Fiji Sugar and General Workers Union v General Machinery Hire Ltd [2007] FJAT 54; Award 56 of 2007 (9 August 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 56 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
GMH: Mr R Prakash and Ms P Kenilovea

DECISION

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

A trade dispute was reported by the Union on 7 March 2005. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee.

As the Employer did not nominate a representative to the Committee, 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 2 August 2006 with the following terms of reference:

"– - - for settlement over the termination of employment of Mr Satish Chand. The Union contends that the actions of the employer were unfair, unjust and wrong and that Mr Chand be re-instated without loss of benefits."

The Dispute was listed for a preliminary hearing on 1 September 2006. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 29 September 2006.

The Employer filed its preliminary submissions on 22 September and the Union did so on 28 September 2006.

As neither party had served its preliminary submissions, the parties were directed to do so within seven days and the Dispute was relisted for mention on 27 October 2006. At the request of the parties the Dispute was relisted for mention on 24 November 2006 and 19 January 2007.

The hearing of the Dispute took place on 26 April 2007 in Suva. Each party called one witness 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 31 May 2007. The Union filed answering submissions on 20 July and the Employer filed a reply submission on 30 July 2007.

The Grievor commenced employment as a driver with the Employer in 2000 and was still employed as such in October 2004.

The Grievor admitted that on Friday 8 October 2004 at about 4.30pm whilst on his way from Suva to Lautoka in a truck belonging to the Employer, he carried two unauthorized passengers. They were two Fijian policemen in uniform, although the Grievor did not know if they were on duty at the time. He picked them up at the Pacific Harbour Police Post as a result of being signaled to stop. He took them about two kilometers down the road to their village.

The Tribunal accepts that the Grievor was not paid any money nor did he receive payment in any other form. The Tribunal also accepts that the Grievor did not collect any other unauthorized passenger during his journey on that day.

It would appear that the Grievor had seen the two policemen previously at the Police Post, but they were not his friends. The Tribunal accepts that he was offering assistance upon request and that this assistance was given in return for assistance provided by the Police when required by the Employer’s drivers.

A copy of a handwritten letter dated 1 November 2004 from an officer at the Pacific Harbour Police Post supported the version of events given by the Grievor in his evidence. Furthermore, the Employer did not lead any evidence which contradicted any of the material facts put forward by the Grievor in his evidence.

It would appear that the Grievor eventually arrived at Lautoka on the day in question, parked the vehicle and returned to the yard on the following Monday. He was told by an employee that he was going to be dismissed. He was also told by the Transport Manager (Mr Pillay) on the Monday afternoon that his employment was to be terminated. During the course of that brief conversation between the Transport Manager and the Grievor it became apparent to the Grievor that the Employer was already aware that he had given a ride to the policemen on the previous Friday afternoon.

By letter dated 13 October 2004 the Grievor was formally advised about his dismissal. The letter stated:

"Your employment with General Machinery Hire Ltd is being hereby terminated, effective immediately Wednesday 13 October 2004 at 5.00pm.

You have been cautioned on numerous occasions to refrain from picking up and or carrying unauthorized passengers on company truck.

On Friday 08/10/2004 at 4.30pm you were observed carrying unauthorized passengers on company truck at Pacific Harbour, Deuba.

This is a serious misconduct that can not be tolerated by the company, and considering the high accident rate and fatalities on our Fiji roads.

General Machinery Hire Ltd is more concerned with the health and safety of all stakeholders including you, pedestrians, other road users even passengers.

Thus carrying of unauthorized passengers is a serious misconduct listed on the company Disciplinary Procedures.

You are to return on all company property within your care to the Transport Manager immediately.

Please collect all your dues on Friday 15/10/04 at 4/30pm from our Lautoka Office.

Thank you for your service."

On the basis of that letter it would appear that the Grievor had been summarily dismissed. There was no evidence before the Tribunal concerning any payment in lieu of notice.

Whilst the Grievor maintained in his evidence that he was not aware of the Employer’s rule concerning the carrying of unauthorized passengers, the Tribunal is satisfied that if the Griever didn’t know, he ought to have known. It was clearly a matter on which any reasonable employer would be expected to have a policy. The Tribunal is satisfied on the evidence that there was such a policy and that it had been made known to the drivers, including the Grievor.

Although the letter did state that the Grievor had been cautioned on numerous occasions in relation to unauthorized passengers, there was no evidence from the Employer of any details of even one prior incident involving the Grievor and unauthorized passengers.

In the absence of any direct evidence to the contrary, the Tribunal has concluded that up to the time of this incident, no disciplinary proceedings had been taken by the Employer against the Grievor for the carrying of unauthorized passengers.

Apart from breaching the Employer’s rule, there was no suggestion in the evidence that there was anything improper or dishonest in the conduct of the Grievor. Whilst the misconduct was acknowledged by the Grievor, it was still a requirement for the Employer to consider the gravity of the misconduct in the context of the circumstances which existed at the time and place.

The Tribunal is satisfied that the imposition of the maximum penalty, for what was, on the evidence, a first offence and in the circumstances of the incident, was not within the band of responses which might be expected from a prudent Employer acting reasonably. The Tribunal does not consider that a reasonable Employer would classify the Grievor’s misconduct as serious misconduct which justified the imposition of the maximum penalty of summary dismissal.

Although there may be some debate on the matter, the Tribunal is satisfied that it was in the interest of the community for members of the public in the position of the Grievor to provide assistance to the Police whenever possible.
The Grievor’s actions were consistent with public policy and in the public interest

If, after a proper investigation, the Employer had concluded that it was appropriate to impose a penalty so as to reflect the importance of the rule, then a formal warning would have been reasonable under the circumstances.

However the Tribunal has concluded that in this case not only was there not a proper investigation, but, on the evidence, there was no investigation. There was no evidence or material before the Tribunal to suggest that any procedure was followed by the Employer from Friday 8 October 2004 up to the time when the Grievor was handed his termination letter. The Grievor’s brief conversation with the Transport Manager did not constitute an investigation.

The Grievor was not afforded procedural fairness and the Employer has not complied with the principles of natural justice.

As a result the Tribunal has concluded that the Grievor’s dismissal was not only unreasonable but it was also manifestly unfair in the lack of any investigation, interview, representation or mitigation.

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

AWARD

The termination of the Grievor’s employment by summary dismissal was unreasonable and unfair.

He is to be re-instated and paid his wages from the date of termination.

DATED at Suva this 9 day of August 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL