Public Employees Union v Public Service Commission [2007] FJAT 86; Award 04 of 2007 (2 February 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 4 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

PUBLIC EMPLOYEES UNION

AND

PUBLIC SERVICE COMMISSION

PEU: Mr M Kaitu’u
PSC: Ms E Mua

DECISION

This is a dispute between the Public Employees Union (the Union) and the Public Service Commission (the Employer) concerning the termination of employment of Mr Kelemedi Dreu (the Grievor).

A trade dispute was initially reported by the Union on 26 April 2002. The report was subsequently rejected by the Permanent Secretary on 11 September 2002.

The Dispute was re-reported by legal practitioners on behalf of the Union on 20 December 2004. The report was accepted by the Chief Executive Officer in a letter dated 15 February 2005 which was apparently not received by the parties until about 15 April 2005.

If there was any doubt concerning the manner in which the report of the Dispute was accepted by Chief Executive Officer, neither party sought to challenge the procedure by way of a judicial review application.

The Dispute was referred by the Chief Executive Officer to a Disputes Committee. As a consensus decision was not reached, 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 25 October 2005 with the following terms of reference:

".................. for settlement over the termination of Mr Kelemedi Dreu with effect from 15/01/01"

The Dispute was listed for a preliminary hearing on 27 January 2006. As there was no appearance by or on behalf of the parties on that day, the Dispute was listed for mention on 24 February 2006. The delay in listing the Dispute for a preliminary hearing and the short notice given to the parties was due to an oversight on the part of the Tribunal.

On 24 February 2006 the parties requested the Dispute to be listed for further mention on 24 March 2006. On that day the parties were directed to file their preliminary submissions by 14 April 2006 and the Dispute was relisted for mention on 28 April 2006.

The Employer filed its preliminary submissions on 12 April whilst the Union did so on 20 April 2006.

On 28 April 2006 the parties advised the Tribunal that 12 July 2006 would be convenient for the hearing of the Dispute.

When the Dispute was called for hearing on 12 July 2006, the Union made an application for leave to file supplementary submissions. The Employer did not oppose the application. The Tribunal granted the application and fixed a schedule for the parties to file supplementary submissions.

As the Union’s application had been made at short notice, the Tribunal directed that the Union pay costs thrown away by way of expenses for the Employer’s three witnesses who were present for the hearing. The Tribunal also noted that the Grievor was not present at the Tribunal for the hearing. The hearing was adjourned part heard to 30 August 2006.

The hearing resumed on 30 August and continued on 31 August 2006. Upon the application of the Employer, which was not opposed, the hearing was adjourned part heard to Wednesday 6 September and then to 27 September 2006. On that day the Union made a further application to vacate the continuation date. Again, the application was not opposed. The application was granted and the Dispute was then listed for mention on 27 October 2006. The hearing eventually resumed and concluded on 29 November 2006.

At the conclusion of the hearing the parties sought and were granted leave to file written final submissions. The Employer filed its final submissions on 13 December 2006. By letter dated 27 December and received by the Tribunal on 29 December 2006, the Union indicated that it did not intend to file answering submissions. However the letter also touched upon a number of issues which had been covered by the Employer in its final submissions. As a result the Employer filed a brief reply submission on 19 January 2007.

In August 2000 the Griever was employed in the Public Works Department (PWD) as a driver. He had been so employed since he joined the public service in February 1991. He was at the relevant time based at the plant pool at Walu Bay.

On about 23 August 2000 the then Chief Engineer Mechanical/Electrical based at Walu Bay (Mr S Singh) became aware of reports that PWD employees were selling Government tyres around Lami. As a result he directed that an investigation into the allegations be conducted.

A written but undated report signed by Mr P Bilo as the investigation officer was subsequently forwarded to Mr Singh.

This report indicated that Mr S Narayan, Mr N Rusa, Mr E Selevasio and the Grievor were implicated in the activity. The report also indicated that written statements had been obtained from Selevasio and the Grievor These were made available to the Tribunal. It appears that Narayan could not be located. There was an indication that Rusa had also made a statement, but none was produced at the hearing.

In his evidence the Grievor maintained that he did not make or sign a written statement. He denied that the signature which appeared at the end of the statement was his. He maintained that he had been interviewed by Mr Bilo and only made an oral statement. He said that at the time thee was no one else present other than Mr Bilo. He also said that he had never seen the statement before the hearing. He claimed that Mr Bilo did not make any notes during the meeting.

The copy of the Grievor’s statement is handwritten. There was no evidence as to whose handwriting it was. The Grievor denied that it was his. The statement is undated and not witnessed. It is not possible for the Tribunal to determine whether the statement was or was not signed by the Grievor. He acknowledged that the letter of appeal dated 16 January 2001 was signed by him. The Tribunal is not able to conclude that the two signatures were not written by the same person. There was no expert evidence called on the matter.

The Tribunal notes that the investigation report referred to a statement made by the Grievor. It is not clear whether the writer of the Report was referring to an oral or a written statement. The inference however is that the writer of the Report appeared to be relying on a written statement made by the Grievor.

The Report concluded that the Grievor had driven Selevasio (a floor boy) to Government Supplies without authorization on 22 August 2000. The Report also stated that the Griever assisted Selevasio to load four tyres into vehicle number GL 678. The report stated that they proceeded to Lami where the tyres were sold by Selevasio who received $500.00. The report stated that Selevasio then gave $160 to the Grievor for his part in the activity.

The Report is based primarily on the statement made by Selevasio and to a lesser extent on the alleged statement made by the Grievor. The Report is not particularly well written and is inaccurate in the sense that it referred to the Grievor’s involvement having taken place on 22 August 2000. The statement allegedly made by the Grievor said the incident occurred on 23 August 2000. Selevasio’s statement also said that the Grievor’s involvement was on 23 August 2000.

The Author of the Report has himself cast some doubt on the reliability of Selevasio’s statement where it is stated on page 2 that "Eneriko Selevasio has lied in all aspect ..........................."

Mr Singh indicated that upon receipt of the Report, the Management Committee met and decided to write to the Grievor. A memorandum dated 21 September 2000 from the Chief Engineer Mechanical/Electrical was addressed to the Grievor. It is appropriate to quote the memorandum in full:

"You have been alleged that:

i) On Wednesday 23 August 2000, you took Eneriko Selevasio to Government Supplies in the GL 678 little after mid-day and assisted him in loading 4 tyres of 900 x 20.

ii) You went with him to Lami Town and stopped the vehicle opposite ANZ Bank and off-load the tyres. After un-loading you drove into Lami Town before picking Eneriko and return to Plant Pool.

iii) Eneriko gave you $160.00 as cost of your assistance.

With the above allegations, the Management is giving seven (7) days with effect from the day you receive this memo to reply.

Failure to response will mean that the allegations are true".

There are a number of matters concerning this memorandum which require comment. First, it is apparent that the details contained in the memorandum were derived from Selevasio’s statement and not the investigation report itself. The statement must have therefore accompanied the Report.

Secondly, if the Grievor’s statement was made in writing before the Report was compiled, it too should have accompanied the Report. There is a reference to the Grievor’s "recorded statement" in the report. However that raises the question why the management sought a written answer to the allegations when the Grievor had already provided his written statement on the matter.

It should also be noted that the Grievor later that day (23 August 2000) proceeded on six days leave in lieu of overtime worked. He returned to work on 30 August 2000.

The Grievor did not respond and in his evidence he denied ever having received the memorandum. Mr Akuila Kaci gave evidence that he drafted and signed the memorandum. Although Mr Kaci stated that the dispatch book indicated that the Grievor had acknowledged receipt of the memorandum, the Employer did not tender the dispatch book as evidence.

It would appear that the matter was subsequently referred to the Ministry’s Head Office. The Director of Personnel gave instructions that the Grievor was to be dismissed.

By memoranduim dated 12 January 2001 signed by the Chief Engineer Mechanical/Electrical (Mr S Singh) the Grievor was informed that he was being dismissed. Omitting formal parts, the memorandum stated :

"With reference to our internal investigation in tyre racket and without any reply to our memo dated 21/9/2000 you have been alleged on the following incidents:-

1. There was no written instruction from the Despatcher for you to take Eneriko Selevasio to Government Supplies to purchase tyres for our store.

2. On Wednesday 23/8/2000, you unauthorisedly took Eneriko to Government Supplies in the GL 678 little after mid-day and assisted him in loading 4 tyres of size 700x 15. You knew very well that in accordance with your instruction, you were to report to Pool Supervisor.

3. You unauthorized drove the vehicle GL 678 down to Lami Town on the instruction of Eneriko (Floorboy) without the Pool Supervisor’s knowledge and unloaded them opposite ANZ Bank.

4. You received $160.00 cash from Eneriko and brought him back to Plant Pool.

5. Failing to report the incident to your immediate Supervisor.

The Managements will not condone such unfaithful person to work with as you knew very well that theft had occurred but you kept it to yourself. If you had reported it, the case would not have gone this far.

However in receiving money from selling unauthorized purchasing of Government Stores and illegally assisting in the transportation until the time they were sold showed the Management your accountability in carrying out this criminal act in which you are party to offence.

Therefore, in accordance with the JIC Agreement Section X, Clause 37 (a), "For a serious act of indiscipline an employee may be summarily discharged without notice on the authority of an Officer-in-Charge".

With reference to the above, you are to be advised that your service is now terminated with effect from 15/01/01.

The Grievor acknowledged that he had received the dismissal memorandum. He wrote a letter dated 16 January 2001 to the Permanent Secretary which amounted to an appeal against his dismissal. This letter, omitting formal irrelevant parts, stated :

"My compulsion to appeal the verdict of our inquiry regarding the "Tyre Theft" case here at Plant Pool, Walu Bay, is very very alive and strong, and was advised by various staff member that I direct my letter to your office.

As I had insisted all throughout this investigation, I innocently drove the accused from Point "A" to Point "B" which is very similar to chores or tasks that I carry out daily. I also consider it a favour to drop anyone en route, and I find no particular reason to suspect anything on this said day.

That was my mistake and downfall, as I was informed later on. I was a conduit and used to transport "HOT" stolen Government material. I felt very enraged, embarrassed, silly for being so subtle and innocent.

Yet I will strongly emphasise here what I had been maintaining all along, and that is my innocence."

The Tribunal notes that the Grievor did not make any reference in his appeal letter to not having received the memorandum dated 21 September 2000.

It is also interesting to note that in general terms the explanation given by the Grievor in his appeal letter was consistent with the contents of the written statement which the Grievor was alleged to have signed as part of the investigation. He also acknowledged that he had insisted throughout the investigation that he was innocent.

The Ministry did not respond to the Grievor until a letter dated 29 May 2001 informed the Grievor that his appeal had been rejected. In so doing, the Tribunal is not able to determine whether the Ministry was made aware of a letter dated 3 April 2001 from ASP/Crime Central (Pon Sami Chetty) of the Fiji Police addressed "To Whom It May Concern" which stated:

"This is to confirm that Kelemedi Dreu f/n Meli Vukinano, 31 years of Quarters 119 Domain Road is a prosecution witness in a Larceny by Servant case against Eneriko Selevasio and the case is before the Court.

We are not in any way treating him as a suspect in the said case:."

Having considered the evidence and the submissions, the Tribunal, on the balance of probabilities, has reached certain conclusions concerning the matters in dispute.

First, the Tribunal is satisfied that the Grievor made and signed a written statement sometime between 30 August and 21 September 2000.

Secondly, the Tribunal is satisfied that the Grievor received the memorandum dated 21 September 2000 signed by Mr Kaci.

Thirdly, the Tribunal is not satisfied that the Grievor knowingly played a role on 23 August 2000 which would have rendered him as a participant in a criminal activity.

Fourthly the Tribunal is not satisfied that the Grievor received $160 from Selevasio, the floorboy, on 23 August 2000 as proceeds from the sale of four tyres.

Fifthly, the Tribunal is satisfied that the Grievor drove Selevasio to Government Supplies and to Lami without the appropriate authorization from his Supervisor.

Finally, the Tribunal is satisfied that the Grievor failed to report to his Supervisor what he knew or ought to have known was at the very least an unusual activity. There was no evidence before the Tribunal to suggest that a floorboy would have the necessary approval or authority to collect and then dispose of four tyres in the manner described by the Grievor The Tribunal rejects the Grievor’s contention that he did not know what was happening.

As a result the Tribunal has concluded that although a reasonable employer may not have concluded that discharge under clause 37 (a) was appropriate, there was a strong case for concluding that the employer could in good faith have discharged the Grievor under clause 37 (b) of the JIC Agreement by giving one week’s notice or equivalent pay in lieu of notice.

The Tribunal considers that the various breaches of the regulations would have been grounds for either a strong formal warning or perhaps suspension clause 36 (a) of the JIC Agreement.

The more serious aspect of the Grievor’s misconduct was the failure on his part to report what he had observed whilst driving Selevasio to Government Supplies and Lami on 23 August 2000. This amounted to a breach of trust and confidence which could not be justified under the circumstances.

The evidence before the Tribunal indicated that at no stage during the investigation or disciplinary proceedings did the Employer make any effort to involve the Union.

Even if the JIC Agreement was silent on the matter of union participation in disciplinary proceedings, especially when dismissal and/or termination was being considered, the Tribunal is satisfied that the constitutional right to fair labour practices and modern industrial relations practice dictate that such participation should be considered an essential step in the discipline process.

The Tribunal considers this failure on the part of the Employer to involve the Grievor’s union in the matter amounted to procedural unfairness.

The Tribunal is satisfied however that re-instatement is not appropriate as the Grievor could not be regarded as having the trust and confidence of the Employer. The Grievor is entitled to an additional 2 months salary in respect of this failure to afford him procedural fairness.

Finally, the Tribunal noted that the Employer could not produce any documentation to support its contention that the Grievor’s personal work record showed that there were prior cases of misconduct.

AWARD

The Grievor’s discharge under clause 37 (a) of the JIC Agreement was unreasonable. However there were grounds for a reasonable employer acting in good faith to discharge the Grievor under clause 37 (b) of the JIC Agreement by giving 1 week’s notice or payment in lieu.

By not involving the Union the Employer denied the Grievor procedural fairness.

The Grievor is entitled to one week’s pay pursuant to clause 37 (b) of the Agreement and two months pay in respect of the denial of procedural fairness.

DATED at Suva this 2 day of February 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL