Fiji Public Service Association v Land Transport Authority [2008] FJAT 12; Award 12 of 2008 (27 March 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 12 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

LAND TRANSPORT AUTHORITY

FPSA: Mr N Tofinga
LTA: Mr S Waqainabete

DECISION

This is a dispute between Fiji Public Service Association (the Association) and Land Transport Authority (the Authority) concerning the dismissal of Mr Krishna Kumar (the Grievor).

A trade dispute was reported by the Union on 9 January 2007.

The report was accepted on 16 April 2007 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 6 (1) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 24 August 2007 with the following terms of reference:

"- - - The dispute is over the dismissal of Mr Krishna Kumar by he Authority. The Association contends that the dismissal is unfair; wrongful, without due process and in breach of clauses 8.2.1, 8.2.2, 8.2.4, 8.2.5, 8.2.7, 8.2.9, and 8.2.10 of the Collective Agreement. The Association seeks the immediate re-instatement of Mr Kumar without any loss of salary and benefits effective from 28 August 2006."

The Dispute was listed for a preliminary hearing on 31 August 2007. On that day the parties were directed to file preliminary submissions within 14 days and the Dispute was listed for mention on 21 September 2007.

The Association filed its preliminary submissions on 28 September and the Authority did so on 5 October 2007.

The Dispute was subsequently listed for mention on 19 October and 30 November 2007 at the request of the parties.

The hearing of the Dispute took place on 28 February 2008 in Suva. Each party called one witness to give evidence. At the conclusion of the evidence the parties presented oral closing submissions.

The Grievor commenced employment in 1976 with the Department of Road Transport and continued in employment when the Department became a statutory body known as the Land Transport Authority. At the time of his dismissal he was employed as a driving examiner.

By memorandum dated 28 October 2004 the Grievor was charged with two offences referred to as counts.

Count 1 was that the Grievor acted dishonestly and without integrity contrary to clause 8.1.1 of the Collective Agreement in that he dishonestly and without integrity, purported to have sold vehicle DY 666 without informing the Authority.

Count 2 was that the Grievor did not comply with applicable Acts and subordinate legislation contrary to clause 8.1.4 of the Collective Agreement in that he failed to comply with Regulation 14 (i). Regulation 14 required a change in ownership of a vehicle to be notified to the Authority within 7 days.

In the same memorandum the Grievor was advised that he must respond to the charges on or before 15 November 2007 stating whether he admitted or denied the charges and providing any explanation that he wanted the Authority to consider.

The Grievor was also advised that he was suspended on half pay with effect from 2 November 2004.

An independent Inquirer was then appointed pursuant to clause 8.2.4 of the Collective Agreement

The Independent inquirer conducted an inquiry and reported that there was insufficient evidence to establish that the Grievor had committed the offences

As a result the Grievor was re-instated. A memorandum dated 10 August 2005 from the Authority’s Manager Human Resources (MHR) advised the Grievor that:

"Further to the findings of the Independent Inquiry, we write to inform you of your re-instatement to the position of Driving Examiner in Lautoka with effect from 2 November 2004. In compliance with the Collective Agreement Clause 8.2.9 you will be re-instated with the balance of the lost salary up to 2 August 2005.

By copy of this memo, we are also advising the Accounts Section to readjust your job evaluation backpay salary anomalies and pay you accordingly."

It would appear that owing to unrelated pending charges in the Magistrates Court, the Grievor was suspended from 3 August 2005 on half pay. Although a copy of the written advice of this decision to the Grievor was not produced, a letter dated 9 August 2005 addressed to the Union set out the position:

"We refer to your letter of 1 August 2005 reporting on the above trade dispute. The Authority had left the re-instatement of Mr Kumar in abeyance pending the criminal case against him, which the Police had been investigating. In light of the charges that has been laid against Mr Kumar and in compliance with the Collective Agreement Clause 8.2.2 and 8.2.9 we have advised Mr Kumar that he will be suspended on half salary with effect from 3 August 2005 until such time the Court lays its ruling.

Retrospectively, we have in compliance to the Independent Inquiry’s findings, advised him of his re-instatement since he will be paid the balance of the salary due from 2 November 2004 up to 2 August 2005, in addition to all the Job Evaluation anomalies."

The pending charges in the Magistrates Court were withdrawn by the State. A letter dated 11 July 2006 from the Office of the Director of Public Prosecutions addressed to the Authority"s Regional Manager Western stated:

"- - -

Please be advised that the charges against Krishna Kumar has been withdrawn reason being that a crucial state witness in the matter namely Krishna Sen Singh is not in the country to testify for the State as he is a serving prisoner in Vanuatu on counterfeit charges."

Upon receipt of this information the Authority decided to terminate the Grievor’s employment. The decision was conveyed to the Grievor by letter dated 29 August 2006 and stated:

"- - -

We note that you have been granted leave and discharged on a procedural matter. This means that your case is still pending with the prosecution for recharge if they wish should they find evidence to prove their case. There has not been any order by the Court to reinstate you. In light of this, the Management has decided to terminate your appointment as Driving Examiner with the Land Transport Authority with effect from Monday 28 August 2006.

- - - "

The circumstances under which the Authority can impose the penalty of dismissal are set out in clause 8.2.7 of the Collective Agreement. First, there must be a charge. The charge is a charge under clause 8.2.1 of the Agreement and is to be used for an alleged breach of the Code of Conduct. Secondly, there must be either an admission of the charge by the employee (the Grievor) or a finding as to the truth of the Charge by the Authority. Thirdly, the Authority is required to consider the service record of the employee and then it may proceed to impose one of the listed penalties.

In the present dispute, there was no charge against the Grievor in respect of the matters which were the subject of the Police prosecution in the Magistrates Court. Put simply, the Grievor had not been charged for a breach of the Code of Conduct in relation to the police prosecutions.

The only matters for which the Grievor had been charged as breaches of the Code of Conduct were the subject of an Independent Inquiry. The Tribunal was informed that the Independent Inquirer concluded that there was insufficient evidence to establish the charges. Those matters were clearly not, nor could they have been, the bases of the decision to summarily dismiss the Grievor.

It goes without saying that the Grievor had not admitted to any charge which may have formed the basis of the Authority’s decision to dismiss him. Furthermore there had not been any reply from the Grievor nor any report from an Independent Inquiry for the Authority to consider.

There was no evidence that the Authority had considered the service record of the Grievor before it decided to summarily dismiss the Grievor.

The decision taken by the Authority to summarily dismiss the Grievor was unreasonable, unfair and unjustified.

There was also a total lack of procedural fairness. Apart from the defects already referred to, the Grievor was not given an opportunity to be heard nor to mitigate. The Union was not informed about the disciplinary proceedings.

The summary dismissal of the Grievor was unfair in the sense that there was a denial of natural justice in the form of procedural fairness.

There was no evidence before the Tribunal to indicate that re-instatement would not be appropriate. The Tribunal is satisfied that after 30 years service the Grievor will continue to be an effective member of the Authority’s team.

AWARD

The summary dismissal of the Grievor was unjustified unreasonable, wrong and unfair.

Re-instatement is appropriate. The Grievor is to be re-instated from the date of his dismissal. He is to be paid all his wages from that date.

There is to be re-imbursement of wages in respect of any period of suspension from 3 August 2005 to the date of dismissal.

DATED at Suva this 27^th day of March 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL