Security Manager.

You have the right to be accompanied by a trade union representative and may call witnesses to support your case. It would be your responsibility to make the above arrangements.

You must note that it is a serious matter which could lead to dismissal".

It should be noted that cc copies of the letter were to be forwarded to the In House Committee and the Union’s General Secretary. It was not at any stage suggested that the two cc addresses did not receive copies of that letter.

The disciplinary hearing commenced on 17 November 2003. The Grievor was present and also representing him was Mr Daya Nand, a member of the In-house Committee of the Union. Although given the opportunity to do so, neither the Grievor nor his representative objected to the composition of the disciplinary panel. Furthermore there was no objection raised to the hearing starting as scheduled nor to the structure of the proceedings.

The Grievor and his representative were given copies of the witnesses statements. It was agreed that the proceedings would be adjourned to the next day to enable the witnesses to be present and questioned. On 18 November 2003 the proceedings resumed. The Grievor was present and was represented by Mr Nand and another Union representative, Mr Peni Finau. The proceedings concluded on that day.

Mr Paul Barrett, the Employer’s Director for Human Resources gave evidence that the panel then discussed the matter with the General Manager. It would appear that because of certain allegations made by the Grievor during the disciplinary hearing, the General Manager directed the panel to review all the material. Mr Barrett stated that the panel reviewed the evidence and concluded that the allegation of sexual harassment had been established. The panel recommended dismissal on the basis that the Grievor’s actions amounted to gross misconduct. The General Manager agreed with the recommendation and directed the HR Manager to formally advise the Grievor in writing. Mr Barrett also gave evidence that he discussed the decision with a Union In House Committee representative (Mr P Finau) as he could not contact the Union’s General Secretary.

The Tribunal accepts the evidence given by Mr Barrett as to what transpired at the hearing and as to the events which followed the hearing. The evidence given by the Grievor did not differ in any significant manner from that given by Mr Barrett concerning the proceedings. Although the Grievor claimed in his evidence that the disciplinary panel prevented him from asking the Complainant and the witness to the incident certain questions, that matter was not put to Mr Barett in cross-examination. The Tribunal does not accept that allegation made by the Grievor during the course of his evidence before the Tribunal.

Furthermore, there was no evidence from the Union to contradict Mr Barrett’s evidence as to his account of the events which followed the hearing.

By letter dated 21 November 2003 signed by the Employer’s Human Resource Manager, the Grievor was formally advised of the decision taken by the General Manager that his employment was to be terminated by summary dismissal. The letter is almost two pages in length and quite detailed. It is proposed to quote only those parts which are relevant and which have not been previously discussed in this decision.

"Your disciplinary hearing was finally completed on Tuesday 18 November 2003 on allegations of sexual harassment of which a decision has been reached by the panel. I am writing to confirm that you are dismissed from work with effect from Friday 21 November 2003.

[The next two paragraphs outlined the proceedings on 17 & 18 November 2003]

‘The panel also took into account a similar allegation by a different associate (Makereta Savai) that was brought up in the hearing but decided to disallow it.

Offence

You sexually harassed a female associate on 25 October 2003 which is in breach of the company policy.

It was alleged that you fondled the Complainant’s breast and followed her around the work area.

Mitigation

During the hearing process you had maintained your innocence however, on both occasions you did not produce any witness nor did you provide evidence to substantiate your claims.

Your claims were as follows:

- That the alleged incident was not true but planned by those involved.

- That the associates involved wanted you terminated and to take your position.

- That it was a racial issue, (you being the Indo-Fijian whilst the others were all Fijians).

Conclusion

The panel on making its decision took into account your mitigation and re-looked into the management’s decision was reached".

The Grievor exercised his right of appeal by letter dated 24 November 2003 addressed to the Director of Human Resources. Receipt of the Appeal letter was acknowledged by letter dated 28 November 2003. By another letter dated 2 December 2003 the Grievor was given further information concerning his appeal. The Grievor provided a further submission by letter dated 5 December 2003. By letter dated 11 December 2003 the Employer informed the Grievor that his appeal was dismissed. The Appeal panel concluded that the disciplinary process in the Collective Agreement had been followed and the Grievor’s conduct amounted to serious misconduct sufficient to justify the decision to terminate his employment.

The Tribunal has concluded that the finding by the disciplinary panel that the Grievor sexually harassed the complainant was a reasonable finding based on the evidence. The Tribunal has no hesitation in concluding on the balance of probabilities that the Grievor did sexually harass the complainant in the manner alleged. The Tribunal is also satisfied that the Grievor’s misconduct falls within section 28 of the Employment Act Cap.92 which allows the Employer to exercise the common law right to summarily dismiss an employee. The Tribunal is also satisfied that the misconduct was sufficiently serious so as to render the exercise of that right to summarily dismiss a reasonable decision.

As a result the Tribunal has concluded that the decision to summarily dismiss the Grievor was not unreasonable nor unjust.

At this stage the Tribunal should indicate that the disciplinary panel was correct in disallowing any consideration of the incident on 26 October 2003 which could not be described as a prior incident since it took place a day after the incident which was the subject matter of the disciplinary hearing.

The Tribunal now turns to a number of issues involving the question of procedural fairness.

The terms of reference refer to the Union’s allegation that the management breached the trade dispute machinery required as per the Act in that it set aside a full panel without the employee’s representative. It should be noted that neither party addressed this matter in their final submissions. The Tribunal is not certain as to what is the precise nature of Union’s complaint. It is sufficient for the Tribunal to state that the requirements set out in the Trade Disputes Act in relations to trade dispute machinery apply only to those entities which are established under the Act. The trade dispute machinery set up under the Act is only activated when a trade dispute is reported to the Chief Executive Officer. The disciplinary panel established by the Employer is not part of the trade dispute machinery under the Trade Disputes Act.

The next allegation concerns the issuing of a letter from an unauthorized representative of the Managing Director which the Union claims breached clause 12.1 of the Collective Agreement. Clause 12.1(a) states:

"The dismissal of an employee for any reason shall only be made by the Manager of the Hotel or, in his absence, his authorized deputy".

On the evidence given by Mr Barrett and on the material put into evidence, the Tribunal is satisfied that the decision to terminate the Grievor’s employment was made in accordance with the requirements of the Collective Agreement.

The Tribunal does not accept the allegation that the Grievor was not given an adequate opportunity to explain his story. The employer conducted a two day hearing at which both the Grievor and his Union representatives were present. Furthermore, this is not one of the grounds of appeal raised by the Grievor in his Appeal letter dated 24 November 2003.

It is the Tribunal’s opinion that the entity or mechanism selected by an employer to investigate and determine misconduct justifying dismissal does not usually include a Union representative. There is no obligation on the Employer, in the absence of an express provision in a Collective Agreement, for the Employer to include a Union representative on an internal decision making body charged with determining questions relating to misconduct and penalty. The procedure or the finding may well be the subject of a subsequent trade dispute.

Furthermore, the Tribunal has concluded that the procedure adopted by the Employer as outlined in the evidence given by Mr Barett is in substantial compliance with clause 12(c). There has not been any breach of that clause which would be of sufficient gravity so as to affect the validity of the disciplinary proceedings.

Finally, the Grievor has maintained that his superior, the Executive Sous Chef, Mr Robert Gilmour, should have been a member of the disciplinary panel. The Tribunal has already noted that the reason for the composition of the panel was explained at the commencement of the disciplinary proceedings. The Tribunal notes that a Statutory Declaration signed by Mr Gilmour and dated 12 August 2004 (admitted as Exhibit 11) supports the evidence given by Mr Barrett.

The Tribunal accepts that there were reasonable grounds for not including Mr Gilmour on the disciplinary panel. His exclusion does not in any way affect what was in all other aspects a proper hearing which complied with the principles of natural justice and procedural fairness.

If there is one criticism which can be made in respect of the procedure followed by the Employer it is this. Once the disciplinary panel had reached a decision that the allegation of sexual harassment had been established, it would have been appropriate to give the Grievor an opportunity to mitigate in relation to an appropriate penalty. Although the General manager accepted the recommendation to terminate employment, it would have been reasonable and fair to allow the Grievor the opportunity to put forward any extenuating circumstances before a final decision was taken. This is particularly relevant when the penalty being contemplated is summary dismissal. To that extent the procedure adopted was unfair.

However, the Tribunal has no hesitation in concluding that re-instatement is not the appropriate remedy in this case. The misconduct clearly precludes any possibility of the Grievor being considered a harmonious and effective member of the Employer’s team.

In relation to the question of procedural fairness, the Grievor is to be paid two months salary as a result of the Employer’s failure to allow the Grievor the opportunity to mitigate in relation to an appropriate penalty.

AWARD

The termination of the Grievor’s employment by summary dismissal was not unreasonable nor unjust.

The Employer has not breached clause 12.1 of the Collective Agreement.

The Grievor’s dismissal was unfair to the extent that he was not afforded procedural fairness as a result of not having the opportunity to mitigate in relation to the question of an appropriate penalty.

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

DATED at Suva this 2 day of August 2005

Mr. W. D. Calanchini
PERMANENT ARBITRATOR