Suva City Council Staff Association v Suva City Council [2005] FJAT 50; Award 04 of 2005 (28 January 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 4 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

SUVA CITY COUNCIL STAFF ASSOCIATION

AND

SUVA CITY COUNCIL

SCCSA: Mr J. Toki
SCC: Mr P. Prasad

DECISION

This is a dispute between the Suva City Council Staff Association (the "Union") and the Suva City Council (the "Employer") concerning the termination of employment of Mr. Subramani Gounder (the "Grievor").

A dispute was reported on 23 March 2004 by the Union. The report was subsequently accepted by the Chief Executive Officer who referred the dispute to a Disputes Committee. The Committee decided that as the dispute raised a significant issue the matter should be referred to Arbitration for a definitive ruling. As a result the Minister authorized the Chief Executive 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 26 May 2004 with the following terms of reference:

".... for settlement over the decision of the Town Clerk/CEO to terminate Mr. Subramani Gounder’s employment with effect from 17 February 2004. The Union submits that the Council’s action is a breach of clause 17 (d) of the Master Agreement. Therefore the Union seeks full compensation from the Council for that breach in procedures, as this is the first occasion that they have challenged the validity of the mayoral settlement of the Union’s grievance."

The Dispute was listed for a preliminary hearing on 18 June 2004. As there was no appearance by or on behalf of the Union the Dispute was listed for mention on 14 July 2004. On that day the parties were directed to file preliminary submissions by 28 July 2004 and the Dispute was listed for further mention on 11 August 2004. The Dispute was subsequently listed for hearing on 4 October 2004.

At the hearing the Employer called two witnesses whilst the Union did not lead any evidence. At the conclusion of the evidence the proceedings were adjourned to 13 October 2004 to allow the parties sufficient time to consider a number of issues which had arisen during the course of the hearing. On 13 October 2004 the Union was directed to file further submissions within 28 days and the Employer was directed to file its submissions within 14 days thereafter. The proceedings were adjourned for further mention on 15 December 2004. On that day the parties informed the Tribunal that the submissions had been filed. The parties sought an Award from the Tribunal.

The jurisdiction of the Tribunal is determined by the reference from the Chief Executive Officer of the Ministry. In this Dispute the reference requires the Tribunal to determine whether the procedure was in breach of clause 17 (d) of the Agreement between the Union and the Employer.

The Tribunal is not concerned with the issue of whether the decision to terminate employment was unreasonable, unjustified or harsh. Furthermore the Tribunal is not concerned with the question of procedural fairness. The reference does not require the Tribunal to consider either of these issues.

The issue is essentially whether the decision to terminate employment, which was initially made by a group of senior management staff, and, which was ultimately contrary to the conclusion reached by the Lord Mayor in a conference convened pursuant to clause 17 (d) of the Agreement, was valid. The submissions have dealt with the dispute as being an issue concerning the authority of the Town Clerk/CEO to overturn a decision taken by the Lord Mayor. However, the real issue is whether clause 17 (d) of the Agreement gives to the Lord Mayor the power or authority to adjudicate and hand down a decision which binds the Council and the Union.

The background to the Dispute may be stated briefly. By letter dated 20 January 2004 the Grievor was suspended on half pay to enable investigations to be carried out into allegations involving serious misconduct concerning the sale by tender of three Council vehicles. Following an investigation into the allegations, a written report was prepared, and the Grievor was requested to provide a written response to the allegations by 29 January 2004. The Grievor delivered a written response and the material was then passed to the Town Clerk/ CEO with further comments from Director Engineering Services. Following a meeting with senior management a decision was taken that the Grievor’s employment should be terminated. The Grievor was advised accordingly by letter dated 17 February 2004.

The concluding part of that letter states:

"In essence by committing the above serious offences you are guilty of:

- Misconduct inconsistent with the fulfillment of the express or implied conditions of your contract of service.

- Willful disobedience to lawful orders given by your employer.

- Substantial neglect of your duties.

Consequently I have no other recourse but to regretfully terminate your employment with the Council with immediate effect."

On 1 March 2004 a conference was held in accordance with clause 17 (d) of the Master Agreement. This conference was attended by the Union’s General Secretary, the Town Clerk/CEO and the Lord Mayor. Both the General Secretary and the Town Clerk made submissions to the Lord Mayor concerning the termination of the Grievor’s employment.

By letter dated 8 March 2004 the Lord Mayor informed the Town Clerk/CEO of his decision. The final part of that letter states:

"In view of the foregoing, it is my conclusion that although Subramani Gounder committed a series of various breaches which were pre-planned and his actions constituted elements that could well lead to police involvement, I feel however that he has learnt his lesson and should therefore be given another chance to redeem himself.

He is however to be demoted and redeployed to another section where he will have no direct interaction with outside customers, although his salary should remain personal to him."

It would appear that sometime between 14 and 19 March 2004 senior Council Management met with the Lord Mayor to discuss his decision. It was agreed by all present that an independent legal opinion should be obtained to advise on the role and function of the Lord Mayor when participating in a conference which has been convened under clause 17 (d) of the Master Agreement.

Following the receipt of this Legal opinion the Town Clerk/CEO informed the Lord Mayor that his decision would not be implemented and that the letter of termination of employment would remain effective.

Clause 17 of the Master Agreement is headed "Grievance Procedure." The preamble at the beginning of clause 17 states:

"Whenever any grievance, dispute or difference arise, either out of the application or interpretation of the Agreement, or from any other cause, all work shall continue normally and all concerned will make sincere attempt to settle the matter in accordance with the following procedure:"

After the preamble there follows a number of steps in which the parties participate with a view to satisfactorily settling the matter. Clause 17(d) states:

"If Agreement is not reached then the matter will be referred to a conference between the President or the Secretary of the Staff Association or their nominee and the Lord Mayor or his nominee when both sides will be entitled to adduce evidence to prove the matters in dispute. The Town Clerk/CEO and the Personal Manager will be in attendance."

Clause 17 (e) commences with the following

"If the matter is still not resolved amicably or satisfactorily within 3 days then it will be...."

The Union submitted that for more than 23 years the Lord Mayor of the day has been adjudicating grievances pursuant to clause 17 (d). The Association claimed that the Mayoral resolution of any grievance had always been accepted by both the Union and the Employer. The union claimed that if the Town Clerk doubted the power of the Lord Mayor to adjudicate on the grievance, he should have advised the Lord Mayor accordingly. As the Union noted the Town Clerk was a willing participant in the clause 17 (d) conference.

The Council submitted that the Lord Mayor’s role under clause 17 (d) of the Agreement is one of mediation whereby he facilitates consultation, discussion and dialogue. The Council claimed that the decision of the Town Clerk/CEO not to implement the Ruling was valid as the Lord Mayor had no power to make such a decision. As the clause 17 (d) conference did not result in an agreed settlement satisfactory to both parties the decision to terminate the Grievor’s employment remained on foot.

The Council in support of its position relied upon a legal opinion from a private law firm. The opinion is dated 24 March 2004 and was provided by Messrs Howards of Suva. The opinion concluded in these terms:

"...his worship the Lord Mayor has no powers under clause 17 (d) .... to determine any dispute or difference. It follows that the adjudication made regarding Mr. Subramani Gounder dated 8 March 2004 is invalid."

The Tribunal has carefully considered the evidence given during the hearing and the submissions filed by the parties. The Tribunal notes that this would appear to be the first occasion on which an adjudication under clause 17 (d) has been challenged and in all probability if the Lord Mayor’s adjudication had confirmed the decision to terminate employment, then this particular issue would not have arisen.

However, the Tribunal is required to interprete clause 17 (d) and in doing so is satisfied that the clause does not give an adjudicating function to the Lord Mayor. The underlying theme of the procedures set out in clauses 17 (a) and up to the opening words in clause 17 (e) is that the parties are to attempt to reach a satisfactory settlement of the dispute through dialogue and mediation. Clause 17 (d) provides an opportunity for the Lord Mayor to effect an amicable or satisfactory resolution of the grievance through mediation within 3 days of the conference. In the event that this does not happen, then either party may report the matter as a trade dispute.

The opening words of clause 17 (e) would make no sense if it was accepted that clause 17 (d) bestowed an adjudicating function on the Lord Mayor. There is an inconsistency between the absence of an amicable or satisfactory resolution within 3 days in clause 17 (e) and the binding adjudicating function which is the interpretation of clause 17 (d) adopted by the Union.

In adjudicating in the manner set out in his letter dated 8 March 2004, the Lord Mayor has acted beyond the scope of his function as provided for in clause 17 (d). The Lord Mayor clearly did not mediate an amicable or satisfactory settlement. The issue of termination of the Grievor’s employment effected by the letter dated 17 February 2004 had not been resolved by the grievance procedure which is set out in clauses 17 (a) to 17 (d).

The Tribunal noted earlier that at the time when the Lord Mayor convened the clause 17 (d) conference both the Union and the Employer were willing participants in proceedings that must have appeared to more closely resemble an adversarial process rather than mediation or conciliation. It was also noted that no attempt was made to advise the Lord Mayor that he did not have an adjudicating function under clause 17 (d) and that he was restricted to attempting settlement through mediation.

Under those circumstances it may be argued that the parties had agreed to vary clause 17 (d) of the Agreement. Clause 17 is part of an agreement and can in theory be varied by the parties by mutual agreement whenever they so choose. Clause 17 is not part of the law of the land.

However, section 34 of the Trade Disputes Act requires that the terms of every Collective Agreement be set out in writing. The Tribunal accepts that any agreed variation for any purpose or for any duration should also be in writing. That was not the position in this case. Therefore the parties are left with clause 17 (d) as it appears in the Agreement.

There is a suggestion in the Union’s submissions that issues of discipline under clause 16 should be dealt with in accordance with the grievance procedure set out in clause 17. On this point, the Tribunal has already expressed an opinion. In Suva City Council Staff Association – v – Suva City Council (Award No.7 of 2000) the then Permanent Arbitrator at page 20 stated:

"The Tribunal also finds no basis for the Association’s argument regarding the necessity for the council to follow the grievance procedure in cases involving discipline. Nothing in the agreement or elsewhere supports such an interpretation. The grievance procedure exists to deal with grievances between the Association and the Council.

A suspected or actual disciplinary offence by an individual employee is not a grievance between the Council and the Association, although the Council’s action during or after the disciplinary process may well become one later, if the Association decides, at that subsequent stage, that it or its member is aggrieved."

Although the Employer has provided detailed submissions on the allegations, the investigations and suspension and termination of the Grievor, these matters fall outside the scope of the reference. It is noted that the Union has not addressed any of these issues in any detail. The evidence given at the hearing related almost entirely to the events surrounding the conference with the Lord Mayor under clause 17 (d). As a result the Tribunal does not propose to consider the grievance relating to the claim that the penalty of summary dismissal was harsh in the circumstances of this case.

AWARD

Clause 17 (d) of the Agreement gives to the Lord Mayor a mediation function to attempt settlement of the grievance through dialogue and discussion. The clause does not give the Lord Mayor the power to adjudicate and hand down a binding decision.

The Lord Mayor’s adjudication in his letter dated 8 March 2004 exceeded the power given to him under clause 17 (d).

The decision to terminate the Grievor’s employment was not in breach of the Agreement.

Dated at Suva this 28 day of January 2005.

Mr W. D. Calanchini
ARBITRATION TRIBUNAL