USP Staff Union v University of the South Pacific [2007] FJAT 44; Award 46 of 2007 (27 July 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 46 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

USP STAFF UNION

AND

UNIVERSITY OF THE SOUTH PACIFIC

USPSU: Ms R Naidu
U S P: Mr J Apted

DECISION

This is a dispute between the USP Staff Union (the Union) and the University of the South Pacific (the Employer) concerning the Employer’s decision not to appoint Mr Vijendra Kumar as a Human Resource Officer (HRO) (the Grievor).

A trade dispute was reported by the Union on 31 May 2006. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee.

As a consensus decision was not reached the Minister authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 5A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 25 August 2006 with the following terms of reference:

"- - - for settlement over the employer’s decision not appoint Mr Vijendra Kumar as a Human Resource Officer. Mr Prasad applied for one of the three Human Resources Officers’ positions advertised in 2004 but was not favourably considered. The union claims that the University has been unfair in its decision not to appoint Mr Kumar in one of the three positions.

The Dispute was listed for a preliminary hearing on 1 September 2006. On that day the parties were directed to file preliminary submissions within 28 days and the Dispute was listed for mention on 27 October 2006. The Employer filed its preliminary submissions on 28 September and the Union did so on 29 October 2006.

The Dispute was then relisted for mention on 24 November 2006 at the request of the Employer. The Dispute was listed for hearing on 13 March 2007. However by letter dated 6 March 2007 the Union requested that the hearing date be vacated due to court commitments of its advocate. When the Dispute was called for mention on 8 March 2007 the Employer did not oppose the application. As a result the Tribunal directed that the hearing date be vacated and the Dispute was listed for mention on 23 March 2007. The Dispute was then fixed for hearing on 10 July 2007.

The hearing of the Dispute commenced on 10 July 2007 in Suva and was completed the following day. During the course of the hearing the Union and the Employer each called one witness to give evidence. At the conclusion of the evidence the parties through their advocates presented oral closing submissions.

At the commencement of the hearing the parties raised two preliminary matters. First, it was agreed that the middle sentence of the terms of reference should be disregarded as it neither added anything nor did it take away anything from the reference and it referred to a person who is not involved in the present Dispute.

Secondly, the following documents were admitted into evidence as exhibits by consent:

a. The Documents marked 1-8 in the Unions Preliminary submissions are admitted into evidence as exhibits 1-8.

b. The Documents marked 1-8 in the Employer’s Preliminary Submissions are admitted into evidence as exhibits 9-16.

c. The Charter of the University is exhibit 17.

d. The Collective Agreement dated 10 November 2000 made by the parties is exhibit 18,

There were further documents admitted into evidence as exhibits during the course of the hearing.

The terms of reference required the Tribunal to determine whether the Employer’s decision not to appoint the Grievor to one of the three Human Resource Officer positions was unfair. In doing so the Tribunal equates the use of the word unfair with the word unreasonable. However these words do not extend to a requirement for an investigation as to whether the Employer’s decision was made in the absence of good faith. As the Fiji Court of Appeal in Charan –v- Public Service Commission (Unreported civil appeal No 2 of 1992 delivered 24 March 1994) said at page 12:

"Absence of good faith suggests more. It implies actual dishonesty by the authority whose decision is being challenged."

The Grievor commenced employment with the Employer in 1996 in the personnel department as a clerical officer. In 1998 he was promoted to the position of personnel officer. In 2000 he still occupied the substantive posting of personnel officer.

The Grievor joined the Union in 1996

By letter dated 6 December 2000 the Grievor was informed that he had been appointed to the position of Acting Assistant Manager Personnel for the fixed period 20 November 2000 to 11 October 2001. The third paragraph of that letter dealt with the Grievor’s duties and stated:"

"As Acting Assistant Manager Personnel you will be responsible through the Acting Manager Personnel to the Registrar for the satisfactory performance of your duties which will include but not exclusively confined to:

a) ensuring the efficient operation of the Personnel Services in the following areas and in accordance with the degree of delegation to be determined by the Acting Manager Personnel:

(i) recruitment of staff

(ii) administration of staff conditions and benefits

(iii) industrial relations

(iv) performance management process

(v) wage and salary administration

(vi) staff development and training for the team under your leadership

(vii) occupational health and safety

(viii) job evaluation

(ix) maintenance of personal records; and

(x) providing advice on personnel matters.

b) preparing and providing timely reports

c) providing secretarial support to Committees serviced by Personnel Services

d) such other duties as may be presented by the Acting Manager – Personnel from time to time."

By letter dated 18 October 2001, the acting appointment was extended for a further two months from 12 October 2001. By letter dated 22 January 2002, the acting appointment was extended to 31 December 2002 or until the position was filled. Finally, by letter dated 21 January 2003, the acting appointment was extended from 1 January 2003 until the position was filled.

At the time when the Grievor was first appointed to the Acting Assistant Manager’s position, there were four Assistant Manager positions on the establishment. The other three positions were occupied by a Ms Simmons who left the Employer in June 2001, Ms Deo who had ceased working for the Employer by September 2004 and a Mr Mangal who is still with the Employer. It would appear that the Grievor took up the fourth position on an acting basis when the substantive holder (Mr Lene) was appointed Acting Manager Personnel on 12 October 2000. Mr Lene was subsequently appointed substantive Manager Personnel on 13 December 2001 for three
years. The Tribunal is satisfied that the Grievor continued to fill on an acting basis the Assistant Manager Personnel position which had been initially substantively occupied by Mr Lene and which after 13 December 2001 was substantively vacant.

In 2003 a project team which had been appointed to review University services commenced a review of the services provided by the Personnel Department. As a result of the review, the Personnel Department was re-organized. The Assistant Manager Personnel positions were reviewed. Apart from the name change to Human Resource Officer, the Tribunal is satisfied that the new position description provided for tasks and responsibilities in addition to those performed by the Assistant Manager Personnel positions. Furthermore there was a functional shift in the responsibilities. Previously Assistant Managers had been assigned specific areas of personnel work and only rarely became involved in areas of work which fell outside their allotted responsibility. Under the new structure each of the four new Human Resource Officers (HRO) was to be allocated one quarter of the University and was to be responsible for all personnel functions in respect of that quarter. This meant that all staff and students who fell within that quarter (of schools) were to have all their personnel needs managed by one HRO and his/her team.

Following the restructuring and the preparation of the position description for the HRO position, the Employer advertised the position. Although the advertisement did not say so, there were in fact three positions to be filled. The fourth was to be filled by the substantive holder of one of the four Assistant Manager positions, Mr Mangal.

The advertisement appeared in the Fiji Times on Saturday 26 June 2004. At about the same time, the advertisement appeared in identical terms on the internet. The advertisement set out a summary of the responsibilities, the salary, the term of the contract and the closing date for applications which was 30 July 2004. In addition the advertisement also provided details of a contact for further enquiries. This contact was the Manager Personnel. It should also be noted that at the top of both advertisements interested applicants were advised that full details of positions vacant were available at a web site address. Finally, potential applicants were advised that the application must address the criteria as advertised.

In his evidence the Grievor indicated that he had read the advertisement. He further stated that he had obtained a copy of the full details of the vacant position from the internet. He stated that he had addressed in his application all the key result areas which were set out in the detailed position advertisement.

It is interesting to note that the detailed position advertisement (Ex. 20) stated at the beginning:

"The appointee will administer policies and procedures relating to all phases of human resources activities for assigned schools and sections through a team of human resource assistants in the following key result areas."

It has to be stated that the details of the vacant position which needed to be accessed through the internet or obtained by a request to the contact specified in the advertisement contained far more detail than the newspaper advertisement. However since the Grievor acknowledged in his evidence that he had acquired a copy of the details of the vacant position and had addressed all the criteria set out in that document, he has not in any way been disadvantaged by the brevity of the newspaper/internet advertisement.

The Grievor applied by letter dated 20 July 2004. He addressed the criteria concerning his first degree and significant relevant work experience, his experience on certain specified areas of human resources, computer literacy and postgraduate qualifications.

The Employer received 31 applications by the closing date. Of those 22 were assessed as not meeting the selection criteria. Two of the remaining nine subsequently withdraw their applications. The remaining seven applicants were interviewed by the Screening Committee on 4 November 2004. The process consisted of an interview in front of a panel of three and a written/practical test. The Screening Committee Report indicated that during the course of the panel interview, each applicant was asked questions in areas all of which the Tribunal is satisfied would be regarded as essential tools for a person occupying the role of leader of a team which was responsible for providing the complete range of human resources services to all the staff and students of one quarter of the University.

The Report stated that the Grievor was ranked sixth out of the six applicants who were considered by the Committee to have been appointable. The Committee based its ranking of the Grievor on his performance during the interview and a perceived deficiency in change management and strategic planning.

By letter dated 14 December 2004 the Grievor was informed that his application was not successful.

The Tribunal is satisfied that the selection process was conducted in a manner which was consistent with the principles set out in the Charter (Cap 266 Ed 1978) and the procedures prescribed for the appointment of Academic and Comparable Staff. The Tribunal is also satisfied that the procedures prescribed for the Screening and Appointment Committees were followed. None of these matters was seriously challenged by the Union during the hearing.

Clause 3 of the Collective Agreement deals with "Recruitment". Clause 3. 02. 01 provides that all appointments are to be based on merit. Clause 3. 02. 02 provides that :

"All other things being equal, in filling such vacant positions, preference will be given to existing staff who apply."

The Tribunal does not consider that the decision not to appoint the Grievor has breached either of those provisions. The Tribunal accepts that the three successful applicants were appointed on merit. The Tribunal also consider that in respect of the six appointable applicants, not "all other things" were equal.

Clause 3. 03. 01 states:

"A staff member should not normally act in a higher position for a continuous period of more than six months. If the acting period does exceed six months, the acting staff member will be considered for the position if it falls vacant."

There are two comments to make about this clause. First, it only requires that the staff member be considered for the position. It cannot be disputed that the Grievor had been considered. He was one of six out of 31 applicants who was considered appointable.

Secondly, the Tribunal is satisfied that the position in which the Grievor acted for more than six months was not the position which the Grievor applied for.

His acting position had not fallen vacant. That position ceased to exist and was replaced by a different position. It was not merely a change in name.

The Tribunal is satisfied that the selection criteria and the key result areas which were specified in the detailed position vacancy were consistent with the position description which had been formulated by the Project Team. The Tribunal is also satisfied that the criteria and key result areas were reasonable and proper. The Tribunal is also satisfied that those matters formed the basis of the selection process in the interview stage.

The merit clause in the Collective Agreement was worded in a way which conveyed the meaning that to be appointed the Grievor was required to demonstrate that he possessed the present and immediate ability to perform the job at the time of the interview. The Tribunal is satisfied, on the balance of probabilities, having heard the evidence and having read the Screening Committee Report that the Grievor did not demonstrate this requirement at the interview.

In addition, the Employer is entitled during the interview to assess and form a conclusion in relation to a range of intangible qualities in respect of each of the appointable applicants. As the Fiji Court of Appeal in Charan’s case (supra) observed at page 11:

"- - - Clearly the Commission must observe the proper rules and procedures in seeking and considering applications for vacancies. In so doing they must evaluate evidence of all aspects of the candidate’s abilities, qualifications and attitudes. Having done so, they are left with a discretion to decide the suitability of the candidate for the post under consideration. That discretion must include the right to decide, if based on proper grounds, that despite fulfilling all the stated qualifications, the candidate may still not be suitable.

There may be many reasons why a particular person should not be appointed despite suitable qualifications on paper - - - ".

Under the circumstances the Tribunal has concluded that the Grievor has not been treated unfairly. He had the opportunity to address the complete list of criteria and key result areas in his written application. He was one of nine out of 31 applicants selected for interview. He was interviewed in accordance with the Employers rules and procedures. The content of the interview was in accordance with the selection criteria and the key result areas stated in the detailed advertisement. The criteria and key result areas were reasonable and proper. He was fairly assessed taking into account those matters and associated qualities required for the position. He was assessed in sixth place out of the six appointable applicants.

AWARD

The Employer was not unfair when it decided not to appoint the Grievor to one of the three newly created Human Resource Officer positions.

DATED at Suva this 27 day of July 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL