Fiji Sugar and General Workers Union v General Machinery Hire Ltd [2007] FJAT 67; Award 69 of 2007 (26 September 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 69 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 with Ms D Kenilorea

DECISION

This is a dispute between Fiji Sugar and General Workers Union (the Union) and General Machinery Hire Limited (the Employer) concerning the dismissal of Rakesh Ratnam Gounder (the Grievor).

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

Subsequently 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 Rakesh Ratnam Gounder on 13 July 2005 for allegedly refusing to drive and take instruction from a supervisor concerning the termporary relieving driver at FIL. The union contends that Mr Gounder is innocent and the termination of his employment was unfair and unjust and wrong. Therefore, the Union seeks his re-instatement without loss of wages and 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 submissions on 22 September and the Union did so on 28 September 2006.

As neither party had served their submissions they were directed to do so within seven days and the Dispute was relisted for mention on 27 October, 24 November 2006 and then on 19 January 2007.

The hearing of the Dispute commenced on 30 April 2007 in Suva. It was adjourned part heard and was completed on 30 May 2007. During the hearing each party called one witness to give evidence.

At the conclusion of the hearing the parties were granted leave to file written final submissions.

The Employer filed its final submissions on 4 July 2007. The Union filed answering submissions on 7 August and the Employer filed a reply submission on 17 August 2007.

The Grievor had been employed by the Employer as a prime mover driver since about March 2003. There was no collective agreement in existence at the time of engagement or termination.

By letter dated 13 July 2005, the Grievor was informed that his employment had been terminated with effect from 15 July 2005. Omitting formal parts the letter stated:

"This is to inform you that your employment with the company has been terminated effective 15/07/05.

The reason for your termination is that today 13/07/05 you refused to drive and take instructions from your immediate supervisor concerning the temporary relieving of drivers at FIL.

As you are aware that according the company’s Disciplinary procedures you were suspended for two weeks for your misconduct and once again today you breached the company’s disciplinary procedures for not accepting your supervisor’s instruction, resulting into termination of your employment.

Kindly return all company’s property within your care to your immediate supervisor (Sarwan Kumar) before collecting your dues."

The Grievor gave evidence that he was handed this letter at work on the morning of Saturday 16 July 2005.

The only witness for the Employer, Mr Sarwan Kumar, was not in a position to contradict that evidence. He stated that he did not know when the Grievor was handed the letter and he denied that he was at work on Saturday 16 July 2005.

The Tribunal has concluded that the Grievor’s employment was terminated by summary dismissal as there was no indication there had been any notice given or any payment in lieu of notice pursuant to the provisions of the Employment Act Cap 92.

The circumstances under which an employer can summarily dismiss an employee are set out in section 28 of the Employment Act. So far as is relevant 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) - - -

(d) - - -

(e) - - - "

The effect of section 28 is to remove or take away the common law right to dismiss summarily except where the circumstances (a) – (e) are applicable. However the section does not confer an unfettered right to summarily dismiss an employee where any of the circumstances specified in section 28 are present. If any of the circumstances are applicable, then the common law right to summarily dismiss remains.

At common law, it has been the long held view that only serious or fundamental breaches of the contract of employment entitle the employer to exercise the right. Whether the conduct of the employee amounts to a breach of sufficient magnitude to give the employer the right to summarily dismiss should be determined on the facts of each case [See Award No 38 of 1999 and Fiji Public Service & Another –v- The Arbitration Tribunal and Another Unreported Civil Appeal No 13 of 1999 delivered 19 February 2002].

The basis of the employer’s decision to summarily dismiss the Grievor was stated in the termination letter as being the Grievor’s refusal to drive and take instructions from his immediate supervisor.

In his evidence the Grievor admitted that on 13 July 2005 he had received instructions from his supervisor Mr Kumar to go to Fijian Industries Limited (FIL) at Lami. The Grievor also admitted that he did not comply with those instructions.

The evidence given by the two witnesses (Mr Kumar for the Employer and the Grievor) was in sharp conflict in respect of the substance of the conversation, the method of communication and the location.

It was not disputed that on 13 July 2005 the Grievor was initially located with his vehicle, attached trailer and container at Courts Homecentres at Raiwai. The container was being emptied by staff from Courts Homecentres.

It was common evidence that the conversation between Mr Kumar and the Groevor took place at some time between 10.00am and 10.30am.

The Employer’s evidence was that the conversation took place at the Employer’s premises in Lami. Mr Kumar stated that he arranged for a driver to collect the Grievor from Raiwai in a company vehicle and bring him back to Lami. Mr Kumar stated that he made two requests to the Grievor to go to FIL to do a driving job.

He stated that the Grievor refused without giving any reason. Mr Kumar stated that he then arranged for the same driver to take the Grievor back to Raiwai.

The Grievor maintained that whilst he was at Raiwai he received a call on his mobile phone from Mr Kumar who requested him to go to FIL at Lami to do a job. The Grievor stated that he replied to Mr Kumar that he couldn’t do that job because the container on his trailer was being emptied and he couldn’t leave the vicinity.

Both witnesses stated that Mr Kumar did not make any further comment about disobeying instructions. The critical issue is not so much where the conversation took place but rather the explanation which the Grievor claimed that he gave to Mr Kumar.

The documents admitted into evidence established that the Grievor had delivered a container to Raiwai and was initially present at Raiwai on the day in question.

It would seem somewhat strange that having arranged for the Grievor to be brought back to Lami that Mr Kumar would not then have simply directed the driver to take the Grievor to FIL do do the driving job.

On the balance of probabilities the Tribunal has concluded that the conversation is more likely to have taken place in the manner described by the Grievor.

As a result the Tribunal has concluded that the Grievor received the instructions from Mr Kumar as a result of a mobile telephone call. The Tribunal is satisfied that the Grievor told Mr Kumar that he could not leave the vicinity because the container was being emptied.

In the course of his evidence Mr Kumar acknowledged that the Driver is required to be in the vicinity of the container once the sealed container is opened by the owner of the consignment.

In the course of his evidence the Grievor acknowledged that it would have been acceptable for the Employer to send another employee to remain in the vicinity of the container to enable him to leave to do the driving job. However the Grievor stated that no such arrangement was proposed by Mr Kumar during their conversation.

Whilst the Tribunal has concluded that the Grievor did not comply with the instruction given to him by Mr Kumar, it is not satisfied that the disobedience was willful. The Grievor was confronted with a situation involving a general instruction which was inconsistent with a specific instruction.

Under the circumstances the Tribunal has concluded that the decision taken by the Employer that the Grievor should be summarily dismissed for adhering to the general instruction was not within the band of responses which a reasonable employer may have considered appropriate.

There was no evidence nor any material in the submissions concerning the earlier incident to which reference was made in the termination letter.

As a result the Tribunal has concluded that the Employer did not act reasonably when it decided that the Grievor’s failure to comply with Mr Kumar’s instructions was sufficiently serious to warrant summary dismissal.

The Tribunal is also satisfied that the Grievor was not dealt with in a manner which would be described as procedurally fair. The only witness called by the Employer, Mr Kumar, indicated that all he did after the incident was to report the matter to his Suva Manager.

The Tribunal is satisfied that the Grievor was not formally interviewed. He was not given an opportunity to explain the circumstances There was no evidence before the Tribunal that the incident was investigated. The Grievor was not given any indication by any responsible Manager that he was facing dismissal whereby he could have sought Union assistance and nor was he given any opportunity to mitigate in relation to penalty.

The Tribunal has concluded that the Grievor was not afforded natural justice as a result of these procedural defects.

The Tribunal is also satisfied that the Employer did not treat the Grievor fairly in the context of the dismissal. As a result the Employer has breached the implied term of the Grievor’s contract of service. (See Supreme Court of Fiji decision in Central Manufacturing Company Limited –v- Yashni Kant Unreported Civil appeal No 10 of 2002 delivered 24 October 2003 at page 21).

Under the circumstances the Tribunal is satisfied that the decision to terminate the Grievor’s employment by summary dismissal was unreasonable and unfair.

On the question of remedy, the Tribunal notes that the Grievor has been in permanent full time employment since March 2006, earning approximately the same income as he was with the Employer. The Grievor also obtained three months employment between August 2005 and November 2005 earning about $90 per week.

Under the circumstances re-instatement is not appropriate.

The Tribunal considers it appropriate to award the Grievor the wages he would have received from 16 July 2005 till 28 February 2006 less the amount that he earned in the period August and November 2005. The parties are to agree upon the quantum and in the absence of such agreement the parties are granted liberty to apply to the Tribunal for an interpretation of this Award.

AWARD

The decision to summarily dismiss the Grievor was unreasonable and unfair.

Re-instatement is not appropriate as the Grievor has been in permanent full time employment since March 2006.

The Grievor is to be paid his wages from 16 July 2005 till 28 February 2006 less the amount he earned between August and November 2005.

DATED at Suva this 26 day of September 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL