Fiji Bank and Finance Sector Employees Union v Bank of Baroda [2007] FJAT 12; Award 12 of 2007 (16 February 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 12 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION

AND

BANK OF BARODA

FBFSEU: Mr P Rae
BOB: Mr W Hiuare

DECISION

This is a dispute between Fiji Bank and Finance Sector Employees Union (the Union) and Bank of Baroda (the Bank) concerning the demotion of Mrs Rita Kumar Raj (the Grievor).

A trade 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 5 A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 7 July 2006 with the following terms of reference :

".............. for settlement over the following :

(i) Demotion of Mrs Rita Kumar Raj from Accountant Grade 1 to Salaried Grade V.

(ii) Breach of the Disciplinary Procedures (Clause 13) of the Collective Agreement between the Bank and the Union.

The union viewed the Bank’s action as harsh, unjust, unreasonable and unfair and seeks Mrs Raj’s re-instatement to her former position without loss of pay and benefits".

The Dispute was listed for a preliminary hearing on 28 July 2006. On that day the parties were directed to file their preliminary submissions within 21 days and the Dispute was listed for mention on 1 September 2006.

The Union filed its preliminary submissions on 21 August and the Bank did so on 31 August 2006.

The hearing of the Dispute commenced in Suva on 13 November 2006. On that day it was adjourned part heard to 15 November 2006 when it was completed. During the hearing, the Bank called three 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 Bank filed its final submissions on 14 December 2006. The Union filed answering submissions on 12 January and the Bank filed a reply submission on 5 February 2007.

As at December 2005 the Grievor had worked at the Bank for about 20 years. At that time she was employed as Accountant Grade 1, having been promoted to that position with effect from 19 January 2005.

The terms and conditions of the Grievor’s contract of service were to be found in a number of documents. First, there was her promotion letter dated 20 January 2005. For the present purposes, point 8 on page 2 of that letter is relevant and states :

"5 Please note that as Accountant, you are taking up an important position in the Supervisory Team at the Branch level. This position provides a much wider job role - - - (including) the following functions under the direction of the Manager - - - .

a) Supervise and control - - - the operations of your Department - - -

b) Provide effective leadership to staff and to exercise supervision and control on them.

c) - - -

d) To maintain high standard of customer services."

Secondly, there was the Bank’s Employees Rules and Regulations. Rule 1 stated:

"Every employee shall at all times apply himself with zeal and industry to the business of the Bank. He is expected to take all possible steps to ensure and protect the interests of the Bank and discharge his utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of the Bank employee".

Thirdly, there was the Memorandum of Agreement dated 2 March 1993 between the Bank and the Union. It was not disputed that the Agreement covered the Grievor and pursuant to section 34 (7) of the Trade Disputes Act was an implied condition of the Grievor’s contract of secure.

Clause 4 B (ii) of the Agreement dealt with the Bank’s right to summarily dismiss an employee and was expressed in substantially the same terms as section 28 of the Employment Act Cap 92.

Clause 13 of the Agreement provided for a procedure to be applied by the Bank when disciplining an employee in respect of misconduct.

Both these clauses will be discussed in more detail in a later part of this decision.

Finally, on 26 November 1984 the Grievor had signed a Declaration of Fidelity and Secrecy, the first paragraph of which stated:

"I Rita Sharma do hereby declare that I will faithfully truly and to the best of my skill and ability execute and perform the duties required of me as - - - Officer or other employee of the Bank of Baroda which properly relate to the Office or position in the said Bank of Baroda held by me".

On 23 December 2005 an incident occurred on the first floor of the Bank’s Suva Branch premises. The Grievor was observed holding a can of Fiji Gold in her hand at her work station. The time of the incident was between 4.00pm and 4.15pm. It was not disputed that the Grievor offered another staff member (Ms A Wilson) a drink. The offer was declined.

There was a conflict in the evidence concerning the consumption of beer. The Grievor stated she consumed less than one can and away from her work station whilst Ms Wilson stated that she saw the Grievor take a sip from the can when she was seated at her desk. It was not suggested that the Grievor was intoxicated. It was the last working day before the Christmas break and it was a Friday. The Bank closed at 4.00pm for customer business and staff finished at 5.15pm.

Ms Wilson stated in her evidence that she proceeded to the ground floor and reported the matter to the Branch’s Deputy Manager, Ms A Chandra.

The Deputy Manager stated that she was too busy to go to the first floor to speak to the Grievor. However she was apparently able to find the time that afternoon to speak to three or four other staff about the incident. She acknowledged that she did not know a great deal about the incident other than it involved the Grievor and one can of beer.

The Deputy Manager telephoned the HR Manager about the incident later on the same day. She was advised to write a note to the Chief Executive Officer as apparently it was considered to be gross misconduct. Ms Chandra stated that she prepared a note on her computer, made a hard copy and hand delivered it to the CEO that same afternoon after staff had left the premises.

However, when a copy of the note was eventually produced at the hearing, it was dated 28 December 2005. That was a Wednesday and the first working day after the Christmas break.

In any event, the second paragraph of the note stated :

"At around 4.00pm I was advised by staff Mrs Akanisi Wilson that Accountant Mrs Rita Raj was seen by her consuming alcohol in the office at her desk. She further informed that she was even offered to share the liquor with her."

Unfortunately the Deputy Manager failed to give any indication as to the type, quantity or container of the alcohol concerned when she wrote the note.

It would appear that nothing about the incident was said to the Grievor on 28 December 2005.

By letter dated 29 December 2005 the Grievor was requested to provide a written explanation within three days in respect of the allegation "that on 23rd December 2005 at about 4.OOpm you were consuming alcoholic drink in the bank premises during official working hours". The letter was signed by the Deputy Manager who personally handed the letter to the Grievor.

By typed letter of the same date the Grievor provided her response as follows:-

"It has been alleged that I happened to be consuming alcohol in the Bank premises during office hours. While I admit the allegation, I wish to state that the above act was merely done in view of the timely festive season and also towards the end of office hours, without any neglect of duty and responsibility on my part.

However I wish to sincerely apologise for the above act and, I assure you that this will not be repeated in future.

I re-iterate that there was no misconduct or misbehavior arising from this act and also did not tarnish the image of the Bank".

It would appear that the Grievor’s response and other material were then considered by the senior management. A decision was taken that the Grievor was to be demoted and she was advised accordingly in a letter dated 5 January 2006 which, omitting formal and irrelevant parts, stated:

"We refer to your letter dated 29th December 2005 and observe that you have admitted having consumed alcoholic drinks in the Branch premises during office hours on 23 December 2005 while discharging your regular duties.

Your above act is a serious breach of office discipline and tantamount to commission of a misconduct on your part. Being holding a post of a senior position, i.e. as the Accountant of the largest and biggest Branch of our Bank in Fiji, your above act is not only deplorable but also an act unbecoming of a bank employee warranting dismissal from the bank’s service.

You are therefore found guilty of misconduct in terms of Clause no 4B (ii) - - - as under :

a) You are guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of the contract of service.

However, considering your past records, a lenient view has been taken on the matter and therefore take notice that you stand demoted from the post of Accountant Grade I to the Salaried Grade V with fitment of F$28,364 pa "

In his evidence the Chief Executive Officer acknowledged that the Grievor had come alone to see him before and after she had received her demotion letter. It would appear that as a result of her second meeting with the CEO, the Grievor wrote a letter also dated 5 January 2006 requesting a reconsideration. The Bank did not respond to that letter.

The Tribunal is satisfied that the Grievor consumed a small amount of beer out of a can at about 4.00pm on Friday 23 December 2005. The Tribunal is satisfied that the Grievor was holding a can whilst sitting at her work station when Ms Wilson entered the office. The Tribunal is satisfied that Ms Wilson was offered and declined a drink. The Tribunal is not satisfied that Ms Wilson actually saw the Grievor consume alcohol.

The incident occurred on the last working day before the Christmas break at about 4.00pm which is the time the Bank closes for customer business. The Tribunal is not satisfied that the Grievor had been drinking since 3.30pm on that day. The Tribunal is satisfied that the Grievor had not in any other way misbehaved.

The Tribunal has no hesitation in concluding that this incident has been blown out of all proportion. A prudent employer acting reasonably might have been expected to have indicated to the Grievor that it would be more appropriate to wait till the last customer had left the premises before starting to partake in a pre-Christmas drink. That would have been the end of the matter.

The Tribunal accepts that there was no express prohibition in the Bank’s Rules to the consumption of alcohol on the premises. The Tribunal also accepts that in previous years, or at least the year before, alcohol had been consumed on the premises prior to the Christmas break. It is not an unusual practice in the workplace.

The Tribunal has concluded that the Bank acted unreasonably when it concluded that the Grievor’s actions amounted to a breach of clause 4 B (ii) of the Agreement. It should be noted that although clause 4B (ii) sets out the circumstances under which the Bank could summarily dismiss the Grievor, the misconduct must also be sufficiently serious as to have entitled the Bank to regard the Grievor’s contract of service as having been discharged. This is the effect of section 28 of the Employment Act.

The Tribunal has concluded that the Grievor’s actions whilst strictly inconsistent with her contract of service, were not sufficiently serious to justify the Bank treating the contract as having been discharged.

As a result the decision to demote the Grievor was also unreasonable. Under the circumstances the Grievor should have been given a formal written warning if the Bank thought her conduct was so inappropriate.

The Bank has completely ignored the Disciplinary procedures set out in clause 13 of the Collective Agreement. As the Bank had formed the view that the Grievor’s actions amounted to misconduct which possibly warranted dismissal, there was an obligation on the part of the Bank to fully comply with the procedures set out in clause 13. There was no satisfactory explanation provided at the hearing for disregarding the requirements of clause 13.

The Grievor was not at any stage interviewed nor was there any opportunity for the Union to make representations on her behalf. Prior to receiving the demotion letter, the Grievor was not informed that the Bank was contemplating either dismissal or demotion.

The Tribunal has concluded that the demotion of the Grievor by the Bank was unreasonable and unfair. As a result the Tribunal has concluded that the Grievor should be reinstated to the position of Accountant Grade I at the pay level she was receiving as at 5 January 2006. She is be paid the difference in salary since that date. The Grievor is to be treated as if she had remained as Accountant since that date and is to be entitled to the benefits of seniority and time served as if she had continuously served in that position.

AWARD

The demotion of the Grievor was unreasonable and unfair.

The Grievor is to be re-instated to her former position without loss of pay and benefits.

In view of the Bank’s failure to comply with clause 13 of the Collective Agreement, even a formal warning is not appropriate in this case.

DATED at Suva this 16 day of February 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL