National Union of Hospitality, Catering and Tourism Industries Employees v Namale Resort and Spa [2006] FJAT 25; Award 72 of 2006 (20 December 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO 72 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIONAL UNION OF HOSPITALITY, CATERING AND TOURISM INDUSTRIES EMPLOYEES

AND

NAMALE RESORT AND SPA

NUHCTIE: Mr F Anthony
Namale: Mr W Morgan

DECISION

This is a dispute between the National Union of Hospitality Catering and Tourism Industries Employees (the Union) and Namale Resort and Spa (the Resort) concerning the termination of employment of Mr Maika Lasekula (the Grievor).

A trade dispute was reported on 8 December 2004 by the Union. The report was accepted on 8 February 2005 by the Chief Executive Officer who referred the Dispute to conciliation. As conciliation was deadlocked the parties signed an agreement dated 18 February 2005 to refer the Dispute to voluntary arbitration. The Minister then authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6 (i) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 11 March 2005 with the following terms of reference:

"........................... for settlement over the termination of employment of Mr Maika Lasekula with effect from 7 July 2004. The union submits that the management’s decision to terminate the employment of the Grievor is unjust, unfair and wrong and that he should be re-instated without loss of benefits."

The Dispute was listed for preliminary hearing on 30 March 2005. On that day the parties were directed to file preliminary submissions by 30 April and the Dispute was listed for mention on 27 May 2005.

The Resort filed its preliminary submissions on 29 April 2005 and the Union did so on 13 May 2005.

The Dispute was then listed for a two day hearing commencing on 13 September 2005.

Due to unforeseen circumstances it was necessary for the Tribunal to direct that the hearing dates be vacated and the Dispute was again listed for mention on 30 September 2005. The Dispute was then listed for hearing on 17 November 2005.

The hearing of the Dispute commenced on 17 November in Suva and was adjourned part heard to 18 November 2005. Due to the non-attendance of the translator the Dispute was further adjourned part heard to 29 November 2005 on which day the hearing was completed. The Union was directed to pay to the Resort $240 costs being expenses thrown away or wasted as a result of the adjournment.

During the hearing the Resort 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 written final submissions. The Resort filed its final submissions on 20 December 2005.

The Union filed answering submissions on 8 June 2006. The Tribunal accepts that this delay was in part brought about by the sudden passing away of the Union’s General Secretary earlier in the year. The Resort filed a brief reply submission on 31 July 2006.

A further delay in writing this decision was brought about by a missing exhibit. During the hearing the Grievor’s letter of appointment date 6 March 2002 had been tendered as exhibit 9. This document was missing from the Tribunal’s records.

Following correspondence passing between the Tribunal and the parties, the Dispute was listed for special mention on 3 October 2006. The Employer’s legal representative provided the exhibit and apologised. The parties were given an opportunity to make further submissions. The Union filed a further submission on 20 October 2006. The Employer filed an answering submission on 3 November 2006. By letter dated 15 December 2006, the Union indicated that it did not intend to make any further submission in reply.

The Tribunal accepts that the Resort did not deliberately attempt to withhold the exhibit.

The Grievor commenced employment at the Resort in March 2002 in the activities department. At the time there was no recognition order for union employees of the Resort. The Union was granted compulsory recognition 30 June 2004 to be effective from 6 April 2004.

The Grievor was offered employment by letter dated 6 March 2002. The letter stated that the position was not full-time. It indicated that the Grievor may have to work full-time hours depending on business. The offer was for 3 months probation at which time the position would be reviewed. The Grievor accepted the offer by signing an acknowledgement at the bottom of the letter. The Grievor acknowledged that the signature at the bottom of the letter was his. It should be noted that there was no reference to a staff handbook in the letter of appointment.

There was no collective agreement in existence at the time the Grievor commenced employment at the Resort. Furthermore, even after Union recognition, there was no collective agreement in existence for the duration of the Grievor’s employment at the Resort.

As a result the Grievor’s contract of service consisted of the relevant provisions of the Employment Act Cap 92 and the terms set out in the letter of appointment dated 6 March 2002.

It would appear that after three months, the Grievor’s position at the Resort was confirmed. He subsequently was employed by the Resort as a driver.

One issue that arose during the course of the hearing was whether the contents of the "Namale Employee Handbook" was part of the Grievor’s contract of service. In support of its contention that the Handbook formed part of the Grievor’s contract, the Resort produced a document dated 25 July 2002 which it was claimed had been signed by the Grievor. The document contained an acknowledgement that the Grievor had read and understood the Handbook.

In his evidence the Grievor stated that he had never seen the document prior to giving evidence. He denied that he had signed any such document and was definite that the signature was not his.

The Tribunal has considered the evidence given by the witnesses called on behalf of the Employer. The Tribunal has compared, in a layman’s manner, the Grievor’s signature on his letter of appointment and his signature on a letter of apology dated 8 October 2004 with the signature on the document dated 25 July 2002. The Tribunal is satisfied that the signature on the document dated 25 July 2002 is not that of the Grievor. The Tribunal has concluded that, on the balance of probabilities, the Grievor did not receive a copy of the handbook either in March 2002 when he started with the Resort nor three months later when his employment was confirmed at the end of the period of probation.

However the Tribunal is satisfied on the evidence that by 2004 the Grievor was aware of the existence of the Handbook and knew or ought to have known the essential terms for employees as set out in the Handbook.

In a letter dated 28 April 2004 addressed to the Grievor from the Resort’s Assistant Manager, the last paragraph expressly refers to "terms and conditions of employment as outlined in the staff handbook". The Grievor acknowledged having received the letter. His explanation in his evidence as to his reaction to the reference in the letter to a staff handbook was not convincing and could be described as evasive.

If the Grievor was not aware of its contents it was because he had chosen not to do so. The Tribunal is satisfied that the Griever had ample opportunity to become familiar with the contents of the Handbook. The Tribunal accepts that by 2003 all new employees were given a copy of the handbook. Copies were readily available.

The Grievor’s employment was terminated with immediate effect (i.e. summarily dismissed) by letter dated 7 July 2004 from the Resort’s Assistant Manager. Omitting formal and irrelevant parts, this letter stated:

"This letter is to inform you that your service as a driver for Namale Resort and Spa is no longer required.

In April of this year you were suspended from duties with pay because you were on property when you were not supposed to be here and you were trying to organize a staff meeting without consulting management and without management approval. After further investigation and upon your return you were also served with your last warning letter.

With just under two months you have yet again committed offences that are serious.

You breached our establishment of a clear line of communication within the resort and between the resort and the two villages by accompanying Seka onto the property without respect to see Tony. Apart from this you also reported for duty on Tuesday 29 June 2004 under the influence of alcohol and abused a number of employees.

By your actions you have made it very clear that you are not willing to play your part as a member of the Namale Team. This amounts to gross insubordination and we wish to inform you that your employment with Namale Resort and Spa is terminated immediately without notice."

During the course of the hearing it became apparent that there was an error in this letter. The date 29 June 2004 should have appeared as 24 June 2004. This was not disputed by the parties.

The Resort’s common law right to summarily dismiss the Grievor was limited to the circumstances set out in section 28 of the Employment Act Cap 92 which, so far as is relevant, states:

"An employer shall not dismiss an employee summarily except on the following circumstances:-

a) Where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of service;

b) for willful disobedience to lawful orders given by the employer;

c) .............................

d) ............................

e) ............................"

The provision means that the Resort was required to show that the serious misconduct required at common law must fall within one of the categories set out in the section before it could exercise its right of summary dismissal. Any misconduct which was listed on pages 9 and 10 of the Handbook must satisfy two requirements. First, the misconduct must fall within one of the categories listed in section 28. Secondly the misconduct must be sufficiently serious as would have enabled the Resort to regard the contract of service as having been discharged at common law.

The termination letter referred to two incidents which form the basis of the Resort’s decision to summarily dismiss the Grievor. The first incident concerned breaching a clear line of communication. The second concerned reporting for duty under the influence of alcohol and abusing a number of employees. In addition, the termination letter indicated that the Resort regarded the incident in April as an aggravating factor which was taken into account when it was decided that the Grievor’s employment should be terminated without notice or payment in lieu of notice.

The first ground for the summary dismissal of the Grievor concerned that section of the handbook which dealt with the procedure to be followed by any staff member who had a grievance. It was not disputed that the meke group had not been paid by the Resort for a recent performance. It was not disputed that payment should have been made on the night of the performance or the next day. It was not disputed that a few days had elapsed without payment since the meke performance. It was not disputed that the Grievor was the leader of the meke group. It was not disputed that the Turaga ni Koro accompanied the Grievor when they visited the Resort owner who was staying on the Resort grounds at the time. The Resort owner arranged for immediate payment in cash.

Although there was a breach of the rule concerning the procedure to be followed, the explanation given by the Resort management that there was no signatory available to sign the cheque might have explained the breach under the circumstances. Considered objectively it was a relatively minor contravention. An employer acting reasonably might well have considered that a written warning would have been an appropriate disposition in respect of the transgression.

In relation to the second incident there was direct evidence from a witness called by the Resort that the Grievor had been observed asleep in the laundry. He was also observed asleep at the back of the Resort’s van at a time when he should have been driving the van instead of the unauthorized employee whom he admitted in evidence he had allowed to drive in his place. However this evidence was not strictly relevant to the issue stated in the letter, namely reporting for duty under the influence of alcohol and abusing a number of employees. It was by no means clear that all these incidents occurred on the same day.

Evidence concerning the allegation that the Grievor reported for duty under the influence of alcohol and abused employees was given by Ms Ratuciri. She did not hear the Grievor’s alleged abuse nor did she observe him reporting for work. Her information on these matters was second hand. She also gave evidence about observing the Grievor asleep whilst on duty. The evidence given by the Resort’s other witnesses was not convincing. There was no explanation provided as to why none of the employees who had been subjected to abuse had not been called to give evidence. There was no evidence from any person who had observed the Grievor reporting for duty under the influence of alcohol. The Grievor denied the allegations.

The Tribunal has concluded that the evidence was insufficient to establish that the Grievor had reported for duty under the influence of alcohol and had abused a number of employees. The evidence given by the witnesses was hearsay and in the face of the Grievor’s direct evidence was not sufficient to establish that ground for summary dismissal. Ms Ratuciri’s observations about the Grievor sleeping on the job did not necessarily lead to the conclusion that the Grievor had reported for duty under the influence of alcohol.

There was no reason why Ms Ratuciri could not have reported the sleeping matter to a senior staff member at the time, even if she had been reluctant to approach the sleeping Grievor herself.

The Tribunal has concluded that based on the evidence adduced at the hearing the decision to summarily dismiss the Grievor was unreasonable. There was insufficient evidence to establish that the Grievor’s misconduct was sufficiently serious to justify the imposition of the most severe of employment penalties namely summary dismissal. However the Tribunal is satisfied that a reasonable employer acting in good faith could have exercised its contractual right to terminate the Grievor’s employment by notice or payment in lieu of notice.

In relation to the procedure adopted by the Resort prior to the Grievor’s dismissal, the Tribunal is not satisfied that the Resort has followed either the letter or the spirit of its disciplinary procedure on page 9 of its Handbook. In addition, the Grievor was not interviewed prior to his dismissal. As a result he was not given an opportunity to answer the allegations nor to mitigate in relation to penalty. He was not afforded procedural fairness.

However, when the Grievor’s conduct between April and June 2004 is considered in its totality and taking into account his own evidence, there is an inescapable conclusion to be drawn that re-instatement is not the appropriate remedy in this case. The Tribunal has formed the view that the Grievor’s attitude towards the Resort and his employment is such that he could not be said "to have the trust and confidence of his employer" nor could he continue to be regarded as "a harmonious and effective member of his employer’s team".

The incident in April 2004 concerning the meeting, the breach of the grievance procedure, sleeping on the job and allowing an unauthorized person to drive one of the employer’s vehicles, when considered objectively, all support the conclusion that re-instatement is not appropriate. The Tribunal also notes the Grievor’s evidence concerning his attitude towards the Handbook rules.

Under the circumstances the Grievor is to be paid three (3) months wages as compensation on account of the unjust, wrongful and unfair summary dismissal.

AWARD

The summary dismissal of the Grievor was unreasonable, unfair and wrong. There were sufficient grounds for the Employer acting in good faith to terminate the Grievor’s employment by notice or payment in lieu of notice The Grievor was not afforded procedural fairness.

Re-instatement is not appropriate. The Grievor is to be paid three months wages as compensation for the wrongful summary dismissal and for the denial of procedural fairness.

DATED at Suva this 20 day of December 2006

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL