Fiji Posts and Telecommunications Employees Association v Telecom Fiji Ltd [2007] FJAT 71; Award 73 of 2007 (24 October 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 73 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI POSTS AND TELECOMMUNICATIONS EMPLOYEES ASSOCIATION

AND

TELECOM FIJI LIMITED

FPTEA: Mr A Singh
Telecom: Mr N Lajendra

This is a dispute between the Fiji Posts & Telecommunications Employees Association (the Association) and Telecom Fiji Limited (the Employer) concerning the termination of employment of Mr Jone Kelo (the Grievor).

A trade dispute was reported by the Association on 15 November 2006. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee.

As a consensus decision was not reached 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 27 April 2007 with the following terms of reference :

"- - - for settlement over the termination of employment of Mr Jone Kelo with effect from 20 June 2006. The union claims that the termination was unfair, unreasonable and unjustified and that Mr Kelo be re-instated without loss of pay and benefits."

It should be noted that the Reference was not received by the Tribunal until 9 May 2007.

The Dispute was listed for a preliminary hearing on 25 May 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 15 June and the Union did so on 19 June 2007.

The Dispute was fixed for hearing on 16 August 2007. Due to unforeseen circumstances it was necessary to vacate that hearing date and the Dispute was relisted for mention on 24 August 2007. The Dispute was then refixed for hearing on 18 September 2007.

The hearing of the Dispute took place on 18 September 2007 in Suva. 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 Grievor had been employed by the Employer for about 20 years when he was involved in an incident on Friday 2 June 2006. The Grievor and two other workmates were repairing cables at Vatuwaqa. The other two employees were Mr T Lovovou who was supervising the work and Mr L Camaibau.

The incident occurred shortly after 2.00pm. The evidence established that Mr Camaibau jokingly touched the Grievor’s back pocket, more than once, and remarked that the Grievor had a lot of money. The Grievor asked Mr Camaibau whether he wanted some money to which Mr Camaibau replied that he didn’t and that he was OK. It would appear that Mr Camaibau persisted with this mild form of teasing although the Grievor indicated that he wanted it to stop so that he could get on with his work. The Grievor then asked Mr Camaibau whether he wanted to be punched. Mr Camaibau replied that "it’s up to you".

The Grievor then proceeded to deliver up to six punches in the direction of Mr Camaibau’s face and head. Mr Camaibau went to ground to shield himself. The Tribunal accepts that not all the punches made contact with Mr Camaibau’s face.

The incident was partially observed by Mr Lovovou. He called out to the Grievor who then moved away from Mr Camaibau. In his evidence Mr Lovovou stated that at first he thought the two had been joking but realized that it was more serious when he saw Mr Camaibau’s face. He observed that Mr Camaibau’s face had changed its appearance.

Mr Camaibau’s evidence about the incident was substantially consistent with the evidence given by the Grievor and Mr Lovovou.

Mr Camaibau was aged 37 years old. He appeared at the hearing to be a tall solidly built Fijian male who would be well able to look after himself if he felt it necessary. In his evidence he stated that he did not attempt to retaliate and did not throw any punches in retaliation.

Mr Camaibau gave evidence that as a result of the assault, he suffered some pain in the right ear and some bruising on the top of the head. He acknowledged that there was no bleeding, nor did he suffer any injury to his nose and there were no black eyes.

Mr Lovovou drove Mr Camaibau home at the end of the days work. Mr Camaibau gave evidence that he took some Panadol when he got home. He did not consider it necessary to seek any medical assistance over the weekend. The ear pain persisted for about three months but then stopped when he went for a visit to his Island.

The Grievor and Mr Camaibau have what in Fijian custom is a special relationship known as "tauvu". They had known each other for some years outside of the workplace.

The Tribunal accepts that although he apologised to his supervisor, Mr Lovovou, shortly after the incident, the Grievor has not apologised to Mr Camaibau, nor has he attempted traditionally to seek forgiveness.

Mr Camabau returned to work on the following Monday morning. The workplace Supervisor, Mr J Rosa, had heard about the incident and instructed Mr Camaibau to report the matter to the Police and go and see a doctor. Mr Rosa arranged for Mr Camaibau to be driven to Nabua Police Station. It would appear that Mr Camaibau was given a blank medical report to be completed by the medical practitioner to whom Mr Camaibau was directed to report by the Police at Nabua.

Mr Camaibau stated that he received a prescription from the doctor for the pain but could not afford to present it at the pharmacy. Mr Camaibau did not go to the CWM Hospital.

When the Grievor and Mr Camaibau saw each other at work on Tuesday 7 June 2006, Mr Camaibau informed the Grievor that he had been pressured to complain about the incident.

By letter dated 7 June 2006 the Employer’s General Manager Human Resources (GMHR), Mr I Sagoa, advised the Grievor that he faced disciplinary action as a result of the incident. Omitting formal parts, the letter stated:

We are investigating a report in which you are alleged to have willfully and unlawfully assaulted Mr Livinai Camaibau on Friday 06th June 2006. As a consequence, Mr Camaibau received extensive injuries that needed medical treatment. Your action shows total disrespect for your colleagues, the very people you should be working together as a team.

One of the Group’s values is based on teamwork and the least we could have expected of you is to work as team and help your work colleagues. Assaulting a fellow worker in the eyes of fellow colleague is an unaccepted behaviour and we are treating the matter seriously.

By conduct, you have acted in breach of the Company’s business procedures and TFL Staff Circular No 17/2002. It must be made known that the safety of our employees is everyone’s responsibility. However, you have contravened this by assaulting Mr Camaibau. To this end, you are required to explain as to why you should not be held accountable/disciplined for your unacceptable behaviour, wherein you breached standard rules/procedures.

Under the circumstance 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 (e) is guilty of any improper conduct.

Charge 4: CIM II Paragraph 49 (r) acts in a manner that is likely to bring the Company into disrepute.

Charge 5: CIM II Paragraph 51 (b) where the employee is guilty of misconduct inconsistent with the fulfillment of the expressed or implied conditions of his contract of service:

Further, we regret to inform you that in the interest of fairness you are required to proceed on leave without pay effective today 07th June 2006, pending further investigations.

You have five (5) days from the date of this letter to provide written explanation of your actions or show cause as to why you should not be disciplined. Should you fail to respond within the required time, you are deemed to have pleaded guilty to the charges.

It should be noted that the writer of the letter stated the wrong date. The date of the incident was Friday 2 June 2006.

Furthermore, the letter was inaccurate when it stated that Mr Camaibau had received extensive injuries that needed medical treatment. That simply was not consistent with the evidence.

Finally, the Tribunal is not satisfied that the assault was willful in the sense that it was intended, planned or premedidated. On the evidence before it, the Tribunal is satisfied that the assault was an over- reaction on the part of the Grievor to the teasing by Mr Camaibau.

There was no satisfactory explanation provided at the hearing as to why the Grievor was not charged with assaulting another employee under clause 49 (j) of the Corporate Instructions Manual II (CIM II). It would appear that the Employer had decided that it wanted to discipline the Grievor by charging him with as many offences as possible and thereby establish justification for summary dismissal under clause 51 for gross misconduct.

As requested, by letter dated 8 June 2006, the Grievor replied to the Employer. His letter stated.

"With response to your letter concerning the above I want to thank you for giving me an opportunity to clarify my stance on the incident. On the mentioned date Friday 2nd June, 2006 and not 6th as stated, I was working with Mr Camaibau and Mr Taniela Lovovou at Ackland Street on faults that was pending for so long despite numerous attempt by other technicians. Consequently it took us the whole day to tackle these faults, which showed the complicated technicalities that we faced.

Heavy duty manholes and pits opened and closed numerous times, vehicles are to be driven to and from cabinets and exchanges every now and then, excavations for buried pits and manholes etc. These were performed with conjunctions and with the different types and sizes of heavy industrial vehicles which congested the street. Let alone noise, smoke and direct sunlight.

As always, Mr Camaibau is always in a playful mood with me because of our traditional ties "Tauvu" (Vanua Balavu/Gau). Although this relationship was taken advantage of, sometimes during our job in the past but I always solved it. But on this particular day, I think the stress and the pressure of our duties which make me laid few hands on him. After a few seconds when I regained my consciousness, then I realized what I did.

I regret it. I apologized to him and Mr Lovovou, to our sections, and whoever concerned, please convey my apologies.

I know that I spoiled our relationship and comradeship with Mr Camaibau, it shouldn’t go this far but I allow the devil to use me to hit my brother, colleagues.

Sir, whatever decision that you may make please do think of my family, my eldest son is in the 2nd year at FIT. This will not happen again if I will be given a chance. Once again I regret what I did. May God bless?

By letter dated 20 June 2006, the Grievor was informed that his employment had been terminated. The letter stated :

"It is with regret that we write to confirm our decision to terminate your employment from the Company effective close of business today, Tuesday, 20th June, 2006.

We have had the benefit of perusing the file containing allegation that were made against you for allegedly assaulting your fellow colleague. Mr Livinai Camaibau on Friday, 2nd June 2006. We have also noted your explanation in which you have freely admitted assaulting Mr Camaibau. The assault was an unlawful assault on a fellow colleague who received injuries as a result.

That aside, the police have also confirmed that you were arrested and charged with assault occasioning actual bodily harm with regards to Mr Camaibau’s complaints. The matter is now before the judiciary and you are well aware of this development. The case against you will be called at the Suva Magistrate’s Court on Monday 17th July, 2006.

In light of the above and without prejudice to the outcome of court proceedings, we are treating the matter seriously. Assaulting a fellow colleague in the eyes of a fellow employee is considered a serious breach of misconduct that cannot go unnoticed by Management. The Company is committed to ensuring that all employees are treated fairly and with respect and dignity.

We are satisfied that you have committed a serious breach of misconduct and for this reason, it is deemed necessary to take this course of action to safeguard the interests of all employees.

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

It would appear that the decision to summarily dismiss the Grievor was based on an e mail report prepared by the GMHR, a hard copy of which was put into evidence at the hearing. This report stated:

If there are no other circumstantial evidence then it is clear which action to take without delay.

Joe

Bula Norman

Be advised that we have completed our investigations into the complaint against the above named. He is alleged to have assaulted a fellow worker, Livinai Camaibau at the work their site in Vatuwaqa on Friday, 2nd June, 2006. The victim received injuries as reflected in the medical report.

Facts:

Jone Kelo (suspect) and the victim are from the stroll base. Both were repairing cable fall on the day in question including another fellow worker, Taniela. The victim jokingly touched the right hand side pocket of Jone Kelo and asked him if he had a lot of money. The suspect then asked the victim if he wanted some money, to which he replied and said no. The suspect stood up and threw three (3) punches on the right side of face of the victim who fell to the ground. The suspect walked away a few meters, returned and threw another two (2) punches on the victim on the same spot. Taniela who witnessed the incident then called out and intervened.

The Police

The matter was reported to the police by the victim on 5th June, 2006. The suspect has been arrested/charged with Assault Occasioning Actual Bodily Harm. The suspect has been released on bail for court at the Suva Magistrate’s Court On Monday, 17th July, 2006.

Leave without Pay

The suspect is on leave without pay effective 7th June, 2006 pending outcome of investigations

Disciplinary record

The suspect has one disciplinary offence dated 15th December, 1989 for consumption of alcohol during working hours.

Summary

An unprovoked assault on the victim in the eyes of another fellow worker. The offence is a zero tolerance. The matter is now before the judiciary. Frank/Timoci Motokula (Union) are aware of the case.

Recommendations

Assaulting a fellow worker is an unacceptable behaviour striking the victim twice proves criminal intent and unlawful act. Without prejudice to the outcome of the court proceedings recommend termination of employment effective immediately.

This was apparently the only material placed before the Chief Executive Officer when he decided that "it is clear which action to take without delay".

On 17 July 2006 the Grievor pleaded guilty and as a first offender was fined $100 and ordered to pay $100 compensation to Mr Camaibau. The amount of $200 was paid to the Court by the Grievor on 31 August 2006.

At the outset the Tribunal considers it appropriate to express some concern at the manner in which the Employer has dealt with this incident.

The Employer’s Staff Circular No 22 of 2002 dated 15 July 2002 set out policy guidelines to ensure consistency in the manner in which the disciplinary procedures stipulated in CIM II were applied. In the Circular it is clearly stated that it is the Employer’s policy that all disciplinary actions be dealt with promptly, fairly, consistently and in conformity with the procedures detailed in CIM II.

At the conclusion of the Circular it is stated that "the objective of disciplinary action is always to return the employee to an acceptable and positive level of behaviour or work performance. Dismissal remains the last resort." It is also stated that the Employer must show that any decision to dismiss was warranted in substance and that the decision was arrived at in a procedurally fair manner.

For the assistance of those responsible for the implementation of the procedures set out in CIM II and for the implementation of the policy guidelines set out in the Staff Circular, attached to the Circular was an Appendix with a table of common types of offences and the associated penalties that go with them.

The Tribunal is satisfied that the misconduct to which the Grievor made an admission amounted to the offence under clause 49 (j) of CIM II. This is described in the table as "assaults another employee e.g. physical and verbal assault." The penalty for a first breach of this clause is to be a first warning, a second warning or a last warning. The level of warning imposed is to reflect the gravity of the breach. It is also stated that suspension and/or reduction of salary and transfer are to be considered as a first option.

If the Employer had proceeded to discipline the Grievor in respect of the assault under clause 49 (j) then, in this case, dismissal would not have been one of the penalties available to the Employer.

However by proceeding against the Grievor under clause 49 (n) for acting in a manner that is likely to bring the Employer into disrepute the Employer was able to impose the penalty of summary dismissal for gross misconduct, pursuant to the table in the Appendix.

The Employer did not satisfactorily explain why the Grievor was not charged as a first offender under clause 49 (j) for physically assaulting another employee. The Tribunal does not consider the previous disciplinary incident to be of any relevance whatsoever to the present Dispute. It occurred some 17 years earlier for the unrelated matter of consuming alcohol during working hours.

From the material before the Tribunal it would appear that the decision to summarily dismiss the Grievor was based on the conclusion that the assault constituted behaviour which brought the Employer into disrepute. It was also based, according to the evidence given by GMHR, on the fact that the Employer had adopted a zero tolerance policy in respect of this type of misconduct.

The application of the Employer’s zero tolerance policy must be consistent with the provisions of section 28 of the Emloyment Act Cap 92. Section 28 retains an Employer’s common law right to summarily dismiss an employee in the circumstances which are listed in the section. However, even if the misconduct falls within one of the listed circumstances, it must still be sufficiently serious to justify discharge of the contract of employment at common law.

If the zero tolerance policy means that any misconduct falling within the policy will automatically activate disciplinary proceedings then there is no problem. If the policy means automatic dismissal, then there is a problem in relation to section 28 of the Act.

The Fiji Court of Appeal, citing Scott J with approval, noted:

"- - - the section (28) did not confer an unfettered right to dismiss an employee where any of the matters specified in section 28 was found to exist, rather it removed the common law right to dismiss except where paragraphs (a) to (e) applied."

(See Fiji Public Service Association and Satish Kumar –v- The Arbitration Tribunal and FTIB unreported civil appeal No 13 of 1999 delivered 19 February 2002 at page 10).

As a result, a zero tolerance policy which automatically renders an employee liable to summary dismissal may not be consistent with either section 28 of the Employment or with the observations of the Court of Appeal.

Therefore the Tribunal has concluded that not every assault will automatically justify the imposition of summary dismissal. The appropriate approach for dealing with an employee’s misconduct involving assault was discussed by the Tribunal in BP (SS) Co Ltd and WR Carpenter Groups Salaried Staff Association –v- Carpenters (Fiji) Ltd Award No 4 of 2000. The Tribunal noted at page 4 :

"However, in assessing whether in any particular case the action in question justifies summary dismissal, employers and arbitrators and courts must still look at the actual circumstances to assess the real seriousness of the misconduct and to see if thee are any extenuating circumstances".

In the same Award, the Tribunal noted that in the absence of extenuating circumstances, physically assaulting a fellow employee in circumstances which endanger the safety, health or well being of other employees is a ground for summary dismissal.

It is not disputed that the Grievor physically assaulted a fellow employee at work and during working hours. Having observed both the Grievor and Mr Camaibau during the hearing, it has to be said that the Tribunal has some doubt about whether Mr Camaibau had genuinely felt that his safety or well being was endangered. He certainly did not consider it necessary to use any force against the Grievor. The incident occurred as a result of some aggravating teasing of the Grievor by Mr Camaibau and the Grievor has over-reacted.

The Tribunal is required to determine whether there were any extenuating or mitigating circumstances. The matters which the Tribunal should consider were also discussed in Award No 4 of 2000.

In that Award the Tribunal observed (at page 5) that one important factor to be considered in assessing the seriousness of the misconduct is the identify of the Grievor and "his victim". An incident involving two employees who were about the same level (in fact the Grievor was senior to Mr Camaibau) which does not challenge or undermine management’s authority may be considered less serious than an assault on a supervisor, manager or senior employee. This is even more so when the incident either involved or emanated from "horseplay".

Another matter which is relevant in assessing an appropriate disposition is the actual intention of the Grievor and the circumstances of the assault. The Tribunal is satisfied that the Grievor had not formed a premeditated intention to maim or injure Mr Camaibau. There was an element of provocation on the part of Mr Camaibau who persisted in his behaviour which Mr Camaibau knew or ought to have known had become unwelcomed.

There was also in evidence a statement from Mr Rosa which indicated that the Grievor was under some form of stress or pressure due to problems he was experiencing with a taxi business which he had started up. Mr Rosa stated that the Grievor had been counselled due to a drop in performance. The Tribunal is prepared to accept that this personal problem contributed to the Grievor’s behaviour which on the evidence was completely out of character.

Although the Grievor apologised to his site supervisor, Mr Lovovou, shortly after the incident, it would appear that the Grievor has not formally apologised to Mr Camaibau. It is apparent from the evidence that Mr Camaibau was upset about the incident, not so much because of the minor nature of his injury, but more so because of the Grievor’s reaction to what Mr Camaibau obviously thought was acceptable behaviour to his "tauvu". It may be that this reaction has in some way discouraged the Grievor. However, eventually, an apology there must be.

The Tribunal has concluded, after a careful consideration of all the material, that the Grievor’s behaviour did not constitute gross misconduct. Under those circumstances the Tribunal does not consider that the penalty of summary dismissal was within the band of reasonable responses which was open to a prudent employer acting reasonably.

The Grievor should have been charged with physically assaulting an employee under clause 49 (j) of CIM II. The matter should have been dealt with in accordance with the procedures set out in CIM II, Staff Instruction 22/2002 and the principles of natural justice.

The Grievor should have received one of the penalties listed in the Appendix to the Staff Instruction in respect of a first offence under clause 49 (j). The Tribunal considers that a second warning would sufficiently reflect the nature of the incident.

As for the procedure followed by the Employer, the Tribunal is satisfied that the Grievor was not afforded procedural fairness. On the material before it, the Tribunal is not satisfied that the incident had been fairly investigated. The Grievor was not given an opportunity to mitigate in relation to the penalty which the Employer may have been considering. There was no opportunity given for the Union to make any representation to the Employer on the Grievor’s behalf prior to the decision to summarily dismiss the Grievor having been taken.

Under the circumstances the Tribunal has concluded that re-instatement is appropriate in this case. There is no material before the Tribunal to suggest that the Grievor should not have the trust and confidence of the Employer. Apart from this isolated incident the Grievor has over a considerable number of years demonstrated that he has been a harmonious and effective member of his Employer’s team.

The Grievor is to be re-instated with effect from the date of dismissal. He is to be paid six months arrears of salary and the balance is to be treated as leave without pay.

AWARD

The summary dismissal of the Grievor was unfair and unreasonable.

The Grievor is to be reinstated with effect from the date of dismissal. He is to be paid six months salary and the balance is to be treated as leave without pay.

DATED at Suva this 24 day of October 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL