BP (SS) Co Ltd and WR Carpenter Groups Salaried Staff Association v Carpenters Fiji Ltd [2007] FJAT 83; Award 02 of 2007 (23 January 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 2 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

BP (SS) CO LTD & W R CARPENTER GROUPS
SALARIED STAFF ASSOCIATION

AND

CARPENTERS FIJI LIMITED

Staff Association: Mr T Tabu
Carpenters: Mr J Waqaivolavola

DECISION

This is a dispute between BP (SS) Co Ltd and W R Carpenter Groups Salaried Staff Association (the Union) and Carpenters Fiji Limited (the Employer) concerning the resignation of Mr Poonavalam Mudaliar (the Grievor).

A trade dispute was reported on about 7 July 2005 by the Union. The report was accepted on 17 August 2005 by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As the Committee did not convene within the prescribed time, 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 November 2005 with the following terms of reference:

".................. for settlement over the forced resignation of Mr Poonavalam effective from 4th April 2005 by the Company. Your Union submitted that the Company’s action was unjust, unfair, harsh and wrong and therefore the Grievor should be re-instated to his present position without loss of salary or benefits from the date of termination."

The Dispute was listed for a preliminary hearing on 25 November 2005. On that day the parties were directed to file their preliminary submissions within six weeks and the Dispute was listed for mention on 27 January 2006.

The Union filed its preliminary submission on 6 January 2006.

On 27 January 2006 the Employer was granted an extension of seven days to file its preliminary submissions and the Dispute was relisted for mention on 24 February 2006. Again on 24 February the Employer was granted a further 14 days to file its submissions and the Dispute was listed for mention on 24 March 2006. As there was no appearance by the Union on that day and as the Employer had only filed its preliminary submissions on 23 March, the Dispute was listed for special mention on 31 March 2006.

On 31 March 2006, the parties informed the Tribunal that they intended to call a total of 16 witnesses. As a result the Dispute was fixed for a three day hearing to take place from 19 to 21 June 2006.

The hearing of the Dispute commenced on Tuesday 20 June and was completed on 21 June 2006. During the course of the hearing the Employer called eight witnesses and the Union called four witnesses to give evidence.

At the conclusion of the evidence, the parties sought and were granted leave to file written final submissions. The Employer filed its final submissions on 12 September 2006. The Union filed answering submissions on 7 November 2006. By letter dated 9 January but sent by facsimile on 12 January 2007 the Employer advised the Tribunal that it did not intend to file a final reply submission.

The Grievor commenced employment with the Employer as a salesman in March 1976. He was promoted to the position of Chief Clerk in October 1988. He held that position up to April 2005 and was based at the Suva City Homemaker Store.

In a letter dated 16 March 2005, an employee by the name of Monika Devi (the Complainant) complained of sexual harassment by the Grievor. Omitting formal parts the letter sated:

"I Monika of City Homemaker would like to lodge a formal complain about Ponna Balam (Chief Clerk).

This is as follows:

He always harasses me everytime. He tries to touch my breast and tickles me all the time.

At times he has tried to kiss me on the lips and sometimes when no one in the office he calls upstairs and wants to touch my private parts. And he saying no one is doing your accounting work, only he knows and he takes advantage of his position. When I ignore him then he tries to threaten me. I have so many times stopped him doing that and even though he continues his behaviour.

Sir, if I could be transferred to another store as soon as possible."

Although the letter was not addressed to any person in particular, the Complainant stated in her evidence that she gave the letter to the Station Store Manager, Ms Babita Naidu, who passed the letter to a Mr S Mudaliar who was the Assistant General Manager at the Homemaker Store.

Mr Mudaliar stated in his evidence that after he received the Complainant’s letter he discussed the matter with Mr E Tulele who was the Employer’s Manager Human Resources. Mr Tulele appointed a Mr Pawan Sharma to investigate the complaint. A report was prepared and delivered to Mr Tulele.

The Report was dated 18 March 2005. It confirmed that the investigators had interviewed the Complainant, the Grievor, Mr Mekemeke and Mr Ali. The investigators concluded that the Grievor’s actions amounted to sexual harassment and recommended appropriate action as the
Grievor had commited what was termed "gross misconduct".

Although the Report referred to a letter dated 17 February 1997 concerning an earlier incident involving the Grievor, the Tribunal does not attach a great deal of weight to an incident which occurred eight years earlier. Mr Tulele apparently passed the report on to Mr Mudaliar. Mr Mudaliar had a meeting with the Grievor on 4 April 2005 about the complaint and the Report.

The Tribunal accepts that the Grievor was given the option of either resigning or the matter would be referred to the Police. In a handwritten letter dated 4 April 2005 the Grievor chose to resign. Omitting formal parts the letter stated :

"I Poonavalam would like to forward my resignation as from 4/4/05. I would like to thank all for their support during my stay with MH."

In a letter dated 5 April 2005 the Employer wrote to the Grievor as follows :

"Your resignation letter dated 04/04/05 is hereto accepted.

Management wish to thank you for your contribution during your term of employment in the Company. The Company shall pay you one month’s pay as per your entitlement.

We wish you all the best in your future endeavours."

The Tribunal finds that in this case the Grievor was effectively instructed to resign. The alternative that the matter be reported to the Police put the Grievor in a position where he was really forced to resign. Under the circumstances the Tribunal has concluded that the Grievor did not voluntarily resign.

The Tribunal also accepts that the payment of one month’s wages by the Employer rendered the termination of employment as one of termination by payment in lieu of notice.

As a result the Employer was required to establish that it acted in good faith and fairly when it terminated the Grievor’s employment.

Although the Complainant’s letter did not refer to a specific incident, it would appear that the letter was written following an incident which allegedly occurred in the tea room at the Homemaker store in the afternoon on 15 March and another incident early in the morning on 16 March 2005. The Complainant gave evidence as to what had happened on each occasion.

The incident which occurred in the afternoon on 15 March 2005 was witnessed by another employee, Mr Zulfikar Ali. His evidence corroborated the Complainant’s evidence.

The incident which occurred in the morning on 16 March 2005 was witnessed by Mr Siga Mekemeke who was employed at the Homemaker Store in a security role. His evidence also corroborated the Complainant’s evidence.

The Station Store Manager gave evidence to the effect that the Complainant had come to her during lunch break on 16 March 2005 because the Complainant said that she felt more comfortable discussing the matter with a female manager.

The evidence given by Mr Ali and Mr Mekemeke during the course of the hearing, whilst being more detailed than the contents of written statements made by them shortly after the incidents, was not inconsistent with those statements.

In his evidence the Grievor sought to rely on a written statement dated 19 June 2006 which was admitted into evidence. In that statement the Grievor only briefly referred to the two incidents in the tea room. He denied the incidents and added that staff were there all the time having their tea breaks and lunch.

The Grievor’s evidence was that the allegations were in effect manufactured by the Complainant because she had not been given a short term promotion and because he had disciplined her for wasting time and being away from the work place.

Having carefully considered the evidence the Tribunal is satisfied on the balance of probabilities that in the late afternoon on 15 March 2005 the Grievor entered the tea room at the City Homemaker Store and sat next to the Complainant. The Tribunal is satisfied that the Grievor then kissed the Complainant on her cheek and placed his hands on her shoulders.

The Tribunal is also satisfied that early in the morning on 16 March 2005 in the same tea room the Grievor hugged the Complainant from behind with his arms placed around her body.

The tribunal is also satisfied on the balance of probabilities that the contact on both occasions was unwelcomed, unsolicited and caused the complainant some distress. The Tribunal also accepts that similar incidents had occurred on earlier occasions.

The Tribunal does not accept that the Complainant was motivated to make the complaint as a result of her having been overlooked by the Grievor for temporary promotion or because she had been disciplined by the Grievor for wasting time by talking to relatives. There was no evidence adduced at the hearing to indicate that the Complainant’s personal file contained any disciplinary action by her superiors in relation to time wasting or excessive absences from the work place. The evidence established that the Complainant had discussed the matter with the station Store Manager at lunchtime on the day of the second incident.

The investigation report concluded that the allegations made by the Complainant had been established and that they amounted to sexual harassment and constituted gross misconduct.

The Tribunal has already concluded that there was sufficient grounds for the Employer to conclude that the allegations were true and had been established.

The Tribunal is satisfied that the Grievor’s conduct on both occasions amounted to behaviour of a sexual nature which was unwelcome and offensive to the Complainant and which had an adverse effect on the Complainant. As such the Tribunal is satisfied that the Grievor’s conduct on both occasions amounted to sexual harassment.

The Tribunal notes that the Complainant was junior to the Grievor. She was only in her early twenties at the time. The Grievor had been employed by the Employer for about 30 years and was the Complainant’s Supervisor. In the Tribunal’s opinion this is an aggravating factor in assessing the seriousness of the Grievor’s conduct.

The tribunal has concluded that the Employer acted in good faith when it reached the decision to terminate the Grievor’s employment by requiring the Grievor to resign or the matter would be reported to the Police.

However the Tribunal is not entirely satisfied with the procedure adopted by the Employer. Although there did not appear to be an agreement in existence between the parties at the time, it was inappropriate for the Employer to have conducted the meeting on 4 April 2005 without informing the Grievor that he could have a union representative present for the meeting.

Mr Mudaliar knew or ought to have known that the Grievor should have been informed of what is now virtually a mandatory requirement when conducting an interview which is likely to result in disciplinary action. The Grievor was not afforded procedural fairness and for that failure the Employer will be required to pay 2 months wages to the Grievor. Re-instatement is clearly not appropriate.

There is one final matter which needs to be mentioned. There was a considerable amount of evidence given during the course of the hearing concerning what can only be described as prevalent and condoned inappropriate workplace behaviour. The Employer should take appropriate and active measures without delay to ensure that all of its employees understand what are acceptable forms of conversation and behaviour in the workplace.

AWARD

The Grievor did not voluntarily resign from his employment.

The Grievor’s employment was terminated by payment of one month’s wages in lieu of notice.

The Grievor’s conduct in the tea room on 15 and 16 March 2005 amounted to sexual harassment.

The Employer acted in good faith in terminating the Grievor’s employment.

The Grievor was not afforded procedural fairness. Re-instatement is not appropriate.

The Grievor is to be paid 2 months wages in respect of the Employer’s failure to afford him procedural fairness.

DATED at Suva this 23 day of January 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL