Native Land Trust Board Employees Association v Native Land Trust Board [2007] FJAT 52; Award 54 of 2007 (3 August 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 54 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIVE LAND TRUST BOARD EMPLOYEES ASSOCIATION

AND

NATIVE LAND TRUST BOARD

NLTBEA: Mr A Singh
NLTB: Mr J Apted with Mr E Toga

DECISION

This is a dispute between the Native Land Trust Board Employees Association (the Union) and the Native Land Trust Board (the Employer) concerning the termination of employment of Mrs Tatila Gadai (the Grievor)

A trade dispute was reported by the Union on 23 March 2005. The report was accepted on 27 April 2005 by the Chief Executive Officer who referred the Dispute to conciliation.

As the Dispute was not settled the Minister authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6 (1) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 23 June 2005 with the following terms of reference :

"- - - for settlement over the Board’s decision to terminate a staff – Mrs Tatila Gadai under section 402 of the Terms and Conditions of Employment from 6 October 2003."

The Dispute was listed for a preliminary hearing on 29 July 2005. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was subsequently listed for mention on 30 September and 28 October 2005. The Employer filed its preliminary submissions on 9 September and the Union did so on 24 November 2005.

The Dispute was listed for mention on 25 November 2005, 27 January, 24 February and 24 March 2006 at the request of one or both of the parties.

The parties were directed to file a statement of agreed facts by 28 April 2006 and the Dispute was listed for further mention on that day. As there was no appearance by the Union on the mention call, the Dispute was relisted for mention on 26 May and the parties were granted an extension of time to file the statement of agreed facts. Again there was no appearance by the Union and a further extension of 21 days was granted. The Dispute was relisted for mention on 23 June 2006. The Dispute was then fixed for hearing on 14 September 2006.

Due to unforeseen circumstances it became necessary for the Tribunal to vacate the hearing date and the Dispute was listed for mention on 29 September and 27 October 2006.

The hearing of the Dispute eventually commenced on 14 November and was adjourned part heard to 29 November. The hearing was completed on 30 November 2006. During the course of the hearing each party called two witnesses to give evidence. At the conclusion of the evidence the parties were granted leave to file written final submissions.

The Employer eventually filed its written submissions on 17 April 2007. The Union then filed its answering submissions on 28 June 2007 and the Employer filed a reply submission on 13 July 2007.

The Employer has raised a preliminary issue in its closing submissions. The issue relates to the Tribunal’s jurisdiction. The Employer submitted that the terms of reference are deficient in the sense that the nature of the dispute is not set out in sufficient detail to raise a question for the Tribunal to determine.

Alternatively, the Employer submitted that the only dispute which can reasonably be said to have been referred to the Tribunal for settlement under its terms of reference is the dispute that was initially reported to the Chief Executive Officer pursuant to section 3 of the Trade Disputes Act Cap 97.

It is unfortunate that this issue has been raised so late in the proceedings. However it is an issue which the Tribunal must address. An issue relating to the scope of the Tribunal’s jurisdiction is a proper issue for the Tribunal to address. The issue should be distinguished from an issue which relates to the propriety of the reference which is a matter for judicial review by the High Court.

Furthermore, the delay in raising the issue cannot be relied upon as a reason for the Tribunal to decline to consider it. The delay of the Employer in raising the issue and the failure by the Union to raise it at all cannot bestow upon the Tribunal a jurisdiction to determine issues which do not arise in the dispute which has been referred for settlement. The parameters of the Tribunal’s jurisdiction are determined by its terms of reference.

Once the dispute has been referred to the Tribunal, the Permanent Arbitrator cannot of his own volition extend, amplify or add to the issues nor substitute other issues for or in lieu of the issues defined by the Tribunal’s terms of reference. Neither can the parties individually by their conduct nor collectively by agreement extend, amply or add to the issues.

The Tribunal is mindful of the fact that, unlike the Courts, it possesses no inherent jurisdiction. Its jurisdiction and authority are determined by the Trade Disputes Act and its reference in any particular dispute.

The text of the reference appeared in the Instrument of reference which carried the heading: "Reference of a Trade Dispute to an Arbitration Tribunal". The third paragraph of that document set out the actual reference and has been reproduced earlier in this Award. The first two paragraphs of the Instrument are known as preambles.

The first preamble set out the names of the parties to the dispute. The second preamble set out the legal basis upon which the dispute was referred to the Tribunal. The third paragraph was the reference and it purported to set out the nature of the dispute which was being referred to the Permanent Arbitrator for settlement.

The Tribunal accepts that the drafting of the terms of reference for and on behalf of the Chief Executive Officer was undertaken by a person or persons who would generally not be fully familiar with the technicalities of correct legal form. As a result the Tribunal has usually not adopted a technical or strict interpretation when determining the scope and content of the reference. A Dispute should not be won or lost on the drafting skills of officers in the Ministry of Labour but rather on the merits to ensure that it is finally and fairly resolved with simplicity, alacrity and without undue delay.

The Tribunal has concluded that when the Instrument is read as a whole, a dispute can be identified. Perhaps what is not so clear is the scope of the dispute in the sense that the reference did not particularize the grounds upon which the Union relied.

The dispute itself is over the Board’s decision to terminate a staff under section 4.02 of the Terms and Conditions of Employment. The starting point for determining the scope of the dispute or for identifying the grounds being relied upon by the Union is the second preamble in the Instrument of Reference.

The Minister authorized the Chief Executive Officer to refer the Dispute to the Tribunal for settlement pursuant to section 6(1) of the Trade Disputes Act. Section 6(1) provides that such a reference to a Tribunal can only be made if both parties consent and agree in writing to accept the award of the Tribunal.

This is known as voluntary arbitration. In this Dispute that agreement and consent was evidenced by an Agreement dated 3 June 2005 and signed by the parties. The Agreement was attached to the Instrument of Reference. In that Agreement "the parties have mutually agreed to refer the trade dispute to voluntary arbitration for adjudication".

The trade dispute which the parties agreed to refer to voluntary arbitration was the trade dispute to which reference was made in the first preamble of that Agreement. That preamble referred to a trade dispute which was reported on 23 March 2005 to the Chief Executive Officer.

On 30 November 2006 the Tribunal, at the request of the parties, directed that all the documents which were attached to the parties’ preliminary submissions and which had not already been admitted into evidence were also to be admitted into evidence. As a result the report of the trade dispute by the Union to the Chief Executive Officer in its letter dated 23 March 2005 is properly before the Tribunal. The second and third paragraphs of that letter are relevant to the issue of determining the scope of the dispute:

"The matter in dispute is the Board’s decision to uphold their decision to terminate a staff – Mrs Tatila Gadai (Receptionist) under section 4.02 of the Terms and Conditions of Employment from 6 October 2003.

We the Association have consistently argued that under section 4.02 of the Terms and Conditions of Employment, the board did not follow procedures as the President of the Association nor any nominated member to represent the Association was consulted prior to her termination".

The report set out in the Union’s letter dated 23 March 2005 is the dispute which has been referred to the Tribunal via the parties agreement dated 3 June 2005 and then the terms of reference dated 23 June 2005 from the Chief Executive Officer. Prior to reporting the Dispute, the Union had lodged an appeal with the Employer. The Appeal was addressed to the Board’s Chairman by letter dated 7 December 2004. In addition to the procedural ground under section 4.02 the Union also claimed in the appeal that the termination was harsh. However for reasons best known to the Union that ground was not raised nor referred to in the report of the trade dispute.

The Tribunal has concluded that the terms of reference does require the Tribunal to settle a trade dispute. The dispute concerns the Board’s decision under section 4.02 to terminate the Grievor’s employment. The scope of the dispute is limited to the question of whether the Board followed the procedure of consulting the President or his nominee prior to terminating the Grievor’s employment. The letter dated 23 March 2005 from the Union reporting the Dispute to the Chief Executive Officer did not contain any allegation to the effect that the decision was unreasonable, unjustified, unfair or harsh. The sole basis of the dispute as reported was that the decision was wrong in the sense that the Board breached section 4.02 by not having consulted either the President or a nominated member prior to the termination of the Grievor’s employment.

Briefly, the Grievor was employed as a receptionist on the ground floor of the Employer’s Suva Office. The Grievor had occupied that position since June 2002 as a substantive appointment. She was required to commence work at 8.15 am each morning.

The Employer’s evidence was to the effect that at 8.15am on Friday 19 September 2003, the Deputy General Manager (Mr J Tuinamuana) noticed that there was no receptionist at the front desk on the ground floor. He checked again ten minutes later and still there was no receptionist present. He contacted the Grievor’s supervisor (Mr W Vodokoviti) who was not aware of the Grievor’s absence. The Supervisor arranged for a replacement.

Subsequently the Deputy General Manager discussed the matter with the Employer’s Human Resource Manager (Mr S Tabua). As a result the Grievor was sent a "please explain" letter dated 22 September 2003. A cc copy of the letter was addressed to the President of the NLTB Employees Association at the Lautoka Office.

The Grievor provided a written response dated 26 September 2003. A cc copy of her letter was addressed to the President of the NLTB Employees Association President.

The matter was again discussed with the HRM. The Deputy General Manager then obtained a summary of the Grievor’s absent days over the previous six months. This summary showed that the Grievor had taken 13 days of unpaid leave out of 21 days leave between April and September 2003.

The Deputy General Manager stated in his evidence that he had not accepted the Grievor’s explanation for her absence on 19 September as valid. He further stated that he did not believe the Grievor’s statements.

It has to be noted at this stage that at the conclusion of the hearing the Employer indicated that it was prepared to concede that the Grievor did lodge a completed application for leave for 19 September at some time on 19 September 2003.

It would appear that the Deputy General Manager formed the view at this time that it might not be in the Employer’s best interests to retain the services of the Grievor. He wrote to the General Manager recommending that the Grievor’s employment should be terminated under clause 4.02 and that the matter be considered by the Staff Board.

Clause 4.02 of the Agreement between the parties states:

"The Board may terminate the appointment of an employee at any time if in the opinion of the Board it is in its best interests to do so, provided that the Board shall not so terminate an employee’s appointment:

(i) without prior consultation with the President of the Association, or nominee; and

(ii) without giving at least one month’s notice or by the payment to the employee of one month’s salary in lieu of notice".

Clause 3.1.4 of the Employer’s Human Resources Manual provided that:

"A Staff Board has been put in place by the BOARD and the duly approved Staff Board Policy is attached as Appendix 2 to the Manual".

Clause 1.0 of the Staff Board Policy stated:

"The Staff Board is set up to ensure that there is no partiality, bias or prejudice in the process of recruitment, appointment, promotion, training, termination, discipline and any other matters that concern staff of the BOARD.

Its function is to assess and make decisions on cases brought before it. The Members in arriving at their decisions shall exercise prudent and fair judgement based on evidence and facts in accordance with the principles of natural justice and all relevant rules and procedures of the Board".

The policy provided for a six member staff board, one of whom was to be a member of the Union who was to be nominated by the President of the Association. Additional members would be co-opted either on a temporary or on a permanent basis at the discretion of the Chairman (General Manager). The policy provided that the quorum for any meeting was four, one of whom must always be the Union’s member. Decisions were to be arrived at by general consensus or by a simple majority with the Chairman having a casting vote. The policy also provided that any breach of the Conditions of Employment that would not be determined during the normal course of operations was to be considered by the Staff Board and the relevant disciplinary measure taken by it.

On that point it should be noted that the HR Manual in clause 11.2 provided that the authority for disciplinary action in respect of Grades 1 to 7 was the Staff Board with the Union’s representative present. The Grievor was within Grades 1 to 7.

The Tribunal finds on the evidence that the Union had accepted the HR Manual and the Staff Board Policy and had participated in Staff Board meetings in accordance with the Manual and the Policy.

The Tribunal also accepts that the Union’s Secretary, Mr Emosi Balenivalu, attended his first meeting as the Union President’s nominee on 14 July 2003.

The Grievor’s matter was discussed at the Staff Board meeting held on 6 October 2003. There were six members present, including the Union President’s nominee, Mr Balenivalu. The Tribunal accepts the evidence given by the Deputy General Manager as to what transpired at that meeting. The issue of the Grievor’s position was raised by the Deputy General Manager. It would appear that the President‘s nominee who was present throughout the discussion did not offer any dissenting comment and as a result a consensus decision was reached that the Grievor’s employment should be terminated in accordance with clause 4.02 as it was felt that it was no longer in the best interests of the Employer to continue to employ her.

It would appear that the Union’s representative had called the Union President immediately after the meeting to advise him of the outcome.

The Tribunal also accepts that following the meeting on the same day the HRM telephoned the Union President who was based in Lautoka to inform him as a matter of courtesy about the decision taken by the Staff Board. The Tribunal accepts that the Union President did not during the course of that conversation complain about non-compliance with section 4.02 of the Agreement (Terms & Conditions).

The next day (7 October 2007) the HRM drafted and signed a letter of termination addressed to the Grievor. Omitting formal parts that letter stated :

"We refer to your reply dated 26 September 2003 to the ‘Please Explain’ letter from the Board dated 22 September 2003.

The Staff Board considered your explanation at its meeting on 6 October 2003 and has decided to terminate your appointment as Receptionist Head Office, under section 4.02 of the Terms and Conditions of Employment with the Board forthwith.

Your terminal pay, which will include the following, will be paid to you at the close of the business today.

1. One month’s pay in lieu of notice; and

2. Annual leave owed to you of 3.5 days.

Our record shows that you have exhausted your sick leave therefore there is no such leave due to you as at today."

At the Staff Board meeting held on 13 October 2003, the Minutes record that the General Manager briefed the Staff Board in relation to his meeting with the Union’s Executive on 9 October 2003. It would appear that at that meeting the Executive raised the matter of the Grievor’s termination and was advised to follow the grievance procedure. It would also appear that the Union’s membership of the Staff Board was also discussed at the meeting on 9 October 2003. The Minutes of the 13 October Staff Board Meeting indicated that the General Manager informed the Union’s Executive on 9 October 2003 that its presence in the Staff Board gave its representative the opportunity to hear and be aware of changes in procedural matters and/or new matters. However the Tribunal does not draw the inference that the Union or its Executive were unsure of the role of its representative when it came to dealing with disciplinary matters. Mr Balenivalu was not called to give evidence.

The Tribunal does not accept that the Union’s representative was a member of the Staff Board by invitation as an observer. There is nothing in the material placed before the Tribunal which would lead to that conclusion. The HR Manual and the Staff Board Policy indicate that the attendance of the Union representative was mandatory in disciplinary matters and to form a quorum. That is not consistent with an invitation to be an observer. The Tribunal accepts that the Union’s representative had taken part in disciplinary discussions in the Staff Board since it held its first meeting earlier in 2003.

The Tribunal accepts that the Union President had received copies of the correspondence prior to the Staff Board Meeting on 6 October 2006. The Tribunal has concluded that the Union President was aware that the matter was to be discussed at the Staff Board meeting on 6 October 2003 and had briefed his nominee about the matter prior to the meeting.

It is noted that the Employer in its final reply submission has accepted that the definition of "consultation" in the Industrial Relations Code of Conduct was applicable.

Clause 65 of the Code of Practice states:

"Consultation means jointly examining and discussing problems of concern to both management and employees. It involves seeking mutually acceptable solutions through a genuine exchange of views and information".

Clause 66 goes on to state:

"Consultation between management and employees or their representatives about operational and other day to day matters is necessary in all establishments, whatever their size. Systematic arrangements should be made for management and employee representatives to meet regularly".

It is worth noting that in clause 70 the point is made that although consultation and negotiation are closely related, they are distinct processes.

The Tribunal is satisfied that prior to the Staff Board meeting on 6 October 2003 the Union President had in his possession the information necessary for him to brief his representative to ensure that the matter was examined and discussed at the meeting. The available information was sufficient to enable the Union’s representative to participate effectively in the discussions.

The Staff Board concept represented a systematic arrangement which enabled management and the Union President or his nominee/representative to meet regularly on a weekly basis. The Tribunal is satisfied that the Union was fully aware of the objective and functions of the Staff Board and had actively participated in its proceedings since its inception.

The Tribunal has concluded that there was no reason why the requirement to consult the President of the Union or his nominee under clause 4.02 could not be met by the systematic arrangement agreed to by the parties in the form of the Staff Board. The Tribunal has concluded that the failure to express any comment by the Union representative at the Staff Board meeting and the subsequent lack of any protest whatsoever by the Union President when informed of the Staff Board’s decision entitled a reasonable employer to conclude that the outcome was mutually acceptable.

AWARD

In the circumstances of this Dispute the Employer has not beached clause 4.02 of the Terms and Conditions of Employment.

DATED at Suva this 3 day of August 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL