Public Employees Union v Fiji Institute of Technology [2006] FJAT 5; Award 47 of 2006 (29 September 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO 47 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

PUBLIC EMPLOYEES UNION

AND

FIJI INSTITUTE OF TECHNOLOGY

PEU: Mr M Kaitu’u
FIT: Mr G Singh

DECISION

This is a dispute between the Public Employees Union (the Union) and Fiji Institute of Technology (the Employer) concerning the Employer’s decision to retire Mr Bijay Prasad (the Grievor).

A dispute was reported by the Union. 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 2 November 2005 with the following terms of reference:

".............. for settlement over the Employer’s unilateral decision to retire Mr Bijay Prasad without justification and substantiation, before reaching the compulsory retirement age of sixty (60). The Union therefore seeks he be re-instated and all outstanding dues paid with retrospective effect (inclusive of the 1st 3 weeks of January 2005 in which he worked pending payment)."

The Dispute was listed for a preliminary hearing on 25 November 2005. On that day the parties were directed to file their preliminary submissions within 21 days and the Dispute was listed for mention on 27 January 2006.

The Union was granted a further 21 days to file its submissions and the Dispute was relisted for mention on 24 February 2006.

There was no appearance by or on behalf of the Union on that day and consequently the Dispute was relisted for mention on 24 March 2006. At the request of the parties the Dispute was again listed for mention on 28 April 2006.

The Employer had filed its preliminary submissions on 4 January 2006 and the Union eventually did so on 20 April 2006. At the mention proceedings on 28 April 2006, the Dispute was listed for hearing on 20 July 2006.

On 21 June 2006 the Employer filed an affidavit by Delai Kameli Vakasilimi sworn on 9 June 2006. As a result the Dispute was listed for special mention on 29 June 2006 to determine the basis upon which it was sought to admit the affidavit into evidence. Having heard the parties and for the reasons stated at the time the Tribunal indicated that the affidavit would be admitted into evidence except for paragraph 11 to which the Union had expressed a reasonable objection.

The hearing of the Dispute took place on 20 and 21 July 2006 in Suva. The Employer called two 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 Union filed its final submissions on 15 August 2006 and the Employer filed its answering submissions on 17 August 2006. By letter dated 23 August but received by the Tribunal on 28 August 2006, the Union informed the Tribunal that it did not intend to file a reply submission.

The Grievor commenced employment with the Employer in 1977. In February 1997 the Grievor was employed as resident caretaker at the School of Maritime Studies located at the Employer’s Laucala campus. The Grievor was aged 50 at the time. The Grievor turned 55 years old in 2002. At that time he occupied the same position. He was employed as an unestablished employee.

The Terms and conditions of the Grievor’s contract of service were set out in the Joint Industrial Council’s Conditions and Rules of Employment for Government Unestablished Employees (Revised March 1986) (JIC Agreement). This was the effect of a Memorandum of Agreement dated 31 January 1996 between the Union and the Employer.

Clause 49 of the JIC Agreement deals with retirement. By an agreement dated 10 August 2000 the parties agreed to repeal the retirement provisions of the JIC Agreement and any amendments up to that time and insert a new clause 49. It was agreed that the new Clause 49 was to apply only to unestablished employees of the Employer with effect from 1 January 1999.’

The amended clause 49 states:

"a) General

Subject to the provisions specified under subsection 49 (c) staff may be required to retire from permanent employment at the end of the year in which they turn 55 years of age.

The compulsory retirement age for all unestablished employees shall be 60 years. An unestablished employee who has reached the compulsory retirement age of 60 years shall be required to retire from employment at the end of the year in which the employee has reached the age of 60 years.

b) Subsequent Employment

Notwithstanding the provisions stipulated under subsection 49(a) above, Council may require an employee to retire at the end of the year on which the employee turns 55 years of age or at any time thereafter as a result of any or all of the following grounds:

- On account of unsatisfactory performance as verified on the employee’s performance records.

- On the grounds that there is insufficient institutional needs for continued employment.

A staff member who is required to retire, and whose further employment is considered by the Council to be justified may be offered an extension of employment for a maximum of five years. This may be in the form of an extension of tenure or contract, which may be renewable annually.

c) Voluntary Retirement

d) Notification

A staff member who is not offered subsequent employment will be notified six months prior to the date of retirement."

It was acknowledged by the parties that this clause applied to the Grievor in 2002 when he turned 55 years of age. The Grievor turned 55 years of age on 14 July 2002.

By letter dated 2 October 2002 from the Employer’s Human Resources Manager the Grievor was offered further employment beyond the end of 2002 being the year in which he turned 55 years of age. Omitting formal and irrelevant parts, the letter stated:

"We have pleasure in offering you subsequent re-employment on a contract basis as a Caretaker, attached to the Property Department, for an approximate period of one year, with effect from 1 January 2003. Your appointment will cease on 31 December 2003.

.....................................

You will continue to be employed under the Terms and Conditions of Employment of the Joint Industrial Council Agreement (JIC) currently in force, until such time a separate Terms and Conditions of Employment is prepared for the unestablished staff of the FIT.

.........................................

Your appointment may be terminated by one week’s notice on either side or by payment of one week’s salary in lieu of notice. You will also be liable for summary dismissal in the event of misconduct or insubordination.........."

As requested by the Employer, the Grievor acknowledged his acceptance of the offer by signing the acceptance block on 9 October 2002.

In an internal memorandum dated 21 October 2003, the Employer’s Human Resources Manager requested the General Manager Corporate Services to provide a recommendation concerning the retention of the Grievor beyond 31 December 2003. So far as is relevant, the memorandum stated:

"Mr Prasad is currently engaged on an employment contract offered under the auspices of the collective agreement. This contract is due to expire on 31 December 2003. Mr Prasad was offered and accepted a one-year term of subsequent employment after reaching the age of 55 years. He was offered and accepted subsequent employment from 1 January 2003 to 31 December 2003.

Pursuant to Section XII (49) of the Unestablished staff agreement, it has now become necessary to review the term of Mr Prasad’s employment with the view to determine the need to retain or otherwise cease his services with the FIT after the expiry of his current term.

..............................................

It would be appreciated if your written justification and recommendation were forwarded to this office by Friday 31 October 2003 to enable us to progress this matter further."

A short time afterwards in an internal minute dated 28 October 2003, the Acting Property Manager wrote to the General Manager Corporate Services about the end of year retirements. This memorandum stated:

Three unestablished staff of the Department will be eligible for retirement on 31 December 2003. These are:

1) Mr Shiu Lingam - Carpenter Trade Assistant

2) Mr Ram Sundar - Caretaker Samabula

3) Mr Bijay Prasad- Caretaker Maritime.

The nature of works involving these staff everyday are always physical and would require an energetic and young person to undertake. They have reached a certain age that rate of physical work will decrease.

However, for the above staff, I would like to highlight their absenteeism record in terms of sickness. Out of the three Mr Bijay Prasad has been frequently absent due to sickness. For the other two ........ they hardly absented themselves....................

Mr Bijay Prasad is also found to be very slow in his work and I had a discussion with HOS Maritime where he is posted on his ability to carry out his work properly......................

I strongly recommend...........................Mr Bijay Prasad be referred to the Medical Board for review to determine the extension of his employment."

The Acting Property manager in his evidence stated that the Grievor’s duties included grass cutting, collecting rubbish, male toilet cleaning and any other duties assigned by the Head of School.

He acknowledged that there had not been any complaints received about the manner in which the Grievor had actually performed his duties.

He also acknowledged that the other caretaker was about the same age as the Grievor and that being young and energetic was not a necessary requirement to carry out the required duties. Essentially, the Acting Property Manager was concerned about the medical condition of the Grievor as a result of perusing the sick leave forms submitted by the Grievor. That was the reason why he recommended a medical board examination. It was his only concern about the Grievor. He also confirmed that he was never shown any medical report or informed as to the outcome of any medical board examination.

On the original memorandum which was presumably forwarded to the General Manager Corporate Services (GMCS) a number of handwritten
comments have been made by various management staff.

On 30 October 2003 the General Manager Corporate Services recommended to the Director that the Grievor undergo full medical examination. On the same date the Director instructed the General Manager Corporate Services that:

"to be consistent with FIT policy, all the unestablished staff above are to be retired at the age of 60."

The next handwritten note was dated 5 November 2003 from the Director to the Manager Human Resources and stated:

"We have a policy in which anyone who has turned 55 shall be re-engaged subject to the Institute’s needs on an annual basis provided they are medically cleared. Does this apply to wage-earners as well?"

The Manager Human Resources replied to the Director on 6 November 2003, stating:

"Section 49 of the JIC specified that an employee may be retired on or after reaching the age of 55 years. Subject to continuing efficiency an employee may however be retained. In that regard I allude to General Manager Corporate Services recommendation at (B) below.

On 7 November 2003 the Director wrote to the Manager Human Resources as follows:

"General Manager Corporate Services’s view at (B) to be implemented, accept that Bijay Prasad is to be retired other than medical Boarded".

Then on 10 November 2003 the Manager Human Resources writes a note to an addresse in the following terms:

"Please extend Shiu Lingam and Ram Sundar for 1 year subject to clean Health Bill. Mr Bijay Prasad is to be retired by December 2003."

It is difficult for the Tribunal to determine whether the instructions given by the Manager Human Resources reflected the instructions given to him by the Director. The Director’s last note dated 7 November 2003 was ambigious.

The Tribunal has concluded that the chain of handwritten notes ended with the Director accepting the recommendation of the General Manager Corporate Services that Lingam and Sundar were to be re-engaged for another 12 months and that the Grievor was only to be retired if the Medical Board examination reached that conclusion.

In any event the Grievor was directed to attend a medical examination at the Civil Servants Clinic on 10 November 2003. A written report of the examination was reluctantly produced for the Tribunal as Exhibit 7. The Report is on a Fiji Institute of Technology proforma headed "Medical Examination of Candidate for Employment." The examination was authorized by the Manager Human Resources on 21 October 2003. At the top of this document the Manager Human Resources wrote:

"Mr Bijay Prasad has been a caretaker who will retire at the end of this year (2003) and is being considered for re-employment at the Property Department of the Institute. Mr Prasad’s condition for re-employment is subject to medical certification. Kindly forward your report on this form to the Human Resources Manager, FIT, Samabula under confidential cover".

The medical officer who conducted the examination stated in the Report dated 10 November 2003 that:

"In my opinion this candidate is mentally and physically fit to hold a permanent post at the Fiji Institute of Technology."

In his evidence the Manager Human Resources acknowledged that he had seen the Report. Furthermore he stated that to his knowledge it had not been shown to anybody, and certainly not to any of the decision makers involved in the Grievor’s future employment.

By letter dated 11 December 2003 the Grievor was informed that the Council had decided not to renew the term of his employment beyond 31 December 2003. There were no reasons provided for the decision. The letter was signed by the Manager Human Resources on behalf of the Director.

As the Grievor had been offered and had accepted employment beyond the year in which he had turned 55 years of age, clause 49 (b) is relevant to this Dispute. So far as the Grievor is concerned, clause 49 (b) in effect states that he may be offered an extension of employment up till the age of 60 years in the form of a contract renewable annually. At the end of any one of those annual extensions, the Grievor may be required to retire if his performance is unsatisfactory (and can be verified) or there is insufficient institutional needs for continued employment.

The Tribunal has concluded that the effect of clause 49 (b) is that once a decision had been taken by the Employer to offer further employment to the Grievor after he had turned 55 years of age, he was entitled to be offered annual extensions up till the time he turned 60. However a further renewal of the contract need not be offered in the event that the Grievor’s performance was unsatisfactory or the Employer no longer needed to employ him.

There was no evidence to support any suggestion that the question of institutional needs was of any relevance in this Dispute.

From the evidence it appeared that the Employer’s assessment of unsatisfactory performance seemed primarily to be based on the Grievor’s poor attendance record and in particular his sick leave absences.

It is fair to say that if sick leave absences up to the end of 2002 were not sufficiently serious to prevent the Employer deciding to offer an extension of contract for 2003, then those same absences should not have been an issue in deciding whether to offer an extension for 2004. The Tribunal has perused the attendance records for 2003 and has noted that there appeared to be about 23 days of absence without pay. As no disciplinary action had been taken against the Grievor in respect of those absences it would appear that they were additional sick leave days. This was the effect of the evidence given by the Acting Property Manager.

However as the medical report dated 10 November 2003 had indicated that the Grievor was fit for permanent employment, the Tribunal has concluded that it was unreasonable for the Employer to rely solely on the number of unpaid leave days as the basis for determining unsatisfactory performance. There was no other evidence relating to work performance adduced by the Employer.

The Tribunal has concluded, based on the evidence placed before it, that the Employer did not have the necessary grounds for not offering a further annual extension of contract for 2004 to the Grievor. The Employer breached clause 49 (b) and acted unfairly.

The Grievor is to be re-instated and he is to be paid 12 months wages in respect of 2004. He is to be regarded as having been on leave without pay for 2005. He is to undergo a full medical examination and if he is considered to be mentally and physically fit for permanent employment, he should return to work as soon as possible and he is to be paid his wages for the year 2006.If he is no longer physically fit then that is the end of the matter. The position for 2007 is to be determined by the parties in accordance with clause 49(b).

AWARD

Clause 49 (b) provided for annual extensions of employment to continue to be offered to the Grievor once the Employer had decided to re-employ the Grievor after he had turned 55 years of age.

The Employer was not required to offer an annual extension if performance was unsatisfactory or there was no longer an institutional requirement. There was no evidence before the Tribunal to conclude that the Grievor’s work performance in 2003 was unsatisfactory. The Grievor was classified by a medical board to be fit for permanent employment.

The issue of institutional need did not arise. The Employer acted unfairly and breached clause 49(b) by not offering the Grievor an annual extension of contract for 2004.

The Grievor is to be re-instated and paid 12 months wages for 2004. He is deemed to have taken leave without pay for 2005.

He is required to undergo a medical examination as soon as possible. If he is certified as fit for permanent employment with the Employer, he should return to work as soon as possible and he is to be paid his wages for 2006.If he is no longer fit for permanent employment, then that is the end of the matter.

In respect of 2007, the parties are to act in accordance with clause 49(b) of the Agreement.

DATED at Suva this 29 day of September 2006

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL