Fiji Sugar and General Workers Union v Nestle (Fiji) Ltd [2007] FJAT 69; Award 71 of 2007 (2 October 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 71 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI SUGAR AND GENERAL WORKERS UNION

AND

NESTLE (FIJI) LIMITED

FSGWU: Mr F Anthony
Nestle: Mr N Barnes

DECISION

This is a dispute between Fiji Sugar and General Workers Union (the Union) and Nestle (Fiji) Limited (the Employer) concerning the termination of employment of Mr Bal 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 5 A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 9 May 2007 with the following terms of reference:

"- - - for settlement over the termination of employment of Mr Bal Ram with effect from 9 August 2005. The union contends that the termination was unfair, unjust and wrong and that the Grievor should be re-instated without loss of pay and benefits."

The Dispute was listed for a preliminary hearing on 18 May 2007. As there was no appearance by the Employer the Dispute was listed for mention on 25 May 2007. On that day the parties were directed to file their preliminary submissions within 21 days and the Dispute was listed for further mention on 29 June, 6 July and 13 July 2007.

The Employer filed its preliminary submissions on 14 June and the Union did so on 5 July 2007.

The hearing of the Dispute commenced on 13 September 2007 in Suva and was completed the following day. The Employer called three witnesses, each of whom gave evidence in chief by way of a signed written statement. Each witness was then cross-examined by the Union’s representative. The Union also called three witnesses, including the Grievor, to give evidence. At the conclusion of the evidence the parties presented oral closing submissions.

The Grievor had been employed by the Employer for about 17 years at the time of the incident which resulted in the termination of his employment. He was at that time employed as a Grounds Attendant in the Employer’s Logistics Department.

The evidence presented by the Employer was to the effect that on 15 May 2006 at some time after 3.00pm the Grievor came to the Waste Water Treatment Plant Area with his back pack and dressed in his off-duty clothes. He was observed by Ms Deepika Kumar who, as a Safety Health and Environment Assistant, was working in the laboratory at the waste water treatment plant at the time. She stated that she observed the Grievor approach from the back of a hedge which partly surrounded the laboratory precinct.

It was not disputed that the Grievor’s shift finished at 3.00pm on that day. Ms Kumar gave evidence that she had a brief conversation in Hindi with the Grievor. At some stage she observed him open the lid to the personal protective equipment box which is located on the outside wall of the laboratory. It is kept unlocked to enable easy access. Her evidence was that she observed the Grievor handle a black plastic bag inside that box. After touching the bag he then closed the box. She told the Tribunal that she considered the Grievor to be acting suspiciously whilst he was in the treatment plant area and she therefore had watched him carefully.

Her evidence was that shortly afterwards the Grievor left the area and went to the security booth where he sat on a bench for a short time before he left the factory premises.

The Tribunal accepts that at the time of the incident there was a high hedge which partially surrounded the treatment plant area. There was also at the time a gap between the factory perimeter fence and the security booth. This gap was sufficiently wide for a person to move between the fence and the security booth.

After the Grievor had left the area Ms Kumar went to the personal protective equipment box and observed a large black plastic bag containing bubblegum which was factory produce. The bag was shaped slightly larger than a soccer ball. The witness secured the bag and its contents in her locker till the next morning.

The witness stated that the next morning she went to see her supervisor, Ms Priti Sen, and told her what had happened the previous afternoon. The two then gave the bag of bubblegum and reported the matter to the Human Resources Manager, Ms Sharon Prasad.

In cross- examination Ms Kumar stated that she could not report the matter to her supervisor that afternoon because she was in a meeting at the time. She did not inform the security staff at the time because she wanted to report the matter to her supervisor first. She did not give the bag to the security staff for the same reason. Although there were some minor discrepancies with her handwritten statement which she made on 16 May 2006, her evidence before the Tribunal was essentially consistent with her statement.

The next witness, Ms P Sen, gave evidence that in the evening of 15 May 2006 at about 6.00pm the Grievor attended at her home. She spoke with him at the gate. A conversation took place concerning the bag of bubblegum in the personal protective equipment box and the observations of Ms Kumar.

At that time Ms Sen knew nothing about the incident and told the Grievor to go home and that the matter would be discussed the next day. She considered that the Grievor appeared upset and tense. His presence had been observed by Ms Sen’s uncle.

Before leaving, the Grievor informed Ms Sen that he would not be at work the next day. The witness indicated that the conversation took place in Hindi.

The witness stated that when she arrived at work on 16 May 2006, Ms Kumar informed her of what she had observed the previous afternoon. The witness confirmed that they took the bag of bubblegum to the Human Resources Manager.

Ms Sen also made a handwritten statement which was consistent with her testimony before the Tribunal.

In answer to questions from the Tribunal Ms Sen stated that the Grievor appeared to have arrived at her home by carrier which was parked outside her house. It was becoming dark and the conversation took place inside the compound. The Grievor appeared to be alone. Her uncle was also outside the house at the time of the conversation with the Grievor. The uncle was apparently praying at the time.

A signed statement dated 30 May 2006 made by Ms Sen’s uncle, Mr Vijay Sen, was admitted into evidence. It confirmed the essential elements of Ms Sen’s evidence concerning the Grievor’s visit to her house on 15 May 2006 and the conversation that took place.

However Mr Vijay Sen did not give evidence at the hearing and was not cross-examined on his statement.

The Human Resources Manager, Ms S Prasad, gave evidence to the effect that she had spoken with Ms Kumar and Ms Sen at the start of the day. She stated that she then reported the matter to the Grievor’s Supervisor, Mr Raman and to the Factory Manager, Mr Kury.

She also gave evidence that the bubblegum in the bag was new production bubblegum from the factory production line. She stated that the Grievor’s duties did not require him to go inside the factory nor was he authorized to go into the factory. Employees were not permitted to remove produce from the factory and although she did not know how the Grievor was aware of the bag in the instrument box, the only inference that could be drawn was that the Grievor was involved in stealing produce from the Employer.

It would appear that the Grievor was ill and absent from work from Tuesday 16 May till Friday 19 May 2006. He reported for duty on Saturday 20 May but due to the absence of the Grievor’s supervisors, the matter could not be dealt with at that time.

Both Ms Kumar and Ms Sen gave evidence that they were called to a meeting with the Grievor by Mr Raman some time in the week commencing Monday 22 May 2006. Both witnesses indicated that Mr Raman asked them to put their allegations to the Grievor. Ms Kumar indicated that at the meeting the Grievor denied any knowledge of the incident. Ms Sen indicated that the Grievor denied that he had visited her home on the evening of 15 May 2006.

Produced into evidence was a copy of a brief signed statement by the Grievor dated 22 May 2006 which stated:

"I did not went to Preeti place on Monday".

By letter dated 26 May 2006 the Grievor was informed that he was to be suspended without pay. The letter stated:

"We draw your attention to the alleged event of 15 May 06 in that you were loitering on the premises after normal working hours and looking to get away with something that was placed in the PPE box. However, spotted by one of our employees, you eventually went away and that has led us to discover the prepared parcel of Bubblegum hidden in the PPE Box.

Subsequently, on the same night, you have allegedly approached a responsible officer of the WWTP at her house and where you have upon her questioning admitted to hiding Bubblegum in the PPE Box.

You have also allegedly asked the same responsible officer not to reveal your visit or the details of your confession to anyone at work. You have also mentioned that you would no longer report to work from the following day.

This turn of events have prompted us to conduct an investigation in this matter.

Hence, you are suspended without pay effective from 27/05/06.

Your case being under review, we will contact you once our investigations are finalized."

Part of the investigation process consisted of a meeting which took place at the Employer’s premises. The meeting was attended by Mr Kury, Mr Raman and Ms Prasad on behalf of the Employer and two Branch representatives of the Union and the Grievor. This meeting followed an earlier meeting between Mr Kury, Mr Mataka and Mr Anthony. The Grievor denied all the allegations which were put to him in the Hindi language. The Grievor was given copies of all the original handwritten statements.

Following the meeting, the Employer wrote to the Union by letter dated 8 June 2006 stating:

"Following our meeting of Wednesday 7 June 06 (Serge/Felix/Mikaele), we have on the same day had a discussion with Mr Balram in the present of the Branch Union President and secretary and 3 management representatives.

Mr Balram had been furnished with copies of our witnesses’ statements which had been further explained to him in Hindi by Mr Ravinesh Chand.

Mr Balram has denied all of the three witnesses’ statements.

We have also as per your advice, provided Mr Balram a written instruction not to contact any of our witnesses which is attached for your reference.

Mr Balram can be contacted on 9236245.

We now await your feedback after your interview with Mr Balram."

It would appear that the Employer did not receive any further communication from the Union for the next two months. The Grievor remained suspended during this time.

By letter dated 9 August 2006 the Grievor was informed that his employment had been terminated. The relevant paragraphs of the letter stated:

"We regret to let you know that effective immediately, your services are terminated by Nestle (Fiji) Ltd.

This decision has come after the events of 15/5/06, your suspension of 26/05/06, and our letter of 08/06/06 addressed to the Union.

We are of the opinion that ample time and opportunity had been provided by the company for the investigation of your case (2 months) to all involved parties.

The company, however, remains convinced on the outcomes of its own investigations and witnesses; hence termination of your services.

- - - "

The Grievor’s position in relation to this matter at all times has been a denial of any of the allegations. The Grievor gave evidence that he finished work at 3.00pm. He then changed into his off duty clothes. His bag was checked at a point near the canteen and then he was checked out at the security booth at 3.05. That was the time shown in the security log book for that day. It would appear that the log book entry was the only piece of evidence that the Grievor and/or the Union placed before the Employer.

The Grievor also claimed that he followed a workmate by the name of Zainal Mohammed out of the gates and walked with him for some distance until they parted company and the Grievor continued by himself on foot to his home.

The Grievor stated that at the time he was suffering a skin allergy around the lips as a result of some dye applied to his moustache. The following day (Tuesday 16 May 2006) he went to see a doctor who prescribed medication. The Grievor remained at home on Wednesday. His condition did not improve so he went to another doctor on Thursday. His condition then improved and he returned to work on Saturday 20 May 2006. There were medical certificates certificates for the Grievor’s absence from work for the period 16-19 May 2006.

The Union called Mr Zainal Mohammed to give evidence at the hearing before the Tribunal.. Mr Mohammed’s evidence was not put before the Employer at the time the matter was being investigated. No satisfactory explanation was given by the Union as to why Mr Mohammed’s evidence was not placed before the Employer.

In any event the Tribunal has some reservations about accepting the reliability of Mr Mohammed’s memory after an interval of more than 12 months. It would appear that he had only recently been approached to give evidence. He had never discussed the day in question with the Grievor.

The evidence given by Mr Ranitu concerning his observations whilst he was posted at the security booth on 15 May 2006 appeared to the Tribunal to be reconstruction based on the contents of the security log book for that day. His evidence did not appear to be based on memory.

Although there was conflict in the evidence concerning the dates on which the Grievor and/or the Union representatives met with the Employer, the Tribunal is satisfied that the Grievor had at least two discussions with the Employer, the second of which was with at least two Branch representatives of the Union.

Following the meeting with the Employer on 7 June 2006, the Grievor went to the Ba Police Station on 8 June 2006 to report that allegations had been made against him and as a result of which he had been suspended without pay.

By letter dated 27 August 2006 the Ba Police replied that:

"Investigation in your report has been completed. No person was charged. Report of spreading false rumours only - - - "

By letter dated 21 November 2006, the Union wrote to the Employer on the subject of this Police letter. The Union stated:

I have just received a correspondence from the Ba Police Station regarding the above employee. Police have now concluded the investigations and find the above employee innocent. They have not charged him in regards to the complaint lodged by the company.

The allegations of attempted theft therefore do not stand. As such the suspension and termination was unjust, unfair and wrong. The Union now seeks Mr Balram’s re-instatement without loss of any wages and benefits."

The problem with this letter is that it was not the Employer who made a report to the Police. It was the Grievor. The Police at Ba have simply indicated that no one had been charged in relation to the complaint lodged by the Grievor. It does not in any way affect the allegations made against the Grievor by the Company.

A relative by the name of Ms Hem Raji made a written statement dated 10 June 2006 to the Police concerning the Grievor’s whereabouts after work on 15 May 2006. However her statement was never shown to the Employer. She was not called as a witness at the hearing and no reasonable explanation was given to the Tribunal for her not being called.

The Tribunal has concluded that the Grievor’s denial in the face of the evidence given on behalf of the Employer was unconvincing. Although he didn’t have a driving licence, didn’t drive and didn’t own a van, it is probable that he had been driven to Ms Sen’s home by a third party.

As a result the Tribunal has concluded that on the balance of probabilities the version of events put forward by the Employer is more likely to represent what actually happened on 15 May 2006. There was no suggestion in the material before the Tribunal that the Employer had put forward the story out of some sinister motive. There was no suggestion that it was a case of mistaken identity.

The Tribunal considers it to be probable that the Grievor managed to move between the fence and the security booth without being observed by security staff, shortly after he was checked out at 3.05pm.

The Tribunal is satisfied that the Employer has established the allegations against the Grievor by clear evidence to the standard that is consistent with the seriousness of those allegations. The Tribunal has assessed the credibility of each witness and assessed the story of each witness.

The Union submitted that the Employer had unfairly thrown back onto the Grievor the burden of producing evidence to establish his innocence.

The Tribunal does not accept that as an accurate assertion of what actually happened.

The evidence before the Tribunal indicated that the Employer had in its possession hand written statements from two of its employees concerning incidents which occurred on 15 May 2006. The statements amounted to sufficient evidence for the Employer to take disciplinary action against the Grievor in the absence of a reasonable explanation from the Grievor. A mere denial was not an acceptable explanation and the Employer was not required to produce any further or additional material. The Grievor and the Union were given sufficient time to produce some additional material or evidence which would have either exonerated the Grievor or provided a reasonable explanation in respect of the allegations. Neither the Grievor nor the Union put forward any additional material or evidence between 8 June and 9 August 2006.

The Tribunal is satisfied that the procedure followed by the Employer was procedurally fair. There was no denial of natural justice.

The Tribunal is satisfied that there has not been any breach of the implied term to treat the Grievor fairly even in the context of dismissal.

As there was at the time no collective agreement in existence and as the Employer had reasonable grounds for doing so, the decision to suspend the Grievor without pay was not unreasonable.

AWARD

The termination of the Grievor’s employment was not unreasonable nor unfair.

DATED at Suva this 2 day of October 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL