Fiji Electricity Workers Association v Fiji Electricity Authority [2006] FJAT 48; Award 25 of 2006 (11 May 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 25 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI ELECTRICITY WORKERS ASSOCIATION

AND

FIJI ELECTRICITY AUTHORITY

FEWA: Mr D Urai with Ms N Khan
FEA: Mr D Sharma with Ms S Nadakuitavuki

DECISION

This is a dispute between the Fiji Electricity Workers Association (the "Association") and Fiji Electricity Authority (the "Authority") concerning the termination of employment of Enrique Reyes (the "Grievor").

A trade dispute was reported on 5 October 2004 by the Association. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As a consensus decision was not reached the Minister authorized the Chief Executive Officer 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 17 December 2004 with the following terms of reference:

".... for settlement over the Fiji Electricity Authority terminating the services of Mr Enrique Reyes, Training Administration Officer of Navutu Depot, Lautoka with effect from 4 May 2004 which the Association believes to be harsh, unreasonable and unfair. The Association contends that Mr Enrique Reyes should be re-instated to his former position with no loss of salary or benefits".

The Dispute was listed for preliminary hearing on 26 January 2005. On that day the parties were directed to file their preliminary submissions within 28 days and the Dispute was listed for mention on 25 February 2005.

The Association filed its preliminary submissions on 24 February and the Authority filed its submissions on 25 February 2005.

The Dispute was listed for a two days hearing commencing on 7 June 2005. When the Dispute was called for hearing, the Association made an application to the Tribunal for the hearing dates to be vacated. The basis of the application was the absence of the Grievor who by letter dated 6 June 2005 had informed the Tribunal directly that he had been detained on business in Levuka. The Tribunal directed that the hearing dates be vacated and the Dispute was listed for mention on 24 June 2005. As the Authority was in a position to proceed and due to the short notice given by the Grievor, the Association was directed to pay to the Authority $176.00 expenses as costs thrown away within 21 days.

The Dispute was then fixed for hearing on 1 September 2005. Due to unforeseen circumstances it became necessary to vacate that hearing date and the Dispute was again listed for mention on 30 September 2005. On that day the Dispute was fixed for hearing on 5 December 2005.

The hearing of the Dispute took place on 5-6 December 2005 in Suva. The Authority called four witnesses to give evidence whilst the Association called the Grievor and one other witness. At the conclusion of the evidence the parties sought and were granted leave to file written final submissions. The Authority filed its final submissions on 22 December 2005. The Association filed answering submissions on 18 January 2006 and the Authority filed a reply submission on 26 April 2006.

The findings of the Tribunal in relation to the factual basis of the Dispute can be stated briefly.

The Grievor commenced employment with the Authority in August 2000 as a Customer Services Co-ordinator in Suva. In April 2003 he was appointed to the position of Training Administration Officer and was based at Lautoka. In that position the Grievor's main responsibility was to co-ordinate training programmes within the Authority and other organisations. He was also required to conduct non-technical training within the Authority. As a result he was often required to travel to the Authority's offices located in various parts of the country.

On Tuesday 17 February 2004 the Grievor together with another training officer by the name of Manoj Kumar were conducting a training programme at Emperor Gold Mine in Vatukoula. During the course of that afternoon the Grievor requested Manoj Kumar to authorize two completed claim forms for re-imbursement for subsistence allowance for 18 and 19 February 2004. The subsistence allowance was being claimed by the Grievor for travel to and time spent in Suva conducting a training activity.

Manoj Kumar specifically sought confirmation from the Grievor that he would be travelling to Suva on 18 February 2004. The Grievor confirmed the arrangement and on that basis Manoj Kumar signed both claim forms. The allowance is $68.05 per 24 hours period. The claim form indicated that the 24 hours period was to run form 4.00pm on 18 February to 4.00pm on 19 February in respect of the first claim and from 4.00pm 19 February to 4.00pm on 20 February 2004 in respect of the second claim.

It was not suggested that Manoj Kumar had acted improperly in authorizing the two claim forms.

The Grievor was driven to Suva by Subramani Naidu who was employed as a Driver at the time. The driver picked up the Grievor from his home at about 4.50am on 19 February 2004. He drove the Grievor back to Lautoka on 20 February 2004 arriving at the Grievor's home at about 7.30pm.

The Driver gave evidence to the effect that at no time had the Grievor made any mention of travelling to Suva on 18 February 2004. The Driver stated that he had arranged with the Grievor that the Grievor would be collected on 19 February 2004 in sufficient time to arrive in Suva by 8.00am.

Whilst the Grievor was in Suva he arranged approval for and the payment of the subsistence allowance claimed in the two claim forms. He therefore received payment of two allowances of $68.05 each in respect of the claims for 18 and 19 February 2004.

It was not disputed that the claim forms did not accurately state the actual travel time and the time spent in Suva. It was not disputed that the claim for re-imbursement for subsistence allowance should have been for the 24 hours period 4.50am on 19 February to 4.50am on 20 February 2004. Thereafter the Grievor would have been entitled to three meal claims in respect of breakfast, lunch and dinner on 20 February 2004.

To ensure that there was consistency in his claims, on Monday 23 February 2004 the Grievor made an additional claim for dinner only for 20 February that being the meal he could claim as he did not return home till 7.30pm. The subsistence allowance as claimed by the Grievor ended at 4.00pm on Friday 20 February 2004.

As a result of an internal audit the discrepancy was detected and the Grievor, Manoj Kumar and the driver were directed to attend interviews separately and together on 1 March 2004 by memorandum dated 28 February 2004 from Robin Simpson the then Training Manager. Mr Simpson's memorandum then stated:

"I have picked up a discrepancy in the claiming and receiving of subsistence allowance by TAO against the actual allowance to which TAO was entitled to for the period 19-20 February 2004. You are welcome to bring a union representative to this hearing should you feel obliged.

Representing the Authority will be Apenisa Laweloa, Human Relation Officer and Robin Simpson, Training Manager".

The interviews took place as scheduled on 1 March 2004. There was no union representative present during the interviews. During the course of his interview, the Grievor signed a written statement. This statement is set out in full:

"I gave my claim to Manoj in EGM on the 17^th for approval. My intention was to travel to Suva on the next day.

Why I wanted to travel on Wednesday was that I did not want to travel on Thursday morning so that I could be ready for the day refreshed. I was thinking that if the vehicle was free from EGM early on Wednesday, I could take it that same day to Suva.

My arrangement on the Tuesday 17^th was to take Mani on the Thursday 19^th.

On the 19^th when I was in Suva I handed the claims to one of the cashiers to have signed off for approval and cash on my behalf.

I didn't read that the claim was for 18 & 19^th, I just give it in. It just slipped my mind, there was no malice intended and no intention to defraud obtain money not entitled for.

Mani and Manoj should not be penalised for my mistake".

Following his interview the Grievor sent an email message also dated 1 March 2004 to Mr Simpson. This message stated:

"I offer my sincere apologise if I have offended you. It was just an honest mistake and promised that I will be very careful and honest from now on. There was no malice intended.

There was so many things on my head and I wasn't thinking correctly. But that's not an excuse. I should have checked the claim before passing it on. Again an honest mistake. I am ashamed of my actions.

Once again, apologise for any inconvenience caused."

Mr Simpson prepared a brief report following the interviews. Although the report is dated 26 February 2004, Mr Simpson stated in his evidence that the date was wrong and that the report was prepared on 1 March 2004. His explanation for the wrong date was that he omitted to change the date from an earlier memorandum on the computer.

Mr Simpson concluded that the Grievor's conduct was intentional and amounted to gross misconduct by a responsible Officer. He recommended disciplinary action. Mr Simpson pointed out that the Grievor had a week to rectify his mistake but instead he compounded the misconduct by submitting a claim for only one meal (dinner for 20 February 2004) on Monday 23 February 2004.

It would appear that the Grievor paid back $68.05 to the Authority on 10 March 2004 an official receipt for which was tendered as evidence.

The incident was then formally investigated by Mr A Laweloa, Human Relations Officer for the Western Division Office. He prepared a report dated 12 March 2004. It would appear that the report was based on the interviews, which had been conducted on 1 March 2004.

Mr Laweloa also concluded that the circumstances surrounding the incident were such as to show that the Grievor intended to defraud the Authority. He recommended that the Grievor be suspended for 28 days without pay pending dismissal. Mr Laweloa stated in his report the fact that the amount was small did not excuse the offence. The report was submitted to management. Mr Laweloa admitted in evidence that he was not aware that the Grievor had repaid $68.05 when he was preparing the report.

By memorandum date 1 April 2004 the Grievor was informed that he was to be suspended. Omitting formal and irrelevant parts the memorandum stated:

"Further to our investigation concerning the allegation levelled against you on the falsifying of your Subsistence Allowance Re-imbursement Claim of $68.05 for 18/02/04 and after completing our investigation and taking into account of your signed statement; it has been concluded that you are guilty of gross misconduct and a total breach of our FEA values. This has been compounded by the following factors:

1. You had two (2) nights subsistence allowance claims approved in advance by Manoj Kumar (TOE) for period 4.00pm 18/02/04 to 4/00pm 19'02/04 and one from 4.00pm 19/02 to 4.00pm 20/02. In actual fact, the training mini bus running sheet showed that you were picked up at your place at 4,50am on 19/02/04. Therefore you were not entitled to claim for the period 4.00pm 18/02 to 4.00pm 19/02. However the two subsistence allowance claims were cashed in Suva cashier on 19/02/04.

2. You returned from Suva on Friday 20/02/04 and arriving at your home at about 7.30pm. Upon resuming duty on Monday 23/02/04 you claimed only one meal allowance which was for the 6.00pm dinner on Friday 20/02/04. If it was a mistake or a slip of the mind as indicated by you in your statement, you should have claimed three meals (6.00am breakfast, 12.00pm lunch and the 6.00pm dinner) for Friday 20/02/04, as your one (1) night subsistence allowance period ended at 4.50am. Further you had sufficient time (1 week) to correct the anomaly but you failed to do so, which showed that it was a deliberate act on your part.

No mitigations would extenuate the seriousness of these offences because it involved cash despite of the amount. The Authority has set precedent where employees were dismissed for defrauding or stealing for as less as $20. 00.

In this regard you will be suspended for 28 days without pay pending dismissal with effect from Monday 5^th April 2004. This is in line with clause I7.1(e) of the FEA/FEWA Collective Agreement."

It should be noted that, following the signature block, a cc copy was to be forwarded to three addressees including the Association's General Secretary.

Although the Association's submissions refer to the suspension of the Grievor having been implement pursuant to the wrong agreement, the Tribunal's terms of reference do not refer to the suspension. As a result that matter does not fall within the Tribunal's jurisdiction so far as this Dispute is concerned.

However, the relevance of the suspension letter is in the indication from the Authority that it would not consider any mitigating material to extenuate the seriousness of the offences.

It would appear that there was no representation made by the Association on behalf of the Grievor during the suspension period.

As a result the Grievor was advised by memorandum dated 28 April 2004 that he was to be dismissed. Omitting formal and irrelevant parts, this memorandum stated:

"We refer to our letter to you dated 1^st April 2004 where the grounds of issuance of your twenty eight days suspension without pay pending dismissal notice was given to you.

This memorandum confirms that the twenty eight (28) days Notice has expired without any representation from you nor the Association and therefore the termination of your service with FEA is effective from Tuesday 4^th May 2004.

You will be paid all of your owed Annual Leave and Long Service Leave from the date of termination."

The basis for the Authority's decision to terminate the Grievor's employment by summary dismissal is to be found in what may be termed the supervision letter dated 1 April 2004. From that letter it is clear that the misconduct which was relied upon by the Authority was to make a false claim for subsistence allowance for 18 February 2004. That allegation was admitted by the Grievor shortly after Mr Simpson informed the Grievor and two other employees that they were required to attend an interview concerning the matter.

The Grievor has claimed that it was a mistake or a slip and that he had no intention of acting dishonesty.

Having considered the evidence and the submissions, the Tribunal has concluded that the circumstances surrounding the incident lead to the inevitable conclusion that the Grievor did intend to submit a claim for a subsistence allowance to which he was not entitled. This conclusion is reached after a consideration of the admitted facts. The Tribunal is satisfied that the Grievor knew or ought to have known whilst travelling to Suva in the early hours of the morning on 19 February 2004 that his claim forms were not correct and that one new claim form should have been prepared to reflect the actual date and time of departure for movement to Suva.

Furthermore, the Tribunal is satisfied that the Grievor knew or ought to have known when he sought approval and then payment of the subsistence allowance whilst he was in Suva that the claim forms were not correct. The Tribunal does not accept that the Grievor received two subsistence allowances honestly believing that he was entitled to two subsistence allowances when he was to spend only one night in Suva.

The Tribunal accepts that by submitting a claim for one meal when he resumed work on Monday 23 February 2004, he knew or ought to have known that, based on his actual time of departure from and return to Lautoka he was entitled to claim for three meals for Friday 20 February 2004. It would appear that by claiming for just the one meal the Grievor had decided that he would continue with the fiction which was the basis of the two claims submitted and for which the Grievor had accepted payment.

However that is not the end of the matter. The common law right to summarily dismiss an employee for serious misconduct is now restricted to the circumstances set out in section 28 of the Employment Act Cap 92. As has often been stated by this Tribunal not every act of misconduct which falls within one of the categories set out in section 28 will automatically entitle an employer to impose the penalty of summary dismissal. The misconduct must be of a sufficiently serious nature as would have entitled the employer to summarily dismiss an employee at common law.

In keeping with that principle, the Tribunal has recently observed that an employee cannot automatically be summarily dismissed from his employment because he has engaged in one or more acts of dishonesty. The Tribunal accepts that dishonesty in the workplace is a very serious act of misconduct which usually justifies the imposition of the most severe of penalties available to an employer. However, the Tribunal is required to examine whether the employer has sufficiently considered such factors as the lack of pre-mediation; the severity in the sense of the amount involved in the dishonesty; the Grievor's length of service with the employer; the lack of any prior disciplinary record; the work history and general character of the Grievor and whether it is a first or subsequent offence. When these matters are considered and given appropriate weight as mitigating factors, then, in some circumstances, a different disposition, such as a period of suspension, may be considered if the employment relationship can properly continue. (See Awards 20/2006 and 21/2006).

However, in this Dispute the Authority has stated in the suspension letter that no mitigating material would extenuate the seriousness of these offences. The Authority appears to be saying that mitigating material will have no effect on the decision to summarily dismiss the Grievor. This is consistent with what was referred to as the Authority's zero tolerance to dishonesty.

To apply this policy across the board to all incidents involving dishonesty is unreasonable and procedurally unfair. In any disciplinary offence, including misconduct involving dishonesty, there are a large number of diverse circumstances surrounding the employee's misconduct and additional factors relating to the employee's personal circumstances. These must be considered and weighed by a reasonable employer before concluding that summary dismissed is the appropriate penalty.

In this dispute the Authority has stated in effect that it will not consider any mitigating factors. The Authority will not consider any extenuating matters in relation to the offence.

Although Mr Laweloa and Mr Simpson in their evidence appeared to be saying that mitigating material was considered by the Authority, the Tribunal has concluded that the suspension letter more accurately stated the Authority's position on the matter.

Whether the Authority could be said to have acted fairly and reasonably in imposing the penalty of summary dismissal after a proper consideration of any relevant mitigating material is not the point. In this case the Authority has ruled out the possibility of considering mitigating factors as to either the circumstances of the dishonest misconduct or the personal circumstances of the Grievor.

In doing so it has acted unreasonably and in contravention of section 33 of the Constitution. The Authority has acted in a way which has deprived the Grievor of his right to fair labour practices.

As a result the Tribunal has concluded that the summary dismissal of the Grievor was unreasonable and unfair.

In his evidence the Grievor stated that he was now in permanent full time employment as a Manager of a well known company's car rental office in Walu Bay. His evidence was that he had only recently commenced that employment. Under those circumstances re-engagement is not an appropriate remedy. In any event, even if the Grievor had not found employment, the Tribunal is not satisfied that re-engagement would have been appropriate.

However, the Grievor is entitled to compensation in respect of the Authority's refusal to consider mitigating material in reaching its decision to summarily dismiss him. The Tribunal has concluded that the Grievor should be paid an amount equivalent to three months wages as compensation for the manner in which the Authority took its decision that he should be summarily dismissed.

This amount is to be paid within 28 days from the date of publication of this Award.

AWARD

The summary dismissal of the Grievor was unreasonable and in breach of the Grievor's rights under section 33(3) of the Constitution. This is the effect of the Authority's refusal to consider mitigating facts and circumstances.

The Grievor is to be paid three months wages at the rate he was being paid at the date of dismissal. Such payment is to be made within 28 days from the date of publication of this Award.

DATED at Suva this 11^th day of May 2006

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL