BP (SS) Co Ltd and WR Carpenter Groups Salaried Staff Association v Carpenters Fiji Ltd [2006] FJAT 4; Award 42 of 2006 (25 July 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 42 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

B. P. (SS) Co LIMITED AND W R CARPENTER GROUPS
SALARIED STAFF ASSOCIATION

AND

CARPENTERS FIJI LIMITED

Association: Mr A. Singh
Carpenters: Mr J. Waqaivolavola

DECISION

This is a dispute between BP (SS) Co. Limited and W R Carpenter Groups Salaried Staff Association (the Association) and Carpenters Fiji Limited (the Employer) and Carpenters Fiji Limited (the Employer) concerning the termination of employment of Mr Munesh Kumar (the Grievor).

A trade dispute was reported by the Association on 28 October 2004. The report was accepted on 8 February 2005 by the Chief Executive Officer who referred the Dispute to conciliation. Although the negotiations were deadlocked, the parties signed an agreement dated 24 February 2005 for the dispute to be referred to voluntary arbitration. As a result the Minister authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to Section 6 (1) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitration on 8 March 2005 with the following terms of reference:

"..........for settlement over the termination of employment of Mr. Munesh Kumar for abandonment of duties from Morris Hedstrom Limited effective from 21 June 2004 by Mr Rajeshwar Singh, Financial Controller, Morris Hedstrom Limited (MH). The Association claims that Mr Kumar’s termination of employment as Supervisor MH Superfresh Foodcourt was unjust, unfair, harsh and wrong and that he should be re-instated to his present position without any loss of salary or benefits from the date of termination."

The Dispute was listed for a preliminary hearing on 30 March 2005. As there was no appearance by or on behalf of either party, the Dispute was listed for mention on 29 April, 2005. On that occasion there was no appearance by or on behalf of the Employer and as a result the Dispute was again listed for mention on 27 May 2005. Once again there was no appearance by or on behalf of the Employer. The Tribunal directed that the parties file preliminary submissions within 21 days and the Dispute was re-listed for mention on 24 June 2005.

The Association filed its preliminary submissions on 27 May 2005.

On 24 June 2005 the Employer was granted an extension of 14 days to file its preliminary submissions and the Dispute was listed for further mention on 29 July 2005.

The Employer filed its preliminary submissions on 28 July 2005.

The hearing of the Dispute took place on 26 and 27 October 2005 in Suva. The Employer called five witnesses and the Association called two witnesses including 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 5 December 2005.

As the Union had not complied with the Tribunal’s directions, at a special mention hearing on 31 March 2006, the Union was directed to file its answering submissions by 25 April 2006. The Union did so on 2 April 2006.

As the Employer had not complied with the Tribunal’s directions, at a further special mention hearing on 4 July 2006, the Employer informed the Tribunal that it did not intend to file a reply submission. This information was subsequently confirmed in a letter dated 6 July 2006.

The Grievor was rostered for work on Tuesday 15 June 2004 at 7.00am at the Employer’s Superfresh Store at Tamavua. He was employed there as a supervisor. He did not report for work on that day. This was not disputed.

It was suggested in evidence that the Grievor had not reported for work on either Saturday 12 June or Monday 14 June 2004. Although Monday 14 June 2004 was a Public holiday in Fiji the Grievor was rostered for work. The Grievor denied that he was absent from work on those days. The Employer did not produce any work records to show that the Grievor was absent on those days. In his evidence the Employer’s Financial Controller (Mr R. Singh) stated that he should have been informed by the Store Manager about the Grievor’s absences on those days she informed him about the Grievor’s absences. On 15 July 2004 he stated that he had not been informed by the Store Manager that the Grievor was absent on those days. As a result on balance the Tribunal accepts that the Grievor was not absent from work on 12 and 14 June 2004.

It is not disputed that at about 7.30am on 15 June 2004 the Grievor’s wife telephoned the Superfresh Store at Tamavua and spoke to the Store Manager. It was acknowledged that during the course of the conversation the caller identified herself as the Grievor’s wife. The wife informed the Manager that the Grievor had gone to the Western side, that she did not know for how long and that she did not know any contact number. The Tribunal accepts the evidence of the Store Manager the Grievor’s wife did not pass on to the Store Manager any explanation for the Grievor’s sudden departure to the West.

The Store Manager later in the morning on the same day called her supervisor at the Employer’s Head Office. She also called a Mr Murk Ram who was the Food Court & Bakery Specialist located at the Employer’s Walu Bay Head Office. She informed him that she could manage with the Grievor’s absence on that day.

The Financial Controller stated in his evidence that after he received the telephone call from the Store Manager he consulted the Human Resources Section. He then drafted a letter dated 15 June 2004 addressed to the Grievor which, omitting formal parts, stated:

"You did not turn up for duties today without contacting your Store Manager of your intentions. Your wife called to advise Superfresh Manager of your absenteeism at about 10.30am today but explanations given by her is not acceptable. In fact, she is not even sure of your whereabouts because according to her you left your house without telling her.

You are hereto given 7 days to contact Management and explain yourself. Failure to do so will result in the termination of your employment for abandonment of employment."

The letter was signed by the Financial Controller and on the same day was dispatched by internal delivery to the Store Manager at Superfresh Tamavua. The letter has been placed on a sealed envelope which was addressed to the Grievor.

The Tribunal accepts that the Grievor did not see letter till after he returned to the work place, whenever that may have been, and probably not even within the seven days given by the Employer for the Grievor to provide an explanation.

The Tribunal has concluded that the Financial Controller was requesting an explanation within seven days from the Grievor with respect to his absence from work on 15 June 2006.

There were two different accounts given in evidence as to the next occurrence. The Store Manager and the Food Court Specialist gave evidence that the Food Court Specialist, at the request of the Store Manager, visited the Grievor’s home and spoke to the Grievor’s wife at about 7.00pm on Friday 18 June 2004. The Food Court Specialist stated that he recognized the Grievor’s wife and was told by her that the Grievor had left on 15 June in the morning with a bag of clothes without giving any further information.

She apparently told the Food Court Specialist that one she had not heard from the Grievor.

The Grievor’s wife gave evidence that the Food Court Specialist visited her house between 3pm and 4pm on Wednesday 16 June 2004. She further stated that she and her daughter left Suva by bus at about 9.00 on Friday 18 June 2004 to travel to Lomawai.

It would appear from the evidence given by the Grievor that the arrangement for his wife and daughter to travel to Lomawai was made during the course of a telephone conversation which allegedly took place when the Grievor’s wife called the Grievor on his mobile phone at about 9.00am on 15 June 2004.

The Tribunal has concluded that as a result of this evidence the Grievor’s wife knew more about the Grievor’s absence than she indicated when she spoke to the Food Court Specialist whether it was on 16 or 18 June 2004. The Tribunal does not consider it necessary to determine the Grievor’s wife spoke to the whether Food Court Specialist on Wednesday 16 or on Friday 18 June 2004.

The Tribunal also notes that following the conversation with the Grievor’s the wife was then in a better position to provide to the Store Manager, the Food Court Specialist or the Employer’s Head Office a better explanation for the Grievor’s absence. Even if the Store Manager had not indicated any real concern about the absence on Tuesday 15 June 2004, once the Grievor’s wife had become aware that the absence was going to be a matter of days, she ought to have provided the further information to the Store Manager.

When the Financial Controller contacted the Store Manager on Monday 21 June 2004 he was informed that the Grievor had still not returned to work. As a result of this information the Financial Controller prepared a further letter dated 21 June 2004 addressed to the Grievor. Omitting formal parts, the letter stated:

"On 15/06/04 you were given a 7 days notice to contact Management because you did not turn up for duties. Todate, we are still unaware of your whereabouts.

This letter therefore serves to confirm that your services are hereto terminated for abandonment of duties effective immediately.

The Staff Salaries Clerk is advised to pay all monies owing to you after all the necessary clearances are completed."

The Financial Controller stated that the letter was written not because the Grievor had failed to provide an explanation in relation to his absence on 15 June 2004, but because he had been absent, without permission, from Tuesday 15 June 2004 up to and including 21 June 2004.

From this point on there is a conflict on the evidence. The Financial Controller stated that the retained the letter in his possession until he spoke with the Grievor on Wednesday 30 June 2004.

However in his evidence the Grievor stated that he received the letter from the Financial Controller on Wednesday 23 June 2004 when he attended the Employer’s Head Office to discuss the absence from work. The Grievor’s evidence was consistent with the account given by him in his letter dated 23 June 2004 addressed to the General Manager.

In his evidence the Financial Controller stated that he saw this letter on 28 June 2004. This is confirmed in the Employer’s submission at the top of page 5.

As a result the Tribunal accepts the Grievor’s evidence that he received his termination letter from the Financial Controller on 23 June 2004. The Tribunal accepts that the Grievor then wrote the letter of the same date to the General Manager which was noted by the Financial Controller on 28 June 2004.

As a result the Tribunal must accept the Grievor’s evidence that he returned to Suva on Tuesday 22 June 2004 and in the late afternoon telephoned the Store Manager at Tamavua. It was as a result of telephone calls made on that afternoon that the Grievor met with the Financial Controller on 23 June 2004 at the Head Office.

The Grievor’s explanation for his sudden departure in the early morning of Tuesday 15 June 2004 concerned a family land dispute involving his father and uncle at Lomawai. The Grievor had been telephoned by a neighbour from Lomawai and informed that there was a family problem. The details of what transpired at Lomawai during that week are not particularly relevant to this Dispute.

However, what is relevant is that there was a telephone at a neighbour’s residence which was located within walking distance from the Grievor’s family residence. The Grievor admitted in cross-examination that he did have the opportunity to make a call to the Store Manager whilst he was away, but that he did not make any such call.

The Grievor admitted in cross-examination that there had been an earlier letter dated 13 February 2004 which, amongst other things, dealt with late arrival at work. The first and the least paragraphs are relevant:

"You have been warned verbally and written to also about your coming to work late and not organizing your staff to do that which is required to be done in your absence......

This therefore serves as Final Warning for negligence and any other infraction on your part shall result in a more severe disciplinary action being meted out."

It would appear that the Grievor was given a warning for abandoning duties in a letter dated 28 November 2002. Perhaps the letter dated 13 February 2004 should now properly be regarded as a first warning as the earlier letter was more than 12 months old.

The Tribunal accepts that at common law in an appropriate case an employer may summarily dismiss an employee who is absent from work without permission, without justifiable excuse or without having provided his employer with adequate notice. There is a duty to give proper notice of and there must be justifiable reason for the employee’s absence.

However under section 28 of the Employment Act Cap 92 the Employer can exercise that common law right of summary dismissal only where there is continual absence from work without the permission of the employer and without other reasonable excuse.

The Tribunal is satisfied that the Grievor’s absence from work for seven consecutive working days does constitute continual absence.

The Tribunal does not accept that the conversation between the Store Manager and the Grievor’s wife on the morning of Tuesday 15 June 2004 amounted to either proper notice of the absence for that day or permission by the Employer for the Grievor to be absent on that day. There certainly was no permission given either express or implied during that conversation for the absences on 16-19 June and 21-22 June 2004.

The remaining issue is whether the reason put forward by the Grievor as stated in his letter dated 23 June 2004 amounted to a reasonable excuse. The Grievor’s evidence concerning the family emergency arising out of an injury to his father which required a visit to the hospital on Wednesday 16 June 2004 and which occurred as a result of a family land dispute was supported to some extent by the evidence of the Grievor’s wife and was not conducted or seriously weakened by the Employer during the hearing. As a result the Tribunal accepts on balance that the excuse given by the Grievor was the reason for the absence from work.

The incident in which the Grievor’s father was injured occurred on Sunday 13 June 2004. The neighbour did not make the telephone call about the incident to Grievor until early in the morning on Tuesday 15 June 2004. The Grievor’s father was not taken to hospital until Wednesday 16 June 2004 by the Grievor – the day following his arrival at Lomawai. It would appear that the Grievor’s father was treated as an outpatient and returned home on the same day. There was no medical certificate provided at the hearing.

Furthermore the Grievor’s evidence was that when his wife called him at about 9.00am on Tuesday 15 June 2004 he suggested to her that she and their daughter travel to Lomawai on Friday 18 June 2004. Although the

Tribunal has made no finding about the wife’s travel to Lomawai on that day, the evidence from the Grievor indicates that he had even a that early stage
decided that he was going to stay at Lomawai at least until the weekend. There was no reasonable explanation provided by the Grievor as to why the incident which had occurred on Sunday 13 June required him to absent himself from work for 7 consecutive working days up to and including Tuesday 22 June 2004.

Futhermore, taking into account the inconvenience which such an absence may reasonably be expected to have caused the employer at Superfresh Tamavua, the Tribunal has concluded that the continual absence of seven consecutive working days without permission and without reasonable excuse constituted serious misconduct which entitled the Financial Controller to hand to the Grievor the termination letter on 23 June 2004. In reaching the decision to summarily discuss the Grievor, the Employer was entitled to take into account the warnings set out on earlier correspondence.

The Tribunal has not placed any weight on a letter dated 13 June 2004 which was in the Grievor’s hand writing but was signed by the Grievor’s father. The Grievor acknowledged that he had written the letter on October or November 2004 at the request of the union and backdated it.

The Tribunal is satisfied that the Grievor had been given an opportunity to explain his absence when he met with the Financial Controller on 23 June 2003.

He was given a further opportunity when he spoke with the General Manager.

Although it appears that he Employer did not reply to the Grievor’s letter dated 23 June 2004, the Tribunal is satisfied that it had been considered by the Financial Controller and Management. The only reasonable reference to
be drawn is that the Employer had rejected the Grievor’s request for a reconsideration of the decision and for a transfer to either Nadi or Sigatoka.

Under the circumstances the Tribunal has concluded that the summary dismissal was justified and was fair.

AWARD

The summary dismissal of the Grievor was neither unjustified, unfair, harsh nor wrong.

DATED at Suva this 25 day of July 2006

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL