PAFCO Employees Union v Pacific Fishing Company Ltd [2007] FJAT 40; Award 42 of 2007 (8 July 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 42 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

PAFCO EMPLOYEES UNION

AND

PACIFIC FISHING COMPANY LIMITED

PAFCOEU: Mr T Tokalauvere
Pacific Fishing: Mr G Singh

DECISION

This is a dispute between PAFCO Employees Union (the Union) and Pacific Fishing Company Limited (the Employer) concerning the termination of employment of ten employees.

A trade dispute was reported by the Union. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee. The Committee did not convene. 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 18 October 2006 with the following terms of reference :

"- - - for settlement over the laying off of the following employees:

i) Ana Tiko Naiseruvati

ii) Akeneta Rosa

iii) Aseri Divasu

iv) Ratu Emasi Lui

v) Kelera Tawai

vi) Virisila Vaiwai

vii) Lusiana Letela

viii) Joeli Nacama

ix) Domifila Cagidivuni

x) Luse Vagadi

which the Union claims is in breach of the following:

1) Master Agreement dated 12 July 2001

2) Memorandum of Agreement dated 24 September 2003

3) Memorandum of Agreement dated 16 April 2004

The Union contends that:

i) The 10 workers be re-instated without loss of benefits

ii) The 10 workers be compensated from the day not re-instated ever since the signing of the MOA dated 29/9/04

iii) The 10 workers are compensated from the date of termination".

The Dispute was listed for a preliminary hearing on 27 October 2006. On that day the parties were directed to file preliminary submissions within 28 days and the Dispute was listed for mention on 24 November 2006.

On 24 November 2006, the parties requested further time to file their preliminary submissions. The Tribunal granted an extension of 28 days and the Dispute was listed for mention on 19 January 2007.

The Employer filed its preliminary submissions on 13 December and the Union did so on 20 December 2006.

The Dispute was listed for a three day hearing on 29-31 May 2007.

By letter dated 28 March 2007 the Union informed the Tribunal that it expected to call more witnesses than was earlier forecast. The Union indicated that the three days allocated for the hearing may not be sufficient.

As a result the Dispute was listed for mention on 27 April 2007. As there was no appearance by or on behalf of the Employer, the Dispute was then listed for special mention on 7 May 2007. On that day the Tribunal directed that the hearing dates previously allocated be vacated and the Dispute was refixed for hearing on 17-20 July 2007.

Having reviewed the terms of reference and the preliminary submissions filed by the parties, the Tribunal listed the Dispute for mention on 1 June 2007 and the hearing dates previously allocated were vacated. On that day the parties were directed to sign a statement identifying the issues which remained in dispute. The Dispute was listed for further mention on 11 June 2007.

The parties filed a Joint Statement of Agreed Facts dated 7 June 2007.

The hearing of the Dispute took place on 2 and 3 July 2007 in Suva. During the course of the hearing the Employer called three witnesses and the Union called three Grievors to give evidence. At the conclusion of the evidence the parties made oral final/closing submissions.

In the Joint Statement of Agree Facts, the parties indicated that the Grievor Domitila Cagidivuni had already been re-instated. In respect of the remaining nine Grievors the parties set out the dates upon which each had been rostered for work and the date upon which the employment of each had been terminated.

At the commencement of the hearing the Union indicated that it intended to pursue the Dispute in respect of three only of the remaining nine Grievors.

In respect of the Grievor Domitila Cagidivuni and the other six Grievors, their grievances will be treated as having been withdrawn.

The remaining three Grievors were Akaneta Rosa, Aseri Divasu and Kelera Tawai. They had each been rostered to work from 6 March to 10 March 2006. In addition the parties had initially agreed that Aseri Divasu had also been rostered for the period 23 January to 27 January 2006. However the Employer indicated during the course of the hearing that it did not intend to rely upon the Grievor’s absence during that period.

The Employer’s case may be stated briefly. Each of the three Grievors was a pool employee who was given work on an as required basis for one week at a time. Each of the three Grievors had informed their village representative that they were available for work for the week 6-10 March 2006. Each had been informed by their village representative that they were rostered for the week 6-10 March 2006. None of the three Grievors had reported for work on any of the days in the week 6-10 March. None of the Grievors had provided any sick certificate or explanation for their absence during the week 6-10 March nor at any in the following week. On about 20 March 2006 termination letters were handed to third parties to pass on to each of the Grievors.

The termination letter addressed to each of the three Grievors was in identical terms and was each dated 20 March 2006. The letters stated :

"You were rostered to work during the week commencing from 6 March 2006. During the week, you were required to be at work from Monday to Friday at 6.30am to 4.00pm but you neither reported in for work nor did you make any contact or effort to contact the Company Office in Levuka to advise of your absence. The Company, in an anticipation of your return to work waited for another week and for information of your whereabouts but you made no attempt to contact the office.

- - -

The Company construes your continued absence from work as you deemed to have resigned from the employment of the Company from 6 March 2006. Effective from the same date and in absence of contact made by you, your employment with the Company has been terminated. This is in accordance with Section 17 vii c of the collective agreement, any employee who is absent from work without prior permission of the company for more than five (5) consecutive working days will be deemed to have dismissed himself/herself unless the employee offers within a reasonable time an explanation which is acceptable to the Company."

The letters indicated that the three Grievors would be paid any money owing to them upon return of Company property. As there does not appear to have been any notice given or payment in lieu of notice, the Tribunal had treated the termination of employment in each case as one of summary dismissal.

Clause 17 (vii) (c) of the Collective Agreement states :

"An employee who is absent from work without the prior permission of the Company for more than five (5) consecutive working days, excluding sick leave duly certified by a medical practitioner will be deemed to have dismissed himself unless the employee offers within a reasonable time an explanation which is acceptable to the Company".

At this stage it is appropriate to make an observation concerning the operation of this clause.

The threshold requirement which needs to be satisfied to activate clause 17 vii c is that the employee must be absent from work for more than five (5) consecutive working days. Although neither party has dealt with the point, the alleged dates of absence for the purposes of the Dispute in the case of each Grievor are the five working days between 6 and 10 March 2006. Five days absence is not "more than five (5) days". It would appear that the pre-condition for activating the clause has not been satisfied. As the Employer had not sought to rely on any other provision in the Collective Agreement as the basis for disciplinary action, this fact alone may well have been sufficient to settle the Dispute in favour of the three Grievors. In the event that the Tribunal is not correct on this point, it is proposed to consider the evidence in respect of each of the Grievors.

In respect of the Grievor Akaneta Rosa, the Tribunal is satisfied that as at 6 March 2006 she was classified as a pool worker. The time sheet summary revealed that this Grievor had not been scheduled (or rostered) for work in the preceding four weeks. The Tribunal is not satisfied that Ms Rosa’s employment had been terminated by the Employer at any time prior to 6 March 3006. The Tribunal is not able to determine with any certainty why Ms Rosa had not been scheduled or rostered to work for any one week period after March 2005. The Tribunal accepts that the Grievor was in Suva at the beginning of March 2006. As a result the Tribunal is satisfied that she had not informed her village representative at Kalaba that she was available for work in the week commencing 6 March 2006. The Tribunal is also satisfied that this Grievor was not aware that she had been rostered for work as a pool worker for the 6-10 March 2006. The Tribunal is also satisfied that Ms Rosa did not at any time receive a termination letter dated 20 March 2006. The Tribunal makes no finding on whether the letter had been handed to this Grievor’s father.

In respect of the Grievor Aseri Divasu, the Tribunal is satisfied that this Grievor was also classified as a pool worker as at 6 March 2006. The time sheet summary revealed that in the preceding four weeks this Grievor had not been scheduled (rostered) for work. The Tribunal does accept that Ms Divasu did speak to the Senior Personnel Officer at the Employer’s premises in Levuka and that she was told to wait and she would be contacted. However the Tribunal also accepts that she did not see the roster for the week commencing 6 March 2003. The Tribunal accepts that none of the three village representatives at Nukutocia informed the Grievor that she was required for work for the week beginning 6 March 2006. This may have been because she went to Suva shortly after her conversation with the Senior Personnel Officer. In any event the Tribunal is satisfied that she had not been asked specifically about her availability for work for the week commencing 6 March and nor did she know that she had been scheduled/rostered for that week.

The Tribunal accepts that the Grievor did not at any stage receive a letter of termination, even if it had been passed to her estranged husband.

In respect of the Grievor Kelera Tawai, the Tribunal is satisfied that when she last worked in August 2005, she was classified as a pool worker. The Tribunal is not satisfied that this Grievor’s employment had been terminated in August 2005. There was a time sheet summary which revealed that she had not been scheduled (rostered) to work in the preceding four weeks. Had her employment been terminated in August 2005, then there would not have been any reason for her name to appear on the time sheet summary. The Tribunal accepts that this Grievor travelled to Suva in September 2005 and remained there till December 2006. As a result the Tribunal is satisfied that Ms Tawai did not inform her village representative (Ms Maca Sivoi) at Baba that she was available for work in the week commencing 6 March 2006. The Tribunal is also satisfied that she did not see a roster for that week and nor was she informed that she was required to work that week. The Tribunal also accepts that this Grievor did not receive a letter of termination.

In reaching these conclusions the Tribunal has accepted the direct evidence of the Grievors in preference to the mostly hearsay evidence adduced by the Employer.

On the evidence the Tribunal is satisfied that the termination of employment of each of the three Grievors was in breach of the Collective Agreement Clause 17 (vii) (c) as the Grievors were not aware that they were required to work in the week 6-10 March 2006. Under those circumstances the Tribunal has concluded that the Grievors were not under any obligation to offer an acceptable explanation to the Employer within a reasonable time. The Grievors cannot be regarded, under those circumstances, as having dismissed themselves. As a result there was no justification for the Employer to terminate the employment of the Grievors. The termination was unreasonable.

Although the Collective Agreement does not provide for any procedure when an employee is being disciplined under clause 17 (vii), the Tribunal has concluded that there is an obligation on the Employer to act fairly. As the Fiji Supreme Court in Central Manufacturing Company Limited –v- Yashni Kant (Appeal No 10 of 2002 delivered 24 October 2003) observed 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.

- - - It does extend to treating the employee fairly, and with appropriate respect and dignity in carrying out the dismissal"

The Tribunal is satisfied that the Employer has not acted fairly in the manner in which it terminated the employment of each of the three Grievors. The absences were not even investigated by the Employer. No effort was made to communicate with any of the Grievors prior to the decision being taken to dismiss them. As a result the Tribunal finds that the Employer has breached this implied term.

The Tribunal notes that clause (c) on page 1 of the Collective Agreement provided for the classification of wage earners as either permanent or temporary. It is also noted that at least by the time the parties signed the Memorandum of Understanding dated 9 December 2003 the expression pool employee had replaced the expression temporary wage earner as the mode of reference to those employees who were not permanent.

The Tribunal does not accept the Union’s submission that the Tribunal should consider the grievances of the six Grievors who did not give evidence. There was no evidence in respect of those Grievors which would enable the Tribunal to conclude that they were in the same position as those three Grievors who attended, gave evidence and were cross-examined. The facts set out in the Joint Statement do not go far enough to establish all the necessary elements of their grievances.

The Tribunal is satisfied that re-instatement is appropriate. The Tribunal is not in a position to determine whether any of the three Grievors would have made themselves available for work since 20 March 2006 had their employment not been terminated. Furthermore the Tribunal is not in a position to determine whether the Employer would have been in a position after 20 March 2006 to offer work to any or all of the Grievors. The Tribunal notes that at the present time pool employees are not being offered work due to the decline in business. It would appear that if and when a replacement is required for a permanent worker, then a casual is called upon to take the place of the permanent worker (for sickness or leave). The Tribunal was not informed when that policy was first introduced.

It is appropriate for the Tribunal to direct that the three Grievors be re-instated as pool employees in accordance with clause 15 of the Collective Agreement. For the breach of the implied term each of the three Grievor is to be paid four weeks wages.

AWARD

The Grievors Akaneta Rosa, Aseri Divasu and Kelera Tawai were not aware that they were required to report for work for the week 6-10 March 2006.

As a result they cannot be deemed to have dismissed themselves as they were not required to offer an acceptable explanation within a reasonable time. The termination of employment of the three Grievors was in breach of the Agreement and was unreasonable.

The Grievors are to be re-instated as pool workers in accordance with clause 15 of the Agreement.

The Employer has breached the implied term requiring that the Grievors be dealt with fairly. Each Grievor is to be paid four (4) weeks wages in respect of the Employer’s breach of the implied term of the contract of service.

The Disputes in respect of the seven remaining Grievors are withdrawn and the proceedings discontinued.

DATED at Suva this 8 day of July 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL