Fiji Electricity Workers Association v Fiji Electricity Authority [2007] FJAT 34; Award 36 of 2007 (26 June 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 36 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI ELECTRICITY WORKERS ASSOCIATION

AND

FIJI ELECTRICITY AUTHORITY

FEW: Mr D Urai with Ms N Khan
FEA: Mr D Sharma

DECISION

This is a dispute between the Fiji Electricity Workers Association (the Association) and Fiji Electricity Authority (the Employer) concerning the termination of employment of Mr Chandra Deo (the Grievor).

A trade dispute was reported by the Association on 1 May 2005. The report was accepted by the Chief Executive Officer who referred the Dispute to conciliation. The parties were not able to settle the Dispute in the conciliation proceedings. It was agreed that the Dispute be referred to Voluntary Arbitration. However, as the Dispute involved an essential service the Minister authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6 (2) (b) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 27 July 2005 with the following terms of reference :

"- - - for settlement over the termination of employment of Mr Chandra Deo, a Supplies Officer based at the Head Office in Suva on 1 March 2005. The Association contends that the employer’s decision to terminate Mr Deo is unfair, unreasonable and unjustified and that the employer has breached clause 5 (1) part (c) of the collective agreement. The Association further contends that the employer should re-instate Mr Deo to his former position with no loss of salary from the date he was suspended".

The Dispute was listed for preliminary hearing on 26 August 2005. Due to unforeseen circumstances it became necessary to vacate that date and refix the preliminary hearing for 30 September 2005. On that day the parties were directed to file their preliminary submissions within 21 days and the Dispute was listed for mention on 28 October 2005.

As neither party had complied with the Tribunal’s directions and at their request, the Dispute was relisted for mention on 25 November 2005.

The Association filed its preliminary submissions on 10 November 2005.

The Employer was granted an extension of 21 days to file its submissions and the Dispute was listed for mention on 27 January 2006. A further extension was then granted to enable the Employer to file its submissions by 31 January 2006 and the Dispute was again listed for mention on 24 February 2006.

The Employer filed its submissions on 22 February 2006.

The Dispute was fixed for hearing commencing on 11 May 2006.

Due to the announcement of dates for the holding of the General Election, the Association by letter dated 13 March 2006 requested that the hearing date be vacated. As a result the Dispute was listed for mention on 24 March 2006. As the application was not opposed, the Tribunal directed that the hearing date be vacated. The Dispute was listed for hearing commencing on 26 June 2006.

By letter dated 8 June 2006 the Association applied for the hearing date to again be vacated. The application was listed for hearing on 23 June 2006. As the application was not opposed, the Tribunal directed that the hearing date be vacated. The Dispute was relisted for hearing on 26 September 2006.

The hearing of the Dispute commenced on 26 September in Suva. The hearing continued on 27 September 2006 when it was adjourned part heard to 18 October 2006.

By letter dated 12 October 2006 the legal practitioners for the Employer applied to have that date vacated due to court commitments elsewhere. The hearing resumed on 6 December and continued on 7 December 2006 when the Employer requested an adjournment to 15 December 2006. On that day a further application was made for an adjournment to 19 December 2006 for the purpose of obtaining further instructions from various employees whom the Employer was considering either calling as witnesses or recalling to clarify earlier evidence. The application was not opposed. The hearing continued on 19 December 2006 and was adjourned part heard to 29 January 2007 when the hearing was completed.

During the course of the hearing the Employer called three witnesses and the Association 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 19 February 2007. The Association filed answering submissions on 10 April and the Employer filed a reply submission on 15 June 2007.

The Grievor commenced employment with the Employer in January 1979 as an unskilled labourer. Over the years he had progressed through a number of positions to be appointed Acting Supplies Manager in April 2003. In March 2004 he reverted back to Supplies Officer and it was this position which he held at the time of his dismissal in March 2005. Initially and for most of this time, the Grievor was based at Navutu/Lautoka. In April 2003 he was transferred to the Employer’s Head Office in Suva.

By Administrative Circular No 217 dated 21 March 2001, the Employer’s then Chief Executive set out a policy concerning the use of "FEA E-Mail Network". The second and third paragraphs are of some relevance to the present Dispute:

"It has come to notice that the FEA email network is being misused for exchanges of trivia and private mail, political and religious messages and a host of subjects, none of which qualify as FEA business. Not only is this congesting the network, the recipients and the senders of these spend office hours sending or receiving such mail, some of which are large files.

All users of the Authority’s email network are warned that all their emails are to be confined to FEA official business and that misuse of the network for private, political religious or trade union matters is not permitted. Those who persist in abusing the system will be considered for disconnection from the network".

Administrative Circular No 223 dated 10 October 2001 more specifically dealt with the subject of "Pornographic Material". The then Chief Executive stated that :

"Further to the Administrative Circular No 217 on the misuse of the FEA email network for the exchange of private and "non-FEA messages," the Board has issued a directive that the misuse of the FEA email or the internet services for the purposes of downloading or exchanging or disseminating pornographic material will not be tolerated. Those found placing or exchanging pornographic material through the FEA system or downloading from external sources will be reported to the police for prosecution. Further, their services will be terminated."

Under cross-examination the Grievor acknowledged that he was aware of the first of the Administrative Circulars which he said had been placed on a Notice Board. He maintained that he had never seen the second Circular prior to 17 January 2005. However having considered the evidence given by three witnesses called on behalf of the Employer, the Tribunal is satisfied on the balance of probabilities that the Grievor knew or ought to have known about the existence and content of Administrative Circular No 223.

The immediate background to the present dispute is set out in the hard copy of an email message dated 4 January 2005 from Patrick Drauyawa to Tuvitu Delairewa. Mr Drauyawa was at the time an ICT Administrator and Mr Delairewa was the Employer’s supply chain manager. The email hard copy stated:

"Subject : Pornographic Material on Mr Chandar Deo’s Folders

On Saturday December 11th 2004 I did a manually search on all folders stored on the Corporate Server for graphic and sound files that may be the cause of the long backup times.

I found under the user "cdeo" (F:/Users/CDeo/c drive) there were graphic files under a sub-folder called X FILES. Upon further investigation these files were found to be pornographic pictures. I then called one of my IT Officers Mr Fred Pickering to be a witness and has since then locked this folder from deletion and for proof.

I then informed Mr Eferemo Tovata on the 15 December 2004 and with your goodself looked at some of the contents. Below is a screen shot of the folder to show that these files were created on June 21, 2004.

I will be able to assist you should you require additional ICT services concerning this matter."

On 17 January 2005 the Grievor was requested to attend two meetings with the Employer’s Human Resources (HR) Management.

The first of these meetings was with Mr O’Connor and also present was Ms Sala Nadakuitavuki, another member of the Employer’s HR team. At the conclusion of the meeting the Grievor signed a one page handwritten document which purported to be a summary of what had been said at the meeting. Although the notes were in Mr O’Connor’s hand writing, the document was admitted into evidence as it had been signed by the Grievor.

The document stated:

"Mr Chandar was questioned whether he need representation to which he stated no.

I wish to state that I have employed by the Authority from 29th January 1979. I am currently employed as Supplies Officer and based at the Headquarters,

I would like to state that some email containing pornographic material was sent to me and it remained on my email in the Corporate Server. I was on leave and did not delete it by oversight.

I am extremely sorry for this. I do not condone such practices but did not delete it as an oversight.

I am also aware of the policy but would like to re-iterate that I do not condone such practices and did not delete it as an oversight."

In cross examination the Grievor acknowledged that the signature was his and that he had not been forced to sign. He also said that he had glanced through what was written before he signed. He accepted that although the words written were not his words, he had been prepared to sign the document.

In her evidence, Ms Sala Nadakuitavuki, who had been called by the Employer, provided further information concerning that meeting.

She stated that she was present at the meeting and had observed the Grievor sign the document. She also stated that the content of the document represented a summary of the answers provided by the Grievor to questions which were asked by Mr O’Connor. The witness confirmed that the Grievor answered the question freely and was not placed under any pressure.

More importantly, this witness also stated in her evidence that the Grievor denied that the pornography was under his name. He also denied knowing how to access and store the material. The witness stated in her evidence that the Grievor told Mr O’Connor that the pornography had been loaded into his computer by an engineer and that the Grievor denied ownership.

Later the same afternoon a second meeting took place. On this occasion Messrs Delairewa, O’Connor and Vunituraga were present. The witness Tuvitu Delairewa was asked to comment on a three page document being handwritten notes made by Mr O’Connor of what had been said at that meeting. These notes were not signed by the Grievor. Neither the Grievor nor the Union had been made aware of the existence of these notes prior to the commencement of the hearing. Mr O’Connor was not called to tender the document. The document was admitted as an exhibit for identification as the witness Mr Delairewa was present at the meeting. Having considered the evidence of Mr Delairewa and the Grievor, the Tribunal is satisfied that the document contains a sufficiently accurate summary of what was said at the meeting for it to be admitted into evidence. Mr O’Connor’s notes stated, amongst other things, that :

" - - -

He answered that when he changed his computer, all the documents were transferred to the Corporate Server. When he got his new computer, these documents were not there. He therefore assumed the documents were deleted.

He also confirmed that the files were very old files and were stored when he was in Navutu.

The Circular was read to him and he confirmed that the matter was serious. He also confirmed that he was aware of the policy but not all the contents.

Senitiki explained that documents had to be opened and saved into the XXX files for it to appear on the program.

Mr Chandar stated that he remembered that he recalled a graduate engineer saving this documents He cannot recall when he saved it.

Mr Pio stated that as far as he was concerned it was in his machine and not the graduate engineer. Mr Chandar confirmed that it was folder.

The system records revealed that Mr Chandar Deo had accessed it on 21st June 2004.

Mr Chandar Deo denied it.

Mr Pio - - - - questioned why he allowed the Graduate Engineer, Mr Shalesh to touch the computer.

Mr Deo clarified tht he was new to computers and he did not know how to use the computer and Shalesh was helping him. He did this transfer and the document was stored in his computer. He confirmed being aware that it was in his computer but when he changed his computer he thought it was all gone.

He stated that he did not know to transfer this documents to the Z-drive.

Pio concluded that the matter was a serious offence and a breach of Circular No 223 dated 10th of October 2001.

He stated that Mr Deo will be suspended for 28 days. A copy of the letter will be sent to the Union. Mr Deo and the Union will be obliged to make representation to mitigate on Mr Chandar Deo’s behalf. Then it will be decided what actions will proceed the 28 days suspension.

Mr Deo, however, claimed that he was not responsible for transferring documents to the C-drive.

Mr Pio explained that what Mr Deo said did not agree to the system details for this case.

Losalini - - - then explained the process of saving this documents in this process to the Corporate Server.

She confirmed that only the file owner has access to the folders and open it."

Mr Delairewa in his evidence before the Tribunal confirmed that the Grievor had stated during the meeting on 17 January 2005 that a person by the name of Sachin (not Shalesh) had created the folder and put the files on the folder. This witness also confirmed that the Grievor had said that he thought the material had been deleted when he changed his PC.

Although Mr Delairewa admitted that the Grievor had claimed that he was not computer literate, he (Mr Delairewa) did not accept that. The Grievor, he said, had used difficult programs and had never requested additional training. Mr Delairewa admitted that there was a graduate engineer by the name of Sachin employed at Navutu. It was later established that he had ceased employment in 2000.

There was a further meeting on 19 January 2005 attended by the Grievor, Mr Delairewa, Mr Drauyawa and Mr Vunituraga. Mr Vunituraga made some very brief notes which he signed and dated.

On the same day following that meeting, the Grievor was handed an internal memorandum dated 19 January 2005 informing him that he was to be suspended. The memorandum stated:

"On Saturday 11th of December 2004, the IT Manager while cleaning the Corporate Server, to clear out graphic and sound files that were clogging the system the following was discovered in your "X file" in your C drive. In addition, the following were discovered:

- Your folder titled "X file" in the Corporate Server contained 69 files.

- Out of these 69 files, there were 38 graphic and sound files.

- All this 38 graphic & sound files contained pornographic material.

- That you intentionally stored these pornographic files in the FEA server or FEA IT system.

We have now completed our investigations where you were called to explain yourself concerning the above and have come to the following conclusions:

- In the first interview, you admitted receiving pornographic materials through e-mail and did not delete it due to an oversight;

- In the second interview, you confessed that you were aware that such folders existed in your folders in Navutu but denied transferring them to the Corporate Server.

- In the third interview today, you admitted knowing about Circular 223 of 10 October 2001 and you confirmed these files were stored in your computer folder,

- Your IT Computer records show that you accessed these pornographic files on 21 June 2004 and this confirmed your knowledge that such files existed.

This is a serious misconduct and is a breach of FEA Administrative Circular No. 223 dated 10th October 2001. Furthermore; the Authority will not tolerate such a unethical behaviour from any of its employees.

In this regard, you will be suspended without pay for 28 days without pay effective from Thursday 20 January, 2005. This is inline with clause 17.1 (e) of the FEA/FEWA Collective Agreement and you are encouraged to seek the assistance of your Union should you so wish them to represent your case or to mitigate to Management.

A copy of the letter will be sent to the Association for their information.

At the expiry of the 28 days suspension period without pay, FEA will then decide the most appropriate disciplinary action taking into consideration the facts of the case, the union representations (if any) and your Manager’s mitigation if applicable.

By letter dated 25 January 2005, the Grievor responded in the following terms :

I write in respect of the internal memorandum dated 19th January 2005 addressed to me and write in response to your discoveries and state and confirm that:

I donot have any knowledge, expertise, ability and access to the Corporate Server and deny creating "X file" and storing 69 files in the Corporate Server.

I deny having any knowledge, proficiency and/or access to the Corporate Server.

That I had been provided with a PC to work with since 1998. I was not a computer literate person and have no proper training in this field. I have been seeking help from the graduate computer engineers and other computer literate workers in the organization to enable me carry my daily routine works. The IT staff based at the Namoli House help me create Word and Excel documents.

That during my interview with you I enlightened that in 1998 a graduate engineer named Mr Sachin created this file with a coded pass-word.

I once again deny that I had an excess to this "X-file".

If I had any access and/or knowledge of this file’s existence in the Corporate Server why would I keep the 31 empty files?

I admitted during my interview with Mr John O’Connor that I do receive pornographic materials through e-mail from staff and also from outside but confess that upon receipt of the pornographic materials, I immediately delete them.

Lately the e-mail system has been giving problems (going on and off) and it is unfortunate that I have not checked the mails in the e-mail system and deleted the unwanted matters.

I confess and once again state that in 1998 a graduate engineering created this file in my computer at Navutu and I had no knowledge and expertise to access the Corporate Server and totally deny transferring the files.

I further inform that my computer system was changed 4 times since 1998. It was changed once in Navutu and thrice since April 2003 once relocated at the Suva Head Office.

During the course of time and due to my commitment towards work, I had forgotten that the "X-file" was still in existence. My daily job is to log into the system, open the Word Documents, Minimise from the tool bar, open Excel Documents. I also do the same with the e-mail.

I do not have a broad knowledge of the computers, that is I am not well versed with the computers and systems. I can just manage to operate the computers for my daily use at the work that is to say:

I write letters, write tenders, advertisements, create simple spreadsheets in the excel, e-mail for work purposes, tenders, quotations and orders.

During the interview I had confirmed that I have no knowledge about the existence of the folder CDeo in the Corporate Server. My all work files and documents are stored under the user name. Chandar and all my work documents are stored under the folder named CHANDRA D in the Corporate Server.

I have not created the folder Cdeo and have no knowledge how or who created it into the Corporate Server.

According to the IT Manager Patrick’s confirmation such files can be created by the following – the PC owner or any of the IT Administrator.

I once again maintain my innocence, I do not have any knowledge of the folder Cdeo’s existence in the Corporate Server. I do not have the expertise to create files in the Corporate Server. How can I have the access to them".

Following receipt of this letter, the Employer and the Association exchanged correspondence on a number of issues which did not add anything of substantive value to the Dispute. The Tribunal has noted the contents of the Union’s letter dated 23 February 2005.

During this time one of the Association’s officers viewed a sample of the material to assess whether it constituted pornography. It has not been disputed before the Tribunal that the material was indeed pornographic.

Bt internal memorandum dated 10 March 2005, the Grievor was advised that he had been summarily dismissed with effect from 1 March 2005. The letter stated:

"Further to your suspension letter dated 19th of January 2005, please be advised that the Union in our last meeting had requested to sight the pornographic files stored in your corporate files and also had seek clarification from the ICT personals.

Mr Kaufuti had sighted the files and we have also received the Union’s mitigation letter dated 23rd of February 2005.

We have considered the Union mitigation, together with your mitigation and have also provided clarification on the issues raised by the Union. The Union had raised the following issues.

Why were Mr Deo’s folder opened and not the other files?

All the User Folders in the Corporate Server were searched. The scanning search process of the Folders was programmed to look for all graphic files (*jpg and *GIF)

Why was Mr Deo’s Folder highlighted and not other folders that contained pornographic material

Mr Deo’s file was the only file that contained pornographic material as such the matter was reported to Management.

Mr Fredrick Pickering had transferred Mr Deo’s files to the Corporate Server on the 21st of June 2004

Some time in June 2004, Mr Deo had problems with his computer. When this happens, the first step ICT takes before doing any repair work is to transfer all the working files (except for the program files) from the C-Drive of the Computer to the Corporate Server. Upon completion of the computer repair or upgrade, the documents stored on the Corporate Server are copies back to the C-Drive of the Computer.

Mr Pickering confirmed that he had transferred all of Mr Deo’s files to the Corporate Server after his computer had problems.

Upon installing of Mr Deo’s new computer, the files were copied back to the C-Drive of his computer.

Mr Pickering clearly highlighted that whatever was stored in the Corporate Server came out of the C-Drive of Mr Deo’s Computer. When doing the transfer of documents, ICT did not check individual files because it was time consuming and confidential.

Mr Deo did not assess the files from June to December 2004.

The folders stored in the Corporate Server was copied back to the C-Drive of Mr Deo’s computer, therefore he could have accessed it at any time during this period but there would be no record of this. He however did not access the folders in the Corporate Server.

Summary of Facts

- When you were first interviewed, you admitted that you had received pornographic materials via e-mail but did not delete it.

- You further admitted that there pornographic materials stored in your computer in Navutu.

- You claimed that an Engineer stored the pornographic material in your computer. Even though you were aware, you chose not to delete it from your C-Drive until the files were transferred to the Corporate Server by ICT in June 2004.

- Furthermore you confirmed that you were aware of the Circular No 223 of 2001 (Pornographic Material). "Those found placing or exchanging pornographic material through the FEA system or downloading from external sources will be reported to the police for prosecution. Further their services will be terminated:.

- All the folders in the Corporate Server were transferred from the C-Drive of your old computer on the 21st of June 2004.

- You therefore had access to these folders all the time and should have deleted it.

- You however chose to keep it stored therefore should be responsible and accountable.

The above offence is a serious offence. While we have considered your and the Unions mitigations, we firmly believe that the offence is ethnically, morally wrong and will not be accepted nor entertained by the Authority.

You are therefore summarily dismissed with effect from the 1st March 2005. - - - -"

The question for the Tribunal is whether that decision to summarily dismiss the Grievor was unfair, unreasonable and unjustified. It is generally accepted that there is not a great deal of difference, if any, in the meaning or concept behind each of those three words.

Any termination dispute which comes before the Tribunal is difficult and serious. The decision will have significant consequences, particularly for the Grievor and his family. The Tribunal is required to consider and weigh the evidence carefully and responsibly.

In determining any question of fact, especially when there is conflicting evidence, the Tribunal must test the consistency of that evidence with what is likely or probable. That assessment of likelihood or probability is made in relation to the currently existing circumstances. The evidence should be in "harmony with the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions." (Faryana –v- Chorny [1980] 2 D.L.R. 354 at 356).

The Tribunal has carefully considered the evidence and now proposes to set out certain findings of fact which are essential for the settlement of this Dispute. However, at the outset, it must be admitted that the analysis of the evidence in this Dispute has been very difficult.

This was partly as a result of the technical nature of the background subject matter (the storage of material on a c drive and the corporate server and accessing folders and files on the c drive and on the corporate server).

The task was compounded by the internal inconsistencies of the evidence adduced by both the Employer and the Union, not to mention the considerable degree to which the parties were at odds on a number of key issues.

In July 1998 the Grievor was allocated a personal computer (PC) for his use at work. Although he had received some training on computers he relied upon the assistance of a graduate computer engineer by the name of Sachin and a former supplies officer for training in the use of the PC for work purposes.

Some time later Sachin downloaded and/or installed pornographic material into the c-drive of the Grievor’s PC. The pornographic material was stored in the Grievor’s c-drive as X FILES in the folder CDeo.

The Tribunal is satisfied on the balance of probabilities that Sachin did not password protect the X FILES. It is not so much a question of whether it was technically possible for Sachin to password protect the material but rather whether he would have done so. The Tribunal is satisfied that the Grievor knew that Sachin had stored the pornographic material on his c-drive. The Tribunal is also satisfied that the Grievor did not object to the storage of the material on his c-drive. The Grievor stated that from time to time he received pornographic material through the email. Although he stated that he deleted that material, the Tribunal has concluded that the Grievor was an employee who liked and willingly received pornographic material.

Under those circumstances the Tribunal considers it most unlikely and improbable that the Grievor would have allowed Sachin to store pornographic material on his c drive without the Grievor being able to access it at will.

The graduate engineer Sachin apparently ceased work with the Employer some time in 2000.

Also in 2000 the Employer’s IT Staff removed the Grievor’s screen and hard drive for upgrading. When IT returned the screen and the hard drive to the Grievor he was told that he should use the folder Chandra D to store his files on his c-drive. Although the folder CDeo was still listed on his c-drive the Grievor did not store files in that folder after that time. The Tribunal accepts that the Grievor was not given any explanation for the change in his folder name. The X FILES remained stored on the folder CDeo in the Grievor’s c-drive.

In April 2003 the Grievor was transferred to Suva and all his c-drive folders either went with him in his harddrive or were transferred to another harddrive. In any event the Grievor’s harddrive in Suva apparently contained all the folders and files which he had stored at Navutu.

In June 2004 the Grievor’s hard drive was taken away for repairs as his PC was experiencing operating systems problems. The Tribunal accepts that the IT staff saved all the Grievor’s folders which were on his c-drive onto a mainframe corporate server. All the folders were saved under the name C Deo on the corporate server. The Tribunal also accepts that all the Grievor’s folders were then copied back onto his c-drive. The Tribunal also accepts that the copying back onto the Grievor’s c-drive took place on 21 June 2004. That was the date shown on the material before the Tribunal as the folder creation date.

The Tribunal cannot determine whether the Grievor opened the X FILES on or after 21 June 2004. However the Tribunal is satisfied that the Grievor continued to have access to the X FILES through his c-drive and possibly through the corporate server using the folder CDeo.

It was the presence of the X FILES in the folder CDeo on the corporate server which came to the attention of the IT staff in December 2004. The Tribunal is satisfied that the material stored in the X FILES was pornographic.

In view of the findings which the Tribunal has outlined above, the question becomes what role did the Grievor play throughout this unfortunate episode.

The Tribunal is satisfied that one fact established by clear evidence is that the Grievor allowed pornographic material to remain stored on his c-drive from 1998 to December 2004.

Further, and as a result, the pornographic material was stored in the corporate server in the folder CDeo from June to December 2004.

The letter of termination appears to be saying that the Grievor has breached Circular 223. The letter also indicates that the Grievor should be disciplined (ie, held accountable and responsible) for not deleting but instead keeping stored pornographic material on his c-drive. It would appear that the Employer decided that the appropriate penalty in respect of the sum total of the Grievor’s misconduct was summary dismissal.

It should be noted that Circular 223 expressly prohibited downloading, exchanging or disseminating pornographic material in the sense that such conduct was considered misuse of the e-mail and internet services. The circular also stated that the placing of, exchanging or downloading pornographic material was to result in termination of employment.

The obvious aim and intention of the circular was to inform employees that pornographic material was not to find its way into the Employer’s computer system through either the email or internet services. The policy is clear enough. Pornographic material was not to be part of the work place environment.

The Tribunal is satisfied that the Grievor had allowed Sachin to place and store pornographic material on his c drive. The Tribunal is also satisfied that the Grievor knowingly allowed that material to remain stored on his c-drive after the date on which circular 223 was published – i.e. 10 October 2001.

Although the Grievor may technically not have breached any of the express prohibitions listed in the circular, the Tribunal is satisfied that by not deleting the pornographic material at the first available opportunity after 10 October 2001 or at any time up to December 2004, the Grievor had breached the implied prohibition concerning the existence of pornographic material on the Employer’s computer system. He had failed to comply with what the Tribunal considers to be the spirit of the circular and the policy it was intended to implement. The Tribunal is satisfied that the Grievor could have deleted the material from the folder in his c-drive at any time up to December 2004. Although the evidence was not clear, the Tribunal is prepared to conclude that the Grievor had not deleted the material from his c-drive between June and December 2004. The question of access to the corporate server between June and December 2004 is only of minor significance.

The Tribunal is satisfied that the Employer’s response was within the band of reasonable responses. As a result the Employer had acted reasonably in the circumstances of this Dispute.

The Tribunal is satisfied that the Grievor was given an adequate opportunity to be heard and to present his version of the circumstances which lead to the pornographic material being detected on the CDeo folder in the corporate server. There are also ample opportunity given for mitigation. As a result the Tribunal is satisfied that the Grievor had been afforded procedural fairness.

Allthough the terms of reference referred to a breach of the Collective Agreement, neither party addressed the issue in their closing submissions. During the course of the hearing the parties appeared to accept that the relevant clauses in the two agreements were substantially similar and as a result not a great deal turned on the allegation that the Employer had relied on the wrong agreement. The Tribunal does not propose to deal any further with respect to the alleged breach of the Agreement.

AWARD

The Grievor’s summary dismissal was not unfair, unreasonable and nor was it unjustified.

DATED at Suva this 26 day of June 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL