National Union of Hospitality Catering and Tourism Industries Employees v Capricorn International Hotel [2006] FJAT 6; Award 51 of 2006 (24 October 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO 51 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIONAL UNION OF HOSPITALITY CATERING AND
TOURISM INDUSTRIES EMPLOYEES

AND

CAPRICORN INTERNATIONAL HOTEL

NUHCTIE: Mr F Anthony
Capricorn: Mr N Lajendra

DECISION

This is a dispute between the National Union of Hospitality Catering and Tourism Industries Employees (the Union) and Capricorn International Hotel (the Employer) concerning the termination of employment of Ms Shobna Deo (the Grievor).

A trade dispute was reported on 17 September 2004 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 19 November 2004 with the following terms of reference:

".................. for settlement over the termination of employment of Ms Shbna Deo with effect from 27 July 2004. The union views the management’s action as a breach of the disciplinary procedures outlined in the collective agreement and therefore the decision to terminate her was unfair and unjust and she should be re-instated without loss of benefits."

The Dispute was listed for a preliminary hearing on 15 December 2004. On that day the parties were directed to file their preliminary submissions within 21 days and the Dispute was fixed for hearing on 5 April 2005.

The Employer filed its preliminary submission on 10 January and the Union filed its submission on 15 March 2005.

When the Dispute was called on for hearing on 5 April 2005, Counsel for the Union made an application for the hearing date to be vacated. The grounds for the application had been set out in a letter dated 31 March 2005 which had been sent to the Tribunal by facsimile from the Office of Messrs Sahu Khan and Sahu Khan. The Employer did not oppose the application which was granted. The Dispute was listed for mention on 29 April 2005.

On that day the Dispute was relisted for hearing on 11 August 2005, at the request of the parties. When the Dispute was called on for hearing on 11 August 2005, the Union again made an application for the hearing date to be vacated. The grounds for this application had been set out in a letter dated 8 August 2005 which had been sent to the Tribunal by facsimile from the Union’s Office. The Employer did not oppose the application which was granted. The Dispute was listed for mention on 26 August and then on 30 September, 28 October and 25 November 2005.

The hearing of the Dispute commenced on 16 February 2006 in Suva and was completed on the following day. Each party called one witness 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 8 March 2006. As the Union had not filed its answering submissions within the time directed by the Tribunal, the Dispute was listed for a special mention on 4 July 2006. On that day the Union was directed to file its answering submissions by 18 July 2006. The Union eventually filed its answering submissions on 1 September 2006. The Tribunal accepts that the delay was to some extent caused by the untimely passing of the Union’s General Secretary. By letter dated 26 September 2006 the Employer informed the Tribunal that it did not intend to file a reply submission.

The Grievor had commenced employment with the Employer in February 2002. On Saturday 17 July 2004 the Grievor was employed as a front office receptionist. On that day she was rostered on the B shift from 3.00pm to 11.00pm.

It was not disputed that during the course of the evening a female guest with an infant was checked in to room 227. The tariff was $40.00. The Grievor maintained in her evidence that the guest had indicated that she would pay when she checked out. The Grievor admitted that she did not enter the guest into the computer system although the guest had completed a registration card. Her evidence was that she was too busy at the time. The card could not be located when she finally started to enter the check-ins into the computer system later in the evening.

It appears that during the evening the guest made a telephone call which was charged at $20.80. When the guest checked out she only paid for the telephone call. The registration card was located some days after the incident. It was found under the cash register. The card showed that the guest was to be changed the day rate of $40.00 and was to or did check out at 11.45pm. It further showed that the guest either did or intended to pay by cash.

The next day it was reported to management that Room 227 had been occupied but not recorded in the daily room status report. The Manager met with the Grievor on 19 July 2004 to discuss the matter. In the presence of the Grievor a memorandum setting out the matters which had been discussed during the meeting was prepared.

The Manager signed and dated the memorandum. In the same handwriting the following then appeared:

"I read the contents of this letter and understand and agree to the points discussed. The General Manager gave time to think and that you do not wish to anything more"

The Grievor then signed and dated this notation. In her evidence the Grievor acknowledged that it was her signature. She said the Manager had insisted that she sign it. She stated that she did not have time to read the contents as she was due to start the next shift.

The Grievor also stated in her evidence that she had asked for a union representative to be present She was apparently told that the purpose of the meeting was a incident to discuss the room 227 incident only. There was no reference to any investigation.

A further meeting took place on 20 July 2004 and again notes were taken. Again the Grievor signed the document. In her evidence the Grievor maintained that the Manager had insisted that she sign the document and that she was not given any opportunity to read its contents. In her evidence the Grievor disputed the accuracy of almost the entire document.

In relation to the two hand written notes,the Tribunal accepts the Grievor’s evidence as to the circumstances which lead to her signing the two documents. Although there was a witness present at each meeting, that person was not called to evidence.The tribunal formed the view that Grievor’s memory of events was better than the General Manager’s memory.Her evidence was, on the whole,consistent and was assessed by the Tribunal as hearing the more reliable.

On the same day shortly after the meeting, the Grievor was handed a suspension letter, the contents of which were self-explainatory.

The receptionist (Ms R Devi) who took over from the Grievor some time after 11.00pm on Saturday 17 July 2004 made two statements, one dated 17 and the other dated 20 July 2004. They were written at the request of the General Manager. There are however some unconsistences in these documents.

First, the General Manager in his evidence said that he spoke to the relieving receptionist about this incident for the first time on 20 July 2004.There was no explanation provided to the Tribunal as to why the first statement is dated 17 July 2004. Secondly, the General Manager acknowledged that he initialed and dated the second statement as having been received on 20 November 2004. The General Manager could not explain this discrepancy.

Thirdly, the relieving receptionist’s first name is spelt differently on the two statements: Ransho, Ransoo and Ranshu. The General Manager also conceded that he had told the relieving receptionist the procedure which she should describe in the first paragraph of the second statement.

The relieving receptionist was not called to give evidence. The Tribunal accepts that the two statements were not shown to the Grievor or the Union. There was no reference made to them during the meeting on 20 July 2004. The Tribunal has also concluded that the two statements have little probative value as their reliability can only be described as suspect.

An undated statement by another staff member is also in the same category as the number of his statement was not present on 17 July 2004. The General Manager acknowledged that the statement had been prepared by the staff member after the incident on the basis of what he had told that staff member about the incident.

A letter of termination dated 27 July 2004 was received by the Grievor, either directly or through her union. There was no communication of any description between the Grievor or the Union and the Employer between 20 July 2004 and the date on which the termination letter was received.

The Grievor received the money due to her by cheque on 2 September 2004.

Although the termination letter indicated that this was a situation where employment had been terminated by way of payment in lieu of notice, the Employer had at all times purported to be doing so on the basis that there had been misconduct on the part of the Grievor. The Tribunal is satisfied that had not been for the allegation of misconduct on 17 July 2004, the Grievor’s employment would not have been terminated.

To that extent it does become necessary to consider whether the Employer has acted in good faith in concluding that the Grievor’s performance amounted to misconduct following the disciplinary procedures outlined in the collective agreement.

The General Manager appeared to acknowledge during the course of his evidence that once the registration card had been found it confirmed that the Grievor had initiated the necessary documentation to establish that room 227 had been occupied. He admitted that he did not then seek to obtain a further explanation from the Grievor as to why she had not entered the details into the computer system.

It should also be noted that in re-examination the General Manager stated that he was not suggesting that either receptionist had stolen $40. He said that the issue was the failure to collect $40 from the guest at either check-in or check-out and that he was satisfied that the Grievor was on duty at both times. The General Manager stated that he was the duty manager that night and that the Grievor was still on duty when the guest checked out sometime between 11.30pm and 12 midnight.

However the Tribunal notes that the time sheets for the week ending 22 July 2004 disclosed that the Grievor worked from 3pm to 11pm on Saturday 17 July 2004 and was recorded as having worked for eight hours. For the same day the relieving receptionist (Ms R Devi) is shown as having worked for eight hours from 11pm to 7am. It should also be noted that it does appear that an amendment had been made in respect of the start work time for Ms Devi on Saturday 17 July 2004. The Tribunal was provided with a copy only of this document and as a result the issue was not pursed any further.

The Tribunal accepts that the time sheets reflect the approximate hours worked by the Grievor and relieving receptionist on the day in question.

The procedure to be followed by staff at the Employer’s hotel was set out in writing in a document which caused the title: Duties and Responsibilieies – Cashier/Receptionist". Under the sub-heading "Check in/Arrivals, the following instructions are included:

- Give them the registration card to fill.

- Check the details on the registration card and see that the required details are filled ............

- If guest paying on check in, note on the registration card by attaching cash register receipt for cash received to confirm that payment already done by the guest and also post in computer."

Under the heading "Check out/Departures" the following instructions are included "

- Put all charge dockets together and attach to the registration card.

- Ask guest if anymore charges, if ok then print the receipt and present it to the guest stating their outstanding balance and collect the payments.

- Check the guest out from the system and attach one copy of bill with registration card with all the documents for audit purpose."

In her evidence the Grievor acknowledged that when she was entering the registrations cards into the system, she could not find the registration card for the guest who had been allocated room 227. She did not make any entry of any description into the computer system. The Tribunal is satisfied that the Grievor knew that there was no entry in the computer system for the guest.

As a result she should have taken some action to alert other staff that the guest in room 227 was registered in the system.

Having considered all the evidence placed before it and the manner in which the witnesses testified, the Tribunal has concluded that the Grievor, for whatever reason, did not comply with the check in instructions for the guest who was in room 227. However the Tribunal is not satisfied that the guest paid $40 to the Grievor when she checked in. Fiurthermore, it is quite apparent that the instructions do not specify that a guest must pay the accommodation charge when checking in.

The Tribunal is not satisfied that the Grievor was on duty when the guest checked out. On the balance of probabilities the Tribunal is satisfied that the relieving receptionist was on duty when the guest checked out and it was she who had collected the cost of the telephone call from the guest.

On the evidence before it the Tribunal is not able to reach any conclusion as to what actually happened concerning the $40. The Tribunal is not able to conclude whether the guest paid the $40. However the General Manager appeared to take the view during the course of his evidence that $40 had not been collected at either check in or check out. As a result it may well be that the failure of the Grievor to enter the guest into the system during her shift resulted in the failure by the relieving receptionist to collect the $40 when the guest checked out. However the Tribunal has some difficulty in accepting that a guest could be properly checked out in accordance with instructions when that guest was not entered in the system. As a result the Tribunal has concluded that there was, at the very least, carelessness and non-compliance with instructions by both the Grievor and the relieving receptionist.

Although the Collective Agreement provides for a system of warnings to be given to workers whose misconduct may amount to minor transgressions, including incompetence, the Employer chose to exercise its contractual right to terminate employment by giving payment in lieu of notice pursuant to the provisions of the Employment Act Cap 92. The Tribunal considers that the Grievor’s misconduct in this case was marginal and could equally have been dealt with by way of a formal written warning.However, the Tribunal has concluded that it was open to the Employer to terminate the Grievor’s employment by payment in lieu of notice.

On the evidence before it the Tribunal can see no reason why the relieving receptionist should not also have been the subject of disciplinary action in respect of her non-compliance with instructions and procedures.

The cause of the Dispute, however, relates to the disciplinary procedures which is set out in the Collective Agreement. The terms of reference contains an allegation that there was a breach of this disciplinary procedure. Clause 12.1 of the Collective Agreement sets out the disciplinary procedure which is required to be followed and so far as is relevant states:

(a) (dismissal)

(b) (suspension)

(c) In cases arising out of (a) or (b) the Manager or in his absence, his authorized deputy, shall conduct an enquiry in consultation with the House Committee of the property. Such consultation requires the Hotel and the Union, prior to a final decision being made, to provide each other with:

(i) Their respective positions on the matter and how they intend to proceed in dealing with the matter.

(ii) Copies of any statements or evidence that pertain to the between both parties.

(iii) The opportunity to meet and discuss both the matter as well as the possible action that is going to be taken to resolve the matter

The employer shall within twenty-four (24) hours inform the Union General Secretary of any subsequent disciplinary action imposed.

(d) (warning)

(e) (re-instatement)"

Having carefully considered the evidence given by the General Manager, the Tribunal is satisfied that the Employer has not complied with the formal requirements set out in (i) (ii) and (iii) above. The Employer has completely disregarded the spirit and the purpose of the clause. There were no discussions, no consultations and no exchanges of documents.

For all practical purposes the process adopted by the Employer was unilateral from start to finish.

The procedure followed by the Employer did not comply with the Collective Agreement.

The issue then is what is the appropriate remedy. The Tribunal is satisfied that re-instatement is not appropriate for two reasons. First, even on her own evidence, the Grievor failed to comply with the check in instructions. Secondly, the Grievor is now and has been since 5 December 2005 employed on a permanent full time basis with the Fiji Police Force. As early as August 2004 the Grievor had been able to find part time employment at a local resort.

The Employer has submitted that as the only remedy to which reference is made in the terms of reference is re-instatement, the Tribunal cannot award any other remedy if re-instatement is not appropriate. On the other hand the Union submitted that the Tribunal should award compensation in the form of lost wages from the date of termination to the date of the Award.

The Tribunal does not accept either submission. It has long been accepted that re-instatement is a discretionary remedy. In cases where re-instatement is considered not to be the appropriate remedy, the Tribunal has the jurisdiction to make an award which is appropriate to the particular dispute before it. The fact that the terms of reference included a statement that the Union seeks re=instatement does not prevent the Tribunal from making an award which is of less value to the Grievor than re-instatement.

The Tribunal considers it appropriate on this case to award to the Grievor three months salary calculated at present rates.

Before formalising the Award, the Tribunal considers it appropriate to comment on the evidence relating to the use of the computer system and the material relating to the telephone records. Whilst this evidence was strictly relevant it was confusing and technical. In the end the Tribunal was not greatly assisted by the material.

AWARD

The decision to terminate the Grievor’s employment by payment in lieu of notice was open to the Employer, although a formal written warning would also have been an appropriate disposition..

The Employer has not complied with the disciplinary procedures set out in the Collective Agreement.

Re-instatement is not appropriate. The Grievor is to be paid three months wages at the present rates.

DATED at Suva this 24 day of October 2006

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL