Fiji Bank and Finance Sector Employees Union v ANZ Banking Group Ltd [2006] FJAT 16; Award 63 of 2006 (5 December 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO 63 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION

AND

ANZ BANKING GROUP LIMITED

FBFSEU: Mr P Rae
ANZ: Mr J Apted with Ms T Colawai

DECISION

This is a dispute between the Fiji Bank and Finance Sector Employees Union (the Union) and ANZ Banking Group Limited (the Bank) concerning the summary dismissal of Ms Payal Pritika Nadan (the Grievor).

A trade dispute was reported by the Union. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As the Committee could not reach a consensus decision, 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 3 November 2005 with the following terms of reference:

"..................... for settlement over the summary dismissal of Ms Payal Pritika Nadan on 3 June 2005. The union views the Bank’s action as harsh, unreasonable and unfair and seeks her re-instatement without any loss of pay and benefits."

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

The Union filed its preliminary submissions on 26 January 2006.

On 27 January 2006 the Bank was granted a further seven days to file its preliminary submissions and the Dispute was relisted for mention on 24 February 2006.

The Bank filed its preliminary submissions on 3 February 2006.

The Dispute was then listed for hearing on 15 May 2006. However, on 24 March 2006, an application was made on behalf of the Union for the hearing date to be vacated due to the General Elections which were scheduled to be held at the time of the hearing. The Tribunal granted the application by consent and listed the Dispute for mention on 28 April 2006. On that day the Dispute was refixed for hearing on 26 July 2006.

The hearing of the Dispute commenced on 26 July 2006 in Suva and was completed on the following day. During the course of the hearing the Bank called five 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 Bank filed its final submissions on 15 August 2006. The Union filed answering submissions on 13 October 2006 and the Bank filed a reply submission on 2 November 2006.

In its final submissions the Bank raised two preliminary issues. It is appropriate to consider these issues before proceeding to consider the terms of reference.

The first concerns the Tribunal’s jurisdiction. It is now well settled that the jurisdiction of this Tribunal is determined by and limited to its terms of reference. However, the Tribunal does not accept the Bank’s submission that the Tribunal should limit itself to the issues raised by the Union in its preliminary submissions when settling the dispute. The preliminary submissions do not and cannot limit the Tribunal’s deliberations concerning any issue which falls within the parameters of the terms of reference. The Tribunal is not a court of pleading and the preliminary submissions are not pleadings.

The Tribunal is at liberty to consider and take into account any relevant matter which falls within the terms of reference. In this Dispute the terms of reference requires the Tribunal to determine whether the Bank’s decision to summarily dismiss the Grievor was harsh, unreasonable and unfair. These are words which frequently appear in references involving dismissal or termination disputes.

The Tribunal considers that the reference in respect of the present Dispute requires the Tribunal to determine two issues. First, whether the misconduct, if established, was sufficiently serious to justify the imposition of the penalty of summary dismissal. In other words has the Bank acted reasonably. Secondly, to determine whether the Bank acted fairly in the sense that the Grievor was afforded natural justice by the Bank in the process of reaching and effecting its decision to summarily dismiss the Grievor.

It is always open to either of the parties to apply for a brief adjournment in the event that an unforeseen issue which is within the terms of reference is raised by the other party. Such an application may be granted on terms that one or other of the parties pay any costs thrown away, depending upon the circumstances.

The second issue raised by the Bank concerns the law applicable in a dispute involving summary dismissal. Apart from the right to fair labour practices under section 33 of the Constitution, section 28 of the Employment Act Cap 92 sets out the circumstances when an Employer may exercise its common law right to summarily dismiss an employee. Any term of the Grievor’s contract of service dealing with the Bank’s right to summarily dismiss the Grievor must be consistent with section 28 of the Employment Act.

The parties may, if they choose to do so, agree that the common law right to summarily dismiss an employee is to be exercised in a more restricted set of circumstances than those set out in section 28 of the Employment Act. However the parties may not agree to enlarge the circumstances for which summary dismissal may be imposed beyond those set out in section 28.

The Grievor commenced employment with the Bank in August 2004. She was employed as a part-time teller working 20 hours a week over 5 days a week. She worked different hours on each day but the days on which she worked were the same each week.

The terms and conditions of her contract of service were set out in a written service agreement applicable to part-time employees which was undated. Pursuant to clause 1 of that agreement employment was to commence on 2 August 2004. Clause 9 (d) of that agreement set out the grounds for which the Grievor could be summarily dismissed by the Bank. The Grievor also acknowledged in writing on 5 August 2004 that she was subject to the standards set out in the Bank’s Code of Conduct.

Furthermore, pursuant to section 34 (7) of the Trade Disputes Act, the Collective Agreement between the Union and the Bank was an implied condition of the Grievor’s contract of service. Clause 4 B (ii) of the Collective Agreement set out the circumstances when the Bank could summarily dismiss an employee.

On 31 May 2005 an employee (Mr Taufeek Mohammed) of Sunbeam Transport entered the Bank’s Lautoka Branch to deposit a sum of cash on behalf of his employer. He was attended to by the Grievor. The Grievor was handed the money and the deposit slip. Sunbeam Transport was a major client of the Employer’s Lautoka Branch.

The deposit slip had been completed by Sunbeam Transport Manager (Mr Wahab). In filling out the deposit slip the Manager completed the necessary details concerning the deposit. He wrote that there were 66 x $50 notes totalling $3300, 400 x $20 notes totalling $8000 and 250 x $10 notes totalling $2500. However for some inexplicable reason, when he added up these totals he wrote $11800-00 when the total in fact came to $13800-00.

The Employee who took the cash to be deposited at the Bank was not aware of this mathematical mistake.

The Tribunal accepts the evidence of the Sunbeam employee that in his presence the Grievor proceeded to enter the details of the transaction into her computer and to count the cash.

As the Grievor counted the cash, she wrote the details of her count on a lower portion of the deposit slip. Her count showed that there was $3300 in $50 notes, $8000 in $20 notes and $500 in $10-00 notes. She totalled these amounts to show $11800. It would appear that the Grievor entered the sum of $11800 into her computer as the deposit amount. The cash was put into her drawer and then the Grievor stamped the deposit slips and removed the top copy for the Bank. The deposit procedure was completed and the Sunbeam Transport employee left the Bank

The Grievor gave evidence that when she was balancing her transactions at the end of the day, she discovered that she was $2000 in excess and apparently panicked. She retained the $2000 in her cubicle drawer and handed in her documents and the remainder of the cash to her supervisor for verification. They balanced.

In her evidence the Grievor also stated that she only intended to retain the money in her drawer overnight as she expected the customer to return the next day. However the Tribunal has some difficulty in accepting this explanation as she could not have been certain that the excess belonged to one or more than one of the customers who had deposited cash on that day.

Apparently the Sunbeam Transport Manager became aware of the error. On the next day he spoke to the employee who had taken the cash to the Bank. The employee made a copy of the deposit slip and returned to the Bank with the copy.

Earlier on the same morning (1 June 2005) the Manager of Sunbeam Transport discussed the matter with the Bank’s Business Financial Services Manager, (Mr M Madho) on the telephone. The matter was then placed in the hands of the Bank’s Manager (Mr Naicker).

Mr Naicker then requested Mr Sudesh Dewan to investigate the matter. Mr Dewan spoke to the Grievor who could not explain the cash shortfall as she claimed that had balanced on 31 May 2006. It would appear that Mr Dewan and the Grievor then went to Mr Naicker’s office for a further discussion. Again the Grievor denied any knowledge of the Sunbeam claim and maintained that she had balanced correctly. The Grievor had worked in her usual role as a teller on 1 June 2005.

It would appear that Mr Naicker spoke with the Sunbeam Manager on 2 June 2005 and was told that the Grievor had brought $2000 to the Sunbeam Office and as a result Sunbeam Transport did not want the Bank to take any further action since the money had been recovered.

In her evidence the Grievor admitted that she went to the Manager of Sunbeam Transport with $2000 late on 1 June 2005.

Following the Sunbeam Manager’s call to the Bank on 2 June 2005 the Grievor was briefly interviewed by Mr Naicker who asked her to write a diary note. She was then suspended for the day on full pay and sent home.

The Grievor’s diary note stated:

"I was over by $2000 on Tuesday 31/05/05. I was serving Sunbeam Transport customer and got into a conversation and I didn’t realize that the cash was over. I punched the amount and my cash drawer was balanced. In the afternoon while balancing I found out that I was over but was afraid to tell my supervisor. When I found out that the cash belonged to Sunbeam Transport I went and returned the money to the owner. I had no intention to steal but just afraid to tell my supervisor and got into more serious situation".

It should be noted that the Grievor has acknowledged that she became aware that she had a cash surplus of $2000 at the end of business on 31 May 2005. In her evidence she also admitted that by not declaring the surplus of $2000 to her supervisor at the end of the day, she had made a wrong decision. The Grievor stated that she was afraid of her supervisor and as a result had decided not to declare the surplus. However there was no evidence before the Tribunal to suggest that there was any basis for the Grievor’s fear. As a result the Tribunal does not accept Grievor’s explanation in her diary note.

Under cross-examination the Grievor admitted that she had not completed her cash sheet at the end of the day on 31 May 2005 in accordance with the Employer’s instructions. She also admitted that she wanted to hide her error in order to avoid being given a bad performance management report.

On 3 June 2005 the Grievor was formally interviewed at the Bank. Present at the interview were the Grievor, an experienced union representative by the name of Mr Work, Mr Dewan and Mr Naicker. The Grievor handed her diary note to Mr Naicker at the meeting. It would appear that her explanation given at the interview was in general terms consistent with the contents of the diary note.

The interview was conducted by way of a tele-conference with Ms Tinai Colawai who was the Industrial Relations Officer in the People Capital Department based in Suva.

The interview lasted for about one hour. At some stage there was a break in the interview at the request of Mr Work. The evidence was unclear as to how long the break lasted.

During the break, the Grievor and Mr Work had some discussions at the Lautoka Office. Ms Colawai had a brief discussion with Mr Frederick at the Suva Office. Ms Colawai and Mr Frederick discussed the progress of the interview up to that point in time and the possible dismissal of the Grievor depending upon what transpired when the interview resumed. The Tribunal is satisfied that the discussion did not amount to a pre-determination of the question of fault or penalty prior to the completion of the interview.

When the interview resumed Mr Work made representations on behalf of the Grievor. At the conclusion of the meeting the Grievor was informed that her employment was to be terminated.

The dismissal letter is dated 3 June 2005 and omitting formal or irrelevant parts, stated:

"On the 31st of May 2005, you incurred a surplus of $2000 in your cash holding and did not declare it to the Bank.

A customer of the Bank – Sunbeam Transport Limited – lodged a query with the Branch regarding a deposit they had made on 31/05/2005 that was in excess by $2000 on 2nd of June 2005.

Following investigations and discussions held with you, the Bank has deduced the following"

1. You knowingly and willingly breached standard banking procedures by withholding cash of $2000 that you were supposed to declare.

In an int4erview on 3rd June 2005 you agreed to the following:

- Breach of ANZ Code of Conduct Fiji – Honesty, Integrity and Accountability Clauses.

- Breach of ANZ Service Agreement (Part Time Employee) Failing to act diligently, soberly and honestly.

As a direct consequence of this transaction and with the information through Audit and Compliance I now confirm that the Bank views your actions as a serious breach of both your employment and collective agreements.

In terms of the Collective Agreement Clause 4 B (ii) (a) and Clause 9 (d) (i) and (ii) of your service agreement you are hereby dismissed from the Banks services with immediate effect."

Although there were some inconsistencies in the evidence as to when the dismissal letter was faxed from Suva to Lautoka and as to who signed it and when it was given to the Grievor, these matters do not amount to a breach of procedural fairness which would in any way be described as prejudicial to the Grievor.

Having considered the evidence the Tribunal is satisfied that the Grievor knowingly made incorrect entries into her computer system and intentionally failed to declare a $2000 surplus at the end of the working day on 31 May 2005. By not including $2000 in her cash holdings the Grievor ensured that it would appear as if she was balanced for her transactions on that day. She deliberately concealed the existence of $2000.

The Tribunal is also satisfied that the Grievor was not telling the truth when approached by senior staff at the Bank on 1 June 2006. The Tribunal is satisfied that the Grievor later on that day attempted to conceal her actions by returning the $2000 directly to the Bank’s customer. The Tribunal is also satisfied tht the Grievor was not completely honest when she prepared her diary note on 2 June 2005.

The Tribunal is satisfied that the Grievor’s misconduct was sufficiently serious for the Employer to reasonably conclude that the summary dismissal of the Grievor was the appropriate penalty in this case.

The provisions of clause 4 B (ii) of the Collective Agreement are consistent with the grounds under which summary dismissal is permitted under section 28 of the Employment Act. The Grievor’s misconduct was serious and was covered by the permitted grounds in her contract of service and the Employment Act.

To the extent that the amendment to the Collective Agreement requiring just and reasonable cause before terminating employment imposed any additional burden on the Employer, the Tribunal is satisfied that the Grievor’s misconduct was sufficiently serious as to amount to just and reasonable cause.

As previously stated, the Tribunal does not consider and there was any pre-determination in relation to the decision to dismiss the Grievor. Mr Frederick’s instructions to Mr Colawai during the interview break were quite clear. They were consistent with procedural fairness. Ms Colawai may have prepared a dismissal letter during the interview break without being expressly requested to do so. However she was expressly directed to assess any relevant information which may have been submitted when the interview resumed. Ms Colawai gave evidence that she proceeded to do as she had been requested. She said that there was no material put forward by Mr Work which was sufficient for the Bank to consider imposing a penalty less severe than summary dismissal. She had then informed the Grievor that she was to be summarily dismissed.

There is, however, one aspect of the procedure set out in the Collective Agreement which is of some concern to the Tribunal. Clause 13 (b) (ii) of the Collective Agreement states:

"If following such interview the employer proposed 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."

The purpose of the provision is to enable either the employee or the Union to consider making a plea in mitigation in relation to the proposed disciplinary action.

The Tribunal has formed the view that what happened in this Dispute was that immediately following the completion of the interview the Grievor was informed that she was to be dismissed. The contents of the dismissal letter were read out by Ms Colawai over the telephone.

The Employer has not complied with clause 13 (b) (ii) of the Collective Agreement. However the circumstances of this Dispute somewhat lessen the seriousness of the non-compliance. The essential facts which constituted the Grievor’s misconduct had been admitted by the Grievor in her diary note. It was not disputed that Mr Work was given a proper opportunity to make representations on behalf of the Grievor during the interview. The Tribunal accepts that both the Grievor and Mr Work were informed during the interview that the Grievor’s employment future was in jeopardy.

Although there has been technical non-compliance with the relevant clause of the Collective Agreement, the Tribunal does not consider that, in the circumstance of this Dispute, the Grievor was treated unfairly.

The Tribunal is satisfied that in this Dispute the Grievor and her representative were heard, were informed and participated in the proceedings before the final decision to terminate the Grievor’s employment was reached. It would have been open to Mr Work to request further time to put forward additional material on behalf of the Grievor after the dismissal letter had been read out over the telephone.

There was no such request and the Tribunal is satisfied that Mr Work had been given the opportunity to make representations on behalf of the Grievor at the interview on 3 June 2005 before the decision to dismiss the Grievor had been reached.

Finally, the Union relies upon the decision in Award No. 12 of 2005 in support of its submissions. However in that dispute, the Grievor’s misconduct was minor. In the present Dispute the Grievor’s misconduct involved breaches of procedures, attempts to conceal those breaches and lying during the course of the initial interviews on 2 June 2005. The two disputes can be distinguished.

AWARD

The summary dismissal of the Grievor by the Bank was not harsh, unreasonable and unfair.

DATED at Suva this 5 day of December 2006

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL