National Union of Factory and Commercial Workers v Goodman Fielder International (Fiji) Ltd [2007] FJAT 23; Award 24 of 2007 (18 April 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 24 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIONAL UNION OF FACTORY & COMMERCIAL WORKERS

AND

GOODMAN FIELDER INTERNATIONAL (FIJI) LIMITED

Union: Mr J Raman
Employer: Ms M Moodie

DECISION

This is a dispute between the National Union of Factory and Commercial Workers (the Union) and Goodman Fielder International (Fiji) Limited (the Employer) concerning the termination of employment of Tevita Bukakova (the Grievor).

A trade dispute was reported on 23 June 2006 by the Union. The report was accepted on 7 July 2006 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 22 September 2006 with the following terms of reference :

"- - - over the termination of employment of Mr Tevita Bukakova with effect from 1 February 2006 on the grounds given by the management that the Grievor pushed another employee during operations at the Mill. The Union claimed that their member denies that incident and seeks his re-instatement without loss of pay and benefits, as the termination was unjustified, unreasonable and harsh".

The Dispute was listed for preliminary hearing on 27 October 2006. On that day the parties were directed to file their preliminary submissions within 21 days and the Dispute was listed for mention on 24 November 2006.

The hearing of the Dispute took place on 8 February 2007 in Suva. During the course of the hearing the Employer called five 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 Employer filed its final submissions on 22 February 2007. The Union filed answering submissions on 15 March and the Employer filed a final reply submission on 21 March 2007.

The Grievor had been employed by the Employer for about 15 years as a permanent full time employee first as a Mill assistant and then as a Mill operator.

The Grievor was rostered for night shift on Monday 30 January 2006 as an operator. The shift supervisor was Kamlesh Chand. During the course of the shift at about 1.45am on Tuesday 31 January, the Grievor and the shift supervisor were involved in an incident.

It was not disputed in evidence that the Grievor approached the shift supervisor to speak to him about some rumours which were apparently circulating in the workplace at the time concerning the Grievor having received a written warning and his work performance. These rumours coincided with a written warning which the Grievor had received on about 24 January 2006. The written warning was signed by the Mill Manager (Mr Joseva Vucago) and omitting formal and irrelevant parts stated:

"You have been verbally counselled on numerous occasions with regards to your performance in relation to poor maintenance of equipment, failing to follow instructions and inappropriate behaviour resulting in equipment breakdown and downtime.

On Thursday 19 January 2006 you were instructed to fully check pellet press # nuts, bolts, rollers and die whilst engineers were installing the motor. You were asked to do this so that once the motor had been installed, the press would be ready. You did not fully follow instructions causing the press downtime to increase by another half hour because rollers were loose and hadn’t been adjusted.

This letter constitutes a First Written Warning and will remain in effect for a six month period from the date of issue. If I can assist you in any way, please do not hesitate to contact me".

It would appear that the Mill Manager was inviting the Grievor to come and discuss with him any problem he may have had with the contents of the written warning. It may be that the Mill Manager was the appropriate person to speak to about the alleged rumours, at least initially.

The evidence before the Tribunal established that the Grievor and the supervisor had a brief conversation about the rumours of which the supervisor denied any knowledge. It was then that the Grievor was observed, and subsequently admitted in evidence, pushing the supervisor’s helmet (which he was wearing) using at least two fingers of the right hand. The push was not sufficient to cause the supervisor to fall nor did he suffer any injury. That was the end of the incident.

The supervisor then proceeded to the guard room and telephoned the Mill Manager to report the incident. The Grievor returned to work.

The Mill Manager stated in his evidence that the supervisor told him that he had been slapped by the Grievor. However that was not consistent with the evidence and as a result the Tribunal finds that the Grievor did not slap the supervisor.

The Grievor was spoken to briefly by the Mill Manager when he arrived at the workplace and was then sent home. Later in the morning the Mill Manager sent an e-mail to management. The hard copy of that e-mail was dated 31/1/06 at 05.05am and omitting formal and irrelevant parts, stated :

"At 1.45am this morning I received a call from Kamlesh that Tevita Bukakovo (Operator) pushed him out of the Mill and slapped him on the face. Tevita was blaming him for the warning letter he received for neglecting his work. First, I asked the security to lock Kamlesh in the office as Tevita threatened to punch him. Arrangement was made for Tevita to vacate the premises. I arrived at the Mill at 2.15am and arranged the transport to take Tevita out of the Mill. I told him that I will talk to him tomorrow morning. Tevita has a record of aggressiveness and has punched a couple of workers in the mill during his years of service."

Although a photocopy of an undated hand-written statement allegedly signed by the supervisor was put into evidence, the supervisor was not called to give evidence as he had subsequently been dismissed by the Employer for disciplinary reasons.

Having considered the evidence given at the hearing, the Tribunal is not satisfied that the Grievor threatened to punch the supervisor during the course of the incident.’

There was no material before the Tribunal in relation to the assertion by the Mill Manager in his e-mail that the Grievor had an aggresive record or that he had previously punched workers. It must be noted that, in view of the zero tolerance policy of the Employer which was constantly referred to during the course of the hearing, had the Grievor previously punched workers at the Mill, it could reasonably be concluded that he should have been dismissed well before this incident occurred.

On the morning of 1 February 2006 the Grievor attended a meeting in the Board room of the Company’s Office at Vatuwaqa. The meeting was chaired by a senior manager, Ms C Pleass, whose responsibilities included the Human Resources Department. In addition to those involved in the incident, a Mr Deoraj Singh was present. The evidence before the Tribunal was that this gentleman attended as a neutral or objective observer.

He was certain that he was not present as a union representative or as an advocate for the Grievor. It was clear to the Tribunal, however, that Mr Deoraj Singh was the person called by management to be present during disciplinary meetings. Although he may not have formally considered himself as the worker’s representative, he did fulfill that role and had acquired experience in that role. The Tribunal is also satisfied that the Grievor was not informed during the meeting that he could have a union representative present. However in the circumstances of this Dispute the Tribunal has concluded that the Grievor was sufficiently represented by the independent employee who usually attended disciplinary meetings.

The Grievor was ostensibly given an adequate opportunity to explain his version of the events and the reasons for his behaviour. At the conclusion of the meeting the Grievor was handed a dismissal letter which omitting formal and irrelevant parts, stated:

"You have admitted today, before witnesses, that you pushed Kamlesh at 1.45am Monday morning during operations at the Mill. You have further admitted before witnesses that you knew and understood the company policy of zero tolerance for physical abuse in the workplace.

As a consequence your employment is terminated with immediate effort. Your final entitlements will be given to you today and you are required to return all company property in your possession to security office at the Mill."

At the bottom of the letter there was a typed notation which was amended by the Grievor at the time of signing his acknowledgement to the effect that he did not accept his termination.

The date of the letter was initially typed as 31 January 2006 which was the day before the meeting. This was amended by hand to 1 February 2006 by Ms Pleass prior to it being handed to the Grievor. This matter will be considered in more detail later in this decision.

The terms of reference require the Tribunal to determine whether the Grievor pushed another employee during operations at the Mill. The Tribunal is then required to determine whether the termination was unjustified and unreasonable. Clearly if the Tribunal had concluded that the Grievor did not push the supervisor, then the second question would be resolved in favour of the Grievor.

However the Tribunal is satisfied that the Grievor did push the supervisor with at least two fingers on his helmet which the supervisor was wearing at the time. The dismissal letter clearly stated that the reason for summarily dismissing the Grievor was for the act of pushing which violated the Employer’s policy of zero tolerance for physical abuse in the workplace. The evidence also established that the Grievor was aware of the policy concerning zero tolerance for physical abuse.

The application of the zero tolerance policy must be consistent with section 28 of the Employment Act Cap 92. Section 28 retains the Employer’s common law right to dismiss summarily an employee only in the circumstances listed in the section. However, even if the incident falls within one of the listed circumstances, the misconduct must still have been sufficiently serious that it would have justified an employer bringing to an end the contract of service at common law.

If the zero tolerance policy means that any misconduct falling within the policy will automatically activate disciplinary proceedings then that is not a problem. If the policy means automatic dismissal, then there would be a problem in relation to section 28 of the Act. As Scott J noted, with the approval of the Fiji Court of Appeal:

" - - - the section did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (e) applied. [See Fiji Public Service Association and Satish Kumar -v- The Arbitration Tribunal and FITB (Civil Appeal No 13 of 1999 delivered 19 February 2002 at page 10) ].

In Award No 4 of 2000 (BP (SS) Co Ltd & W R Carpenter Groups Salaried Staff Association –v- Carpenters (Fiji) Ltd) the then Permanent Arbitrator (Mr J Apted) stated at page 4:

"However, in assessing whether in any particular case the action in question justifies summary dismissal, employers and arbitrators and courts must still look at the actual circumstances to assess the real seriousness of the misconduct and to see if there are any extenuating circumstances".

The Tribunal considers that this is the appropriate approach in such cases as it is consistent with section 28 of the Employment Act and the observations referred to above. However a zero tolerance policy which automatically results in summary dismissal may not be consistent with either section 28 or the observations cited with approval by the Fiji Court of Appeal.

In the same Award the Arbitrator stated the general rule that in the absence of extenuating circumstances, physically assaulting a fellow employee in circumstances which challenge the employer’s authority or endanger the safety or health of other employees are grounds for summary dismissal.

The question arises whether there were any extenuating circumstances and if so were they of sufficient weight to justify a lesser penalty.

There is no doubt that the actual assault was at the lower end of seriousness. A push to the helmet with two fingers is not a serious assault in itself. There was no injury suffered by the supervisor and he did not appear to require any medical treatment. However given the large discrepancy in size of the Grievor and the supervisor, there was the probability that the supervisor did feel a genuine fear and concern for his physical well-being

The incident did not involve two employees of equal rank. The victim, as it were, was the Grievor’s supervisor. It was not acceptable for the Grievor to confront his supervisor in the workplace and assault him by physically touching him and causing him concern for his safety. It was a challenge to the Employer’s management authority.

The Tribunal accepts that the Grievor did not intend to maime or injure the supervisor. However, it should be noted that instead of apologizing or showing remorse, the Grievor attempted to justify his behaviour.

In the Tribunal’s opinion, the belief held by the Grievor that the supervisor was spreading rumours did not amount to provocation for the purposes of determining what penalty should be imposed. There were other procedures available to the Grievor to deal with the supervisor’s alleged misbehaviour.

The question that remains is was the penalty of summary dismissal unreasonable in view of the conclusions stated above. In support of its stance the Employer relied on the decision of the High Court in JR No 35 of 2005 in the State v The Arbitration Tribunal Ex parte Fiji Electricity Authority (delivered 29 November 2006). In that decision the Court at pages 8 and 9 said :

"Under the band of reasonable responses what the Tribunal ought to have decided is whether no reasonable employer in the circumstances would have decided to dismiss the employee. The Tribunal could only have concluded that the dismissal was unfair and unjustified if no reasonable employer could have decided to dismiss the employee on the facts as found."

However in JR No 26 of 2005 in the State v Arbitration Tribunal and others Ex parte Life Insurance Corporation of India (delivered 2 Juine 2006), a different Judge in the High Court stated at page 7 that :

"I can find nothing wrong with the Tribunal’s reasoning or decision. I accept and adopt its finding that a prudent employer acting reasonably and taking into account the relevant circumstances should have concluded that a lesser penalty was appropriate".

The two authorities are in conflict with each other. The test expounded in the former decision is a far more difficult test for the Union to satisfy. The latter is less difficult for the Union. The former test is derived from English authorities.

Apart from the common law action for wrongful dismissal, England also has had for many years unfair dismissal legislation. There is no unfair dismissal legislation in Fiji. The Tribunal’s jurisdiction to determine whether a dismissal is unfair or unreasonable is derived specifically from its terms of reference and generally from section 33 of the Constitution. As a result it should not automatically follow that the test set out in the former decision should necessarily be preferred to the test set out in the latter authority.

In this Dispute there is no problem for the Tribunal as it has concluded that the decision to summarily dismiss the Grievor was not unreasonable. The misconduct was sufficiently serious to justify the Employer treating the contract of service as being at an end. It was also misconduct which was inconsistent with the fulfillment of the expres or implied conditions of the Grievor’s contract of service. In the Tribunal’s opinion it is the Grievor’s behaviour itself and not the contents of the Employer’s handbook which justified the conclusion that the decision to summarily the Grievor was not unreasonable nor unjustified.

As noted earlier in this decision, the dismissal letter was obviously typed the day before the disciplinary meeting. The letter was typed with the date as 31 January 2006. The meeting took place on 1 February 2006. It was conceded by the Employer’s witness, Ms Pleass, that the letter had been prepared and typed the day before. The explanation offered by the Employer related to administrative convenience rather than indicating a pre-determination of the outcome of the disciplinary meeting. The problem for the Employer is the perception of pre-determination that arose as a result of having prepared and typed the dismissal letter the day before the disciplinary meeting. The perception could reasonably be said to have been re-inforced in this case as a result of the Employer’s much proclaimed zero tolerance policy in respect of physical abuse.

Furthermore, the Supreme Court of Fiji stated in Central Manufacturing Company Limited –v- Yashni Kant (Civil Appeal No 10 of 2002 delivered 24 October 2003) at page 21.

" - - - there is an implied term in the modern contract of employment that requires an employer to deal fairly with an employee, even in the context of dismissal. - - - (The Duty) does extend, however, to treating the employee fairly, and with appropriate respect and dignity, in carrying out the dismissal".

The Tribunal is satisfied that there was an element of pre-determination when the dismissal letter was prepared and typed on 31 January 2006. That conclusion is in part based on the considerable emphasis that was placed by the Employer on its zero tolerance policy. To that extent the Tribunal is satisfied that the dismissal procedure was unfair and as a result a breach of natural justice. The Tribunal is also satisfied that by its conduct the Employer has breached the implied term referred to by the Supreme Court and failed to treat the Grievor fairly in carrying out the dismissal.

Re-instatement is not appropriate because the Grievor’s own admissions and the evidence of the two security personnel substantiated the basis for the decision to summarily dismiss. However the Grievor is entitled to compensation. He is to be paid three months wages as compensation for the lack of procedural fairness and the breach of the implied term of his contract of service.

Before concluding, there are two other matters. First, the Tribunal does not consider that there was any obligation on the part of the Employer to formally investigate the Grievor’s assertion concerning the rumours. The matter had not formally been brought to the attention of the Employer prior to the incident.

Secondly, the warning letter and its contents indicated that the Grievor’s work performance was not exemplary and was a matter which could and should have been taken into account in determining what penalty should have been imposed.

AWARD

The decision to summarily dismiss the Grievor was not unjustified or unreasonable.

The manner in which the decision was made indicated pre-determination and as a result was procedurally unfair. The Employer breached the implied term to treat the Grievor fairly in the context of dismissal. Re-instatement is not appropriate. The Grievor is to be paid three months wages.

DATED at Suva this 18 day of April 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL