Fiji Bank and Finance Sector Employees Union v Colonial National Bank [2006] FJAT 11; Award 58 of 2006 (21 November 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO 58 OF 2006

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: Ms R Naidu

DECISION

This is a dispute between the Fiji Bank and Finance Sector Employees Union (the Union) and Colonial National Bank (the Employer) concerning the summary dismissal of Fane Tiko (the Grievor).

A trade dispute was reported on 28 April 2005 by the Union. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As the Committee did not meet within the prescribed time, the Minister authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 5 A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 2 November 2005 with the following terms of reference:

"....................... for settlement over the summary dismissal of Fane Tiko on 9 February 2005. The Union views as harsh, unreasonable and unfair and seeks her re-instatement without loss of pay and benefits."

The Dispute was listed for preliminary hearing on 25 November 2005. On that day the parties were directed to file preliminary submissions by 6 January 2006 and the Dispute was listed for mention on 27 January 2006. On that day the Dispute was fixed for hearing on 21 February 2006.

The parties filed their preliminary submissions on 26 January 2006.

By letter dated 20 February 2006 the Employer’s legal representative requested that the hearing date be vacated as the witnesses to be called by the Employer would not be available on that day.

When the Dispute was called for hearing on 21 February 2006 the Employer confirmed its application for the reasons already stated. The Union did not oppose the application. The application was granted by the Tribunal. The hearing date was vacated and the Dispute was relisted for mention on 24 February 2006.

On that day the Dispute was refixed for hearing on 17 May 2006. At the request of the Union the Dispute was listed for mention on 28 April 2006. An application was made ex parte by the Union to have the hearing date vacated on account of the General Election. The application was granted ex parte and the Dispute relisted for mention on 26 May 2006.

The hearing of the Dispute commenced on 15 June 2006 in Suva. The hearing was adjourned part heard and was completed on 26 June 2006. The Employer called three 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 written final submissions. The Employer filed its final submissions on 28 August 2006. The Union filed answering submissions on 5 October and the Employer filed a reply submission on 25 October 2006.

The Grievor commenced probationary employment with the Employer on 17 April 1990 as a Service Worker and as an Office Attendant. By letter dated 28 August 1996 the Grievor was appointed to the post of Enquiries Officer – Telephone Operator. At the time of her dismissal she was performing the duties of a teller, New Accounts Officer and ATM Custodian at the Employer’s Pacific House Branch.

A complaint was made by a customer in person to the Acting Manager of the Employer’s Pacific House Branch on 28 January 2005. The complaint concerned an amount of $1000 which had been handed to the Grievor on 24 December 2004 for the purpose of opening a term deposit account.

The Manager asked the Grievor to attend in her office to discuss the matter with the customer and herself. During the course of the meeting the Grievor took out $1000 from the petty cash box Also during the course of the meeting the customer returned the Grievor’s Mastercard to the Grievor. It would appear that the Grievor had borrowed $300 from the customer.

Following the departure of the customer, the Grievor was requested by the Manager to provide a written explanation in respect of these two matters.

She was also requested to provide a written explanation concerning staff borrowing money in small amounts from the petty cash float.

In a letter dated 3 February 2005, the Grievor provided a written explanation as requested.

The Grievor stated that the term deposit account was not opened on 24 December 2004 because she was too busy opening accounts for customers about to leave for work opportunities in the Middle East and for their families. The Grievor also explained that the computer system went down on that day and on occasions on the following days. The Grievor stated that she issued a deposit receipt (butt for $1,000) to the customer to confirm having received the money for the term deposit account. This explanation was consistent with her evidence before the Tribunal.

The Grievor also claimed that the reason why she left the money in the petty cash box was because she believed it was the safest place to hold the money.

There were also explanations concerning the other two matters.

By internal memorandum dated 3 February 2005 the Pacific House Branch Acting Manager provided a written report to the Regional Manager on these and other matters allegedly involving the Grievor.

The additional complaints concerned the late delivery of a cheque book and the failure to action a request for periodic payment to be made from a customer’s cheque account.

The Tribunal is satisfied on the balance of probabilities that the Grievor was not requested to provide a written explanation on these two matters. It appeared that the cheque book incident was not the fault of the Grievor and the responsibility to action the payment deductions from the customer’s cheque account did not fall within the Grievor’s duties.

Between 3 and 9 February 2005 the Grievor performed other duties after she was relieved of her responsibilities by the Acting Branch Manager.

By way of an email message on 9 February 2005 the Grievor was informed that she was required to attend a meeting at the Head Office. The amount of notice given was about 5 minutes. The Grievor attempted to contact her two union representatives for one of them to attend the meeting with her. Neither was available. The Grievor was informed that another representative would attend with the Grievor. It would appear that a Ms Morris attended as the Union representative.

Although it was put to the General Manager Personnel in cross-examination that Ms Morris was not a union representative, there was no evidence as to whether Ms Morris was a union representative. The General Manager stated that he thought she was a union representative.

In any event the Grievor had never met Ms Morris prior to that date. She did not have any opportunity to speak to Ms Morris prior to the meeting as Ms Morris arrived for the meeting after the Grievor had entered the General Manager’s Office.

During the course of his evidence the General Manager Personnel produced a copy of a document which was headed "Interview Notes – Fane Tiko (09.02.2005)."

In relation to the notes concerning the $1,000 retained in the petty cash box, there are two matters which require comment. First, the notes stated that the money was "found via a cash count". The evidence before the Tribunal did not support that statement. The Tribunal accepts that the whereabouts of the money was ascertained when the Grievor brought the petty cash box into the Acting Manager’s Office on 28 January 2005 in the presence of the customer. The Grievor removed the $1,000 and the application form which was wrapped around the money from the box. The term deposit account was opened that day.

Secondly, the notes appeared to place some emphasis on the fact that the customer was deprived of one months interest. Whilst it is accepted that a small amount of interest was not earned for that month, it was, however, a matter which it appears was not pursued any further.

The Tribunal accepts that the Grievor was not shown a copy of the Acting Branch Manager’s Report dated 3 February 2005 which had been provided first to the Regional Manager who in turn had forward it to the General Manager Personnel.

The Tribunal also accepts that the Grievor was not informed at the interview on 9 February 2005, that she was facing dismissal as a result of the matters raised with her during the course of the meeting.

After the meeting the Grievor returned to her Branch Office and was later, on the same day, handed her dismissal letter by the Branch Manager who had since returned to work. There were no further discussions or explanations.

The dismissal letter, omitting formal and irrelevant parts, stated:

"Reference is made to the Branch Management Memo Report (s) dated 3 February 2005 headed "Customer Complaints and Breach of Work Ethics". We refer also to our disciplinary meeting held this afternoon with a Union Rep present in respect of the contents of the Report wherein among other things you had received $1000 cash from a customer, Selai Gucake to open a Term Deposit Account on 24/12/2004 but did not do so, as well as keeping the cash for over a month until found in the Petty Cash till following a cash count by the Assistant Manager, Pacific House Branch. This is a very serious matter and in direct breach of the Banks Cash and Tilling Policy and Procedures. We further note the following as contained in the report:

- Poor service to a high valued customer

- Making commitments to customers and not following through

- Using the petty cash holdings to loan money out to young new staff and

- Final Warning Letter issued to you on 31/3/03 for TCDS.

Regrettably, you are hereby summarily dismissed from Colonial’s employ effective from today, Wednesday 9 February 2005 (close of business). You are entitled to only the salary and leave payment owing to you as at the date of your dismissal i.e. c o b 9 February 2005."

It will be noted that this letter referred to the same mistake which appeared in the meeting notes. This mistake was in relation to the assertion that the $1,000 was discoveed as a result of a cash count. As stated earlier that was not the position. The $1,000 and the application form were taken out of the petty cash box by the Grievor and handed to the Acting Manager in the presence of the customer.

The General Manager in his evidence stated that this incident was the basis of the decision to summarily dismiss the Grievor. However the Tribunal is satisfied that the other matters referred to in the dismissal letter were taken into account by the Employer. The first two dot points in the letter may refer to the cheque book incident and the failure of the Bank to make periodic payments requested by another customer. These were not the fault of the Grievor. The Grievor was never asked to provide a written explanation about these two matters.

The dismissal letter also refers to a warning letter dated 31/1/03 which was by December 2004 almost two years old.

There is one other matter which requires comment. There was a routine cash count conducted at the Branch on 29 December 2004. This cash count did not reveal the existence of $1,000 in the petty cash box.. The Grievor’s explanation was that she informed the staff conducting the cash count that it was money for a term deposit account and she removed the money from the box whilst the cash count was conducted.

In the absence of any evidence to the contrary the Tribunal accepts that evidence on the balance of probabilities. There was no evidence to suggest that the money had been removed from the Branch premises.

As a result the Tribunal has concluded that there was no dishonest intention on the part of the Grievor in relation to the $1,000. She admitted that she had retained the $1,000 in the petty cash box with the customer’s application form. She had issued the customer with a butt (receipt) on 24 December 2004. The loss to the customer was a small amount of interest.

The right to summarily dismiss the Grievor is set out in clause 4 B (ii) of the Collective Agreement. The provisions of that clause are substantially the same as section 28 of the Employment Act Cap 92. The effect of section 28 of the Employment Act is to limit an employer’s right to summarily dismiss an employee for serious misconduct to the categories which are set out in that section. However it is still a requirement that the misconduct which falls within any of those categories must be sufficiently serious so as to enable an employer to regard the contract of service as having been discharged.

In the context of the banking industry, the conduct of the Grievor in allowing $1,000 belonging to a customer to remain in the petty cash box for just over one month without any acceptable reason is sufficiently serious for the Employer to consider the penalty of summary dismissal.

Whilst there may have been some valid reasons for the Grievor not being able to open the term deposit account on certain days, the Tribunal is satisfied that the Grievor did have ample opportunity during that month to process the application and open the account. The Grievor did not offer any explanation for not doing so. She admitted in her written explanation the essential elements of the misconduct which was of concern to the Employer.

Whilst the Employer appeared to have considered other matters in its decision making process, the admitted misconduct was by itself sufficiently serious to warrant the imposition of the penalty of summary dismissal.

However the Tribunal is not satisfied that the Employer followed the discipline procedure set out in the Collective Agreement nor afforded the Grievor procedural fairness.

Clause 21 deals with Disciplinary Procedure. Clause 21 (b) so far as is relevant provides:

"(i) Where an employee is being interviewed in connection with an alleged irregularity, which may lead to disciplinary action against the employee he/she shall be informed by the manager or his/her nominee of:

1. the purpose of the interview

2. the fact that disciplinary action may result

3. the employee shall be informed of his/her rights i.e.

if he/she wishes to be accompanied and represented by a Union representative.

(ii) If following such interview the employer proposes to take disciplinary action, the employee shall be informed of the proposed disciplinary action. Such advice may be given in writing and a copy given to the Union if requested by the employee."

Having considered the evidence, the Tribunal is satisfied that the Employer has not complied with these provisions.

The Tribunal is not satisfied that the Grievor was informed during the interview that she was facing disciplinary action in the form of summary dismissal. In his evidence the General Manager Personnel said he couldn’t recall whether the Grievor was informed about possible summary dismissal.

The Tribunal is not satisfied that the Grievor was informed after the interview that the Employer was proposing disciplinary action in the form of summary dismissal. There was no communication between the Grievor and the Employer between the conclusion of the interview and the receipt by the Grievor of the dismissal letter later on the same day. The purpose of sub paragraph (b) (ii) is to enable the Grievor and/or the Union to make further representations to the Employer on the question of the proposed disciplinary action. In other words, the opportunity to mitigate on penalty. That opportunity was not given to the Grievor or the Union in this case.

In relation to the interview the Tribunal is satisfied that the Grievor was called at short notice. She was not able to contact her two known union representatives who were both unavailable. She did not have the opportunity to discuss her case with the person brought in by the Employer as a Union representative. Although she indicated that she would have preferred to defer the interview till one of her union representatives was available, her request was apparently disallowed. The Tribunal accepts that the Grievor had expressed a desire to be represented by a Union representative. As a result the Employer arranged for a person from another Branch and unknown to the Grievor to represent her at the interview. Although there may have been strict compliance with the clause, the Tribunal is not satisfied that the Grievor was allowed effective union representation. This was brought about by the Employer’s haste to dispose of the matter on 9 February 2005. The onus to ensure compliance rests on the Employer. The Grievor was on this occasion, as anyone in her position would be, in an unknown situation. The Emloyer’s Managers were familiar with what was happening. Clearly the Employer was under an obligation to ensure that the Grievor was treated fairly.

The Employer has ignored the purpose and failed to acknowledge the spirit of clause 21 (b) (i) (3). The Grievor has been denied procedural fairness.

Having considered the evidence the Tribunal is not satisfied that re-instatement is appropriate in a case such as this. The requisite mutual trust which is essential in the bank workplace can no longer be taken for granted and the Employer can no longer have the necessary confidence in the Grievor to act in the best interests of the Bank and its customers.

Under the circumstances the Tribunal awards the Grievor three months wages in respect of the Employer’s breach of the Collective Agreement and the failure to afford procedural fairness to the Grievor.

AWARD

The decision by the Employer to summarily dismiss the Grievor was justified and reasonable.

The decision was reached unfairly in the sense that the Employer has breached the procedural requirements of the Collective Agreement and has thereby failed to afford procedural fairness to the Grievor. Re-instatement is not appropriate. The Grievor is awarded three months salary as compensation.

DATED at Suva this 21 day of November 2006

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL