BP (SS) Co Ltd and WR Carpenter Groups Salaried Staff Association v Carpenters Fiji Ltd [2007] FJAT 42; Award 44 of 2007 (26 July 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 44 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

B P (SS) CO LTD AND W R CARPENTER GROUPS SALARIED STAFF ASSOCIATION

AND

CARPENTERS FIJI LIMITED

Staff Association: Mr T Tabu
Carpenters: Ms B Narayan

DECISION

This is a dispute between BP (SS) Co. Ltd and WR Carpenter Groups Salaried Staff Association (the Union) and Carpenters Fiji Limited (the Employer) concerning the suspension and subsequent termination of employment of Mr Fereti Kotoiwasawasa (the Grievor).

A trade dispute was reported by the Union on 6 July 2005. The report was accepted on 17 August 2005 by the Chief Executive Officer who 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 5A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 9 November 2005 with the following terms of reference:

- - for settlement over the suspension of Mr Fereti Kotoiwasawasa on 12 April 2005 pending investigation for drinking alcohol in the company premises and subsequent termination of employment with effect from 18 April 2005. The Union submitted that the Company’s action was unjust, unfair, harsh and wrong and therefore the Grievor should be re-instated to his present position without loss of salary or benefits from the date of termination."

The Dispute was listed for a preliminary hearing on 25 November 2005. On that day the parties were directed to file preliminary submissions within six weeks and the Dispute was listed for mention on 27 January 2006.

The Union filed its submissions on 6 January 2006.

On 27 January the Employer was granted an extension of seven days to file its preliminary submissions and the Dispute was listed for further mention on 24 February 2006. The Employer was then granted a further 14 days and the Dispute was relisted for mention on 24 March 2006.

The Employer filed its submissions on 21 March 2006.

The Dispute was listed for special mention on 31 March 2006. The Dispute was then fixed for a three day hearing commencing on 17 July 2006.

When the Dispute was called for hearing the Employer applied to have hearing dates vacated on the grounds that its key witness was overseas. In addition the advocate for the Union was indisposed. The Tribunal accordingly directed that the hearing dates be vacated. The Dispute was listed for mention on 28 July 2006. The Tribunal also noted that the parties indicated that the total number of witnesses to be called was four instead of the original forecast of ten.

The Dispute was refixed for hearing on 10 October 2006. On that day the Employer again made an application to have the hearing date vacated. As the application was not opposed the Tribunal granted the application on terms that the Employer pay costs thrown away within seven days. The Dispute was again listed for mention on 13 October, then on 27 October and on 24 November 2006.

The hearing of the Dispute commenced on 27 March 2007 in Suva. It was completed the following day. During the course of the hearing the Employer called four witnesses and the Union called the Grievor to give evidence.

At the conclusion of the evidence the parties were granted leave to file written final submissions. The Employer filed its final submissions on 25 May 2007. The Union filed answering submissions on 13 June and the Employer filed a reply submission on 6 July 2007.

The Grievor commenced work with the Employer as a labourer on 25 March 1974. In October 1994 he took up the position of a receiving clerk.

The relevant incident occurred on Saturday 9 April 2005 at about 10.00pm at Vale Levu (Nasinu). The Grievor was at the time employed as a receiving clerk at the Employer’s Value-levu supermarket store at Vale Levu. It was not disputed that the incident occurred after work hours and the Grievor was not on duty at the time.

The background to the incident was that the Store manager had given a sum of money to the Grievor to buy some alcohol for a group of employees including the Grievor, who had produced some good results which had emerged from a recent audit.

It would appear that beer was purchased and then stored in the Employer’s bakery. After the Store closed on Saturday 9 April 2005, the Grievor and three or four of his workmates travelled to Nausori to drink grog and later in the evening returned to Vale Levu to collect and then consume the beer.

The group commenced drinking the beer as soon as they had collected it from the bakery. Although there was some dispute as to the precise location, the Tribunal is satisfied that the Grievor and his colleagues started drinking the beer at a location on the Company premises which was close to the Supermarket building in the car park. The drinking started at about 10.00pm.

Shortly afterwards the Senior Security Officer at the Store approached the group and informed them that they should not be consuming alcohol on the premises. It would appear that the Grievor and his colleagues moved further away from the buildings, the precise location of which was disputed during the hearing.

At the request of the relieving Store Manager (Mr S Kumar), the Senior Security Officer again approached the group and requested them to leave the premises. It would appear that the Grievor and his colleagues did not comply with the request. As a result the relieving Store Manager himself requested the Grievor and his group to leave the premises. Again, the request was not complied with and the relieving Store Manager instructed the Senior Security Officer to call the Police. It would appear that the Police subsequently attended and spoke to the group. The Police, for whatever reason, did not ask the Grievor and his group to disperse. It would appear that the group dispersed when they had finished drinking the beer.

By letter dated 12 April 2005, from the Assistant General Manager (Mr U Narayan) the Grievor was informed that he was being suspended as a result of the incident. Omitting formal parts, the letter stated :

"You were caught drinking alcohol in the company premises around 10.00pm on Saturday 9th April 2005. Despite numerous reminders by the Store Manager, night security and the Police Officers from Valelevu Police Post still you did not vacate the premises.

You are hereto suspended without pay effective immediately and you shall be advised in due course of the outcome of the investigations into the above allegations."

On the same day the Employer’s Chief Security Officer appointed an investigator to go to Valelevu and investigate the incident. During the course of his investigation, Mr Navunicaga interviewed the Grievor and his four colleagues who comprised the drinking group.

He also spoke to the relieving Store Manager and the Store’s Senior Security Officer.

As a result of the investigation, the Employer’s Chief Security Officer prepared a brief report dated 15 April 2005 which was addressed to the Employer’s Assistant General Manager and which recommended the summary dismissal of all five employees for willful disobedience to lawful orders given by the Employer.

A decision was subsequently taken by management that the five employees were to be summarily dismissed. The Grievor was advised of this decision by letter dated 18 April 2005 which was signed by the Assistant General Manager and endorsed by the General Manager (Mr S Kuna). Omitting formal and irrelevant parts, the letter stated:

"Further to your suspension letter dated 12/04/05, Senior Management wishes to advise that the investigation into the allegations against you is now completed.

On Saturday 09/04/05 you were found drinking intoxicants within the Company premises at 10pm at Morris Hedstrom Value-Levu. Despite being warned by the Security Officer, Shiu Kumar, and Police Officers of Valelevu to depart from there, you insisted in remaining and continued drinking liquor at the Company premises. This is also regarded a criminal case - - -

In view of the circumstances of the case, you are hereto advised that your employment is hereto terminated for wilful disobedience to lawful orders given by the employer in accordance with section 28 (b) of the Employment Act effective immediately.

- - "

It was not disputed that this letter was received by the Grievor. The Grievor subsequently wrote a letter dated 27 April 2005 addressed to the General Manager which was in effect a letter requesting a reconsideration of the decision to summarily dismiss him. The letter stated:

"I Fereti Kotoiwasawasa hereby apologise for the misconduct that occurred in MH Value Levu on Saturday 9th of April 2005 whereby I consumed liquor together with a few of my fellow staffs on Company premises.

I have been working in the Company for over 30 years and I present this letter not to justify my actions but to seek forgiveness from your good office. I have hire purchase accounts and retail accounts to settle and it is quite hard to make ends meet at this present stage of unemployment.

Sir, I again would like to state my very sincere apology and I know without doubt that you will reach into the heart of your heart to forgive and accept this humble servant back into Morris Hedstrom."

It should be noted that a letter dated 27 April 2005 expressing similar sentiments was written by one of the other employees who took part in the drinking session on that night. That employee (Meli Baleisuva) had been employed at Morris Hedstrom for 12 years.

It would appear that both requests were rejected. The other three employees did not write letters requesting a reconsideration of the management’s decision.

At this stage it is appropriate for the Tribunal to state that the circumstances which gave rise to the Grievor writing this letter are of some concern to the Tribunal. Whilst the Tribunal has concluded that the Grievor has made some frank admissions which indicate the extent of his culpability, the circumstances under which the letter was written are less certain.

It is apparent to the Tribunal that the Grievor received some assistance in writing the letter. That much was apparent to the Tribunal from the manner in which the Grievor answered questions whilst he was giving evidence.

The evidence given by the Grievor on this point was that the Assistant General Manager had advised him to write a letter of apology which would, on account of his experience, result in a decision by the General manager to re-employ him.

On the balance of probabilities the Tribunal is satisfied that a conversation to that effect did take place at Walu Bay following receipt by the Grievor of his termination letter. However the Tribunal is not able to conclude whether the assistance which the Grievor obtained to draft the letter came from the Assistant General Manager or the Union. However the effect of the letter was that it provided the Employer with additional material which supported or added justification to its decision to summarily dismiss the Grievor. Without the conversation between the Grievor and the Assistant General Manager and the letter which followed the position for the Employer may have been more onerous.

The basis of the decision taken by the Employer to summarily dismiss the Grievor was in the first instance the consumption of alcohol on company premises. A further consideration was the disobedience of lawful instructions to leave the Company’s premises.

In relation to the prohibition of consuming alcohol on company premises, the Employer relied on an extract from the employee’s Handbook and on a minute dated 15 July 2001.

On page 9 of the Handbook, the following appeared :

"Liquor, prohibited drugs and smoking are not to be consumed on our premises at any time"

The Minute dated 16 July 2001 and addressed to all Senior and Store Managers stated as the first paragraph:

"Drinking on the premises after working hours shall not be allowed unless prior approval is obtained from the General Manager".

The Tribunal is satisfied that the Grievor knew or ought to have known that the consumption of alcohol was not permitted on the Employer’s premises at any time without the prior approval of the General Manager. The Grievor did not in his letter dated 27 April 2005 or in his written statement dated 13 July 2006 (Ex 15) claim that he was unaware of this Company Rule.

It was not suggested that the General Manager had given his approval. The Tribunal accepts that the permanent Store Manager may well have given the Grievor $60 to purchase alcohol for his team as a reward for good results revealed in the audit. The Tribunal is not satisfied that the Manager had given implied permission or intended that the alcohol would be consumed on the company premises or in contravention of Company Rules. This occasion did not fall within what the Tribunal accepts were the occasional exceptions to the Rule, such as Christmas or a farewell.

The Tribunal accepts that at all material times the Grievor and four colleagues consumed their alcohol whilst they were on the Company’s premises at Valelevu. On this point the Tribunal accepts the evidence of the relieving Store Manager and the Store Senior Security Officer. In particular the evidence given by Store Senior Security Officer that the drinking occurred on the Employer’s premises was certain and convincing.

Whilst the consumption of liquor in off-duty hours is usually not a proper concern of an employer (except where it affects the employer’s reputation or the employee’s ability to perform his work), a nexus did exist and has been established between the act complained of and the employment relationship. The Grievor’s actions occurred on the Employer’s premises and were in contravention of the Employer’s Rules. Furthermore the failure to comply with the reasonable and lawful instructions to vacate the Employer’s premises by the Grievor in the company of less experienced staff had the potential to undermine the authority of the Store Manager.

Taking into account the previous disciplinary matters which were raised in letters dated 5 August 2000, 16 March 2001 and 22 June 2004, the Tribunal has concluded that the Employer’s decision to dismiss the Grievor was reasonable in the circumstances. The decision was within the range of outcomes which were open to a reasonable employer.

However there are some aspects of the procedure adopted by the Employer which are of some concern to the Tribunal. First, there is no provision in the Master Agreement for the Employer to suspend the Grievor without pay pending the completion of the investigation. If the Grievor has not been paid his wages up to the date of his dismissal, then that is a matter which must be rectified.

Secondly, although the Grievor was interviewed by the investigating security officer, he was not given any opportunity to make representations to the management team or any one of them who was involved in the decision to summarily dismiss him. Furthermore, in keeping with current accepted practice, the Grievor should have been given the opportunity to make a representation through or accompanied by a union representative.

Finally, the Tribunal has concluded that the Grievor was unfairly misled by the Assistant General Manager when he was advised to write a letter of apology for the purpose of seeking reinstatement by the Employer on account of his 30 years experience. That is the sort of letter which the Grievor should have been asked to write prior to the decision being taken by the Employer to summarily dismiss him. Furthermore the Grievor should not have been led to believe that such a letter would result in his being re-employed when it was quite apparent to the Tribunal that no such outcome was likely to eventuate.

As a result the Tribunal has concluded that the Employer has not dealt fairly with the Grievor in the context of his dismissal. As a result the Employer has breached an implied term of the Grievor’s contract of service (See Central Manufacturing Company Limited –v- Yashni Kant Unreported Civil appeal No 10 of 2002 delivered 24 October 2003).

However the Tribunal has concluded that re-instatement is not an appropriate remedy in this case. The employment history of the Grievor and the circumstance of the incident which lead to his dismissal outweigh his 30 years service. The Grievor cannot be regarded as any longer having the trust and confidence of the Employer. He is entitled to three months wages in respect of the unfair procedure and the breach of the implied term of his contract of service that he be dealt with fairly in the context of his dismissal.

AWARD

The Grievor is to be paid any outstanding wages owing to him between the date of suspension and the date of dismissal.

The decision by the Employer to summarily dismiss the Grievor was reasonable in the circumstances of this Dispute.

The procedure adopted by the Employer was unfair.

The Employer has breached the implied term of the Grievor’s contract of service in that it has not dealt with he Grievor fairly in the context of dismissal.

The Grievor is to be paid three months wages as compensation.

DATED at Suva this 26 day of July 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL