Fiji Public Service Association v Land Transport Authority [2007] FJAT 26; Award 27 of 2007 (11 May 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 27 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

LAND TRANSPORT AUTHORITY

FPSA: Mr N Tofinga
LTA: Mr J Savou

DECISION

This is a dispute between the Fiji Public Service Association (the Union) and the Land Transport Authority (the Employer) concerning the termination of employment of Risiate Tadulala (the Grievor).

The Union reported a trade dispute on 23 November 2005. The report was accepted on 9 January 2006 by the Chief Executive Officer who, after further unsuccessful negotiations between the parties, on 27 February 2006 referred the Dispute to a Disputes Committee. As the Committee did not convene within the prescribed time, 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 14 May 2006 with the following terms of reference :

" - - - for settlement over the wrongful decision of the Chief Executive Officer of the Land Transport Authority to terminate the service of Risiate Tadulala Vehicle Examiner on 1 March 2005. The Association contends that the dismissal was with cause, is not consistent with fair labour practices, is not consistent with the principles of natural justice, is procedurally wrong, is harsh and that the member should be re-instated without any loss of pay and/or benefits from 2 November 2004 (date member was suspended) with immediate effect."

The Dispute was listed for a preliminary hearing on 26 May 2006. On that day the parties were directed to file their preliminary submissions within 21 days and the Dispute was listed for mention on 23 June 2006.

The Union filed its preliminary submissions on 21 June 2006.

As there was no appearance by or on behalf of the Employer on 23 June 2006, the Dispute was relisted for mention on 28 July 2006. The Union was directed to serve a copy of its submissions on the Employer within 21 days. The Employer was granted a further 21 days to file its submissions.

The Employer was then granted a further 21 days to file its submissions and the Dispute was relisted for mention on 1 September 2006. The Dispute was then fixed for hearing on 2 October 2006. When the Dispute was called for hearing on 2 October 2006 Counsel for the Employer applied for the hearing date to be vacated. As the application was not opposed the Tribunal directed that the hearing date be vacated on terms that the Employer pay costs of $20.00 in respect of witness expenses within seven days. The Dispute was listed for mention on 27 October 2006.

The hearing of the Dispute commenced on 27 November 2006 in Suva and was completed the following day. During the course of the hearing each party called three 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 15 January 2007. The Union filed answering submissions on 22 March and the Employer filed a reply submission on 25 April 2007.

In November 1995 the Grievor joined the then Department of Road Transport as a vehicle examiner. In July 2000 the Grievor was transferred to the newly formed Road Transport Authority. He was subsequently appointed to the position of Acting Principal Supervisor Commercial Goods at Valelevu. He occupied that position on 30 September 2003. At that time his substantive position was senior vehicle examiner. In May 2000 the Union and the Employer signed a Collective Agreement which became an implied condition of the Grievor’s contract of service pursuant to section 34 (7) of the Trade Disputes Act.

On 30 September 2003 the Grievor inspected a re-assembled vehicle which was later registered as EJ043. The inspection took place at Valelevu. Following the inspection the Grievor completed certain proforma and made a written report in relation to the assembling and inspection of that vehicle.

One of the proforma completed by the Grievor was a Stage 1 Inspection check list. Although the Grievor inspected the vehicle and filled out the proforma on 30 September 2003, he dated the document 5 May 2003.

The second document completed by the Grievor was a Stage II Code of Practice Check List. Although the Grievor filled out this form on 30 September 2003, he dated this document 12 May 2003.

The Grievor also drafted and signed a Minute dated 30 September 2003 addressed to Acting MNTS. This Minute stated:

"Re: Inspection of Assemble Motor Vehicles

The owner of the above vehicle had purchased a model Ford Courier cab from Vinesh Kumar, Vatia, Tavua, and a complete chassis from All Season Autospaces in Nadi with No. LN 130 -0048236.

He had an engine with No. WL-181423 and a trailer with which it was assembled together with the chassis and the cab.

The condition of the above motor vehicle is mechanically fit for Certificate of Road Worthiness.

The above vehicle was inspected with all the engine and chassis nos. are coincides with their respective numbers in their documents.

The vehicle was examined during assembling stages and certified accordingly. Also submitted are photos and copies of:

(i) Owners application letter

(ii) Chassis

(iii) Tray

(iv) Courier Cab

which was taken during inspection.

For your recommendation and approval".

On the same day the Grievor signed a declaration to the effect that he had inspected the re-assembled motor vehicle at 226 Flagstaff and that coach work on the said vehicle was found to be work satisfactorily done. In fact the vehicle had been inspected at Valelevu.

In a memorandum dated 16 September 2004 the Employer’s Regional Manager reported to the Executive Chairman an allegation of chassis number tampering. The first paragraph of the memorandum stated :

"A complaint was lodged on 10/08/04 at Lautoka Police Station by General Manager Merchant Finance of Suva pertaining to tampering with chassis number LN 1307037823 vehicle registration number DY 666 to change the chassis number to LN 1300048236 in order to secure the new registration for DY 666 for EJ 043.

The memorandum then proceeded to describe the various enquiries made following receipt of the complaint. The memorandum then concluded with the following observations:

" - - - it could be established that DY 666 has been registered as EJ 043 on the tampered/altered chassis number LN 1300048236 when in fact the original chassis is still lying idle at Nationwide Car Sales.

Registration of EJ 043 was done in Valelevu Office after a false report from Acting Principal Supervisor Goods Vehicle – Risiate Tadulala, dated 30/09/03 who had purportedly carried out stage inspection on the same. Report from Principal Supervisor Technical – Taniela Tora to RMCE was not cleared by RMCE for registration. However, clearance/approval for registration was given by Taniela Tora.

It is highly likely that the officers may interfere with the documents or records upon revelation of the irregularity."

As a result, a decision was taken by management that the Grievor should be charged with disciplinary offences. A memorandum dated 28 October 2004 from the Manager Human Resources was forwarded to the Grievor. Omitting formal and irrelevant parts, the memorandum stated:

"In your memo of 30 September, 2003, in your capacity as Acting Principal Supervisor Goods and Vehicles, you had informed the Authority that you had inspected the assembling of a Ford Courier cab belonging to Vinesh Kumar of Vatia, Tavua. You noted that the chassis No. of the engine was LN130-0048236. You also confirmed that you had examined all the assembling stages and you passed the vehicle as mechanically fit for Certificate of Road Worthiness.

Pursuant to Clause 8.2.1 of the Collective Agreement, you are hereby charged for the following disciplinary offence.

CHARGE

COUNT 1

Acting Dishonestly and Without Integrity. Contrary to Clause 8.1.1 of the Collective Agreement.

PARTICULARS OF OFFENCE

RISIATE TADULALA, Vehicle Examiner of Valelevu in the Central Division dishonestly and without integrity, purported to have passed vehicle EJ043 without physically examining every stage of the assembling process.

COUNT 2

Failure to act with care and diligence in the course of employment: Contrary to Clause 8.1.21 of the Code of Conduct Cap VIII of the Collective Agreement.

PARTICULARS OF OFFENCE

RISIATE TADULALA, on 30 September 2003 in Suva in the Central Division, being an employee of the LTA as a Vehicle Examiner, acted without care and diligence in the course of employment in that you failed to discover that the chassis number of the vehicle belonging to Wahid Ali and later issued with registration No. EJ 043 was tempered – the original number was grinded off and was replaced by a locally punched number, that of LN 1300048236.

We attach herewith some documents which we have served against you. Please clarify the following questions:

1. Do you recognize Appendix A as document in your possession on 30/9/03 and is that your signature on the document;

2. Was the motor vehicle inspected at 226 Flagstaff. If not can you inform us where this vehicle was inspected. How did you inspect the vehicle in Flagstaff when the original chassis was found lying idle at another garage in the West.

3. Did you examine the chassis No. against the Bill of Lading (Appendix B) and can you explain how you were able to ascertain the chassis No.

4. How did you reconcile the chassis no. matching with the Bill of Lading as signified by you on page 10 (Appendix C).

Pursuant to Clause 8.2.1 of the Agreement, you are hereby required to respond in writing to the undersigned within 14 days of the receipt of the charges stating whether you admit or deny the charges now laid against you. You are also required to give any explanation that will enable proper consideration to be given to the alleged offence.

Your written explanation must be submitted to the Manager Human Resources before the 14th of November, 2004. Failure to respond by the above date will be deemed to be an admission of guilt.

Further, pursuant to clause 8.2.8 and 8.2.9, the Authority deems this charges to be serious and accordingly, you will be suspended from employment with half salary with effect from Tuesday 4 November, 2004."

Initially the Grievor replied briefly in a memorandum dated 4 November 2004 which stated:

"Your memorandum dated 28/10/04 the above subject refers –

On charge counts one and two – Denied.

I reserve the right to provide further submission once the evidence has been disclosed."

However, as requested the Grievor then provided a detailed response which was set out in a memorandum dated 5 November 2004 and addressed to the Manager Human Resources. This memorandum stated :

Your memorandum dated 28/10/04 on the above refers.

First and foremost I feel that I have been used as a scapegoat in this instance.

My recollection of the incident leading to your allegations is that I was directed to put together a report on the said motor vehicle, which had been brought to the LTA for registration purposes.

The registration process could not be commenced without a report in the file. I was given pictures of parts, which had been brought from overseas by Mr Wahid Ali and in that process had sited the chassis number which was the same in the documentation and on the locally assembled vehicle.

Mr Ali had submitted bill of lading and customs clearance for each part used in the local assembly. The availability of these documents poses the question of how they can be issued if the parts were second-hand local parts.

After completing and submitting the form the vehicle in question was inspected for registration without my knowledge and then the inspection sheet was brought to me for signing, something which was the norm at all times.

While I agree that I submitted the form without really checking the stages of construction I could not have done it anyway because the vehicle had already been assembled. I was doing what I had been told to do.

I would like to pose a few questions :

1. Why have I been suspended when all you have are allegations:

2. You have charged me, which means I have been found guilty, how?

3. Where is natural justice when all you have is one side of the story?

May I reply directly to the two counts for which I have been charged and suspended.

Count 1 – NOT GUILTY. I was not acting dishonestly because I did not receive anything from anyone to perform that duty. My integrity as a vehicle examiner is well known within the LTA and proof of this is the fact that I have served in this capacity in various LTA offices without any negative report, having started with this organization in 1995.

Count 2 – NOT GUILTY. In my professional capacity and expertise I did not see any tampering when the vehicle had been inspected by me at the LTA complex Valelevu. What is to say that the numbers were not tampered with after my inspection.

Your questions -

1. I recognize Appendix A and agree that my signature is on it.

2. I had inspected the vehicle (for the first time) in the LTA complex at Valelevu. The chassis was bought from All Season Auto Spares and Second Hand Part Dealer which is based at 11 Narewa Road in Nadi, who had in turn bought the chassis from New Zealand. (Copy of Bill of Lading and Deregistration attached.)

3. Appendix B is not a Bill of Lading but the Customs Entry. There is no chassis number on the customs entry form because what was being received were parts of the motor vehicle to be assembled locally. Please note the container number TPHU 685995-6.

4. I checked the chassis number on the assembled vehicle itself, when it was brought to the Valelevu complex against the Bill of Lading #65400 dated 5/2/02.

I reiterate that I disagree with the charges laid against me and that I am not guilty of any wrong doing."

Upon receipt of the Grievor’s written response, the Employer decided that further investigation of the matter was required. As a result the Grievor was asked to attend a meeting with management. The request was made in a memorandum dated 14 February 2005 and stated:

"Further to our memo of 2 February 2005 requiring you to make written statement on the charges laid against you, we’d be grateful if you would also make an oral representation to the Management on Monday 21 February 2005

You are free to bring anyone you would like to represent you and any person as witness. The Management will be able to hear you at 10.30am in the Board room."

The meeting did take place on 21 February 2005. The Union acknowledged in its submission that the Grievor had been given the opportunity to be represented by a lawyer, union official or some other person. The Grievor apparently declined the offer and the meeting commenced with the Grievor being unrepresented. The Grievor did not present any evidence on his behalf during the meeting. The Grievor did not make any application in relation to the procedure nor did he protest at the manner in which the proceedings were conducted. In particular the Grievor did not at any time during the meeting request that he be allowed to cross-examine any person.

In his evidence the Grievor stated that it had been suggested to him by one of the management team that he could represent himself. Questions were put to the Human Resources Manager in cross-examination to the effect that it was a Ms Nabou who had suggested to the Grievor that if he wanted lenient treatment he should not take a union representative into the meeting. The Human Resource Manager stated that she was not aware of that matter. In his evidence the Grievor did not refer to the name of the person and did not confirm the substance of the conversation which had been put in cross-examination. His evidence was to the effect that he had decided to represent himself because he had been told that he could.

A typed record of that meeting was put into evidence. The Grievor did not sign the typed record which had been signed by the management team present at the meeting. In his evidence the Grievor disputed the accuracy of the typed record.

The two charges against the Grievor which were read to him at the meeting referred to offences in relation to the Partnership Agreement. Those changes were similar to the changes referred to in the charge sheet memorandum dated 28 October 2004 which referred to offences in relation to the Collective Agreement.

By memorandum dated 1 March 2005 the Grievor was informed that he was to be summarily dismissed. Omitting formal parts, the memorandum stated.:

"Pursuant to clause 12 (2) (f) of the Partnership Agreement, the Authority is satisfied as to the truth of the charges against you. It has in reaching its decision referred to the charge, the reply made by yourself and your face to face representation before the Management.

It is satisfied that the charge against you has been proved beyond all doubt. In accordance with Clause 12.2 (f) (iv) of the Partnership Agreement, you are dismissed from being an employee of the Authority with effect from 2 March 2005."

The Grievor was summarily dismissed by the Employer because it was satisfied that the Grievor was guilty of serious misconduct. The serious misconduct was the two charges against the Grievor. The charges were initially set out in the Employer’s memorandum dated 28 October 2004.

The Grievor’s individual contract of service was dated 27 March 2004. It was clear that at the time the alleged misconduct occurred, the Grievor was not subject to the Partnership Agreement, but was subject to the Collective Agreement between the parties.

The Collective Agreement was an implied condition of the Grievor’s contract of service pursuant to section 34 of the Trade Disputes Act prior to 27 March 2004.

However by the time the matter had come to the attention of the Employer in August 2004 the Grievor had signed his individual contract which incorporated the provisions of the Partnership Agreement.

In the memorandum dated 28 October 2004 the Grievor was charged with two offences. The first was acting dishonestly and without integrity contrary to clause 8.1.1 of the Collective Agreement. The second charge was failing to act with care and diligence in the course of employment contrary to Code of Conduct of the Collective Agreement.

At the meeting held on 21 February 2005, the typed record showed that the Grievor was charged with two offences. The first was acting dishonestly and without integrity contrary to clause 12.1 of the Partnership Agreement. The second was failure to act with care and diligence in the course of employment contrary to the Code of Conduct of the Partnership Agreement.

In other words the charges were expressed in virtually identical terms. The only differences between the two sets of charges were the different clause numbers and the reference to Partnership Agreement in the second set of charges.

More importantly the particulars of the charges did not differ in any significant manner. The particulars of charge one as set out in both documents alleged that the Grievor passed (or purported to have passed) vehicle EJ 043 without physically examining every stage of the (re) assembling process.

The particulars of charge two as set in both documents alleged that the Grievor failed to discover that the chassis number of the vehicle belonging to Wahid Ali and later’ issued with registration No EJ 043 (EJ 403) had been tampered with/grinded off and replaced by a locally punched number, that of LN 1300048236.

Although the relevant clauses of the two Agreements were not made available to the Tribunal, the Tribunal is satisfied that the two sets of charges were expressed, along with the particulars, in sufficiently similar terms for it to conclude that the Grievor was not prejudiced or treated unfairly at the meeting on 21 February 2005.

As a result the reference in the termination memorandum dated 1 March 2005 to the Partnership Agreement clauses did not render the dismissal wrong or unfair.

However the question which must now be considered is whether the Grievor’s actions amounted to breaches of the clauses as alleged.

The Tribunal accepts the evidence that most smaller vehicles in Fiji are factory assembled. The majority of re-assembled vehicles in Fiji are those over three tons. As a result the vehicle examiners employed by the Employer did not have a great deal of experience at inspecting locally re-assembled vehicles under three tons.

However, the Tribunal also accepts that when an examiner was required to approve a re-assembled small vehicle, the process that was required to be followed was the same as that which applied for the inspection/approval of re-assembled larger vehicles over three tons.

The Tribunal also accepts the evidence given by Mr Sikeli Kama that the procedure that was required to be followed for the inspection and approval of re-assembled vehicles, whether above or below three tons, was the same. Mr Kama stated that a local assembler was required to submit a re-assembling plan to the Employer. If the plan was approved the re-assembling (of chassis, cab trailer and engine) could commence. The Employer’s vehicle examiner was required to be present during the re-assembling process to ensure that the assembling was performed in a workmanlike and craftsmanlike manner. The Stage 1 check list was to be completed after the plan had been submitted and approved. The Stage 2 check was undertaken before 50% of the re-assembling had been completed.

The evidence was not seriously challenged in cross-examination. The Tribunal accepts this evidence in preference to that given by the Grievor and Mr Tora whose evidence indicated that they may have colluded. Their evidence was not convincing and was regarded as being less reliable than the evidence given by Mr Kama.

The Tribunal has concluded that there was sufficient evidence before the Employer for it to conclude that the Grievor had not physically examined the re-assembling process. The Grievor was required to be present at the re-assembling process and to complete the two proforma at the appropriate stages. The Tribunal is satisfied that the misconduct amounted to acting dishonestly and without integrity. His willingness to place the incorrect dates on the two proforma supports that conclusion. If the Grievor was not the examiner present at the re-asembling stages, he should not have completed the documentation. There was no satisfactory explanation from the Grievor for writing the Flagstaff address as the place of inspection.

The Tribunal does not regard the Grievor"s explanation that he was instructed by Mr Tora to complete the documentation in the manner alleged as a justification for his misconduct. The Tribunal has concluded that had the Grievor been instructed by Mr Tora to complete the documents, it would have been appropriate for the Grievor to refuse.

Having considered the evidence the Tribunal has concluded that the Grievor knew or should have known from his inspection of the chassis on 30 September 2003 that the number had been tampered with. If he had failed to notice the tampered number on the chassis then he had failed to act with care and diligence in the course of his employment.

If he had noticed the tampered number, then he should have made a notation to that effect on at least one of the documents he completed on 30 September 2003. The Tribunal is satisfied that if the only purpose of the inspections which the Grievor purported to carry out was simply to check that the number on the chassis reconciled with the chassis number shown on the documentation, then he should not have completed any of the documentation on 30 September 2003. However the Tribunal is satisfied that the Grievor should have noticed the tampered number whatever the purpose of his inspections may have been.

The Tribunal is satisfied that the Employer was justified in concluding that the facts supported findings of guilt in relation to both changes. The Tribunal is also satisfied that the misconduct which constituted the charges was sufficiently serious to justify the penalty of summary dismissal..

So far as the procedure adopted by the Employer is concerned, the Tribunal is satisfied that the Grievor was treated fairly.

When he received the memorandum dated 28 October 2004 which set out the allegations against him he also received the relevant documents. He was in a position to provide the required written response which he did on 5 November 2004. His response mades it clear that he was in possession of the relevant supporting documentation. He was given a further opportunity to explain his conduct at the meeting on 21 February 2005. He was offered but declined union representation. The Tribunal does not accept that the Grievor was in some way tricked or misled by the Employer when he indicated that he wanted to represent himself.

Although there was no other hearing before the decision was taken to dismiss the Grievor, the Tribunal is satisfied that the meeting on 21 February 2005 provided the Grievor with sufficient opportunity to put before the Employer all relevant material which he wanted to be considered. At that stage the Grievor knew or ought to have known that the matters were serious enough to warrant the face to face interview. Any mitigating material should have been placed before the Employer at that meeting.

The differences in the manner in which the charges were written in the memorandum dated 28 October 2004 compared with those read out at the meeting on 21 February 2005 were more concerned with form than substance. The elements of the allegations which the Grievor was required to respond to in writing and which he was required to respond to orally at the meeting were essentially the same. He was not disadvantaged or prejudiced by the change from Collective Agreement to Partnership Agreement.

The Tribunal is satisfied that the recommendation to summarily dismiss the Grievor was taken by the management team. There was no evidence for the Tribunal to conclude that the Human Resources Manager had made the final decision to summarily dismiss the Grievor. It is not unusual for a Human Resources Manager to draft and sign correspondence relating to disciplinary proceedings on behalf of an Employer

AWARD

The decision taken by the Employer to summarily dismiss the Grievor was justified on the facts which were established by the Employer. The Grievor was found guilty of two charges which amounted to misconduct sufficiently serious to justify the penalty of summary dismissal.

The procedure followed by the Employer was not unfair. There was no denial of natural justice. The Grievor was treated fairly by the Employer.

There has not been any inconsistency with the right to fair labour practices.

DATED at Suva this 11 day of May 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL