Fiji Posts and Telecommunications Association v Telecom Fiji Ltd [2007] FJAT 63; Award 65 of 2007 (20 September 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 65 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI POSTS AND TELECOMMUNICATIONS ASSOCIATION

AND

TELECOM FIJI LIMITED

FPTA: Mr A Singh
Telecom: Mr N Lajendra

DECISION

This is a dispute between Fiji Posts and Telecommunications Association (the Union) and Telecom Fiji Limited (the Employer) concerning the dismissal of Mr Josaia Cakau (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 with the following terms of reference dated 27 April 2007 :

"- - - over the dismissal of Mr Josaia Cakau with effect from 12 December 2005. The Union claimed that the dismissal was unfair, unreasonable and unjustified and seeks his re-instatement without loss of benefits."

It should be noted that the reference was not received by the Tribunal until 25 May 2007.

The Dispute was listed for a preliminary hearing on 1 June 2007. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 29 June 2007.

The Employer filed its preliminary submissions on 22 June and the Union did so on 25 June 2007.

The hearing of the Dispute commenced on 15 August 2007 in Suva and was completed on the following day. During the hearing the Employer called one witness and the Union called two witnesses to give evidence. At the conclusion of the hearing the parties made oral final submissions.

At the commencement of the hearing the parties indicated to the Tribunal that they had reached agreement on the documents that were to be admitted into evidence as exhibits. As a result the documents marked U1 to U8 in the Union’s preliminary submissions were admitted as exhibits 1-8 respectively.

The Agreement between the parties dated 17 December 2006 was admitted as exhibit 9. The documents marked 10 to 23 in the Employer’s bundle of documents were marked as exhibits 10-23 respectively.

Prior to his dismissal, the Grievor had been employed by the Employer for about 17 years. At the time of his dismissal the Grievor was employed as a service engineer at the satellite station at Tavua. It was a one person posting with the Grievor being on call 24 hours a day seven days a week. He had occupied that position for about seven months.

The Tribunal is satisfied that included in the Grievors contract of service were the relevant provisions contained in the Employer’s Fleet Operational Manual. Paragraph 5.2 dealt with the private use of company vehicles and stated :

"1. Under no circumstances a company vehicle be used or permitted to be used for private purposes except with the prior approval of General Managers of respective SBU/Chief Executive. The exception to this rule are Company employees whose individual employment contract allow them the use of company vehicles for private purposes.

2. Cases of unauthorized use of Company vehicles or non-compliance with these instructions shall be treated as disciplinary offences."

On 18 September 2005 the Grievor was involved in a motor vehicle accident. He was driving a vehicle owned by the Employer.

The cost of repairs to the vehicle were quoted at $2,565.00. The vehicle was repaired for that amount.

It was alleged that the Grievor admitted that he had fallen asleep when he was returning from a grog party in Ba. The accident happened at about 5.00am.

In a memorandum dated 25 October 2005 addressed to the General Manager Corporate Services, the Manager Fleet (S Tanuku) recommended disciplinary action as the accident occurred in the early hours of the morning and the Company vehicle was being used for personal purposes.

It would appear that before a decision had been made by the Employer concerning the appropriate disciplinary outcome for the accident on 18 September, the Grievor was involved in a second accident on 15 November 2005 (the second accident). He was driving the same vehicle and the accident occurred at about 2.00am as the Grievor was returning to Tavua from Suva.

Then, by letter dated 23 November 2005 the Grievor was advised that a penalty was to be imposed in respect of the first accident on 18 September 2005. The last three paragraphs of that letter are relevant for the purposes of this Dispute:

"You will also acknowledge that on 27th of October 2005 I had cautioned you of the need to be more responsible when carrying out your responsibility. It was also through your negligence that caused the damage of a VT SAT part that was later sent to Norway for repair. This damage came about as a result of your own negligence and carelessness in packaging and that could have cost the company $50k for the replacement.

Under the circumstances you are hereby issued a final warning letter. You will also be surcharged the sum of $500 being insurance excess fee which shall be recovered through salary reduction. You are advised to take heed of this warning for your own good.

Should you commit any further breach of any form of discipline or act in breach of Company Policies and Procedures, be it minor or major, will result in the instant termination of your service."

This letter had been forwarded to the Grievor as an email attachment on 24 November 2005. On the same day the Grievor replied by e mail. He indicated that he disagreed with the decision and stated that he "should have been called up" before the panel had decided on what action to take.

Then, by letter dated 25 November 2005, the Grievor was charged with specified offences arising out of the second accident. Omitting formal parts, the letter stated :

"We are investigating a report in which you are alleged to have driven Company vehicle DY 134 that was involved in an accident on Tuesday 15 November 2005 at 2.00am after returning from Suva to drop off Jone Marayawa. We have confirmation that Joe Marayawa was not authorized to be at VTSAT site hence driving him to Suva is unofficial.

We are treating the matter seriously since you have acted in breach of the Company’s business procedures and TFL Staff Circular No 17/2002. Under te circumstances and in accordance with the provisions of the Corporate Instructions Manual II (CIM II) and TFL Staff Circular No 17/2002 you are hereby charged as follows:

Charge 1 - CIM II paragraph 49 (b) fails to comply with any work related instructions given by his superiors or other written instructions issued from time to time by the Company.

Charge 2 - CIM II paragraph 49 (c) by word or conduct displays insubordination.

Charge 3 - CIM II paragraph 49 (d) is negligent, careless, indolent, incompetent or inefficient in the performance of his work or duty

Charge 4 - CIM II paragraph 49 (e) is guilty of any improper conduct

Charge 5 - CIM II paragraph 49 (f) removes without authority and/or steals Company or customer’s property

Charge 6 - CIM II paragraph 49 (l) misuse any company property

Charge 7 - CIM II paragraph 49 (m) act in a manner that is likely to bring the Company into disrepute.

You have seven (7) from the date of this letter to provide written explanation of your actions and why you should not be disciplined. Should you fail to respond within the required time, you are deemed to have pleaded guilty to the charge."

The Grievor admitted in his evidence that he had received this letter. The Employer’s evidence was to the effect that there was no response from the Grievor. It was claimed by the Grievor that he had drafted a response using the e – mail which had been blocked and as a result his response was not received by the Employer.

By letter dated 12 December 2005 the Grievor was informed that his employment was to be terminated. Omitting formal parts, the letter stated:

"This letter serves to confirm our decision to terminate your employment from the Company effective close of business today, Monday, 12th December, 2005.

We have had the benefit of perusing the file containing allegations that were leveled against you with regards to the accident that occured along Kings Highway between Tavua and Ba of 15th November 2005. You were also alleged to have been driving Company Fleet Registration No DY 608 for personal use. There was no authority given for the use of Company vehicle on the day in question. This is a serious breach of misconduct and is tantamount to misuse of Company vehicle. As a result of the accident, the vehicle had sustained extensive damages to a point that it has been declared a complete write off.

In addition, you were also involved in another accident with the same vehicle on 18th September 2005. After investigation, it was revealed that you were using the vehicle on a personal run for which you were issued with a Final Warning Letter. Again, there was no authority given to you to drive/use company vehicle outside working hours. The vehicle sustained damaged to the tune of more than $5,000.00.

Your explanation with regards to the recent accident is noted. You have denied all the charges but we have evidence to suggest that your conduct leading up to the accident were in breach of company policy and procedures. Obviously, no authority was given to you to personally use Company vehicle outside working hours. You are aware of this standard procedures with regards to use of company vehicles outside working hours but you have decided otherwise for reasons best known to you.

Despite being served with a Final Warning Letter for a similar incident on 18th September, 2005, you have again committed a similar offence on 15th November, 2005. In both cases, you have willfully and unlawfully used Company vehicle for personal use resulting in accidents. In both accidents, the Company vehicle had sustained extensive damages, the recent accident being declared a complete write off.

We have received confirmation from the police at the Ba Police Station that you shall be charged for Careless Driving. You are aware of this development and indications are that you will be appearing in Court soon.

Without prejudice to the outcome of the court proceedings, we are treating both accidents seriously. Your conduct in both instances has not only painted a bad reflection on the Company’s image and credibility and has huge financial implications. In the recent accident you completely damaged a public bus shelter through your own negligence. Any cost arising from the damage to the bus shelter shall be borne by you. Lastly, misuse of Company vehicle is considered a serious breach of conduct and this is evident in both accident cases where you were the driver.

In view of the above, we are satisfied that your conduct on both instances has brought disrepute to the Company. Your involvement in both accidents cannot deny the attention of Management. As such, it is deemed necessary to take this course of action to safeguard and to protect the image and interest of our business.

To this end, you are required to immediately return all Company properties that were entrusted to during your term of employment including your Company ID to your immediate supervisor."

By letter dated 15 December addressed to the Chief Executive the Grievor appealed against the decision taken by the Employer to terminate his employment. The appeal letter was over two pages in length and covered a number of matters.

There are some comments which can be made about that letter and its relationship to some of the relevant facts in the Dispute.

First, whilst the Grievor acknowledged having received "the disciplinary letter" dated 25 November 2005, he did not make any reference to the reply which he maintained he had attempted to send by email.

Secondly, the Grievor referred in some detail to the mechanical faults/defects which existed in the vehicle on the day when he drove Mr Marayawa back to Suva.

Thirdly, the issue of the ban placed by the Employer on Mr Marayawa attending at the VTSAT site. The Grievor in the letter implied that he was unaware of the ban. Mr Marayawa himself stated that he was unaware that he had been banned from VTSAT site when he traveled by bus from Suva to Ba on 15 November 2005.

It would however appear that there had been a ban placed on Mr Marayawa. He confirmed in his evidence that whilst working at the VTSAT site he received a call from a Mr Seru who informed him that he was to return to Suva as he was banned from the VTSAT site at Yaqara.

It would appear that the Grievor’s appeal was not successful.

In an agreement dated 17 December 1996 made by the parties, it was acknowledged that the provisions of the Corporate Instructions Manual I and Manual II were to remain in full force unless varied by the agreement.

As a result paragraphs 48-51 of Corporate Instructions Manual II (CIM II) and Staff Circular No 22 of 2002 dated 15 July 2002 were applicable to the Grievor.

It would appear that the procedures set out in paragraph 50 of CIM II were clarified in Staff Instruction No 22 of 2002. Under paragraph 4.3.2 of the Staff Instruction:

"A written warning may be given where:

The misconduct is of such a nature that a verbal/first warning is inappropriate, or

The employer again transgresses after a verbal/first warning is in place".

As a result it would appear that under (a) a written warning may be regarded as a final warning where appropriate or under (b) as a second warning for a repeat transgression.

This would appear to be the basis upon which the final warning in the letter dated 23 November 2005 was issued to the Grievor.

Both paragraph 50.4 of CIM II and paragraph 4.3.2 of the Staff Instruction state that where an employee has committed another breach of discipline after a final written warning he may have his employment terminated after an investigation and confirmation of the offence.

Furthermore both CIM II and the Staff Instruction provide that termination of employment, when considered appropriate, may be by either termination with notice (or payment in lieu of notice) or by summary dismissal without notice.

Paragraph 4.5.1 of the Staff Instruction provides that termination with notice is imposed where unacceptable behaviour or unsatisfactory work performance persists following a written final warning.

Paragraph 51 of CIM II and paragraph 4.5.2 of the Staff Instruction deal with summary dismissal or termination of employment without notice.

Both clauses provide that where an employee has committed an act of gross misconduct or has been charged with a serious criminal offence he is liable to summary dismissal following an investigation and confirmation of the offence.

Both clauses then go on to provide, in slightly different wording, that there are certain circumstances when the employee will be subject to summary dismissal or which require summary dismissal. Paragraph 51 of CIM II lists circumstances (a) – (f) whilst clause 4.5.2 of the Staff Circular lists circumstances (a) – (g).

However it is essential for the parties to understand that they cannot by agreement or otherwise provide for summary dismissal to be imposed as a discipline penalty in circumstances which are inconsistent with section 28 of the Employment Act Cap 92.

Section 28 states:

"An employer shall not dismiss an employee summarily except in the following circumstances:

(a) where an employee is guilty of misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of service;

(b) for willful disobedience to lawful orders given by the employer

(c) for lack of the skill which the employee expressly or by implication warrants himself to possess;

(d) for habitual or substantial neglect of his duties;

(e) for continual absence from work without the permission of the employer and without other reasonable excuse."

The effect of section 28 is that the common law right of an employer to summarily dismiss an employee for serious misconduct is limited to the circumstances (a) – (e) in the section. Not every act of misconduct which falls within one of the categories listed will by itself entitle the employer to summarily dismiss an employee. The misconduct must be shown to be sufficiently serious that it would have allowed the employer at common law to regard the contract of service as having been brought to an end as a result of the misconduct (i.e. breach).

The termination letter indicated that the Grievor’s employment was being terminated without notice or payment in lieu of notice. In other words he was summarily dismissed.

The issues for the Tribunal are twofold. First, did the Grievor commit any acts of misconduct in relation to the accident which occurred on 15 November 2005 (the second accident). Secondly, if so, was the misconduct sufficiently serious to justify the imposition of the penalty of summary dismissal.

The Tribunal has concluded that Mr Marayawa was at VTSAT at Yaqara on 15 November 2005 when he should not have been there. In reaching that conclusion the Tribunal accepts the evidence of the Employer’s General Manager Human Resources (Mr I Sagoa) and also relies on the second warning letter dated 2 February 2006 issued to Mr Marayawa. It is apparent that by proceeding to Yaqara on that day Mr Marayawa was disobeying lawful instructions.

The Tribunal is not satisfied that the Grievor was aware that Mr Marayawa was disobeying instructions by going to and working at the VTSAT site.

However that fact does not convert the subsequent unauthorized travel to Suva into an authorized act.

Mr Marayawa had got himself to Ba under his own steam, as it were, by bus and that is how he should have returned to Suva. He had no authority to ask the Grievor to drive him to Suva or use the Company vehicle for movement to Suva. The fact that the Grievor may not have been aware of these matters goes only to mitigation.

There are, however, aggravating factors which need to be considered. The Grievor knew that the vehicle was not running properly. He was aware that there were problems. He should have realized that the vehicle was not in a proper condition for the long trip from Yaqara to Suva and Back. It is the Tribunal’s opinion that the Grievor should have declined the request for safety reasons or have attempted to arrange for another vehicle.

The accident which occurred towards the end of the trip resulted in substantial damage. It was a single vehicle accident which occurred when the Grievor’s vehicle left the road and demolished a concrete bus stop shelter. The vehicle was a write-off. The Tribunal has concluded that the collision with the bus stop shelter occurred either because the Grievor was travelling at an excessive speed given the time of night and the vehicle defects or because the Grievor fell asleep as a result of fatigue and failure to take a rest break.

Under the circumstances the Tribunal is satisfied that the Employer was entitled to conclude that the Grievor had committed acts of misconduct. Taking into account that the accident on 15 November 2005 was the second involving the Grievor within the space of about two months, the Tribunal is satisfied that the decision to summarily dismiss the Grievor was within the band of responses open to a reasonable employer and was consistent with section 28 of the Employment Act Cap 92.

Although the Grievor was not interviewed, he was given a reasonable opportunity to respond to the charges which were conveyed to him in the letter dated 25 November 2005. The Tribunal is not satisfied on the material before it that the Grievor made a reasonable effort to ensure that his response was received by the Employer within the time set out in the letter. The Tribunal has concluded that Mr Sagoa had become confused when he referred to the Grievor’s response to the first accident.

Although the investigation appeared to have been conducted in an informal manner, the Tribunal is satisfied that the Employer had apprised itself of all the relevant material before it decided to impose the penalty of summary dismissal.

As a result the Tribunal has concluded that the summary dismissal of the Grievor was not unfair, unreasonable or unjustified.

AWARD

The dismissal of the Grievor was not unfair, unreasonable or unjustified.

DATED at Suva this 20 day of September 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL