Viti National Union of Taukei Workers v Land Transport Authority [2005] FJAT 38; Award 63 of 2005 (14 November 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 63 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

VITI NATIONAL UNION OF TAUKEI WORKERS

AND

LAND TRANSPORT AUTHORITY

VNUTW: Mr T Tabu
LTA: Mr V Vosarogo

DECISION

This is a dispute between the Vtii National Union of Taukei Workers (the "Union") and the Land Transport Authority (the "Authority") concerning the termination of employment of Ms Elina Ledua (the "Grievor").

A dispute was reported on 13 March 2001 by the Union. The Permanent Secretary referred the dispute back to the parties for further negotiations. The Union subsequently reported the same dispute again on 3 August 2001. That report was accepted by the Permanent Secretary who referred the Dispute to a Disputes Committee. The Dispute was then referred 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 October 2002 with the following terms of reference:

"... for settlement over the Authority’s decision to terminate Ms Elina Ledua . The Union views this termination as unfair, unjust, harsh and done hastily".

At the outset the Tribunal notes that there was no explanation from the parties nor any material in the file which would explain the delay between 3 August 2001 when the Union re- reported the Dispute and 17 October 2002 when the Dispute was referred to the Permanent Arbitrator.

The Dispute was listed for preliminary hearing on 5 November 2002. On that day the parties were directed to file preliminary submissions within 30 days and the Dispute was listed for hearing on 11 February 2003. The Dispute was then listed for mention on 11 March 2003 and then for hearing on 19 June 2003. On 23 June 2003 the dispute was re listed for hearing on 4 November 2003. It would appear that the hearing of this dispute could not proceed until the High Court had delivered its judgment in The State –v- The Arbitration Tribunal and Others ex parte Land Transport Authority (JR No.11 of 2002).

The High Court delivered its judgment on 15 September 2004. This Dispute was then listed for mention on 19 November 2004. The dispute was listed for further mention on 15 December 2004. On that day the dispute was listed for a two day hearing commencing on 7 February 2005.

When the dispute was called on for hearing on 7 February 2005, the Authority indicated that it was not in a position to proceed. The Union was ready to proceed on that day. As a result the Tribunal directed the Authority to pay $5.00 travelling expenses to the Grievor and $500 to the Ministry of Labour within 14 days as costs wasted. The hearing date were vacated and the dispute listed for mention on 25 February 2005.

The dispute was eventually heard in Suva on 11 May 2005. The Union had filed preliminary submissions on 3 December 2002 and the Authority had filed its submissions on 10 December 2002. The Union filed a further preliminary submission on 17 November 2004.

At the hearing the Authority called two witnesses whilst the Grievor gave evidence for the Union. At the conclusion of the evidence the parties sought and were granted leave to file written final submissions. The Authority filed its final submission on 25 May 2005. The Union filed answering submissions on 7 June 2005 and by letter dasted 18 October 2005 the Authority informed the Tribunal that it did not intend to file a reply submission.

The Grievor was appointed as a Temporary Relieving Clerical Officer in the Department of Road Transport for 3 months with effect from 2 March 1998 to 2 June 1998. The appointment was confirmed in a letter dated 26 February 1998 addresses to the Grievor from the Controller of Road Transport. Attached to the letter was a document setting out the Grievor’s terms and conditions of employment for the said period of employment. The Grievor signed the document on 27 February 1998 thereby indicating her acceptance of the stipulated terms and conditions. Clause (h) of the terms and conditions states:

"At the completion of this period of Temporary Relieving appointment you will not become entitled to any further period of employment and your Temporary Relieving appointment shall cease forthwith".

Clause (i) of the Conditions states:

"During the course of your employment you shall ensure that your attendance at work is punctual. Your performance is of a very high standard, your conduct and general behavior are impeccable and that you at all times be subject to the direct control and supervision of your supervising officer. Any lapse on your part in any one of these shall result in your instant dismissal, which shall be without pay."

In addition, Clause (b) required the grievor to comply with all official instructions issued by her supervising officer and arising out of her temporary relieving appointment. Clause (e) informed the Grievor that her appointment may be terminated by either party giving one week’s notice or the payment of one week’s gross wages in lieu of notice. Finally Clause (j) provided that for the period of her employment, the Grievor’s terms and conditions of service shall be governed by the provisions of the Employment Act Cap 92.

It should be noted that nowhere in the terms and conditions is there any reference to Public Service legislation of any description applying to the Grievor.

It should also be noted that the power to instantly dismiss the Grievor which is set out in clause (i) must be read in conjunction with the limitations on the right to dismiss summarily which are set out in Section 28 of the Employment Act. The common law right to summarily dismiss for serious misconduct is retained only in the circumstances set out in Section 28. As a result the right to summarily dismiss the grievor, which is given to the Employer in Clause (i) can only be exercised if the misconduct is serious and if it comes under the categories of serious misconduct specified in section 28.

It would appear that the Grievor’s employment as a Temporary relieving Clerical Officer was extended beyond the initial three month period. It would also appear that the terms and conditions of employment of Temporary Relieving Clerical Officers were different from terms and conditions of other public servants.

By letter dated 31 July 2000 the Grievor was advised that she had been absorbed into the Land Transport Authority with effect from 10 July 2000. The letter was addressed to the Grievor and described her as Temporary Relieving Clerical Officer. The letter’s heading was "Letter of Appointment" and was signed by the Authority’s Manger Human Resource and Administration (MHRA). The significant part of the letter for the purposes of this dispute is the second paragraph which stated:

Your Public Service Terms and Conditions of employment shall continue to apply from 10 July to 31 December 2000 or until a new Collective Agreement is conluded between the Land Transport Authority and the three Unions".

So far as this Grievor is concerned, for the reasons already stated, the Tribunal has concluded that the reference in the Letter of Appointment dated 31 July 2000 to " Your Public Service Terms and Conditions" is a reference to the terms and conditions set out in the document attached to her letter of appointment dated 26 February 1998.

She was initially appointed as a Temporary Relieving Clerical Officer. The evidence and the material both support the conclusion that as at 31 July 2000 she was still employed as a Temporary Relieving Clerical Officer.

It should be noted that a Collective Agreement was not signed by the parties until 17 December 2001.

The incident giving rise to the dispute occurred on 22 January 2001 at about 12 noon. A clerical officer in the PSV Section approached the Grievor requesting assistance for his cousin in his application for a learner’s permit. The Grievor who was not working in the Licensing Section at the time obliged by arranging for the applicant to complete the necessary documentation. She did not administer a verbal test and did not collect the fee of $16.50, as the applicant did not have the money with him at the time. Although she printed a permit she did not issue it. An arrangement was made between them that the applicant would bring the money and then his permit would be issued. On 2 February 2001 the applicant returned and paid the fee. The Grievor wrote out the receipts and issued the permit.

By memorandum dated 5 February 2001, the Grievor responded to a "please explain" request in the following terms:-

I refer to your memorandum of 2/2/01 and this is my explanation".

The counter was full of customers and there was no one to conduct the oral test. I took his form and checked it. I was about to write his receipt and he told me he only had $6.50 cash with him but the Learner’s Permit was $16.50.

He promised me he would be back that same day so I explained to him the cashier would be closing at 3.30pm.

In my intention of helping the applicant I updated his record on the computer and printed his Learner’s Permit Card so that he could just pay for his Learner’s Permit and I could give him the card. I left the Learners Permit Card in my drawer. Since he did not return I had forgotten about the Learners Permit Card.

At no time was my intention to do anything dishonest. I was trying to help the customer. When I handed the card to him I believed he had done everything that was required to be issued a Learner Permit."

Although the Authority’s preliminary submission suggests that there were some internal management meetings, which considered the incident and the explanation, there was no evidence addressed to this effect at the hearing.

The MHRA by letter dated 27 February 2001 advised the Grievor that she was to be summanly dismissed. Omitting formal and irrelevant parts, the letter stated:

"I am to inform you that your Temporary Relieving appointment as DDE Operator is hereby terminated for not following Licensing Procedures when printing the Learner’s Permit.

Your termination would be effective from 28/2/2001.

You are to surrender ID Card Number 205 to the Manager MIS before leaving this office."

The Grievor, in a letter dated 5 March 2001 and addressed to the Chief Executive, responded to the dismissal letter. The relevant portion of the letter stated:

".... I admit that I was at fault and not following the proper procedures on the printing of the learners permit. However I wish to advise that the action taken was not intentional. Further this was my first error, and does not necessarily warrant termination of my employment. For the last 3 years I had tried to learn all the procedures through trial and error concept. Very little in-house training was conducted to improve efficiency and effectiveness of the unit. I had tried my best through observation and I attended further courses at FIT on my endeavour to secure permanent employment.

Furthermore, I was surprised that I was not given an opportunity to explain and defend myself as an employee of the LTA and neither was any encouragement and assistance given to me, or my shortcomings identified, to improve my performance.

......."

Having considered the evidence, the Tribunal is satisfied that there were at that time no formal instructions outlining License printing procedures issued by the Authority to the staff. The Tribunal is also satisfied that other staff did from time to time assist the Licensing staff at the counter when business was busy. The Tribunal also accepts that at that time the oral test was not always administered at the same time as the Learners permit was printed.

The tribunal is also satisfied that there was no dishonest intention on the part of the Grievor. It was not disputed that this was the Grievor’s first disciplinary incident since commencing in February 1998.

The dismissal letter clearly states that the Grievor’s appointment is to be terminated for not following licensing procedures when printing the learner’s permit.

Under the circumstances the Tribunal has concluded that the misconduct did not amount to serious misconduct so as to warrant the imposition of the most severe of employment penalties, summary dismissal. As a result the Tribunal has determined that the decision to summarily dismiss the Grievor was unreasonable.

The Tribunal shares the views of the Grievor’s supervisor Mr. David Francis who in a memorandum dated 9 February 2001 recommended that the Grievor receive a warning as an appropriate penalty. The Tribunal concludes that the Authority did not take sufficient account of the views expressed by Mr. Francis in that memorandum, in particular the following:

" An incident of this sort is totally out of character for Elina. She is a very competent data operator. She has been trained in the License Card Production process and has reached an excellent skill level. She is conscientious and hard working. Over 2-3 years I have worked with Elina I have never had cause to complain of her work or attitude. I believe Elina is a skilled staff member who will be able to make a very positive contribution towards the development of the MIS Section and the Authority."

Mr. Francis also explained the common practice in the Licensing Office where a transaction has been completed and then the customer finds that he does not have sufficient money. These transactions are then put aside until the customer returns with the required amount of cash.

The Tribunal is not satisfied that the procedure adopted by the Authority in dealing with the Grievor complied with the standards of natural justice. The Grievor was not informed, prior to dismissal, that her actions had rendered her liable to summary dismissal.. She was not given the opportunity to mitigate in relation to penalty nor was she given the opportunity for someone to make either a written or oral representation on her behalf. These matters are especially important when an employer is contemplating either termination or dismissal as a possible penalty. They are also consistent with the concept of fair labour practices in Section 33 of the Constitution.

The Tribunal is also satisfied that this is a case where re- instatement is the appropriate remedy. It is also appropriate that the Grievor be given a formal warning in accordance with the provisions of the Collective Agreement. Under the circumstances the Grievor is to be paid 6 months salary and the balance is deemed leave without pay.

AWARD

The summary dismissal of the grievor was unreasonable in that her misconduct was not sufficiently serious to warrant that penalty. She was not afforded procedural fairness.

The Grievor is to be reinstated from the date of dismissal. She is to be paid six months arrears of wages and the balance of the period is deemed leave without pay.
She is to be given a formal warning in accordance's with the current Collective Agreement.

DATED at Suva this 14 day of November 2005

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL