Airports Fiji Ltd Staff Association v Airports Fiji Ltd [2007] FJAT 22; Award 23 of 2007 (21 March 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 23 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

AIRPORTS FIJI LIMITED STAFF ASSOCIATION

AND

AIRPORTS FIJI LIMITED

Staff Association: Mr T Tabu
A F L: Mr K Qoro

DECISION

This is a dispute between Airports Fiji Limited Staff Association (the Union) and Airports Fiji Limited (the Employer) concerning the termination of employment of Nikotuimasi Cama (the Grievor).

A trade dispute was reported by the Union on 24 February 2005. The report was accepted on 10 August 2005 by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As the Employer failed to nominate its representative to the Committee, 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 21 September 2005 with the following terms of reference:

" - - - for settlement over the termination of employment of Nikotuimasi Cama."

The Dispute was listed for preliminary hearing on 30 September 2005. As there was no appearance by or on behalf of the Employer, the Dispute was listed for mention on 28 October 2005. On that day the parties were directed to file their preliminary submissions within 21 days and the Dispute was listed for mention on 25 November 2005.

The Employer filed its preliminary submissions on 24 November 2005.

On 25 November 2005 the Union was directed to file its submissions within 14 days and the Dispute was relisted for mention on 27 January 2006. On that day the Tribunal was informed that the parties had reason to believe that the Grievor had passed away. The Dispute was listed for mention on 24 February 2006 to enable the parties to clarify the matter. On that day the Union requested additional time to obtain further instructions as it appeared that the Grievor was not deceased. When the Dispute was called for mention on 24 March there was no appearance by or on behalf of either party.

The Dispute was then listed for special mention on 31 March 2006. On that day again there was no appearance by or on behalf of the Union. As a result the Tribunal directed the Employer’s legal practitioner to inform the Union that unless it filed its preliminary submissions within 21 days the Dispute would be stuck out.

The Union filed its preliminary submissions on 25 April 2006. As a result the Dispute was listed for mention on 28 April 2006. The Union was directed to serve its submissions on the Employer by the close of business on 1 May and the Dispute was listed for further mention on 26 May 2006. On that day the Dispute was fixed for hearing on 18 September 2006.

The hearing of the Dispute was held in Suva on 18 September 2006. During the course of the hearing the Employer called three witnesses and the Union called two witnesses, including the Grievor, 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 26 October 2006. The Union filed answering submissions on 16 November 2006. It was not until 8 March 2007 that the Employer indicated to the Tribunal that it did not intend to file a reply submission.

The Grievor commenced employment with the Employer in 2000 as an assistant linesman and rigger. His contract of service was formalized when he signed a written agreement dated 26 February 2003. The title of his position remained the same. The terms and conditions of his employment were to be found in the written agreement. A copy of the Agreement was produced at the hearing minus the annexures. There was at the time no collective agreement between the Employer and the Union.

The provisions of the Employment Act Cap 92 also governed the employment relationship between the Grievor and the Employer.

Clause 3 of the written agreement stated:

"3 Duties

3.1. The employee shall during the course of his employment:

(a) Undertake duties as set out in Annex 1 ( - - -) to this Agreement

(b) Diligently and faithfully serve AFL and use his best endeavours to promote and protect the interests of AFL.

(c) Carry out and comply with all reasonable and lawful directions given to him.

(d) - - - "

Clause 12 of the agreement dealt with termination and the two relevant provisions stated:

"12.2. The contract may be terminated at any time by the employee giving AFL or AFL giving the employee not less than one month’s written notice of its termination.

12.3.1. Notwithstanding the terms of this agreement AFL may terminate the employee’s employment at any time by notification in writing (* - - - ) if the employee shall:

a) be guilty of any gross misconduct ( - - -); or

b) behave in a manner which exhausts the formal disciplinary procedures ( - - -), or

c) - - - "

The Grievor was working at the Enamanu Transmitting Station on Friday 19 March 2004. The Grievor admitted in a brief written statement that he had, on that day, removed a naked copperwire from the workplace. He had placed the wire in a box which contained his boots and overalls.

The Employer claimed that the Grievor had removed more than one piece of copper wire. The Employer also claimed that the Grievor had refused to allow the security officer on duty at the Station to search the box. The Employer claimed that the Grievor had loaded the box into a private vehicle which had been brought into the workplace compound without authorization. It was also claimed that the Grievor would not allow the vehicle to be checked.

The Grievor maintained that the security officer had checked the box, saw the copper wire and did not object to him taking it away.

It would appear however, that the security officer at the Station subsequently reported the incident to Security Operations at Nadi.

On the same night the Police and Security Officers attended at the Grievor’s home and found the offending items. The items were taken away by the security officers and the Grievor was subsequently charged with larceny. He was ultimately found not guilty in the Magistrates Court.

From 19 March 2004 the Grievor was suspended with pay pending the outcome of the investigation. He was required to report daily to the Security Office.

In a report dated 7 April 2004 addressed to the Chief Security Officer, the Section Officer Operations stated, so far as is relevant, that

"On the 19th day of March 2004 at 1502 Hrs, a triple S guard namely Sefanaia Siki contacted office from Enamanu Transmitter and reported that one AFL employee namely Nikotuimasi Cama load a carton of copper wires and some Copper plate in a private vehicle (white twin cab reg. No DQ 591).

Security Officer requested to check a cartoon who Cama refused and stated that it is my personal property."

A similar statement as to what happened was set out in an inter-office memorandum dated 21 April 2004 to MTS from a Mr Luke Koroi a Systems Engineer (Tels). So far as is relevant, it stated:

"Further to the discussion on the above issue (Nikotuimasi Cama incident) attached please find a report from Cama regarding the incident on 19 March 2004. I have also interviewed him and a summary of our discussions is provided below.

On Monday 15th March, Cama found this piece of copper wire (about 1m) and 2x copper plates (less than the size of a ruler) near Serial #7. These copper materials together with his boots and overalls were placed in a box and taken out of Transmitter Station on Friday afternoon. According to Cama, the SSS Security Officer on duty was aware of what Cama was taking out that afternoon but did not stop him.

On Friday night, around 10.00pm, one AFL Security Officer, the SSS Officer who reported the matter and 2 policemen went to Cama’s house to collect those copper pieces and take Cama to the Terminal Building for questioning at the Security Office. Those items are still with the AFL Security."

It would appear that shortly afterwards a management decision was taken that the Grievor should be summarily dismissed. The Manager Human Resources and Administrator (MHRA) (Mr A Nath) was instructed to inform the Grievor of the decision which he did by letter dated 23 April 2004. Omitting formal and irrelevant parts the letter stated:

"On 19 March 2004 despite objections from the Safety Security Service Officer (SSS) on guard, you forcefully escorted a private vehicle, which was not formally authorized to enter the Enamanu Transmitting Station restricted area and further you refused to have the vehicle searched on your exiting the area. This is a gross security breach and cannot be condoned by the management particularly from an employee who is vested with such responsibilities purely on trust and confidence.

On the same day you were seen by the SSS Guard removing copper wires from the transmitting Station without permission or approval and you were subsequently arrested and charged by the Fiji Police on the charge of "Larceny by Servant".

The Security Division of the Company has also reported that on a number of occasions in the past you have been persistently breaching security operating procedures when entering specified security restricted zones during your working hours.

You have through your actions betrayed the trust placed in you by the company and the management view your actions as a gross misconduct involving wilful disobedience to lawful instructions and theft of company property.

I am therefore directed to advise you that under clause 12.3 (a) and under Annex 5 clause 2 of the contract of employment, your employment with Airports Fiji Limited is terminated with effect from 23 April 2004.

- - - "

There are three matters arising from the letter which require further consideration. First, the reference to other persistent breaches of security operating procedures. There was no evidence before the Tribunal concerning these matters. The Tribunal is not satisfied that these matters were ever discussed with the Grievor at any time prior to or after the incident on 19 March 2004. The Tribunal proposes to disregard these matters which the Employer had apparently relied upon in support of its decision to summarily dismiss the Grievor.

Secondly, the reference to the Grievor having been charged for the offence of "larceny as servant". As noted earlier, the Grievor was "acquitted" by the Magistrates Court. The Tribunal does not consider that the acquittal automatically determines this Dispute. The standard to which the prosecution must establish guilt in criminal proceedings is somewhat more demanding than that applied by the Tribunal. In criminal proceedings guilt must be established beyond reasonable doubt. In proceedings before the Tribunal the standard of proof to which a party must establish its case is something approaching the lesser standard known as the "balance of probabilities".

Furthermore the Tribunal is not aware whether the acquittal was the result of a finding on the merits of the prosecution case or was the result of a procedural defect on the part of the prosecution.

Finally, the reference to clause 12.3 (a) of the Grievor’s contract of service. This clause allows the Employer to summarily dismiss the Grievor if the Grievor is guilty of gross misconduct. This clause, however, must be read and applied in a manner which is consistent with section 28 of the Employment Act Cap 92.

The effect of that section is that an employer may only exercise its common law right to summarily dismiss an employee for serious misconduct that falls within the circumstances set out in the section. The misconduct must still be sufficiently serious that it would have entitled the Employer at common law to treat the contract of employment as having been brought to an end.

Although the Security Officer Siki was not called as a witness (he had since returned to his Island) the Tribunal accepts on the balance of probabilities the evidence from the Employer’s witnesses as to what happened at the Transmitter Station on the afternoon of Friday 19 March 2004. In the normal course of events it is most unlikely that a security officer would give approval for the Grievor to remove property belonging to the Employer and then immediately report the incident to the security office at Nadi.

As a result the Tribunal has concluded that the Grievor did remove some copper wire and copper plates from the Transmitter Station without permission. The Tribunal also accepts that the Grievor refused to allow the security officer on duty to check the box containing those items and other personal property. The Tribunal also accepts that the Grievor loaded the box into a private vehicle which he had bought into the compound without authorization. The Grievor also refused to allow the vehicle to be checked.

At this stage it must be noted that the only evidence given during the hearing indicated that the total value of all the copper items was insignificant (about $11.00).

The Tribunal is satisfied that the Grievor has failed to comply with instructions when he brought the unauthorized vehicle into the restricted area at the Transmitter Station.

The Tribunal is also satisfied that the Grievor removed property belonging to his Employer without permission. The value of that property was not significant and it was recovered.

The Tribunal is not satisfied that the misconduct was sufficiently serious to justify the imposition of the most severe of penalties available to the Employer. There were lesser penalties available which a reasonable employer might have considered to be more appropriate in the circumstances of this Dispute.

However the Tribunal is satisfied that the circumstances were such that the Employer acting in good faith would have been entitled to terminate the contract of service by giving one month’s notice under clause 12.2 of the agreement or one month’s pay in lieu of notice.

The tribunal is not satisfied that the procedure adopted by the Employer following the incident was consistent with the standards of procedural fairness. He was not formally interviewed by management prior to the decision to summarily dismiss him. He was not advised that the Employer was considering severe disciplinary sanctions. He was not given the opportunity to mitigate. He was not informed that he should seek his Union’s assistance in the matter. These were all matters which the Employer knew or ought to have known were part of accepted procedures to be followed before imposing severe disciplinary penalties on an employee.

Although the Tribunal does not consider re-instatement to be appropriate in this case, the Grievor is entitled to compensation for the Employer’s failure to afford him procedural fairness. He should be paid two months wages.

AWARD

The Grievor’s summary dismissal was not justified in the circumstances of this Dispute.

The Employer acting in good faith was entitled to terminate the Grievor’s employment by giving one month’s notice or the payment of one month’s wages in lieu of notice.

The Grievor is entitled to a further two month’s wages in respect of the Employer’s failure to afford procedural fairness to the Grievor.

As a result the Grievor is entitled to be paid a total of three months wages as re-instatement is not appropriate.

DATED at Suva this 21 day of March 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL