Fiji Sugar and General Workers Union v General Machinery Hire Ltd [2007] FJAT 53; Award 55 of 2007 (6 August 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 55 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI SUGAR AND GENERAL WORKERS UNION

AND

GENERAL MACHINERY HIRE LIMITED

FSGWU: Mr F Anthony
G M H: Ms P Kenilorea

DECISION

This is a dispute between the Fiji Sugar and General Workers Union (the Union) and General Machinery Hire Limited (the Employer) concerning the termination of employment of Mr Gen Daya Ram (the Grievor).

A trade dispute was reported by the Union. The report was accepted by the Permanent Secretary who referred the Dispute to a Disputes Committee.

Subsequently the Minister authorized the Permanent Secretary 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 30 March 2007 with the following terms of reference :

"- - - for settlement over the termination of employment of Mr Gen Daya Ram with effect from 7 September 2006 for allegedly carrying two passengers on a company vehicle without authorization. The union contends that the employer’s decision is unfair, unjust and wrong and seeks his immediate re-instatement to his former position without loss of wages and benefits".

The Dispute was listed for a preliminary hearing on 27 April 2007. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 25 May 2007.

The Employer filed its preliminary submissions on 18 May and the Union did so on 25 May 2007.

The Dispute was then fixed for hearing on 12 July 2007.

The hearing of the Dispute commenced on 12 July and was adjourned part heard to 13 July 2007. Due to the advocate for the Union not feeling well, the hearing was then adjourned part heard to 16 July on which date the hearing was completed. During the course of the hearing the Employer called three witnesses and the Union called the Grievor to give evidence. At the conclusion of the evidence the parties presented oral closing submissions.

The background to this dispute may be stated briefly. The Grievor had been employed by the Employer as a truck driver for some ten years. On 2 September 2006 he was tasked to drive a prime mover DB 438 to Suva. His prime mover towed a trailer on which was loaded a container with a cargo of mineral water.

The Employer alleged that during the course of the journey the Grievor carried two passengers contrary to the Employer’s rules. The Grievor denied that he carried two passengers at any stage of the journey on that day.

Late in the evening on Friday 8 September the Grievor was handed a termination letter dated 7 September 2006. Omitting formal and irrelevant parts, the letter stated :

"On the day of Saturday (02/09/06) at 2.25pm, you were observed by our Manager Human Resources that in the company truck registered DB 438, you carried 2 passengers illegally, just after Vatukarasa Koro on your way to Suva.

Upon investigation on Monday 04/09/06 at 0830 hours you confirmed carrying passengers illegally.

This is a serious misconduct that cannot be tolerated by the company, and considering the high accident rate and fatalities on our Fiji roads. Thus carrying of unauthorized passengers is a serious misconduct listed on the company Disciplinary Procedures.

You have been cautioned on numerous occasions to refrain from picking up and or carrying unauthorized passengers on the Company truck. Also you were suspended for 2 working days from 14 March 2006 for sleeping during working hours.

You have breached the disciplinary Procedures two times within a year.

Therefore the Company has no option but to terminate your employment effective Friday 08 September 2006 at 4.30pm.

The evidence established that the Grievor was paid one week’s pay in lieu of notice in respect of the termination of employment, together with all outstanding wages and allowances. The termination of employment was by way of payment in lieu of notice in accordance with the provisions of the Employment Act Cap 92, and not by way of summary dismissal.

The termination letter itself raised a number of issues. Although the Grievor admitted that he was aware that he was not allowed to carry unauthorized passengers, he claimed that he had never seen a copy of a list of what constituted serious misconduct and misconduct on any notice board at the Employer’s premises. The Tribunal also noted the evidence that the Employer permitted drivers to carry employees from Natural Waters to and from Rakiraki. Furthermore the "Passenger Carry Certificate" which was document No 2 in the Employer’s bundle of documents provided in Point 3 of the conditions at the top of the form that "Our drivers are personally responsible for unauthorized passengers carried in our company vehicles on any journey". Although listed as serious misconduct by the Employer, it was apparent to the Tribunal that the carrying of unauthorized passengers, did take place from time to time without the extreme penalty of termination of employment being imposed.

There was no evidence placed before the Tribunal in respect of any specific occurrence where the Grievor had been previously cautioned for carrying unauthorized passengers. The HRM maintained that cautions had been given to the Grievor in the past and that the Grievor’s employment was terminated for this serious misconduct because it had followed a two day suspension for misconduct involving sleeping on the job in March of the same year.

However he could offer no satisfactory explanation why such a severe penalty for misconduct had been imposed and why then in September the maximum penalty for serious misconduct had also been imposed. In other words, without any previous recorded misconduct, within the space of six months the Grievor had received almost the maximum penalty in respect of one act of misconduct and the maximum penalty for one act of serious misconduct as classified by the Employer. This was after ten years of service with the Employer.

The evidence in relation to three issues was in sharp conflict. First the mobile telephone conversation which the Grievor had with the Transport Manager (Mr S Pillay) at some stage during the journey. Secondly, the conversation between the Grievor and the Human Resources Manager (HRM) (Mr M Chand) in the Lautoka Office on Monday 4 September 2006. Thirdly, whether there was any discussion/communication between the Employer and the Grievor on and from Tuesday 5 September till Friday 8 September 2006

Each termination dispute which is referred to the Tribunal is difficult and serious. The decision has significant consequences for the workplace, the Grievor and his family. To ensure that the Tribunal settles the Dispute in a just manner, the evidence, particularly when it is contradictory, must be weighed carefully and responsibly. In determining which of two conflicting versions of any given event is to be accepted, the Tribunal is required to test the truth of the version given by each witness. One way of doing this is to assess "its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions." (See: Faryna –v- Chorny [1952] 2 D.L.R 354 at pages 356-7). As a result the Tribunal is required to weigh the credibility of each witness and then to determine if there is harmony with the preponderance of probabilities which a practical and informed person would accept as reasonable in the circumstances which existed at the time.

Having considered the evidence, the Tribunal has concluded that the Grievor did not telephone the Transport Manager and ask him to say that he was authorized to carry passengers. There was no evidence to suggest that the Transport Manager had done anything like that in the past. There was no evidence to suggest that the Transport Manager was a person who would condone the non-compliance of company rules. There was no reason why the Grievor would want to volunteer to the Transport Manager that he was breaking a company rule.

The Tribunal is satisfied that it is more likely under the circumstances that the Grievor called much later in the afternoon at Korovou to request permission to take a break due to tiredness. The Grievor had been at work since 9.00am and had departed Lautoka at about 11.00am.

The Tribunal is not satisfied that the Grievor made any admission about carrying passenger when he was interviewed by the HRM on Monday 4 September 2006. The Tribunal accepts the Grievor’s version as to what was said during the course of what was a very brief discussion. There was no evidence from the Employer to establish any background facts which may have supported the explanation for carrying the passengers allegedly given by the Grievor.

The Tribunal is not satisfied that the HRM had a further discussion with the Grievor on Tuesday 5 September 2006. The Tribunal is not satisfied that the Grievor was shown or asked to sign the Discipline Form or that he refused to sign the form.

Finally, the Tribunal has concluded that the Grievor was not carrying passengers as alleged by the Employer. There are a number of reasons for this conclusion. First, the Tribunal has assessed the Grievor to be a more reliable and credible witness than either the HRM or his passenger. The evidence of the passenger in the HRM’s vehicle was not convincing. In addition he did not offer any reasonable explanation for not producing a copy of the statement he allegedly made at the time of the investigation. He did not offer any reasonable explanation for producing a second statement dated some months after the incident had been investigated and the Grievor’s employment terminated.

Secondly, the speed at which the two vehicles were travelling, about 50kph for the HRM’s vehicle and 35 kph for the Grievor’s vehicle, in opposite directions, gave neither driver nor any passenger sufficient time to make any detailed observations in relation to each vehicle. The speed of each vehicle was equivalent to one being stationery and the other passing at 85 kph.

Thirdly, the HRM’s response to the alleged breach was not what might reasonably have been expected. He said he waited five minutes before calling the Transport Officer but there was no reason given in evidence for that delay. He did not call the Grievor on his mobile phone. It was apparent from the evidence that the Grievor did have a mobile phone and it was reasonable to assume that the number was known to the Employer. Either the HRM or the Transport Manager might reasonably have been expected to call the Grievor on his mobile phone and direct him to off-load any unauthorized passengers at once.

The Tribunal is not satisfied that the Employer acted in accordance with the principles of natural justice. The Grievor was not formally interviewed apart from a very brief conversation on the Monday following the incident. The Grievor was not asked to make a statement. He was not given the opportunity to answer the allegations or mitigate either by himself or through union representation. The matter was not investigated in accordance with the Employer’s own specified procedures. The HRM made the allegation against the Grievor, investigated the allegation, albeit inadequately and passed the completed documentation, minus the Grievor’s file, to the Director to, in effect, endorse a recommendation made by the Transport Manager. The Transport Manager’s participation in the investigation was virtually non-existent and contrary to the procedure laid down by the Employer. The investigation did not comply with the principles of natural justice and was not in compliance with the Employer’s disciplinary procedures.

Furthermore the manner in which the Grievor was treated breached the implied term of his contract of service that required the Employer to deal fairly with him, even in the context of dismissal (See Central Manufacturing Company Limited –v- Yashni Kant – Unreported Civil Appeal No 10 of 2002 delivered 24 October 2003 at page 21).

As a result the Tribunal has concluded that the decision by the Employer to terminate the Grievor’s employment by payment in lieu of notice was not taken in good faith. On the evidence before it the tribunal is prepared to conclude that the decision was the result of an improper motive which was connected with the question of recognition of the Union which the Grievor had recently joined.

On the material before the Tribunal there is no reason why the Grievor should not be re-instated. There was no evidence to suggest that the Employer could not continue to have the necessary trust and confidence in the Grievor. He is to be re-instated from the date of termination and he is to be paid his wages in full from the date of termination.

AWARD

The decision by the Employer to terminate the Grievor’s employment by payment in lieu of notice was unreasonable and unfair and as a result was not taken in good faith.

The Grievor is to be re-instated and he is to be paid his wages in full from the date of termination.

DATED at Suva this 6 day of August 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL