PAFCO Employees Union v Pacific Fishing Company Ltd [2007] FJAT 14; Award 15 of 2007 (22 February 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 15 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

PAFCO EMPLOYEES UNION

AND

PACIFIC FISHING COMPANY LIMITED

PAFCOEU: Mr T Tokalauvere
Company: Mr G Singh

DECISION

This is a dispute between the PAFCO Employees Union (the Union) and Pacific Fishing Company Limited (the Employer) concerning the termination of employment of Mr Lote Raturaga (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 21 December 2005 with the following terms of reference :

" - - - for settlement over the employer’s failure to follow the Memorandum of Agreement and arbitrarily terminated the employment of Mr Lote Raturaga on 3 March 2005 which the Union claim is in direct breach of the Disciplinary procedural process stipulated in the Master Agreement signed between the Company and the Union and duly registered on 21 July 2001 with the Ministry of Labour, Industrial Relations and Productivity. The Union submits that :

i) Mr Raturaga be re-instated immediately without loss of pay, benefits and years of service;

ii) Mr Raturaga be re-instated with full pay backdated to the termination date’

iii) The Company ceases its direct and indirect method on its victimization program against Mr Raturaga and his fellow workers involved in the 2003 industrial strike."

The Dispute was listed for a preliminary hearing on 27 January 2006. On that day the parties were directed to file their preliminary submissions by 22 February 2006 and the Dispute was listed for mention on 24 March 2006.

The Employer filed its preliminary submissions on 9 February and the Union did so on 27 February 2006.

The Dispute was then fixed for hearing on 24 May 2006. When the Dispute was called on for hearing, the Union applied for the hearing date to be vacated as it was not in a position to proceed. The application was not opposed by the Employer. The Tribunal directed that the hearing date be vacated and that the Union pay $369 to the Employer as costs thrown away as a result of two witnesses in attendance for the hearing. The Union was also directed to pay $300 to the Labour Ministry as costs wasted. Those costs were to be paid within three months. The Dispute was listed for mention on 26 May 2006.

The Dispute was then refixed for hearing on 6 September 2006.

By letter received on 28 August 2006 the Employer requested that the hearing date be vacated for personal reasons related to the ill-health of a close relative of the Employer’s advocate. The application was not opposed by the Union.

The application was granted and the Dispute was listed for mention on 1 September and again on 29 September 2006.

The hearing of the Dispute commenced in Suva on 8 November 2006 and was completed on the following day. During the course of the hearing the Employer called two witnesses and the Union called four witnesses 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 7 December 2006. The Union filed answering submissions on 8 January and the Employer filed a reply submission on 19 January 2007.

The Grievor commenced employment with the Employer as a freezer worker in 1978. In March 2005 he was employed as a team leader a position which he had held since 2003.

By letter dated 3 March 2005 signed by a Mr N Tamani on behalf of the Roko Tui Lomaiviti and on Lomaiviti Provincial Council letterhead addressed to the Employer’s Chief Executive an allegation was made against the Grievor in the following terms :

"Security Day Shift Report 1/3/05

Ni sa bula

This is to notify your office that a report have been received from Salata Sevakasiga (Woman Security Officer and her Chief Security Iliorevi Nagalu).

That one Lote Turaga one of your worker has been searched and found that a plastic bag with fish, cutting into pieces was with him ready to be taken home. He was warned by the two Security Officers (Salata and Nagalu) to hand it over to the freezer section.

The said Lote Turaga ran away from the Company Premises with the said stolen fish (Report was written down in Fijian Language in Security Daily Report Book).

Submitted for your information and action please."

The letter was marked for the attention of Mr E. Reyes who gave evidence at the hearing that he handled this matter on behalf of the Employer.

It was claimed in evidence that this letter was based upon a report written in Fijian which appeared in the security log book for 1 March 2005. However neither the log book nor the two security officers were called to confirm the accuracy of the contents of the letter.

In his evidence Mr Reyes indicated that the security log book entry was translated by the same Mr Tamani who signed the letter dated 3 March 2005. Mr Tamani was not called to give evidence.

The terms of reference determines the limit of the Tribunal’s jurisdiction in the Dispute. The Tribunal is required to determine whether the Employer failed to follow the Memorandum of Agreement by breaching the disciplinary procedures set out in that agreement and whether as a result of that breach the Employer arbitrarily terminated the Grievor’s employment.

In this Dispute the Tribunal must determine whether the Employer followed the procedures set out in the Agreement. The Tribunal was not directed to determine whether the Employer was justified in terminating the Grievor’s employment. In other words, the Tribunal has not been directed to determine whether the Grievor removed or attempted to remove fish from his Employer’s premises.

The evidence given by the Grievor was that he attended at work the next day Wednesday 2 March 2005. He stated that the day passed without incident.

The Tribunal notes that this evidence was not contradicted. It seems somewhat strange that if the Grievor fled the premises in the manner which was alleged with stolen fish on Tuesday 1 March that he would have been admitted to the premises for work the next day without something having being said to him by either the security staff or management.

Be that as it may, the Grievor was called to Mr Reyes Office the next day, Thursday 3 March 2005.

Mr Reyes gave evidence that he conducted a meeting with the Grievor in the presence of a Mr Goundar and a security officer. Mr Reyes could not remember the name of the security officer and Mr Goundar was not called to give evidence.

On the other hand the Grievor stated in his evidence that he was called by Mr Reyes late in the afternoon to come and sign a letter. He stated that he attended at Mr Reyes Office and there was no one else present.

Both the Grievor and Mr Reyes were in agreement that the Grievor signed the report letter dated 3 March 2005 (which has already been referred to). Mr Reyes went on to say that the Grievor read it and also wrote the words "I admit" after he signed the report.

The Grievor stated that he had been called as a matter of urgency to come and sign. He signed the report without reading it and maintained that he did not write the words "I admit".

The Tribunal prefers the evidence of the Grievor on this matter. The Tribunal found the evidence of Mr Reyes to be unconvincing. He was evasive at times and the Grievor appeared to have the better memory as to what happened on that day.

As a result the Tribunal finds on the balance of probabilities that the Grievor was called late in the afternoon on 3 March 2005 by Mr Reyes to attend at his office and sign a letter. The Grievor attended at Mr Reyes’s office and signed the report dated 3 March 2005 as requested by Mr Reyes without reading it. He did not write the words "I admit". The Tribunal accepts, in a layman’s sense, that the same person did not sign and write the words.

The Tribunal also accepts that a short time later on the same day the Grievor was handed his termination letter which stated: "

"We regret to inform you that your employment with Pacific Fishing Company Ltd is being terminated effective 3rd March 2005. Your termination is the result of the following violations of company policy:

- You were caught with a plastic bag of fish pieces at the main gate 1st March to be taken out of the plant according to security report.

- During the investigation in front of the RML Manager and Vanua Security Officers you admitted the allegations and signed the written report in English from Lomaiviti Provincial Council.

The above constitute Serious Misconduct section vii. X) of the Collective Agreement, for theft, fraud, corruption, or other criminal offence including assault of a fellow employee or other person during the course of employment; such action may also render the offender liable for prosecution and detention.

You are requested to surrender any property of the Company in your possession as soon as possible.

To appeal this termination, you must return written notification of your intention to appeal to the Personnel Department no later than 5pm on 11 March 2005."

The letter was signed by Mr Reyes and cc copies were directed to three addressees including the Union.

The Grievor acknowledged his signature on that letter. He was, on a third visit to Mr Reyes’s office on 3 March 2005, handed a copy of that letter which he had signed, but which had been retained by Mr Reyes at the second visit.

In his evidence the Grievor stated that he had not been interviewed about the incident prior to being asked to sign the report. He had not been interviewed prior to being handed his letter of termination. He also stated that he had not been shown the entry in the log book made on 1 March 2005 and written in Fijian. The Tribunal accepts the evidence given by the Grievor on these matters.

The Tribunal also accepts that on Friday 4 March 2005 a letter of appeal was hand-delivered personally to Mr Reyes at his office by Mr Tokalauvere on behalf of the Grievor. The Tribunal also accepts that neither the Grievor nor the Union received any response whatsoever to that letter.

A Memorandum of Agreement (otherwise referred to as the Collective Agreement) was signed by the parties on 12 July 2001.

Clause 17 (iv) states:

"An employee who commits a disciplinary offence under (ii) or (iii) above or any provision of this Master Agreement may be disciplined by the Company by one or more of the following actions :-

- Warning (verbal or written)

- Suspension as a penalty – with or without pay

- Dismissal

The disciplined worker shall be served a written copy of the charge laid against him/her and copied to the Union."

There was no evidence before the Tribunal to indicate that any form of a written copy of the charge was copied to the Union. The Tribunal does not accept that the report letter dated 3 March 2005 was a proper statement of the charge. The Tribunal also accepts that, even if the report letter amounted to the charge, it was not properly served on the Grievor. He was not even given a copy. He was asked to sign a document which he didn’t read and then left without retaining a copy of what he had signed.

The purpose of requiring a disciplined worker to be served with a written copy of the charge is to enable him to be fully aware of what is being alleged against him and which, if any, of the provisions of the Company’s Rules or the Collective Agreement are involved. The disciplined worker would then be in a position to seek advice and prepare his response.

Clause 17 (vi) dealt with suspension as a procedural requirement. It set out the various steps which were required to be taken by the Employer if it decided to suspend an employee pending the completion of the investigation.

Clause 17 (vi) (i) gave a discretion to the Employer to suspend an employee who was alleged to have committed a serious misconduct pending the completion of the investigation.

In this case the Grievor was not suspended pending the completion of any investigation and as a result the procedural steps set out in tht clause have no application to this Dispute.

It is noted however that the evidence showed that in two subsequent cases which involved allegations of theft, the employees concerned were suspended pending the completion of the investigation. The reason given by Mr Reyes for the difference in treatment was not convincing.

Clause 17 (vii) dealt with dismissal and sub-pararaph (d) referred to the right of an employer to summarily dismiss an employee pursuant to section 28 of the Employment Act Cap 92. There were, however, no procedural requirements set out in that clause. The Tribunal is satisfied that under the circumstances which existed at the time, the decision that the Grievor should be dismissed was one which could be taken by the Task Force which performed the functions of the Chief Executive Officer.

Clause 17 (viii) dealt with appeals and contemplated appeals against finding of guilt and/or the severity of the penalty. The reference to a right to appeal set out in the termination letter dated 3 March 2005 was generally consistent with the contents of clause 17 (viii) in the Agreement.

However the Tribunal is satisfied that by hand delivering a letter of appeal on 4 March 2005 to Mr Reyes, Mr Tokalauvere on behalf of the Grievor had complied with the requirements in the Collective Agreement. The Employer failed completely to comply with its obligations to deal with the appeal in the manner set out in the clause. In fact the Employer failed to deal with the appeal at all, in any way. It was completely ignored.

The Tribunal has concluded that the employer has breached clause 17 in two ways. First the Grievor was not properly served a copy of the charge and the Union did not receive a copy at all.

Secondly, the Grievor was effectively denied the right to appeal his termination when the Employer failed to action the letter delivered to Mr Reyes on 4 March 2005.

Apart from these two specific breaches of clause 17 of the Agreement, there were a number of aspects of the process adopted by the Employer which concern the Tribunal. The matter was not fairly investigated. The Grievor was not interviewed in a manner which would have enabled him to state his version of the facts or to mitigate on penalty. The Grievor was not given time or opportunity to consider the charges and prepare a response. The Grievor was not informed that he could have present or be represented by a Union representative.

Even if union representation was not expressly provided for in the Agreement, it is both a practice which is contemplated by section 33 of the Constitution and modern industrial relations practices. The Tribunal does not accept the evidence given by Mr Reyes that this was discussed with the Grievor.

The Tribunal also notes from the evidence that at no stage did either Mr Reyes or the Task Force appear to give sufficient or any weight to the Grievor’s previous service of about 20 years to the Employer. There was no evidence put before the Tribunal that the Grievor had committed previous acts of misconduct.

The Tribunal considers that the sum total of all these matters amounts to a serious denial of natural justice. Under the circumstances, and without forming any view as to the substantive issue, the Grievor is in this case entitled to be re-instated.

There was no evidence before the Tribunal to suggest that the Grievor should not continue to have the trust and confidence of the Employer.

AWARD

The Employer has breached clause 17 of the Collective Agreement.

The Employer has not afforded the Grievor procedural fairness.

The Grievor has been denied natural justice. The termination of employment was unfair.

The Grievor is to be re-instated from the date of termination with full pay and without loss of benefits.

DATED at Suva this 22 day of February 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL